CAAF decides ‘self-report’ case

In United States v. Serianne __ M.J. ___ (C.A.A.F. 2010), CAAF affirmed NMCCA’s dismissal of a charge that Chief Serianne failed to inform his command of a civilian conviction.  Here is a link to the en banc opinion on an Article 62(b) interlocutory appeal by the government in  Serianne, at NMCCA.

On its face the decision has narrow application to a particular Navy instruction.  However, the case may impact any revision of the Navy instruction and also the directive that DoD initiated in 2008 on the subject of E-6 and above reporting their civilian convictions.

I have posted before about an April 2008 policy memorandum issues by DoD.  The memorandum will require self-reporting of certain civilian convictions.

It was alleged that Chief Serianne failed to report his arrest for DUI and were therefore derelict.  He countered and argued that the Navy instruction violated his right against self-incrimination.  As CAAF pointed out, there is a ‘superior’ regulation in Article 1137, U.S. Naval Regulations that requires reporting:

except when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation.

My recollection of the history of the exception language in Article 1137, U.S. Naval Regulations was that it responded to litigation about drug cases where a Sailor was accused of failing to report another Sailor’s drug use when he/she was involved in the same drug offense.  That makes perfect sense.  See United States v. Bland, 39 M.J. 921, 923 (N.M.C.M.R. 1994).

However, in Serianne and the proposed DoD regulation it appears the requirement is not to report your misconduct but to report that you’ve been arrested or convicted for misconduct.  That event report, yes thereby likely leading to administrative processing, seems markedly different than reporting or being ordered to confess that you have violated the UCMJ.  On this it seems Judges Beal and  Geiser at NMCCA have the better view on the self-incrimination point.

The DoD instruction seems to be on firmer ground because it requires reporting of the fact of conviction.  Serianne also does not address the SF 86 issues.