4 THINGS YOU SHOULD KNOW IF YOU ARE IN THE MILITARY AND HAVE BEEN ARRESTED FOR DUI (Article 111, UCMJ)

This post was created to help you understand the ramifications of getting a DUI while serving in the military. If you need assistance challenging your civilian arrest and the subsequent actions taken against you by your command, I am here to help you. Please contact our office at 803-386-7117 or stephen@foster.legal.

SELF-REPORTING MAY HELP YOU INITIALLY AVOID UCMJ ACTION

While the case law on this matter is still unresolved and CAAF has not determined whether a self-reporting requirement is a compelled testimonial and incriminating statement, the NMCCA found that a self-reporting requirement is proper if the requirement imposes clear regulatory restrictions on commanders, called “use restrictions.” In a case before the NMCCA, the court considered a Navy directive which mandated that commanders could not use the self-report against the individual as an admission of guilt, and the individual could not be further questioned regarding the matter without being advised of his or her rights under Article 31(B), UCMJ. The court further found that such a “use restriction” on the self-report was acceptable if it prohibited commanders from imposing punishment for the underlying offense, unless the disciplinary action is based on evidence obtained independently of the self-report. Basically, if the reporting requirement is being used for military readiness, then the requirement is likely to stand if challenged. If the reporting requirement is used as a basis for UCMJ action, the requirement may be unconstitutional.

What this means practically is that if your command has issued a self-reporting requirement and the command uses your self-reporting to initiate UCMJ punitive measures against you, the reporting requirement could be found unconstitutional. However, a self-reporting requirement that contains “use restrictions” is designed prevent your command from taking certain actions against you based purely on your self-reporting. If your command has such restrictions in its self-reporting mandate, your self-report could buy you time to focus on the civilian charges before your command takes action against you. If you fail to self-report under a proper self-reporting mandate, you could face punitive actions simply for failing to report.

FAILURE TO SELF-REPORT CAN AFFECT YOUR SECURITY CLEARANCE

Executive Order 12968, Access to Classified Information, sets the standards of conduct and dictates that access to classified information shall be granted only to individuals "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information."

Failure to comply with this Order may result in your eligibility for a clearing to be revoked. If a you are arrested for any reason, you must report the arrest regardless of whether or not you are convicted or the charges were dropped.

YOU MIGHT RECEIVE A GOMOR OR ARTICLE 15 (Non-Judicial Punishment) INSTEAD OF UCMJ PUNISHMENT

Do you intend on a career in the Army? Are you coming up for the board? Even if you are not prosecuted under the UCMJ, you could receive a General Officer Memorandum of Record (GOMOR) that can be filed locally or placed in your permanent file. If you receive a GOMOR, you generally have 7 calendar days to submit a rebuttal. While you should almost always submit a rebuttal, the quality of your rebuttal can impact the filing decision, which in turn can affect whether or not you continue to serve in the military. For example, if your commander decides to file the GOMOR in your local file, it will be destroyed when you PCS and not have a long-term effect on your career. If your commander files the GOMOR in your performance file/Army Military Human Resource Record (AMHRR), this will greatly harm your chances for promotion and may eventually result in a separation action.

Under Article 15, the maximum punishment includes:

• E-4 and below: loss of all rank to E-1, loss of half of one month's pay for two months, and up to 60 days of extra duties and restriction to the garrison.

• E-5/E-6: loss of one rank, loss of half of one month's pay for two months, and up to 60 days of extra duties and restriction to the garrison.

• E-7 and above: may lose rank if punishment is imposed by a general officer, loss of half a month's pay for two months, and 45 days of extra duties and restriction to the garrison.

• Officer: no loss of rank, restriction for 30 days, arrest in quarters for 60 days, loss of half of one month's pay for two months.

YOU CAN BE PUNISHED UNDER ARTICLE 111, UCMJ

Under Article 111, any person who operates a vehicle while impaired by alcohol or drugs can be prosecuted.  If the charge is based on a chemical test, the legal BAC limit is the limit of the state in which the arrest occurred. If the arrest occurs on a military installation that is located geographically in more than one state, and the respective states have different legal limits, the Secretary in charge of the installation may select the limit from either state. If the arrest occurs overseas, the legal BAC limit is .1, unless the Secretary of Defense has set the limit at a lower level. Lesser included offenses-or offenses that you might be able to have the charges reduced to-include: Reckless or wanton or impaired operation or physical control of a vessel. Article 110—improper hazarding of a vessel; Drunken operation of a vehicle, vessel, or aircraft while drunk or with a blood or breath alcohol concentration in violation of the described per se standard; Article 110—improper hazarding of a vessel; Article 112—drunk on duty; and Article 134—drunk on station.

In conclusion, you need to be aware of your rights and the legal ramifications of a DUI arrest on your freedom and military career. Because every case is unique, it is usually in your best interest to seek the advice of legal counsel before deciding how to proceed.

Stephen Foster