CAAF’s Serianne opinion is compact. A unanimous decision written by Chief Judge Effron holds that the United States Navy Regulations trump a dereliction of duty charge for failing to comply with OPNAVINST 5350.4C’s requirement to self-report drunk driving arrests. CAAF thus decided the case on non-constitutional grounds, avoiding the Fifth Amendment self-incrimination issue that the military judge and the Navy-Marine Corps Court’s decision addressed. See United States v. Serianne, 68 M.J. 580 (N-M. Ct. Crim. App. 2009) (en banc).
Article 1137 of the Navy Regs provides: “Persons in the naval service shall report as soon as possible to superior authority all offenses under the Uniform Code of Military Justice which come under their observation, except when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation.”
NMCCA discussed the conflict between the Navy Regs and OPNAVINST 5350.4C:
This court has previously held that the reporting requirement of Article 1137 [of the United States Navy Regulations] is “valid and permissible,” basing that conclusion on the fact that it “eliminates a reporting requirement in instances where a person is already criminally involved in offenses he would otherwise be required to report.” United States v. Bland, 39M.J. 921, 923 (N.M.C.M.R. 1994).
Id. at 584-85.
CAAF noted that NMCCA “described Article 1137 as ‘superior competent authority’ over the Instruction, and further described the reporting requirement in the Instruction as ‘inconsistent’ with the exclusion provided in higher authority, the United States Navy Regulations.” CAAF agreed, noting:
The lower court’s description of Article 1137 as “superior competent authority” is consistent with Article 0103 of the United States Navy Regulations, which states that the United States Navy Regulations serve as “the principal regulatory document of the Department of the Navy,” and specifically states that “[o]ther directives issued within the Department of the Navy shall not conflict with, alter or amend any provision of Navy Regulations.”
The self-reporting requirement in the Instruction did not provide Appellee with the rights afforded by a superior competent authority, Article 1137. As such, the Instruction did not provide a legal basis for finding Appellee derelict in the performance of a required duty, and the military judge did not err in dismissing the charge.