As CAAFlog notes below, CAAF’s decision today in United States v. Serianne, No. 10-5001/NA, affirms the Navy-Marine Corps Court’s dismissal of the Art. 92 charge of dereliction of duty. Chief Judge Effron writing for a unanimous Court holds that OPNAVINST 5350.4C (paragraph 8.n.) failed to include the rights afforded to sailors in Art. 1137 of the Navy Regs, a superior authority to the Navy Instruction at issue. As CAAFlog noted, he Court writes that, therefore, “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.” United States v. Serianne, slip op. at 9.
CAAF avoids the entire constitutional issue and affirms dismissal of the charge. While the government contended at oral argument that the new OPNAVINST 5350.4D would moot the vagueness issue, I don’t know that it does anything for the other issues going forward. Here is the relevant language from OPNAVINST 5350.4D, now in paragraph 8.r.:
Members arrested for alcohol-related offense by civil authority (i.e., DUI/DWI, public intoxication, disorderly conduct), shall promptly notify their commanding officer. Failure to do so constitutes an offense punishable under reference (b), article 92.
We’d have to see another round of these appeals, even though this case seems to be resolved, should commanders try to use the revised order as a basis for prosecution–unless OPNAVINST 5350.4D is revised to include the “when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation” language from the Navy Regs. However, adding that language virtually defeats the purpose of the self reporting requirement, so I don’t see a big future for this provision. As for revising the Navy Regs to remove the requirement, well that would directly raise the constitutional issue CAAF endeavored so carefully to avoid.