One Strike and You’re OUT. An Update on the Self-Reporting Requirement.
The military has always been the employer of last resort. When the economy is good the military is hard pressed to meet recruitment. When the economy is bad the military can and does get very picky. Today the civilian authorities seem to agree that the best place to cut federal spending is the military. Force reduction has been policy in the past and will be again in the future. The self-reporting requirement is a force management tool.
For the individual member the best advice is not to self- report. As a practical matter it is unlikely any service would Court Martial any member for failing to self report a previous arrest or conviction as the only charge. Much more likely the violation would be charged along with a laundry list of other, and most likely aggravated offenses. By self-reporting the member starts the machinery to be possibly separated administratively. Once the Commander is advised of the misconduct under regulation he must at least consider the member for separation. Marginal members will be separated but there is even significant pressure on the Commander to separate even stellar performers.
I still believe that self reporting violates Article 31 UCMJ. But the effect is the same, without advisement no one subject to the code can order a military member to statements of self incrimination. The CAFF specifically refused to decide Serianne on Constitutional grounds. This leaves an issue as to whether the self reporting regulation does violate Article 31, UCMJ. The Navy has rewritten its regulation to eliminate the vagueness sited by the Navy Court of Criminal Appeals. I believe if the services continue to right regulations requiring self-reporting eventually the court will have to rule on constitutional grounds. Id. at 584-85.
“CAAF noted that NMCCA “described Article 1137 as ‘superior competent authority’ over the Instruction, and further described the reporting requirement in the Instruction as ‘inconsistent’ with the exclusion provided in higher authority, the United States Navy Regulations.” CAAF agreed, noting:
The lower court’s description of Article 1137 as “superior competent authority” is consistent with Article 0103 of the United States Navy Regulations, which states that the United States Navy Regulations serve as “the principal regulatory document of the Department of the Navy,” and specifically states that “[o]there directives issued within the Department of the Navy shall not conflict with, alter or amend any provision of Navy Regulations.”” …
CAAF held: “The self-reporting requirement in the Instruction did not provide Appellee with the rights afforded by a superior competent authority, Article 1137. As such, the Instruction did not provide a legal basis for finding Appellee derelict in the performance of a required duty, and the military judge did not err in dismissing the charge.”
Richard T. Brown, USAF Judge Advocate (ret) is “of counsel” at Brown, Rowland, Babb & Campbell in Fairborn, Ohio. He concentrates his practice in the field of Elder Law and consults on military issues related to family, criminal and juvenile law. Richard Brown is a regular contributor to the OhioDUIblog.com. Contact Richard Brown at (937) 879-9542 or visit www.DaytonEstatePlanningProbate.com.