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GILES v. SECRETARY OF THE ARMY

August 23, 1979

Antonio A. GILES, Jr., Plaintiff,
v.
SECRETARY OF the ARMY, Defendant.



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

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 proceeding *fn1" in which the servicemember 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. ยง 831, which prohibits compelled self-incrimination. *fn2"

 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. *fn3" 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. *fn4"

 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." *fn5" 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. . . . *fn6"

 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 13 *fn7" 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. *fn8" 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 service-members separated under circumstances comparable to plaintiff's. The revised Army policy is set out in the plaintiff's pleading: *fn9"

 
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 follow-up), 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 ...

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