Bilecki Presents Sleep-Aid Ingestion and Family Medical History; Soldier’s Article 15 Punishment Suspended

Bilecki Presents Sleep-Aid Ingestion and Family Medical History; Soldier’s Article 15 Punishment Suspended

May 2022

Fort Gordon, Georgia

Army Staff Sergeant – E-6

Allegations: UCMJ Article 92 Wrongful Use of THC-8; UCMJ Article 112a Wrongful Use of THC-9

Facts

This was a sixteen year Army Signal Staff Sergeant about to lose a career he had rebuilt the hard way over a Delta 8 sample gummy he picked up at a nutrition store next to a vegan protein shake.

This was not a Soldier trying to get high. The household had been running on no sleep for a month.

Our client had PCS'd from the 82nd Airborne to Fort Gordon in late 2021 after a long stretch supporting the U.S. Forces evacuation from Afghanistan during a heavy command-wide COVID outbreak. He arrived with a wife, a young son, and an infant daughter. In January 2022, his wife went into the hospital for emergency gallbladder removal. The day after surgery, she asked him to find scar cream from her last C-section, which was packed away in one of the move boxes. While he was sorting through the box, he came across two sample packets of gummies labeled as a sleep aid. He had picked them up months earlier as free checkout samples from a nutrition store while shopping for vegan protein shakes consistent with his Orthodox Christian dietary practice. He set them on the dresser and forgot about them.

A few weeks later, his wife had recovered enough to take back the night shift with the infant. On two consecutive nights, our client took the sample gummies as a sleep aid. He never read the back of the package. He never felt high. He went to bed.

A few days later, the command ran a routine unit urinalysis. He provided a sample without a thought because he had no reason to think anything was wrong. The lab report came back weeks later, positive for THC-8 and THC-9 metabolites.

The defense theory was AR 600-85 paragraph 4-2(9)(a), the "honest and reasonable" lack of knowledge that the product contained a hemp derived substance.

Bilecki focused on how the gummies came into the household and why the Staff Sergeant took them. They arrived as samples with nutrition products, sat forgotten among the moving boxes, and were used when the family’s medical problems finally allowed him a night’s rest. We connected that sequence to the Army rule concerning an honest and reasonable lack of knowledge. The question was what he understood he was taking. The sample packets, the family chronology and his account of taking them for sleep were the evidence supporting that defense.

Our client had a documented substance abuse history with alcohol from over a decade earlier. He had never failed a urinalysis in sixteen years. He had never had a "re-pee." He had never mysteriously missed a urinalysis. After his early career trouble, he had married, started a family, become an Orthodox Christian with the dietary practice that comes with it, and built a stack of stellar NCOERs. He had supported SOF and JSOC missions across two Afghanistan deployments and had a JSOC billet pending.

Our client retained Bilecki in late April 2022, after the lab report came back positive and before the Field Grade Article 15 was imposed. We submitted the AR 15-6 Rebuttal Memorandum to the Battalion Commander in May 2022. The package walked through the AR 600-85 honest and reasonable framework, the Delta 8 and Delta 9 metabolite chemistry, the family medical chronology, and the personal record. The supporting package included a JSOC recommendation memorandum, a Captain's character letter, a Master Sergeant's character memorandum, multiple peer character letters, and the Unit Commander's Evaluation.

The Field Grade Article 15 was imposed. The punishment was suspended based on the rebuttal. No administrative separation was initiated. The Soldier continued in service.

Result: Field Grade Article 15 imposed. Punishment suspended. No administrative separation. No GOMOR. No reduction. Soldier continued in service.

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FAQ

Q: Why did the labeling and retail setting matter to the defense?
The defense argued that our client honestly and reasonably did not know the sample gummies contained a prohibited substance. The presentation under AR 600-85 connected the sleep-aid labeling, the way he obtained the samples, the family’s medical circumstances, and his service record. Retail availability did not make the product permissible for military use. The commander imposed Article 15 punishment but suspended it.

Q: Can a drug test distinguish Delta 8 from Delta 9?
Appropriate confirmatory testing can distinguish their metabolites. Screening cross-reactivity is a different issue. The meaning of a particular result depends on the laboratory’s method and findings. Here, the defense addressed the reported results alongside the product and ingestion history; the result was suspended punishment, not a judicial finding that the test was scientifically invalid.

Q: How does suspending Field Grade Article 15 punishment preserve a Soldier's career?
A Field Grade Article 15 imposed under Article 15 of the UCMJ provides nonjudicial punishment (reduction in grade, forfeitures, restriction, extra duty) and a record that flows through the Soldier's personnel file. Suspension of the punishment under AR 27-10 procedures means the Battalion Commander has imposed the punishment but stayed its execution conditional on the Soldier's continued service performance over a defined period (typically six months). When the suspension period runs without further misconduct, the punishment is remitted. The Soldier is not reduced in grade, does not forfeit pay, still has the Article 15 record, subject to its filing decision, even though the suspended punishment is not executed unless the suspension is vacated. In this case the punishment was suspended. There was no administrative separation. The Soldier continued in service with no reduction.