I am often asked by active duty members if they have to report to their command if they get arrested out in town – for example, for DUI. If you are Navy, the answer is YES (and I believe the other services have followed suit). In a case where I was the trial counsel (prosecutor), we extensively litigated this issue in light of the Secretary of the Navy’s change to Article 1137, U.S. Navy Regulations in July 2010. See United States v. Castillo, (CAAF May 18, 2015). The Court of Appeals for the Armed Forces (CAAF), the military’s highest court, decided that the Navy’s position was correct, and that the Navy can, as now required by OPNAVINST 3120.32D, require its Sailors to immediately report arrests and charges to their commanding officer. The instruction reads specifically:
ANY PERSON ARRESTED OR CRIMINALLY CHARGED BY CIVIL AUTHORITIES SHALL IMMEDIATELY ADVISE THEIR IMMEDIATE COMMANDER OF THE FACT THAT THEY WERE ARRESTED OR CHARGED.
The report itself cannot be used as evidence against the Sailor for discipline by the military, and there is also a prohibition against disciplining the Sailor for the underlying offenses unless there is “independent evidence.” Further, Sailors are not required to give any facts or details but have to provide three key pieces of information: 1) the date of the arrest; 2) the arresting agency; and 3) the related charges. If a Sailor fails to “immediately” report, then the Sailor can be charged, as was the case in United States v. Castillo, with a violation of Article 92, UCMJ (failure to abide by a lawful regulation).
Seems simple enough, right? Not so. First, what is “independent evidence”? Second, how much time does a Sailor have to report an arrest to his or her commanding officer? If a Sailor waits until his first duty day, is that “immediately”?
The problem that I see all too often is that commands will find a way to discipline a Sailor for alleged misconduct that is pending adjudication in a state court system. They do this by having an expansive definition of “independent evidence,” claiming that the Sailor did not report “immediately,” or alleging false statements regarding the arrest.
When anyone, especially a member of the Armed Forces, is arrested for DUI, it’s a serious matter; if convicted, the state is going to impose punishment including suspension of a driver’s license, fines, probation, treatment, and possibly even jail time. A command’s decision to hold NJP often is the breaking point for a Sailor and impedes rehabilitation and recovery, often signaling the end of a career.
I specialize in navigating the complex interactions between Florida charges and military implications. I fight to make sure the military does not illegally punish military members for charges being handled in Florida courts. I fight to save military careers.
I have two pieces of advice. My first piece of advice is to not engage in criminal activity, especially drinking and driving. The stakes are too high – take a cab or call Uber (it’s also much cheaper than paying me a fee). Secondly, if you make a mistake and choose to drink and drive and get arrested, make 2 calls at your first opportunity: call your wife or mom/dad to tell them you are ok; second, call a military defense attorney to ensure that the situation doesn’t get any worse than it already is.