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.