APPLICANT REQUESTS:  That the Board reverse its previous action which denied his application for failure to timely apply, and consider the merits of the application.  The applicant contends, in effect, that the Giles v. Secretary of the Army (Civil Action 77-0904), 27 November 1979, applies to him.  In an unsigned separate application, the applicant stated that he had a severe drug problem that developed while he was over in Vietnam serving his tour of duty; that he could not receive any assistance regarding being provided with any treatment for his drug problem; that the incident happened during the 1960’s when the Government was not very sensitive towards drugs; and that the punishment was too severe for the charges.

PURPOSE:  To determine if the new information and/or contentions now submitted by the applicant, when added to the information already available, contains sufficient justification to conclude that the application was filed within the time required, or if not, whether it could be in the interest of justice to excuse the applicant’s failure to file his original application which had been denied by the Board.

NEW EVIDENCE OR INFORMATION:  In support of the current request, the applicant has submitted the new contention that the Giles v. Secretary of the Army (Civil Action 
77-0904) applied to him.

The Order of the U.S. District Court for the District of Columbia in Giles v. Secretary of the Army (Civil Action 
77-0904), 27 November 1979, defined the class as ” . . . consisting of those former service members of the U.S. Army who presently possess less than honorable administrative discharges which were characterized as less than honorable in an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing for the purpose of identifying 
drug abusers (either for purposes of entry into a treatment program or to monitor progress during rehabilitation or followup) . . .”

There is no evidence in the applicant’s available medical records that he was ever treated for drug abuse or drug addiction or that he had compelled urinalysis testing for the purpose of identifying drug abusers.

The evidence of record indicates that the applicant was discharged on 28 April 1971 as a result of a conviction by a special court-martial, with a bad conduct discharge.  Therefore, the provisions of the Giles v. Secretary of the Army (Civil Action 77-0904) do not apply to him.

The Manual for Courts-Martial, at the Table of Maximum Punishments, then in effect, provided for violating or failing to obey any lawful general order or regulation, the maximum punishment was a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 2 years.  For possessing or using with intent to defraud or deceive a false or unauthorized military pass, permit, discharge certificate, or identification card, the maximum punishment was a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 3 years.

DISCUSSION:  After considering all the evidence, allegations, and information presented by the applicant with the current request, together with the previously available evidence of record,, and the applicable law and regulations, the Board again concludes that the applicant has not presented, nor do the records contain, sufficient justification to establish that it would be in the interest of justice to excuse the failure to file within the time prescribed by law.

DETERMINATION:  The original determination made by the Board in this case is reaffirmed.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION

		Karl F. Schneider
		Acting Director