A En Banc Navy-Marine Corps Court of Criminal Appeals has held that the requirement in OPNAVINST 5350.4C that a sailor “promptly notify their CO” of certain civilian alcohiol related offenses is unconstitutional. See United States v. Serianne, No. 200900330, __ M.J. __ (N-M Ct. Crim. App. Nov. 25, 2009). Update: Here is the offical NMCCA link.
OPNAVINST 5350.4C’s relevant provision states
All personnel are responsible for their personal decisions relating to drug and alcohol use and are fully accountable for any substandard performance or illegal acts resulting from such use. Members arrested for an alcohol-related offense under civil authority, which if punished under the UCMJ would result in a punishment of confinement for 1 year or more, or a punitive discharge or dismissal from the Service (e.g., DUI/DWI), shall promptly notify their CO. Failure to do so may constitute an offense punishable under Article 92, UCMJ.
The lead opinion, authored by Judge Perlak, affirms the ruling of the military judge, concluding
In requiring the disclosure of a servicemember’s arrest for driving under the influence, we hold that OPNAVINST 5350.4C compels an incriminatory testimonial communication for which no exception exists.
Judges Vincent, Mitchell, Booker, Price, Maksym, and Carberry concurred in the lead opinion. Chief Judge Geiser, concurred in the result in a separate opinion based on vagueness grounds, writing
I specifically find the requirement that servicemembers report “an alcohol-related offense under civil authority, which if punished under the Uniform Code of Military Justice would result in a punishment of confinement for 1 year or more, or a punitive discharge or dismissal from the service…” to require knowledge of future events that servicemembers cannot possibly possess. While servicemembers could be expected to know or determine without difficulty the maximum possible punishment for a particular offense, it is unreasonable to require them to divine what “would result” if the case were punished at court-martial.
Judge Beal concurred in the result based on Judge Geiser’s rationale and seems to concur that a prosecution based on a self report would pose constitutional questions, which he suggests are not raised by this case where the member sailor failed to self-report, stating
While I believe the mandates of Chief of Naval Operations Instruction (OPNAVINST) 5350.4C might present a constitutional dilemma if a convening authority chooses to criminally prosecute a servicemember who complies with the instruction, I also believe the instruction serves a legitimate administrative purpose to ensure that information regarding drug or alcohol related offenses is properly brought to the attention of commanders who have a responsibility to ensure appropriate administrative action is taken, e.g. report or reassess the member’s qualifications for promotion or to hold a security clearance. In other words, it is appropriate to require servicemembers to put themselves on report for administrative purposes.
In cases where a convening authority might choose to refer charges against an accused that stem from the conduct self-reported in compliance with the order, I believe the proper remedy in certain cases would be to dismiss the charge or charges stemming from the self-reported conduct. Had the accused self-reported his civilian arrest in compliance with OPNAVINST 5350.4C, and if his self-reporting was the sole basis for the accuser’s preferral of charges, then I believe the Fifth Amendment right against self-incrimination would have barred his prosecution for the underlying misconduct, i.e., in this case the proper remedy would be to dismiss the Article 111 charge, not the Article 92 charge.
Update later when we get through all the opinions in some detail. H/t to Row.