Scholarship Saturday: Damned if you do – service regulations requiring members to self-report their arrests by civilian authorities
An article entitled Ordered to Self Incriminate: The Unconstitutionality of Self-Report Policies in the Armed Forces, 78 A.F. L. Rev. 125, was recently published in the Air Force Law Review by Air Force Academy Assistant Professor of Law, Carman A. Leone (Major, USAF).
Professor Leone’s article offers a compelling argument that the Army, Air Force, and Coast Guard’s regulations requiring members to self-report their arrests by civilian authorities all run afoul of the Fifth Amendment.
The article first recounts CAAF’s 2010 anti-climatic look into the question in United States v. Serianne, 69 M.J. 8 (covered here and here). In that case, the Court never reached the question it granted review of – whether the Navy Chief’s conviction for having failed to self-report his DUI arrest was an unconstitutional violation of his right against self-incrimination. Instead, the Court expressly side-stepped that constitutional question and instead set aside Serianne’s conviction because the order that he was convicted of violating had actually been rendered null and void by the existence of a directly contrary superior Naval regulation.
CAAF did not hit the nail squarely on its head until 2014, in United States v. Castillo (Castillo I)(CAAFlog case page). By then, the Navy had updated its regulations to address the concerns that had boiled to the surface during the litigation of Serianne. Specifically, the amended Navy regulation added language which forbade superiors from questioning service members who self-report their arrests, expressly affirmed that members have no obligation to disclose the underlying facts leading to their arrests, and further forbade commanders from disciplining those members for the offense underlying their arrest unless that action was based solely on independent evidence. CAAF found those caveats to be sufficient to protect the right against self-incrimination.
The court emphasized several times that the safeguard against further questioning or military prosecution was integral to its determination.
Ordered to Self Incriminate at 140.
After setting the background by discussing Serianne and Castillo I, Professor Leone next sets about analyzing whether the other services’ self-reporting regulations bear the hallmarks that allowed the Navy’s regulation to eventually pass constitutional muster. He finds that they all fall short.
Namely, all regulations other than the Navy’s fail to protect military members who do self-report from having that testimonial act used against them.
Aside from that defect, Professor Leone’s article shows that the services are also woefully non-uniform in their requirements. Even internally. For example, the Air Force has three separate regulations that require self-reporting, but all three conflict with each other on such vital questions as which grades are subject to the regulation (ranging from all personnel to only those in the grade of E-6 or above) and the timelines for when the self-report must be accomplished (anywhere from within 72 hours to 45 days).
To remedy this lack of consistency, and to bring military practice across the services within the bounds of the constitution, Professor Leone proposes one ring to rule them all. His proposed language, embracing the best ideas from all of the services, follows:
Report of Conviction. All active duty and reserve members must report to their first-line supervisor, in writing, notice of a qualifying conviction of criminal law by any law enforcement authority within 15 days of verdict. Reporting is required for any criminal conviction received on or after [date regulation goes into effect].
a. Content of report. The information that must be disclosed includes the name of the member, rank, unit of assignment, date of conviction, case number, the basis of the conviction (e.g., DUI) and disposition/judgment. No person is under a duty to disclose any of the underlying facts concerning the basis for the conviction.
b. Terms defined.
1. Qualifying conviction. For the purpose of this policy, the term “conviction” includes a plea or finding of guilty, a plea of nolo contendere or plea of no contest (which are pleas of guilt to the charge(s) without admitting guilt), and all other actions tantamount to a finding of guilty, including adjudication withheld, deferred prosecution, entry into adult pretrial intervention programs, and other similar disposition of charges.
2. Criminal law. A criminal law under this paragraph includes any military or other federal criminal law; any state, county, or municipal criminal law or ordinance; and such other criminal laws and ordinances of jurisdictions within the United States or in foreign countries. A minor traffic offense which does not require a court appearance does not qualify as a criminal law under this paragraph.
c. Uses. A qualifying conviction may be used by the member’s chain of command for administrative and regulatory purposes, including: security clearance adjudication, readiness and deployability purposes, assignments, and potentially separation from the service. No person may use any required report under this section for purposes of taking punitive action against the member under the UCMJ. Further, if a member is administratively separated as a result of the self-report, command may not use the self-report or evidence derived from it when determining service characterization if the sole purpose for administrative separation is based on the self-report. The burden is on the government to prove by a preponderance of the evidence that evidence used in prosecution or separation of a member with any service characterization other than honorable which relate to the reported conviction was independently obtained and not derivative of the self-report.