MILITARY CRIMINAL DEFENSE - DUTY TO REPORT ARREST TO COMMAND
ONLY THE NAVY REQUIRES OFFICERS TO REPORT AN ARREST.
The rules are very confusing, with some services requiring only the reporting of an actual conviction or action tantamount to a conviction, like a pretrial diversion program. However, failing to report an arrest can undermine trust and confidence because there is a strong likelihood that the command will catch wind of the arrest.
The Navy SORM OPNAVINST 3120.32D requires that a member immediately report to their command a civilian arrest or the initiation of civilian criminal charges. The requirement is there so that the Navy can, “monitor and maintain the personnel readiness, welfare, safety, and deployability of the force.” The member is only required to inform the command of the arrest and the jurisdiction where the arrest occured – there is no duty to discuss the underlying events that led to the arrest. Further, the Navy has given some protection against the use of the self-report to discipline members, including at court-martial and nonjudicial punishment.
Marines, on the other hand, have no duty to report an arrest, but do have a duty to report a conviction or an action tantamount to a conviction for anything other than a traffic offense. The Army and Air Force have similar policies. These stem from the National Defense Authorization Act of FY 2006 (NDAA 2006), which mandated that officers and enlisted above E-6 self-report convictions of criminal laws. Again, the policies regarding the reporting vary by the services.
For the Navy, it is clear that its officers must immediately report any arrest for a criminal offense. Failure to do so violates Article 92, UCMJ.
Further, for all of the services, it is extremely likely these days that the command will become aware of the arrest regardless of any self-report. Traditionally, installations became aware of arrests of military members in nearby jurisdictions through informal reporting by civilian law enforcement to military police or installation leadership. However, the introduction of the continuous evaluation system has led to reporting of arrests all over the country to commands.
As of 2021, the Defense Counterintelligence and Security Agency (DSCA) has successfully enrolled ALL DoD service members, civilians, and contractors with a security clearance – about 3.6 million people, in its continuous evaluation system. The continuous evaluation systems continously searches government (state and federal) and commerical databases for information about the enrolled individuals. This includes court records and arrest records. When there is a “hit” on an individual showing, for example, an arrest, DSCA sends a Continuous Evaluation Information Report (CEIR) to the command asking for information about the arrest so it can determine whether to take action against the member’s clearance. A CEIR, in my experience, normally is issued within 3 months of any arrest.
So there is substantial risk that a command will find out about an arrest even without a self-report, and the underlying allegation may lead to further investigation by military authorities, adverse administrative action, or even court-martial.
So, if you are a Marine Corps or Navy Officer, should you report the arrest? Navy officers have a duty to report the arrest, and failing to do so can give an independent basis for discipline and adverse administrative action. Bearing in mind that the commands will most likely find out about any arrest, goodwill can be earned by reporting an arrest. However, depending on the circumstances, reporting the arrest can trigger dire career consequences, especially for officers in leadership positions. Therefore, it is best to retain an experienced military law attorney before any military officer self-reports an arrest to evaluate the potential military consequences of reporting the arrest.
Attorney Patrick Korody has been practicing military law for nearly 20 years. He has represented officers in every branch of the military and recognizes each branch, and sometimes different communities, treat civilian arrests differently. He has significant experience defending officers at court-marital, boards of inquiry, and security clearance hearings. Call now for a free case evaluation – (904) 383-7261.
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