By regulation (the U.S. Navy Regulations and the Navy’s Standard Organization and Regulations Manual (SORM), OPNAVINST 3120.32x,), the Navy required personnel to report having been arrested or prosecutions for criminal acts by civilian authorities.
In 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.
In response to Serianne, the Navy issued a new order (ALNAV 049/10 dtd 21 Jul 2010; NAVADMIN 373/11, 08 December 2011.7
(amending OPNAVINST 3120.32C ) which required reporting, but then sought to give a qualified immunity from disciplinary action based solely on the report.
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 court rejects the constitutional and regulatory challenges to the regulation. The court finds that while the statements are testimonial and compelled, they are not ulawfully so, especially in light of a “use immnunity” within the regulation.
As the military judge correctly determined, the use restriction in NAVADMIN 373/11, paragraph 6A, removed any real and appreciable danger of legal detriment for a self-reported arrest or criminal charge. Thus, we conclude the compelled, testimonial statement required by the regulation is not incriminating.
The court then analyzed the regulation as being punitive in light of the seven factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-70 (1963). Needless to say:
In sum, the majority of the Mendoza-Martinez factors clearly weigh in favor of finding the self-reporting requirement of the revised OPNAVINST 3120.32C regulatory in nature. Based on this analysis, we find the revised OPNAVINST 3120.32C was promulgated for a regulatory or administrative purpose and thus complies with U.S. Navy Regulations Article 1137 as amended by ALNAV 049/10.
We should anticipate future litigation to revolve around actual or perceived violations of the use immunity.