MILITARY PERSONNEL LAW BLOG
A recent decision of the USMC Performance Evaluation Review Board (PERB), which reviews petitions seeking the removal of FITREPS, agreed with our client that he was under no legal duty to self-report a 2007 civilian DUI conviction. The client revealed the DUI in 2013 during a "Moment of Truth" session held at the beginning of a prestigious school. He received an adverse FITREP for failure to self-report the DUI in 2007 and was removed from the school.
We argued to the PERB that the Fifth Amendment to the U.S. Constitution, which says, “No person ... shall be compelled in any criminal case to be a witness against himself,” protected the Marine against any provision compelling self-disclosure of involvement in a civilian criminal matter. We relied on the decisions of the Navy-Marine Corps Court of Criminal Appeals and U.S. Court of Appeals for the Armed Forces in Serianne. The Navy and PERB agreed, and the FITREP was voided and removed. The question of whether current Navy regulation requiring self-reporting of criminal offenses is constitutional is now before the U.S. Court of Appeals for the Armed Forces as United States v. Castillo. A discussion of the pending appeal, United States v. Castillo, is available here: