For a year and a half after CAAF affirmed NMCCA in United States v. Serianne, the Navy’s requirement to self-report DUI arrests–and several other similar  self-reporting requirements–remained on the Navy’s regulatory books.  Last week, the Chief of Naval Operations canceled the self-report provision at issue in United States v. Serianne, modified another, and allowed five other provisions potentially implicated by Serianne to remain in place.  At the same time, CNO issued guidance to commanders directing them not to discipline members for past failures to self-report offenses.  Prospectively, commanders may discipline members for failing to comply with the amended self-reporting requirements.  Importantly for practitioners, commanders are further directed not to discipline members for the underlying substantive offenses whether they occurred before or after the changes unless the action is based solely on evidence derived independently of a required self-report.  

You may recall that in 2009, NMCCA made news by ruling that the self-reporting requirement in the Navy’s Alcohol and Drug Abuse Prevention and Control instruction impermissibly compelled incriminatory testimonial communication.  The Judge Advocate General of the Navy certified the matter to CAAF.  In May 2010, CAAF avoided the constitutional question but affirmed the lower court, holding that the drug and alcohol instruction was inconsistent with the higher authority of Article 1137, Navy Regulations, which at the time exempted members’ own misconduct from from the general requirement to report all known offenses.

Rather than change the self-reporting requirements, the Secretary of the Navy amended Article 1137, removing the blanket exemption pertaining to members’ own offenses, and requiring members to report civilian convictions (as well as similar dispositions such as deferred prosecutions) to superior authority.  The amended Article 1137 also permitted CNO and the Commandant of the Marine Corps to promulgate regulations requiring members to report civilian arrests if those regulations “serve a regulatory or administrative purpose.”  Although this change addressed the more narrow regulatory issues discussed in the CAAF opinion, the broader self-incrimination issues raised by the CCA opinion were not addressed by changes in instructions until last week.

CNO identified seven OPNAV instructions containing self-reporting requirements that were potentially implicated by Serianne.  The CNO canceled the self-reporting requirement in the drug and alcohol instruction (the one that had been at issue in Serianne) and modified paragraph 510.6 of OPNAVINST 3120.32C (the Standard Organization and Regulations of the Navy) to remove the requirement that members state the facts and circumstances concerning an arrest.  The new paragraph still requires that members disclosure arrests or criminal charges, the date of an arrest or charge, as well as the offense for which they were arrested or charged.  The amended instruction forbids anyone from questioning a member who reports an arrest without advising them of their Article 31(b) rights.

Five other instructions potentially requiring members to disclose offenses were also mentioned.   A requirement that members on “career intermissions” disclose arrests was found to be based on a legitimate reporting requirement.  Four other instructions touching on areas such as overseas assignment screening and participation in child and youth programs were found to be valid specific application or screening processes and were also left undisturbed.

The NAVADMIN announcing these changes is available here

 

6 Responses to “Some Serianne-related housekeeping”

  1. stewie says:

    Given Congress’ recent directive to report all crimes/offenses committed by I believe E-6 and above, doesn’t this have an affect (or effect, your pick) on this argument?

  2. Cloudesley Shovell says:

    Para. 6.b. of the NAVADMIN seeks to avoid the Serianne issue by stating the following:
    PER THIS NAVADMIN, COMMANDERS MAY IMPOSE DISCIPLINARY ACTION FOR
    FAILURE TO SELF-REPORT AN ARREST OR CRIMINAL CHARGES. HOWEVER, WHEN A
    SERVICE MEMBER DOES SELF-REPORT PURSUANT TO A VALID SELF-REPORTING
    REQUIREMENT, COMMANDERS WILL NOT IMPOSE DISCIPLINARY ACTION FOR THE
    UNDERLYING OFFENSE UNLESS SUCH DISCIPLINARY ACTION IS BASED SOLELY ON
    EVIDENCE DERIVED INDEPENDENTLY OF THE SELF-REPORT.
    COMMANDERS SHOULD CONSULT A JUDGE ADVOCATE PRIOR TO IMPOSING DISCIPLINARY
    ACTION.

  3. Marcus Fulton says:

    This will get interesting when members self-report (as they are required to do) and contemporaneously discuss circumstances (not required by the instruction, but will naturally tend to happen).  Will a more-generous-than-necessary self-report constitute evidence “derived independently of the self-report?”

  4. Cloudesley Shovell says:

    Marcus,
     The NAVADMIN seems to contemplate that exact situation in para.  6.a, which states that commanders “shall not impose disciplinary action for the underlying offense unless such disciplinary action is based solely on evidence derived independently of the self-report.”  No doubt at some point pretty soon a young sailor is going to report to his CO that he got arrested, and then blurt out the details.  So what is the “self-report”?  Only the report of arrest, with the extra details being “derived independently”?  Or is the entire blurted out statement going to be considered part of the self-report?  All depends on how the courts decide to define the terms. 
    I would put my money on a very tight definition of self-report.  The blurting sailor is going to talk himself into a conviction.  I also look forward to generous application of the inevitable discovery rule for determining whether evidence is derived independently of the self-report.

  5. Dew_Process says:

    Admiral – I agree with your “blurting Sailor” premise vis-a-vis inevitable discovery.  But, how does this NAVADMIN get around Art. 31(a)’s prohibition against compelling someone to “give up” what may “tend to incriminate” themself?

    Second, is “arrest” defined any differently that in Art. 9(a)?  If not, then by definition, doesn’t the Command already have “constructive” notice?

    This is certainly good for business for those of us who do this work, but as a matter of DON policy . . . .

  6. Cloudesley Shovell says:

    Dew–My reading of these mandatory reporting requirements is that they are intended to result in administrative action only, in all but the most exceptional of circumstances.   Where the consequences are administrative, Art. 31 does not apply.    In those extraordinary circumstances, the gov’t is going to have to show an independent source of evidence.  In most cases I don’t think that’s going to be an issue.  It will get more complicated in those inevitable cases where a convening authority has to get his pound of flesh, the law be damned. 
     
    Despite foreseeable difficulties, the reporting requirements aren’t going to go away.  They serve a legitimate purpose.