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A Cautionary Tale for U.S. Navy Personnel

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Must a U.S. Navy member self-report an arrest or ongoing civilian criminal prosecution? The answer is yes.

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ALEXANDRIA, VA, June 06, 2014 /24-7PressRelease/ -- The command master chief of Navy Medicine Training Support Center was relieved June 2 following a Captain's Mast at Joint Base San Antonio - Fort Sam Houston, Texas. So reports Stars & Stripes on 4 June 2014: http://www.stripes.com/news/top-enlisted-sailor-at-navy-medical-comma ... i-1.286910. One of the charges against him was failure to report that he'd been arrested for driving while intoxicated.

Must a Navy member self-report an arrest or ongoing civilian criminal prosecution? The answer is yes. The reason for self-reporting is so that the Navy can, "...Monitor and maintain the personnel readiness, welfare, safety, and deployability of the force," according to regulation.

Paragraph 5.1.6, OPNAVINST 3120.32D, STANDARD ORGANIZATION AND REGULATIONS OF THE U.S. NAVY (SORM), requires that, "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 defined type of action that must be reported is quite broad. Additionally information can be found in ALNAV 049/10 of 21 July 2010 and NAVADMIN 373/11, of 8 December 2011.

The duty to self-report existed in Navy regulations prior to 2009. But in 2010, Chief Serianne challenged the legality of the requirement before the military appellate courts, and was successful on appeal. Basically the courts found the order unlawful, in violation of a member's right against self-incrimination under the Fifth Amendment, U.S. Constitution. Because of the Serianne case that the Navy changed the SORM.

The new regulation was unsuccessfully challenged by Fireman Castillo. She was convicted of failing to report her arrest for drunk driving, along with some other charges. In May 2014, the Navy-Marine Corps Court of Criminal Appeals reviewed the new regulation and found it a lawful order. Fireman Castillo may now appeal to the Court of Appeals for the Armed Forces, but her chances of success are not strong.

When making a self-report the regulation makes clear and the person should understand that the report is:

a. Not an admission of guilt and may not be used as such (meaning as a confession); and,

b. The person cannot be required to disclose the details of the charges or the underlying facts, unless they are first advised of their right to silence under Article 31, UCMJ, and they agree to waive that right.

A current news release of Philip D. Cave, Military Law & Justice, at www.court-martial.com, mljucmj@court-martial.com, 703-298-9562.

Military Law & Justice is a military defense law firm dedicated to the effective representation of U. S. service personnel at court-martial, court-martial appeals, and in other adverse disciplinary actions.

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