Appeals court to hear sailor's case that pits military rules against 5th Amendment

WASHINGTON (Tribune News Service) Seaman Nancy L. Castillo was already in hot water with the Navy when she was busted near Bremerton, Wash., for suspected drunken driving.

What didnt happen next has now brought Castillos case all the way from Washingtons Kitsap County to the nations highest military court.

On Wednesday, in a dispute potentially important to myriad servicemembers, the U.S. Court of Appeals for the Armed Forces will consider whether the Navy can require sailors to self-report civilian criminal charges, despite the Fifth Amendments protection against self-incrimination.

The self-reporting requirement provides a real and appreciable danger of legal detriment, Castillos defense attorney, Navy Lt. Carrie E. Theis, argued in a brief, adding that it is reasonable for a service member to believe that disclosing would lead to incriminating evidence.

Theis, who declined to comment Tuesday, has some support for her argument, although in the end she may be going against the tide in a court respectful of military discipline.

In a 2009 case also involving an unreported drunken driving charge filed against an East Coast-based Navy enlisted man, a divided U.S. Navy-Marine Corps Court of Criminal Appeals concluded a self-reporting requirement covering alcohol arrests violated the Fifth Amendment.

The Navy-Marine Corps court noted that a self-reporting rule demands the revelation, directly or indirectly, of facts relating a service member to an offense. The higher-ranked U.S. Court of Appeals for the Armed Forces also struck down the rule concerning alcohol offenses, although not on constitutional grounds.

The appellate court could also on Wednesday try to resolve Castillos case without digging deep into the Fifth Amendment.

Navy Secretary Ray Mabus, a former governor of Mississippi, issued new regulations in July 2010. Sailors must now report the basic civilian charges, but not all the factual details. For doing so, they receive Navy immunity unless military investigators independently obtain evidence.

Arrest records are not covered by the Fifth Amendment privilege, Marine Corps Capt. Matthew H. Harris wrote in a brief for the Navy, adding that the fact that (Castillo) was arrested and charged, by itself, could never form the basis for prosecution against her.

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Appeals court to hear sailor's case that pits military rules against 5th Amendment