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Navy duty to self report civil criminal cases

Posted by attorney Philip Cave

The Navy requires personnel to self-report if they have been arrested or are being prosecuted for a criminal offense - this is legal according to the Navy-Marine Corps Court of Criminal Appeals.

  1. The rule

    ALNAV 049/10 dtd 21 Jul 2010; and NAVADMIN 373/11, 08 December 2011.7, has amended OPNAVINST 3120.32C, which again requires reporting; if you have been arrested or if you are being prosecuted for a crime in state or federal court.

  2. The law then

    Prior to April 2009, the duty to self report existed and was found in the OPNAVINST cited above. Once the person self-reported the military could take various punitive or adverse administrative actions based on the underlying alleged criminal behavior. If a person did not self-report and the civilian case discovered, the person could be disciplined for a violation of Article 92, UCMJ, for an orders violation.

  3. The law changed temporarily

    In April 2009, the military appeals courts decided that the order to self-report was an illegal order and not enforceable. United States v. Serianne, 68 M.J.580 (N.M.Ct.Crim.App. 2009), aff'd, 69 M.J. 8 (C.A.A.F. 2010). the courts found the order unlawful, in violation of a members right against self-incrimination under the Fifth Amendment, U.S. Constitution.

  4. The law now

    As I have noted above, the SORM section 5.1.6., was changed. In United States v. Castillo, NMCCA 201300280 (N-M Ct. Crim. App. 27 May 2014), the Navy court has found the new regulation to be a valid order, and has affirmed a conviction for failing to report a DUI. The appellant in Castillo can now appeal to the Court of Appeals for the Armed Forces to challenge the order and the decision of the Navy court.

  5. Now what

    Like it or not, a Navy member who is arrested or is being prosecuted for a criminal offense must report this immediately.

    However, there are several qualifications: (1) the person cannot be required to disclose the underlying facts, (2) any questions about the case must be preceded with a rights warning in accordance with Article 31, UCMJ, and there is a qualified immunity for use of the report.

  6. What can happen

    The member can still end up being prosecuted or disciplined by the Navy for the alleged underlying crime under certain circumstances. Also, adverse administrative actions might still follow, such as separation. Consult early on with an experienced military lawyer should you be in this unfortunate positoion

Additional resources provided by the author

5.1.6 Notification. Any person arrested or criminally charged
By civil authorities shall immediately advise their immediate
Commander of the fact that they were arrested or charged. The
Term arrest includes an arrest or detention, and the term
Charged includes the filing of criminal charges. Persons are
Only required to disclose the date of arrest/criminal charges,
The arresting/charging authority, and the offense for which they
Were arrested/charged. No person is under a duty to disclose
Any of the underlying facts concerning the basis for their
Arrest or criminal charges. Disclosure of the arrest is
Required to monitor and maintain the personnel readiness,
Welfare, safety, and deployability of the force. Disclosure of
Arrest/criminal charges is not an admission of guilt and may not
Be used as such, nor is it intended to elicit an admission from
The person self-reporting. No person subject to the UCMJ may
Question a person self-reporting an arrest/criminal charges
Regarding any aspect of the self-report, unless they first
Advise the person of their rights under ucmj article 31(b).

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Filed under:

DUI DUI arrest DUI appeal Federal DUI Criminal defense Civil penalties for DUI Crimes against society The 5th amendment and criminal defense Criminal arrest Appealing a criminal conviction Federal crime Civil rights Appeals Federal court

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