Giles v. Secretary of Army, Civ. A. No. 77-0904.

Decision Date23 August 1979
Docket NumberCiv. A. No. 77-0904.
Citation475 F. Supp. 595
PartiesAntonio A. GILES, Jr., Plaintiff, v. SECRETARY OF the ARMY, Defendant.
CourtU.S. District Court — District of Columbia

Barton F. Stichman, David F. Addlestone, National Veterans Law Center, The American University, Washington, D.C., for plaintiff.

John Oliver Birch, Michael J. Ryan, Asst. U. S. Attys., Washington, D.C., for defendant.

MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

In this proceeding a former United States Army enlistee seeks an interpretation of the scope of a 1974 Court of Military Appeals decision involving orders to compel urinalyses as part of an Army drug rehabilitation program. That decision, United States v. Ruiz, 23 U.S.C.M.A. 181, 48 C.M.R. 797 (1974), invalidated an order compelling a urinalysis where the test results, if positive, were intended for use in an administrative discharge proceeding1 in which the service-member could be issued a less than fully honorable discharge. The military court held that the order violated Article 31 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831, which prohibits compelled self-incrimination.2

Plaintiff Antonio A. Giles was charged with drug abuse in an administrative discharge proceeding. His use of drugs was detected by compelled urinalyses ordered and secured by the Army. He was issued a general discharge prior to the ruling in Ruiz. Giles now seeks two-fold relief from the Court: first, a declaratory judgment that the use of such evidence in his discharge proceeding violated his Article 31 right against compelled self-incrimination; second, an order requiring that his discharge be recharacterized to honorable. The Army contends that a general discharge was appropriate under the circumstances.

The legal issues to be determined have been presented by the parties in cross motions for summary judgment.3 For the reasons set forth, the Court concludes that this serviceman's rights have been violated, judgment should be entered in his favor and appropriate relief otherwise granted.4

I.

In 1972, the plaintiff applied for an Army enlistment. His prior drug use was well known and indeed was revealed in two pre-enlistment examinations. In a June, 1972, examination Giles is quoted as saying that "he shot heroin daily for six months . . but hadn't shot since Feb. 1971."5 The following month he explained to an examining psychiatrist the extent of his prior drug use. The psychiatrist nonetheless found and reported:

This 23 year old enlistee has used heroin in past but never regularly. He wants to enlist to improve his education and to help support his aging parents. In my judgment, he is not drug addicted nor dependent. . . .6

Giles was accepted for a three-year enlistment. His first duty assignment post was in Thailand, a region where addictive drugs were readily available. During late 1973, as part of the Army's drug prevention program, he was compelled to render a urine sample on twenty separate occasions. Ten tests indicated drug usage. On three occasions he refused to obey orders to give samples. At no time was he advised that Article 31 authorized him to refuse giving such samples since the test results could be used to his detriment in support of a general discharge.

In early 1974, Giles was administratively separated from the Army for drug abuse detected by the compelled urine samples. He was issued a general discharge. The then applicable Army regulations recognized a servicemember's Article 31 rights but only to a limited degree. Chapter 137 under which plaintiff was separated permitted an administrative discharge for unfitness based solely on drug use "elicited as a result of an individual's volunteering for treatment or being identified by programed biochemical testing," but specified that the individual could not be given less than a general discharge.8 Servicemembers whose drug use came to the Army's attention in other ways were not so protected and they normally received an undesirable discharge.

Veterans benefits are provided automatically to those with general discharges, while the award of such benefits to those with undesirable discharges is made on a case-by-case basis. It is well recognized, however, that a general discharge carries with it a stigma with many harmful features of an undesirable discharge. Not only is a person's reputation injured and jeopardized, but employment opportunities are restricted, both in the public and private sector. Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 852, 858 (D.C.Cir. 1961).

Several months after Giles' discharge, the Ruiz court held that an order to provide a urine sample violated the UCMJ's prohibition against self-incrimination where the results were intended for use in administrative discharge proceedings. In January, 1975, the Army modified its regulations to prohibit the issuance of a less than fully honorable discharge to servicemembers separated under circumstances comparable to plaintiff's. The revised Army policy is set out in the plaintiff's pleading:9

Evidence developed by or as a direct or indirect result of a member's having volunteered for treatment, or by or as a direct or indirect result of urinalysis administered for the purpose of identifying drug abusers (either for purposes of entry into a treatment program or to monitor progress during rehabilitation or followup), may not be used in any disciplinary action under the Uniform Code of Military Justice or as a basis for characterizing a member's discharge as other than an honorable discharge.

In March, 1975, Giles applied to the Army Discharge Review Board seeking to upgrade his discharge to honorable on grounds similar to those presented here. The application was denied. He then sought and in December, 1976, was denied similar relief from the Army Board for Correction of Military Records. Having exhausted his administrative remedies, the plaintiff timely sought legal redress in this proceeding. He has since amended his complaint to add a class action allegation.

II.

Article 31 of the UCMJ provides:

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.
(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.
(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

The Ruiz conclusion that a urinalysis order violated Article 31, since any positive evidence produced could support a less than fully honorable administrative discharge, was a logical extension of earlier military court decisions. In United States v. Jordan, 7 U.S.C.M.A. 452, 22 C.M.R. 242 (1957), the court held that an order compelling a urine sample to secure evidence for court-martial proceedings violated Article 31. The accused's court-martial conviction for refusal to obey the illegal order was set aside. The following year, the same court in United States v. Forslund, 10 U.S.C.M.A. 8, 27 C.M.R. 82 (1958), took the next logical step and held that evidence procured as a result of such an illegal order was inadmissible in a court-martial proceeding. Forslund's court-martial conviction for wrongful drug use was set aside.

In Ruiz as in Jordan the accused was convicted for refusal to comply with a urinalysis order. Jordan was also dishonorably discharged as a part of the court-martial sentence. Ruiz on the other hand was not so discharged and his superior officer made it clear that he did not plan to use any drug evidence obtained to support a court-martial but only perhaps an administrative discharge. The court nonetheless found the Ruiz order illegal because of the potentially harsh consequences of a general discharge and because it did not believe "Congress intended to permit forced self-incrimination in board proceedings any more than in courts-martial." 23 U.S.C.M.A. at 183, 48 C.M.R. at 799.

III.

The government counters with an array of arguments as to why the plaintiff's contentions should be rejected:

1) Giles was discharged in February, 1974. Since Ruiz was decided later, in July, 1974, that ruling has no bearing on this case and has no retroactive effect.

2) Even if Ruiz were applied retroactively, it does not render inadmissible urinalysis evidence produced in administrative discharge proceedings. Ruiz did not provide an exclusionary rule but rather served as a prophylactic measure, precluding enforcement of orders to participate in the program.

3) Since the plaintiff never invoked an Article 31 privilege, he cannot now complain that his discharge was based on its denial.

4) Even if Ruiz were applied retroactively and encompassed an exclusionary rule, Article 31 only supports such a rule in courts-martial (i.e., criminal proceedings); evidence secured may be used in nonjudicial administrative discharge proceedings.

5) Even if the urinalysis evidence were excluded, other evidence in Giles' separation file justifies his general discharge.

In the remainder of this opinion the Court assesses the government's arguments and explains why they should be rejected.

Retroactivity

A substantial body of case law on the retroactivity issue has evolved in both the civil and criminal areas on constitutional and nonconstitutional...

To continue reading

Request your trial
4 cases
  • Walters v. Secretary of Defense
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 30, 1983
    ...urine samples could be introduced at administrative proceedings leading to less-than-honorable discharges. See Giles v. Secretary of the Army, 475 F.Supp. 595, 597-98 (D.D.C.1979), aff'd as modified, 627 F.2d 554 (D.C.1980). On one occasion, this Court approved the constitutionality of an e......
  • Roelofs v. Secretary of Air Force
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 6, 1980
    ...n. 1 (D.C. Cir. 1967); Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 852, 858 (D.C. Cir. 1961). See also Giles v. Secretary of the Army, 475 F.Supp. 595, 602 (D.D.C.1979); Stapp v. Resor, supra, 314 F.Supp. at 478; AFM 39-12, § C, P 1-22; Comment, Punishment of Enlisted Personnel Outsid......
  • Walters v. Secretary of Defense
    • United States
    • U.S. District Court — District of Columbia
    • March 2, 1982
    ...examination. He contends that his discharge must be recharacterized as honorable in light of this Court's decision in Giles v. Secretary of the Army, 475 F.Supp. 595 and 84 F.R.D. 374 (D.D.C.1979), modified, 627 F.2d 554 (D.C.Cir.1980). That class action proceeding resulted in an order upgr......
  • Giles v. Secretary of Army
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 16, 1980
    ...upon a Memorandum Opinion by the Honorable Barrington D. Parker, District Judge, dated August 24, 1979. J.App. 526-536; reported at 475 F.Supp. 595 (1979). The second order, granting plaintiff's motion to certify the case as a class action under Rules 23(a) and 23(b)(2) of the Federal Rules......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT