A student maintains control of sample cups for a practice urinalysis test on June 9, 2022. (Sharilyn Wells/U.S. Army)
An airman who failed four drug tests won an appeal of his conviction by arguing that the source of the offending substance could have been hemp rather than marijuana.
Airman Basic Chance Byrd had been found guilty in December 2024 of wrongful use of a controlled substance. A military judge sentenced him to a bad-conduct discharge and five months’ confinement.
In contrast to marijuana, hemp is not a controlled substance under federal law. And the U.S. government’s effort to close a loophole stemming from the distinction doesn’t kick in until November.
“We are clearly convinced the finding of guilty was against the weight of the evidence,” Air Force Col. Joseph Kubler wrote in the Air Force Court of Criminal Appeals’ 3-0 ruling.
While assigned to Minot Air Force Base, N.D., in 2024, Byrd had four positive tests for delta-8 tetrahydrocannabinol, a substance also known as THC-8, according to court documents.
The case turns on whether the THC-8 he used was a controlled substance, the judges ruled.
THC is the compound found in cannabis that can produce a high. THC-8 is typically derived from hemp, which shares cannabis plant origins with marijuana.
Hemp, however, is legally defined as cannabis that contains 0.3% or less of THC and typically doesn’t elicit a mind-altering effect. Anything with more THC is considered marijuana and is a controlled substance under federal law.
Although there is no way to determine the source from a urinalysis, an expert from the Air Force Drug Testing Laboratory testified during Byrd’s trial that almost all THC-8 comes from hemp, according to court documents.
For that reason, the laboratory treats the use of THC-8 as a failure to obey a lawful military order, which “all our sister services” do, Kubler wrote in the ruling.
The appellate judges found “no evidence the THC-8 was produced in the convoluted way that would make it a controlled substance.”
Prosecutors “took the road less traveled” in charging Byrd with wrongful use of a controlled substance, Kubler wrote, borrowing a line from a Robert Frost poem.
The ruling did not address Byrd’s status following the decision or whether the Air Force will challenge it.
Though hemp is not currently barred under federal law, the U.S. military prohibits service members from using products made or derived from hemp, including CBD, hemp seeds and hemp-derived oils.
In November, some hemp products will be classified as marijuana under federal law and made illegal.
