The opinion of the court was delivered by: BARRINGTON
In this action plaintiff Robert Walters seeks declaratory and injunctive relief against the Secretary of Defense and other officials. He seeks to upgrade the character of his discharge from the United States Marine Corps from general to honorable. In 1973 Walters received a general discharge following an administrative proceeding in which he was found involved in drug abuse activity disclosed through a compelled urinalysis 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 upgrading all less than honorable discharges given U.S. Army personnel based in whole or in part on evidence of drug abuse derived from compelled urinalyses. Counsel for Robert Walters also seeks classwide relief for former servicemembers of the Marine Corps, Navy and Air Force, claiming that they are entitled to the same relief as that granted former Army servicemembers in Giles.
The plaintiff has filed a motion for summary judgment on the authority of Giles and a motion for class certification. Defendants have filed a cross motion for summary judgment asserting, first, that plaintiff's action is barred by the statute of limitations; second, that the Court should not exercise its jurisdiction because plaintiff failed to exhaust his administrative remedies; and third, that because the United States Court of Military Appeals in two recent cases
ruled that the compelled taking of body fluids is not violative of the self-incrimination prohibition of Article 31, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831 (1975),
Giles no longer provides authority for the relief plaintiff seeks. The defendants also oppose class certification.
After consideration of the parties' legal memoranda, and with the benefit of oral argument, the Court rejects the defendants' arguments and grants summary judgment and the class relief requested by the plaintiff. The reasons for the Court's conclusions are set out in the discussion which follows.
The undisputed material facts may be briefly stated. The drug abuse program involved in this proceeding was an enormous undertaking. It began in 1972 and, within 14 months, the military had subjected servicemembers to 4,400,000 urinalyses. If the test indicated illegal use of drugs, the abusing servicemember was issued a less than honorable administrative discharge.
Approximately 29,000 drug abusers, most of whom were identified through this program, were gleaned from the ranks of all branches of the military for drug abuse between 1970 and 1975 and were given less than honorable discharges.
Plaintiff Walters was one of those so discharged. He entered the Marine Corps in September 1973. Shortly thereafter he was ordered by Corps authorities to render a urine sample as part of the urinalysis testing program. When the test indicated that he had used phenobarbitol, the authorities questioned him and found that he had been using drugs during the year prior to enlistment. The Corps then initiated administrative discharge proceedings against him for fraudulent enlistment through concealment of preservice drug use. He was severed from the Corps with a general discharge on November 8, 1973.
Walters sought relief before the Naval Discharge Review Board
and requested an upgrade of his discharge in the Spring of 1980. However, shortly before a scheduled hearing, he withdrew his petition and subsequently brought this action on his own behalf and on behalf of similarly situated former members of the Marine Corps, the Navy and the Air Force.
A. Statute of Limitations
The defendants argue that this action is barred by the six-year limitation imposed by 28 U.S.C. § 2401(a). That section provides that civil actions commenced against the United States shall be barred unless filed within six years after accrual of a right of action. Because this suit was not filed until April 22, 1981, and Walters was discharged in November 1973, the defendants claim that his suit is time-barred.
The Court concludes that the defendants are incorrect. Courts have frequently entertained challenges to court-martials long after the six-year period has expired. See, e.g., Homcy v. Resor, 147 U.S. App. D.C. 277, 455 F.2d 1345 (D.C.Cir.1971); Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965); Calhoun v. Lehman, C.A. No. 78-0988 (D.D.C. January 27, 1982). There is no compelling reason why a different rule should apply for administrative discharges.