ORDERED TO SELF-INCRIMINATE: THE UNCONSTITUTIONALITY OF SELF-REPORT POLICIES IN THE ARMED FORCES.

• Author: Leone, Carman A.

1. INTRODUCTION II. HISTORY OF THE RIGHT TO AVOID SELF-INCRIMINATION IN THE MILITARY III. THE SISTER SERVICES' SELF-REPORT POLICIES A. Navy's Self-Reporting Policies 1. United States v. Serianne 2. United States v. Castillo B. Air Force and Army Self-Report Policies C. Coast Guard Self-Report Policy IV. ANALYSIS OF THE CONSTITUTIONALITY OF THE SELF-REPORT POLICIES A. The Right to Avoid Compulsory Self-incrimination under the Fifth Amendment 1. Does the Policy Compel a Communication that is Testimonial and Incriminating? 2. Does a Regulatory Exception Apply? a. The Oxfort Test b. The Mendoza-Martinez Test c. The Castillo II Test B. Other Problems with Self-Report Policies 1. Violation of Ex Post Facto Prohibition 2. Arbitrary and Capricious C. A Proposed Uniform Policy V. CONCLUSION "Nemo teneturprodere seipsum " (1)

1. INTRODUCTION

   The National Defense Authorization Act of Fiscal Year 2006 ("NDAA 2006") introduced a requirement for officers and senior enlisted members of the United States Armed Forces to self-report convictions of criminal law. (2) Specifically, the legislation requires officers and enlisted members in pay grades above E-6 to self-report convictions. (3) Qualifying convictions include any violation of military, federal, state, county, municipal, or local criminal law or ordinance except for minor traffic violations. (4) The legislation also includes a provision which limits the reporting requirement to apply prospectively only. (5) The legislative history does not provide the rationale as to why this self-reporting requirement only applies to members in certain pay grades. (6)

   In accordance with NDAA 2006, the Army, Navy, and Air Force instituted self-reporting policies. (7) The Coast Guard instituted a similar policy as well. (8) No one military department's policy exactly matches that of its sister services, but all have generally instituted, at a minimum, the specified requirements under NDAA 2006. (9) The Navy and Coast Guard go even further by requiring all members, not just those in certain pay grades, to self-report convictions as well as arrests. (10)

   Every member of the United States Armed Forces, however, regardless of pay grade, has the constitutional right to be free from compulsory self-incrimination. (11) Even though members waive some constitutional rights, (12) they do not give up the right to avoid compulsory self-incrimination. (13) As a result of NDAA 2006 and its implementing regulations, then, a member who is arrested or convicted in a civilian jurisdiction (and the circumstances are otherwise unknown by command) faces a difficult choice: report the conviction and potentially face administrative and criminal consequences or consciously decline to report and violate the self-reporting policy.

   In 2009, an enlisted Seaman challenged the Navy's self-report policy after deciding against reporting his arrest for driving under the influence (DUI) and then being charged under Article 92, Uniform Code of Military Justice (UCMJ) for failing to report. (14) After successfully challenging the constitutionality of the self-report policy at trial, the self-report policy was ultimately deemed unconstitutional by the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA), (15) prompting the Navy to change its policy. (16)

   While the Navy's self-reporting policy had the advantage of testing its constitutionality through multiple rounds of judicial review, its sister services' versions of the self-reporting policy have not yet had that benefit. While there are differences between the Navy's original challenged policy and that of its sister services, ultimately there remains a question as to the constitutionality of the regulations currently enforced across the Department of Defense.

   This article explores the self-reporting policies adopted by each branch of the military. It will first review the origin of the right against compulsory self-incrimination within the Armed Forces. Next, it identifies and analyzes the constitutionality of the Navy, Army, Air Force, and Coast Guard self-report regulations following the Serainne opinion. Ultimately, the article proposes a uniform regulation that helps achieve the regulatory purpose of the policy while eliminating concerns of violating the constitutional rights of those who serve.

2. HISTORY OF THE RIGHT TO AVOID SELF-INCRIMINATION IN THE MILITARY

   As early as 1770, the right to avoid compulsory self-incrimination was recognized in America. (17) That year, during an investigation led by the Customs Office in Philadelphia, investigators set out to "question under oath every officer and seaman of a vessel that was supposed to have engaged in the smuggling of tea." (18) The Attorney General at the time, however, informed the Customs collector that he was "very clear in opinion that the Court of Admiralty cannot with propriety oblige any persons to answer interrogatories which may have a tendency to criminate themselves, or subject them to a penalty, it being contrary to any principle of Reason and the Laws of England." (19) Similarly, in 1780, Major John Andre, a British spy who was caught and tried by American patriots, was afforded "the courtesy of being at liberty to answer or deny answer to interrogatories as he chose" at his trial. (20)

   Although the Articles of War of 1775 were the first codification of American military law, it was not until 1806 that the right against compulsory self-incrimination was first recognized by the laws governing the Armed Forces. (21) Article 69 of the 1806 revision of the Articles of War provided that

   [t]he judge advocate or some person deputed by him, ... shall prosecute in the name of the United States of America; but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question, to any of the witnesses, or any question to the prisoner, the answer to which might tend to incriminate himself. (22) In 1878, accused service members were statutorily granted the right to elect to testify or remain silent at trial. (23)

   In 1949, immediately prior to the creation of the UCMJ, the Articles of War only protected military members who were formally accused of an offense. (24) With the establishment of the UCMJ, Congress broadened that protection under Article 31(b) to also protect those who were suspected of an offense. (25) So inspiring were the protections afforded under Article 31, UCMJ, that the Supreme Court of the United States cited the Article as support in Miranda v. Arizona, requiring law enforcement to warn civilian suspects in custody prior to interrogating them. (26)

   Until relatively recently, case law has been silent on when a service member is required to report a conviction. Decades of military jurisprudence, however, clarified the circumstances under which a member was required to self-report underlying misconduct. In their article, "Failure to Report: The Right Against Self-incrimination and the Navy's Treatment of Civilian Arrests after United States v. Serraine," Randall Leonard and Joseph Toth outlined the status of self-report requirements as interpreted by military case law before the 2009 Navy-Marine Corps case. (27) In United States v. Dupree, for example, the Court of Military Appeals held that the appellant could not be convicted of dereliction of duty for failing to report suspected drug use of others where the appellant would have essentially incriminated himself if he reported the drug use. (28) Specifically, the Dupree court held that the others' "[drug] use was inextricably intertwined with the appellant's misconduct" and because of that, reporting the others would have effectively incriminated himself. (29) As such, the conviction was overturned. (30)

   Further, in United States v. Thompson, an NCO was convicted of dereliction of duty for failing to prevent a junior airman from wrongfully using marijuana. (31) The NCO himself was also convicted of using marijuana along with the junior airman. (32) The Court found that the NCO could not be convicted of dereliction of duty for failing to prevent the same crime to which he was a principal, ostensibly because it would have required him to self-incriminate. (33)

   In determining whether a person may be unlawfully compelled to disclose information and self-incriminate, courts have employed a balancing test. (34) Specifically, courts have balanced the Government's need for disclosure against the member's right against compulsory self-incrimination. (35) In factual scenarios like those of Thompson and Dupree, the courts have concluded that the Government's need for disclosure of drug abuse amidst its military ranks does not outweigh the importance of protecting against compulsory self-incrimination when the individual is a principal to the illegal activity that he or she fails to report. (36) In deciding Thompson and Dupree, the military's highest appellate court made a strong statement: while discipline in the ranks is of paramount importance, it pales in comparison to preserving individual members' constitutional right against self-incrimination. Despite the stance of the Court of Military Appeals (CMA), the Navy challenged that position in 2009 in the case of United States v. Serianne. (37)

3. THE SISTER SERVICES' SELF-REPORT POLICIES

   1. Navy's Self-Reporting Policies

      1. United States v. Serianne

      In 2009, the Navy self-reporting regulation read as follows:

      Members arrested for an alcohol-related offense under civil authority, which if punished under the UCMJ would result in a punishment of confinement for 1 year or more, or a punitive discharge or dismissal from the Service (e.g., DUI/DWI), shall promptly notify their [commanding officer]. Failure to do so may constitute an offense punishable under Article 92, UCMJ. (38) Aviation Electrician Chief David W. Serianne was charged under Article 92, UCMJ, for willfully failing to report his DUI arrest...