This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________

UNITED STATES Appellee

v.

Joseph W

. P UGH

, Major

United States Air Force , Appellant

No. 17

- 0306

Misc. Dkt . No. 2016

- 11

Argued October 11, 2017

— Decided November 7, 2017

Military Judge s : 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 offic er 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 isUnited 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 derel i c tion 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, t he military j udge gran ted 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 post

trial Article 39a, UCMJ, 10 U.S.C. § 839(a) (2012) , session,

t he 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 Appe als reversed the military judge and reinstated Appellant’s willful dereliction of du ty
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
VA LID 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 Fo od and Drug
Administrati on (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

ap plicable 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 Unite d 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 amount s of THC. As a result, lega lly available hemp food products sold in the United States contain vanishingly small amounts of THC.

Strong & KIND bars are a variety of protein b ars that come in many flavors. These bars contai n hemp seeds as an ingredient. The bars are legal to purchase and consume
th roughout the United States, can be found in many
retailers , and have been sold in commercial ven ues 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 Fo rce Drug Testing P rogram.
The military judge identified the following ways food products containing hemp could theoretical ly impact the validity of the Air Force Drug Testing P rogram: (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 manufac turing process that would lead to the inclusion of unwashed and unprocessed hemp seeds; 2 (3) a irmen could purchase a locally legal product while overseas that could contain

u nprocessed hemp ; and (4) a irmen could purchase a hemp food product over the I ntern et 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 crimina lizing the consumption of an entire class of legal, well

- regulated, commercially manufactured and sold food products with THC levels below the detect ion threshold of the Air Force Drug T est ing P rogram 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 m ilitary

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 favorab le 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 th e record or clearly erroneous. United States v. Gore , 60 M.J. 178, 18 5 (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 narro wly 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

sa feguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of go od 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 spe cific 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 t he 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, t he G overnment challenges

, inter
alia

, the military judge’s factual finding that commercial food prod ucts manufactured in the United States containing hemp seed s, 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. § 912 a (2012)

. 4 In attemp ting to prove this charge, the G overnment presented evidence and argued

t hat commercially available hemp products could never
interfere with the drug testing because these products did not contain any appreciable level of THC. Specifically, t he Government’s expert witness

, Dr. David Turner

, testified
that a person could not eat enough K IND bars to trigger a positive drug test. This testimony is supported by defense expert witness D r. Eugene Taylor ’s testimony that commercially available food product s containing hemp seeds do not have enough THC detectable at levels proscribed by

the Air Force Drug T est ing P rogram

. 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, u nder 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 T esting P rogram. In support of the stated purpose , the Government on app eal 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 m ilitary 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

fift een 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 accurac y of the Air Force Drug Testing

P rogram because commercially available United States food product s 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 a irmen from unlabeled, unregulated, illegal food products is well beyond the
G overnment’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 evidenc e in the light most favorable to Appellant, we conclude that AFI 90

- 507 is an insuffici ent 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
C riminal 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.