This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Joseph W. PUGH, Major

United States Air Force, Appellant

No. 17-0306

Misc. Dkt. No. 2016-11

Argued October 11, 2017—Decided November 7, 2017

Military Judges: Natalie D. Richardson and Brendon K. Tukey

For Appellant: Major Annie W. Morgan (argued); David P. 

Sheldon, Esq. (on brief).

For Appellee: Major Tyler B. Musselman (argued); Colonel

Katherine E. Oler; Lieutenant Colonel Joseph J. Kubler (on 

brief); Major Meredith L. Steer and Captain Matthew L. 

Tusing.

Judge SPARKS delivered the opinion of the Court, in 

which Chief Judge STUCKY, Judges RYAN and

OHLSON, and Senior Judge COX, joined. 

_______________

Judge SPARKS delivered the opinion of the Court.

Contrary to his plea at a general court-martial, 

Appellant was convicted by a panel of officer members of 

willful dereliction of duty, in violation of Article 92, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2012), by 

consuming Strong & KIND bars, a product containing hemp 

seeds, which is prohibited by Dep’t of the Air Force, Instr. 

90-507, Military Drug Demand Reduction Program para. 

1.1.6. (Sept. 22, 2014) [hereinafter AFI 90-507].1 Prior to 

 1 AFI 90-507 para. 1.1.6., states:

Studies have shown that products made with 

hemp seed and hemp seed oil may contain 

varying levels of tetrahydrocannabinol (THC), an 

active ingredient of marijuana, which is 

detectable under the Air Force Drug Testing 

Program. In order to ensure military readiness, 

the ingestion of products containing or products 

derived from hemp seed or hemp seed oil is 
United States v. Pugh, No. 17-0306/AF

Opinion of the Court

2

presentencing proceedings, Appellant filed a motion to 

dismiss on the ground, inter alia, that the AFI forming the 

basis of the alleged dereliction was not a lawful order. The 

military judge reserved ruling and allowed presentencing 

proceedings to continue. Following their deliberations, the 

members adjudged a sentence of dismissal. Prior to 

authentication of the record, the military judge granted 

Appellant’s motion to dismiss finding AFI 90-507 unlawful 

because it was overly broad and therefore did not serve a 

valid military purpose. After hearing arguments at a posttrial Article 39a, UCMJ, 10 U.S.C. § 839(a) (2012), session, 

the military judge denied the Government’s motion for 

reconsideration. The military judge subsequently 

authenticated the record. 

The Government appealed the ruling pursuant to Article 

62, UCMJ, 10 U.S.C. § 862 (2012). The United States Air 

Force Court of Criminal Appeals reversed the military judge

and reinstated Appellant’s willful dereliction of duty 

conviction. Appellant then petitioned this Court, and we 

granted review on the following issue: 

WHETHER THE MILITARY JUDGE ERRED 

IN FINDING THAT AFI 90-507 SERVES NO 

VALID MILITARY PURPOSE AND 

DISMISSING THE ADDITIONAL CHARGE 

AND ITS SPECIFICATION. 

For the reasons sets forth below, we hold that although 

AFI 90-507 may have a valid military purpose, it is overly, 

and inappropriately, broad as it pertains to Food and Drug

Administration (FDA) approved food products. Accordingly, 

the decision of the lower court is reversed.

I. Background

During his initial ruling on Appellant’s motion to dismiss

and his ruling on reconsideration, the military judge, in 

relevant part, made the following factual findings:

 

prohibited. Failure to comply with the mandatory 

provisions of this paragraph by military 

personnel is a violation of Article 92, UCMJ. 

Violations may result in administrative 

disciplinary action without regard to otherwise 

applicable criminal or civil sanctions for 

violations of related laws.
United States v. Pugh, No. 17-0306/AF

Opinion of the Court

3

Hemp used for manufacturing or in the food industry is 

legal for import and sale in the United States, but currently 

is illegal to grow. The use of hemp in food products marketed 

and sold in the United States is heavily regulated. In order 

to be legally sold, the hemp must undergo washing and 

industrial processing designed to eliminate all but the most 

minute trace amounts of THC. As a result, legally available 

hemp food products sold in the United States contain 

vanishingly small amounts of THC.

Strong & KIND bars are a variety of protein bars that 

come in many flavors. These bars contain hemp seeds as an 

ingredient. The bars are legal to purchase and consume 

throughout the United States, can be found in many 

retailers, and have been sold in commercial venues on 

military installations. Legally available commercial food 

products containing hemp, such as Strong & KIND bars, do 

not contain enough THC to trigger a positive finding by the 

Air Force Drug Testing Program.

The military judge identified the following ways food 

products containing hemp could theoretically impact the 

validity of the Air Force Drug Testing Program: (1) food 

products sold in unregulated venues, such as a farmers’

market, could illegally contain hemp that has not been 

through the rigorous processing required by regulatory 

agencies such as the FDA; (2) commercially regulated food 

product could experience a failure in its manufacturing 

process that would lead to the inclusion of unwashed and 

unprocessed hemp seeds;2 (3) airmen could purchase a 

locally legal product while overseas that could contain 

unprocessed hemp; and (4) airmen could purchase a hemp 

food product over the Internet that would be otherwise 

illegal for sale in the United States that contains amounts of 

THC above those allowed by the FDA for hemp food products 

sold legally in the United States.

The military judge granted Appellant’s motion to 

dismiss, finding criminalizing the consumption of an entire 

class of legal, well-regulated, commercially manufactured 

and sold food products with THC levels below the detection 

threshold of the Air Force Drug Testing Program to be 

 2 The military judge found that “no evidence was presented 

indicating that such a manufacturing failure has in fact ever 

occurred.” 
United States v. Pugh, No. 17-0306/AF

Opinion of the Court

4

overly broad and therefore not serving a valid military 

purpose.

II. Standard of Review

“In an Article 62, UCMJ, appeal, this Court reviews the 

military judge’s decision directly and reviews the evidence in 

the light most favorable to the party which prevailed at 

trial.3 United States v. Buford, 74 M.J. 98, 100 (C.A.A.F. 

2015). On matters of fact with respect to appeals under 

Article 62, UCMJ, we are bound by the military judge’s 

factual determinations unless they are unsupported by the 

record or clearly erroneous. United States v. Gore, 60 M.J. 

178, 185 (C.A.A.F. 2004). The legality of a military order is a 

question of law that we review de novo. United States v. 

Sterling, 75 M.J. 407, 413–14 (C.A.A.F. 2016).

III. Discussion

The offense of dereliction in the performance of one’s 

duties requires that the following elements be proven:

(a) That the accused had certain duties;

(b) That the accused knew or reasonably should have 

known of the duties; and

(c) That the accused was (willfully) (through neglect or 

culpable inefficiency) derelict in the performance of those 

duties.

Manual for Courts-Martial, United States pt. IV, para. 

16.b.(3) (2016 ed.) (MCM).

MCM pt. IV, para. 16.c.(3)(a), states that the duty “may 

be imposed by treaty, statute, regulation, lawful order, 

standard operating procedure, or custom of the service.” A

lawful military order must: “(1) have a valid military 

purpose, and (2) be clear, specific, and narrowly drawn.” 

Sterling, 75 M.J. at 414 (internal quotation marks omitted) 

(citation omitted). To have a valid military purpose, an order 

“must relate to military duty, which includes all activities 

reasonably necessary to accomplish a military mission, or 

safeguard or promote the morale, discipline, and usefulness 

of members of a command and directly connected with the 

maintenance of good order in the service.” MCM pt. IV, para. 

14.c.(2)(a)(iv). We determine whether an order is overbroad 

 3 As the lower court’s opinion is not relevant to our review, we 

proceed directly to considering the military judge’s ruling.
United States v. Pugh, No. 17-0306/AF

Opinion of the Court

5

by “examining the specific conduct at issue rather than the 

theoretical limits of the order.” United States v. Padgett, 48 

M.J. 273, 277 (C.A.A.F. 1998); see also United States v. 

Moore, 58 M.J. 466, 468 (C.A.A.F. 2003) (explaining that this 

Court “focus[es] more directly on the specific conduct at 

issue in the context of the purposes and language of the 

order” in evaluating whether an order is overbroad).

As an initial matter, the Government challenges, inter 

alia, the military judge’s factual finding that commercial 

food products manufactured in the United States containing 

hemp seeds, such as Strong & KIND bars do not contain 

enough THC to trigger a positive drug test. In addition to 

the willful dereliction of duty offense, Appellant was charged 

with wrongful use of marijuana, in violation of Article 112a, 

UCMJ, 10 U.S.C. § 912a (2012).4 In attempting to prove 

this charge, the Government presented evidence and argued

that commercially available hemp products could never 

interfere with the drug testing because these products did 

not contain any appreciable level of THC. Specifically, the 

Government’s expert witness, Dr. David Turner, testified 

that a person could not eat enough KIND bars to trigger a 

positive drug test. This testimony is supported by defense 

expert witness Dr. Eugene Taylor’s testimony that 

commercially available food products containing hemp seeds 

do not have enough THC detectable at levels proscribed by

the Air Force Drug Testing Program.5 Accordingly, we 

conclude that the military judge’s factual finding is 

supported by the record and not clearly erroneous.

The Air Force asserts that, under paragraph 1.1.6. of AFI 

90-507, products made from hemp seed and hemp seed oil 

must be banned to ensure military readiness because they 

may contain varying levels of THC, which is detectable 

under the Air Force Drug Testing Program. In support of the 

stated purpose, the Government on appeal in this Court 

advanced the argument that “such a ban is necessary to 

protect the reliability and integrity of the drug testing 

program.” See United States v. Bickel, 30 M.J. 277, 280 

(C.M.A. 1990) (noting that drug use in the armed services 

harms the military mission because it diminishes the 

 4 The members acquitted Appellant of this charge. 

5 The military judge specifically found that the Department of 

Defense mandated “cut off” level for a positive urine sample was 

fifteen nanograms of THC per milliliter of urine. 
United States v. Pugh, No. 17-0306/AF

Opinion of the Court

6

military effectiveness of the servicemembers who are using 

drugs). However, a blanket ban on all legally available 

commercial food products sold and regulated in the United 

States does not advance this military purpose. Airmen 

ingesting Strong & KIND bars do not represent a threat to 

the integrity and accuracy of the Air Force Drug Testing 

Program because commercially available United States food 

products containing hemp seeds do not contain enough THC 

detectable at the levels proscribed by the department. True,

the Air Force has a legitimate concern in prohibiting hemp 

food products that contain enough THC to trigger a positive 

drug test. However, banning legal, properly labeled food 

products well regulated by the United States government 

under the guise of protecting airmen from unlabeled, 

unregulated, illegal food products is well beyond the 

Government’s stated purpose for the ban. The regulation is 

therefore overbroad because Appellant’s act of consuming 

Strong & KIND bars cannot interfere with the Air Force 

Drug Testing Program. See United States v. Smith, 1 M.J. 

156, 157–58 (C.M.A. 1975) (order outlawing all loans for 

profit between servicemembers is overbroad). Accordingly, 

viewing the evidence in the light most favorable to 

Appellant, we conclude that AFI 90-507 is an insufficient 

basis to support a charge of dereliction when it applies to 

legal, FDA-approved food products. 

IV. Conclusion

The decision of the United States Air Force Court of 

Criminal Appeals is reversed; the charge is dismissed with 

prejudice; all rights, privileges, and property of which 

Appellant has been deprived by virtue of that ruling are 

hereby ordered restored; and the record is returned to the 

Judge Advocate General of the Air Force for transmission to 

the convening authority for further proceedings.