[...pretty and I'm planning to use it at my own blog, appreciate it..]…

[...Make Sure You Accept This Swapping Request...]…

[...Remember to Accept This Exchanging Invitation...]…

We recently received a discharge via chap7. We lost everything after we bought a new home in 2007 but were unable to sell the old house! Anyway, I have clearance & am supposed to “disclose” the chap7 to my security officer.

The good news is it looks like a short-sale will finally go thru (after 3 years on the market). Carrying TWO mortgages is what wiped us out (tried renting but hey left the place damaged…in the middle of the night).

I HATE the idea of someone Monday-morning quarterbacking our last 3 years of unbelievable stress, sleepless nights & living like starving college kids…

I used a gov’t sanctioned utility to do what was right for my family…really don’t see why anyone-else but me & my creditors need to know about it. My debts are gone thus any supposed “risk” associated w/ high debt holders holding a “need to know” has been mitigated.

It occurs to me my employer (defense contractor) has an obligation to the gov’t to background-check it’s employees…well, I did a chap7 so the “gov’t” already knows…

Final query: under the Serianne test (whatever it is), when does an Article 92 charge for failure to report [X] — even as dereliction — ever withstand a 5th Amendment challenge?

My take on the court’s reasoning in its holding is, where it is “reasonable” to believe that the reporting “would lead to further disclosure of incriminating evidence” and “probably cause the initiation of a criminal investigation by the Navy into his conduct,” a Sailor cannot be compelled to report … anything.

What does this mean for, say, mis-filled tagout sheets? Duty logs? Any financial information? Or, my favorite, tax returns?

Good question. I don’t think so.

First, having some punitive consequence renders this policy no different from any other regulatory regime that requires reporting (again, e.g., security information, travel information, tax information). Anytime you’re required to communicate with the government about an event in your life, that report is potentially going to “lead to incriminating evidence.”

In 5350.4C, the excerpted langauge re “punitive” consequences comes from the introductory language and applies to the active alcohol-related misconduct. The self-reporting language comes from the substantive text of the policy, in a completely different section, though the court’s opinion made it read as if the self-reporting requirement immediately preceded the “punitive” language.

It seems the court grafted the analysis used to determine whether an instruction is “punitive” and therefore subject to Art 92 charges, onto the analysis of whether a given policy is “essentially regulatory.”

To underscore this already-belabored point, there are hundreds, even thousands, of servicemembers and civilians in the Navy with jobs in the Substance Abuse and Rehabilitation Programs (products of OPNAVINST 5350.4C) who are now proverbially scratching their heads, wondering when they became part of a “decidedly punitive” disciplinary regime.

In context, the 92 charge was totally appropriate and essential to the government’s theory, especially after the MJ dismissed the 2008 111 spec as having been the subject of a previous NJP. That ruling wasn’t appealed, though I think it’s raised interesting question about which previously-NJP’d offenses can be brought again at court-martial.

Here’s another question: can the instruction create a duty to report, the failure of which is indicia of guilt, even if it is not a criminal violation to fail to report? Probably not, now, under this ruling.

I just think the court’s handling of precedent in this opinion is baffling. Why does the court invite us to “compare” Oxfort with Hubbell? Why not just analyze Oxfort to see if CAAF has provided any guidance on what constitutes an “incriminating” statement? With regard to the regulatory exception, why did California v. Byers get no treatment at all, mentioned only once in a string cite? It’s only the modern touchstone case.

And how do we know that OPNAVINST 5350.4C is “decidedly punitive”? According to the court, because the instruction has a phrase regarding punitive consequences for alcohol-related misconduct.

Respectfully, the instruction is 350 pages long! There’d better be something in there about punitive consequences. But the CNO’s alcohol and substance abuse policies are no more “decidedly punitive” than the Secretary of Defense’s security classificiation policies or the Commandant of the Coast Guard’s travel regulations, or, and this is the big one, the tax code of the United States.

Do you have some insight into this? The opinion is very short on facts (and admittedly on citation too), and it appears that this is but one charge in a litany. Any further info would be greatly appreciated.

“While a matter of public record like an arrest report has, by some courts, been held to be non-incriminating, such reports plainly contain adverse matter and not only furnish a link in the chain of an investigation but very often trigger an investigation that would lead to incriminating evidence.”

For this central proposition, that mere arrest “reports,” though they are public records, “very often … would lead to incriminating evidence,” the court cites: nothing.

I can’t say I’m shocked, but I am … bemused?

And “Steve,” before you speculate about “overreach by the Navy” — as if Admiral Roughead were sending draft charges to the squadron CO — maybe you should familiarize yourself with the facts of the case. Can you think of a context in which a sailor’s failure to report his DUI arrest might be so flagrant as to constitute a violation of this instruction?

I think that Geiser and Beal took the more judicious route and avoided reaching a decision they didn’t have to reach, thus I find their opinions more persuasive.