Big Navy is trying to work around a recent military court decision striking down a fleet-wide rule forcing sailors to report any drunken-driving or other civilian arrests to their command.
Navy Secretary Ray Mabus revised a high-level Navy regulation July 20 in response to the case of a chief who claimed the self-reporting requirement was unconstitutional and violated his Fifth Amendment rights against self-incrimination.
Here’s where this began.
In United States v. Serianne, the CAAF affirmed an NMCCA decision that a Navy order to report civilian DWI/DUI convictions was unlawful and not enforceable at court-martial.
The Navy’s self-reporting requirement for drunken driving arrests will fundamentally change as a result of a recent military court ruling, the Navy’s top lawyer said.
A new rule is in the works that will continue to require sailors to notify their command about civilian arrests, but commanding officers will not be able to use that information to seek disciplinary action or a court martial, said Vice Adm. James Houck, the Navy Judge Advocate General.
In December last year I commented on the possibility of:
Just when you were starting to worry that there wouldn’t be work – along comes DoD with a new policy about officer and senior enlisted civilian misconduct. The policy requires that officers and senior enlisted inform their command about civilian convictions. The policy
directs that the Services issue (punitive) regulations and a reporting system.
More "show cause" Boards, more administrative separation boards, more Article 15′s for failure to report — yes, more work for lawyers.
This link should take you to the policy memorandum.
DoD gave the services time to put together their own implementing regulation. The regulation is intended to be punitive and can be prosecuted at court-martial as a violation of Article 92, UCMJ. The regulation may be in jeopardy (at least within the Navy and Marine Corps) if Serianne is not certified to CAAF, or it is certified and CAAF agrees. Of course if CAAF were to agree, then likely all the regulations may fall.