Giles v. Secretary of Army

• Decision Date: 16 July 1980
• Docket Number: Nos. 79-2393,79-2464,s. 79-2393
• Citation: 627 F.2d 554
• Parties: Antonio A. GILES, Jr. et al., Appellees, v. SECRETARY OF the ARMY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 554

627 F.2d 554

201 U.S.App.D.C. 95

Antonio A. GILES, Jr. et al., Appellees, v. SECRETARY OF the ARMY, Appellant.

Nos. 79-2393, 79-2464.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1980.

Decided July 16, 1980.

Mary A. McReynolds, Atty., Dept. of Justice, Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty. and Michael Kimmel, Atty., Dept. of Justice, Washington, D. C., on brief, for appellant.

Barton F. Stickman and David F. Addlestone, Washington, D. C., on brief, for appellee.

Before WILKEY, WALD and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge:

This case involves an appeal by the Secretary of the Army from two orders issued in favor of appellees. The first order, granting a summary judgment in favor of the named plaintiff, Antonio A. Giles, Jr., was issued on September 21, 1979. J.App. 537. This first order was based 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 of Civil Procedure and ordering relief for the certified class, was issued on November 27, 1979. J.App. 554-560; reported at 84 F.R.D. 374 (1979).

In the action before the District Court, plaintiffs complained that they had been improperly separated from the Army with less than honorable discharges. In particular, plaintiffs contended that since their service discharges were based, at least in part, upon compelled evidence, in the form of urinalysis test results secured during the course of treatment in the Army's Drug and Alcohol Abuse Prevention and Control Program, see note 6 infra, their rights under Article 31 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831 (1976), ¹ had been violated.

The District Court, relying on the statutory privilege against self-incrimination found in Article 31, held that the Army's use of the disputed urinalysis evidence in administrative discharge proceedings had in fact violated appellees' rights under the UCMJ. Given this finding, the District Court ordered automatic service upgradings, from less than honorable to honorable discharges, for Giles and all other members of the class certified by the District Court. See note 8 infra.

On appeal, the Army contends, inter alia, that any class member who now desires to challenge his less than honorable discharge should be required to apply to the Army Discharge Review Board for reconsideration. Under this proposed modified remedy, the Review Board would be authorized to review an applicant's entire military record, excluding any tainted urinalysis evidence; following such a review, the Review Board would then be authorized to determine whether to upgrade or otherwise amend the applicant's discharge classification. ²

Under the modified remedy proposed by the Army, if no independent ground for a less than honorable discharge appears in the applicant's military record, then the Review Board would be required to issue an honorable discharge to the class member seeking reconsideration. The Army urges that such a remedial procedure should be followed because it is consistent with current Army regulations. ³ Although we reject this approach for the reasons set forth herein, we do find some merit in the Army's request for a modification of the scope of the remedy prescribed by the District Court. Accordingly, we hereby affirm the judgment of the District Court except as indicated otherwise with respect to the scope of the remedy.

I.

On March 27, 1974, appellee Antonio A. Giles, Jr. was administratively separated from the United States Army for drug abuse and issued a general (under honorable conditions) discharge ("general discharge"). ⁴ Prior to his separation from the Army, Giles had been identified as a drug abuser through compelled urinalysis ⁵ and placed in the Army's Drug and Alcohol Abuse Prevention and Control Program. ⁶ Despite periodic counseling and detoxification efforts, repeated urinalyses under the program disclosed continued drug abuse. Giles was finally adjudged a rehabilitative failure and, after administrative proceedings at which evidence of compelled urine samples was considered, he was issued a general discharge.

In March, 1975, Giles applied to the Army Discharge Review Board for recharacterization of his general discharge to honorable discharge. ⁷ One asserted basis for his application was that, because the Army had introduced the results from the compelled urinalysis tests in his discharge proceedings, his general discharge was issued in violation of the Article 31 protections against forced self-incrimination. In December, 1975, the Discharge Review Board denied his request, as did the Army Board for Correction of Military Records in December, 1976. Five months later Giles filed this lawsuit, seeking declaratory and injunctive relief. The complaint was subsequently amended to add class action allegations. ⁸

II.

The District Court granted Giles' request for summary judgment. We hereby affirm the judgment of the District Court, with respect to all of the substantive issues raised in this appeal, for the reasons stated in the Memorandum Opinion by Judge Parker.

The keystone of the District Court's judgment in favor of appellees was the 1974 Court of Military Appeals decision in United States v. Ruiz, 23 C.M.A. 181, 48 C.M.R. 797 (1974), which invalidated an order compelling urinalysis where the test results might be used in administrative discharge proceedings in which the service member could be issued a less than fully honorable discharge. The military court held such an order violative of the Article 31 prohibition against compelled self-incrimination. The District Court in this case thus ruled that, under Ruiz, Article 31 applied to administrative proceedings, as well as to court martial proceedings, and concluded that the Army could not use the fruits of the illegal orders to mete out the very type of punishment that rendered the orders illegal in the first place. ⁹

Given the circumstances of this case, including the Army's adoption of Ruiz following the issuance of the opinion by the Court of Military Appeals (see note 3, supra ), we find it unnecessary to pass upon the validity of the decision in Ruiz. Rather, we deal here with certain inequities that have arisen by virtue of inconsistencies in the application of Army regulations.

Because Ruiz, supra, was decided before Giles' administrative and judicial appeals, albeit after his discharge, the District Court questioned the Army's contention that Ruiz was being applied retroactively, as that concept was defined in Linkletter v. Walker, 381 U.S. 618, 622, 85 S.Ct. 1731, 1733, 14 L.Ed.2d 601 (1965). Although the District Court was not convinced that Ruiz was being applied retroactively, it nevertheless found three bases ¹⁰ to justify the application of Ruiz, supra, in this case: (1) Ruiz did not announce a new rule of law not foreshadowed by previous judicial decisions; ¹¹ (2) the benefits of discharge upgrading in this case would clearly exceed any burden imposed upon society and the legal system; and (3) both the Court of Military Appeals and the Judge Advocate General had applied Ruiz retroactively. ¹² Given these considerations, the District Court held that the rule of Ruiz applied to Giles and to others similarly situated. We find no error in this holding.

The Army also argued that because Giles had never invoked an Article 31 right, he could not complain that his discharge was based on its denial. However, Giles had never been informed of his statutory right not to incriminate himself; the District Court thus properly found that his failure to invoke Article 31 did not foreclose its application in this case.

III.

As to the question of an appropriate remedy, the District Court held that the admission of tainted urinalysis evidence required the issuance of honorable discharges for all affected class members, even though non-drug related evidence in certain service members' military records might support a lesser discharge characterization. Thus, the court concluded that upgrading should be automatic, regardless of non-drug related evidence adduced in the discharge proceedings or available from the service member's overall military record. The District Court developed a timetable pursuant to which the Army is required to identify and notify class members of their entitlement to honorable discharges. Following the Army's appeal, this court ordered an expedited briefing schedule and argument so that our opinion would issue before the culmination of the discharge recharacterization process on September 1, 1980, as required by the timetable established pursuant to the order of the District Court.

IV.

Although we hereby act to affirm the judgment of the District Court on the substantive issues raised by the appeal, we believe that the remedy mandated by the lower court is overly broad. Accordingly, for the reasons here given, the remedial portion of the District Court's judgment shall be modified to conform with this opinion.

All class members (as defined in note 8 supra ) who were charged only with drug abuse shall be entitled to an automatic upgrading of their discharges to honorable. However, with respect to any class member who, in his original discharge proceeding, was charged with some other form of misconduct which could have independently supported a less than honorable discharge, the Army should have the option to initiate new administrative proceedings based solely on the non-drug related conduct. ¹³ In other words, the Army may elect to initiate new proceedings for any class member whose service was characterized as less than honorable for reasons unrelated to compelled urinalysis but whose records at...