Court-Martial Trial Practice Blog
U.S. Navy Regulation 1137 focuses on the obligation of service members to report offenses. It states: “Persons in the naval service shall report as soon as possible to superior authority all offenses under the Uniform Code of Military Justice (UCMJ) 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.”
This regulation applies to Marines as well, as per Headquarters Marine Corps guidance. However, there’s an additional wrinkle related to civilian arrests and convictions.
Reporting Civilian Arrests and Convictions
While Article 1137 deals with reporting offenses under the UCMJ, Navy directives and instructions issued by the Chief of Naval Operations (CNO) can extend this reporting requirement to civilian situations. NAVADMIN 373/11, for instance, instructed service members to report arrests or charges to their commanding officer if they “serve a regulatory or administrative purpose.” This means that even non-criminal situations, like a traffic violation, might need to be reported.
Here’s the potential impact on a service member’s constitutional rights:
- Fifth Amendment Right Against Self-Incrimination: This right protects individuals from being compelled to provide testimony that might be used against them in a criminal case. Reporting a civilian arrest could lead to disciplinary action under the UCMJ, raising concerns about self-incrimination.
- Fourteenth Amendment Due Process: Due process requires fair legal proceedings before depriving someone of life, liberty, or property. Reporting an arrest could trigger administrative actions impacting a service member’s career, potentially raising due process concerns if not handled fairly.
Reconciling Reporting Requirements and Rights
The Navy walks a tightrope between maintaining good order and discipline and respecting service members’ rights. Here’s how they attempt to balance these:
- Self-Reporting vs. Investigation: Ideally, service members self-report arrests proactively. This allows for a more controlled response by the command and potentially helps mitigate disciplinary action.
- Limited Scope of Reporting: The requirement often focuses on serious offenses or those potentially impacting military duties. Not every traffic stop needs reporting.
- Administrative vs. Disciplinary Action: Reporting might trigger administrative actions, like restrictions on liberty, but doesn’t automatically lead to disciplinary proceedings under the UCMJ.
- Legal Counsel: Service members have access to legal counsel who can advise them on their reporting obligations and potential consequences. This is where a military defense counsel with experience may be able to help resolve any issues and blowback.
Impact on Individuals
Despite these safeguards, there are still potential downsides for service members:
- Career Impact: Even administrative actions can affect careers, impacting assignments, promotions, or security clearances. Note here that if a person has a security clearance (especially TSI with SCI or other special access) there is a separate reporting to the Security Manager. The SM will then input that information in the DoDCAF. That then may cause DoDCAF Navy Division to issue a potential revocation of the security clearance.
- Psychological Burden: The fear of jeopardizing their careers might make service members hesitant to report, potentially hindering the Navy’s ability to address underlying issues.
- Privacy Concerns: Sharing personal information about arrests, even without convictions, can feel like an invasion of privacy.
There have been legal challenges to application of the rule and what use, if any, can be made in a court-martial for the underlying conduct in civilian court. The more serious the civilian offense the more likely it is that the commanding officer may want to take disciplinary action including court-martial. There is no double jeopardy.
In United States v. Serianne, 69 M.J. 8, 9 (C.A.A.F. 2010), the court dismissed a dereliction of duty charge against a servicemember that alleged failure to report a DUI arrest as required by a service Instruction (an OPNAVINST) because the service instruction was contrary to superior regulatory authority promulgated by the Secretary of the Navy in Article 1137, U.S. Navy Regulations.
After Serianne, ALNAV 049/10 amended Article 1137 to permit SECNAV, CNO, and CMC to “promulgate regulations or instructions that require servicemembers to report civilian arrests or filing of criminal charges if those regulations or instructions serve a regulatory or administrative purpose.” The Navy promulgated such regulations in OPNAVINST 3120.32D, which C.A.A.F. affirmed as valid in United States v. Castillo, 74 M.J. 160, 162 (C.A.A.F. 2015).
The Marine Corps has not promulgated a similar regulation. Marines must follow Article 1137 of the Navy Regulations, as amended by ALNAV 049/10.
The ALNAV requires reporting of:
Convictions for a violation of a criminal law of the United States or foreign jurisdiction: this includes a plea or finding of guilty, a plea of nolo contendere, and all other actions tantamount to a finding of guilt, including adjudication withheld, deferred prosecution, entry into adult or juvenile pretrial intervention programs, and any similar result of the civilian proceeding.