                        UNITED STATES, Appellee

                                    v.

           Nancy L. CASTILLO, Machinist’s Mate Fireman
                       U.S. Navy, Appellant

                              No. 14-0724

                       Crim. App. No. 201300280

       United States Court of Appeals for the Armed Forces

                       Argued February 11, 2015

                         Decided May 18, 2015

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.

                                 Counsel

For Appellant: Lieutenant Carrie E. Theis, JAGC, USN (argued);
Lieutenant David W. Warning, JAGC, USN.

For Appellee: Captain Matthew M. Harris, USMC (argued); Brian K.
Keller, Esq. (on brief); Lieutenant Commander Keith Lofland,
JAGC, USN.


Military Judges:    Lewis T. Booker Jr. and Andrew H. Henderson



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Castillo, No. 14-0724/NA


     Chief Judge BAKER delivered the opinion of the Court.

     Contrary to her pleas, a special court-martial composed of

officer and enlisted members convicted Appellant of offenses

including violating a lawful general order by failing to report

her arrest for drunk driving, in violation of Article 92,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892 (2012).

The convening authority approved a sentence including a bad-

conduct discharge, a $5,000 fine, and reduction to the lowest

enlisted grade.    The United States Navy-Marine Corps Court of

Criminal Appeals (CCA) affirmed.       United States v. Castillo, No.

NMCCA 201300280, slip op. at 16 (N-M. Ct. Crim. App. May 27,

2014).   On Appellant’s petition, we granted review of the

following issue:

     WHETHER THE LOWER COURT IMPROPERLY DETERMINED THAT
     [THE] DUTY TO SELF-REPORT ONE’S OWN CRIMINAL ARRESTS
     FOUND IN OFFICE OF THE CHIEF OF NAVAL OPERATIONS
     INSTRUCTION 3120.32C WAS VALID DESPITE THE
     INSTRUCTION’S OBVIOUS CONFLICT WITH SUPERIOR AUTHORITY
     AND THE FIFTH AMENDMENT.

     This appeal involves Appellant’s challenge to the Chief of

Naval Operations’s regulatory requirement that servicemembers

report to their immediate commander the fact that they were

arrested for an offense by civilian authorities.      Appellant’s

attack on the service instruction, Dep’t of the Navy, Chief of

Naval Operations Instr. 3120.32C, General Guidance and

Regulations para. 510.6 (July 30, 2001) [hereinafter OPNAVINST


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United States v. Castillo, No. 14-0724/NA


3120.32C], is twofold:   that it conflicts with superior

regulatory authority; and that it facially compels self-

incrimination in violation of the Fifth Amendment to the

Constitution.

     We conclude that the Navy clearly amended its self-

reporting regulations in direct response to this Court’s prior

decision in United States v. Serianne, 69 M.J. 8 (C.A.A.F.

2010), and find Appellant’s first regulatory argument

unpersuasive.   We further conclude that -- while Appellant

advances hypothetical applications of the Navy’s self-reporting

requirement that may raise constitutional questions -- she does

not contend that her case presents an unconstitutional

application of the regulation, and cannot meet her burden for

successfully advancing a facial challenge, which requires the

challenger to establish that “no set of circumstances exists

under which the [regulation] would be valid.”   United States v.

Wright, 53 M.J. 476, 481 (C.A.A.F. 2000) (quoting United States

v. Salerno, 481 U.S. 739, 745 (1987)). 1

                            BACKGROUND

     In May 2010, this Court found that a service instruction

requiring that sailors report their own arrests by civilian


1
  The standard for sustaining a facial challenge to
constitutional validity remains the same, whether the challenge
addresses a statute or a regulation. See Reno v. Flores, 507
U.S. 292, 301 (1993).
                                 3
United States v. Castillo, No. 14-0724/NA


authorities conflicted with superior regulatory authority.

Serianne, 69 M.J. at 11.    The service instruction at issue in

Serianne provided that:

     Members arrested for an alcohol-related offense under civil
     authority, which if punished under the UCMJ would result in
     a punishment of confinement for 1 year or more, or a
     punitive discharge or dismissal from the Service (e.g.,
     DUI/DWI), shall promptly notify their CO. Failure to do so
     may constitute an offense punishable under Article 92,
     UCMJ.

The appellant in Serianne argued that this self-reporting

requirement violated his Fifth Amendment privilege against self-

incrimination.    69 M.J. at 9.   We declined to address his

constitutional challenge, however, because we resolved the issue

in his favor on nonconstitutional grounds.     Id. at 11 (citing

Ashwander v. TVA, 298 U.S. 288, 346–48 (1936) (Brandeis, J.,

concurring)).    Specifically, we looked to U.S. Naval Regs.,

Article 1137 (1990), which addressed servicemembers’ obligation

to report UCMJ offenses, but specifically exempted offenses in

which the servicemember was criminally involved.     U.S. Naval

Regs., Article 1137, provided:

     Persons in the naval service shall report as soon as
     possible to superior authority all offenses under the
     Uniform Code of Military Justice which come under
     their observation, except when such persons are
     themselves already criminally involved at the time
     such offenses first come under their observation.




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United States v. Castillo, No. 14-0724/NA


     We concluded that the service instruction at issue in

Serianne did not provide the protection against self-reporting

established by U.S. Naval Regs., Article 1137.     Thus, the

service instruction promulgated by the Chief of Naval Operations

was contrary to superior regulatory authority promulgated by the

Secretary of the Navy, and did not provide a legal basis with

which to charge Serianne with dereliction of duty under the

UCMJ.   Serianne, 69 M.J. at 11.

     The Navy responded by amending its regulations. 2   In July

2010, the Secretary of the Navy released Dep’t of the Navy,

Secretary of the Navy, ALNAV 049/10 (July 21, 2010) [hereinafter

ALNAV 049/10], an administrative message disseminated throughout

the Navy with the subject line “Change to U.S. Navy Regulations

in light of U.S. v. Serianne.”     The message stated that the

change was “effective immediately,” and in pertinent part, added

new language to U.S. Naval Regs., Article 1137, authorizing

self-reporting regulations:

     The Secretary of the Navy, Chief of Naval Operations,
     and Commandant of the Marine Corps may promulgate
     regulations or instructions that require
     servicemembers to report civilian arrests or filing of
     criminal charges if those regulations or instructions
     serve a regulatory or administrative purpose.

2
 The self-reporting requirement at issue in this case is a
separate service instruction, not an amended version of the
instruction at issue in Serianne. Our decision today is limited
to the service instruction at issue, and does not address the
constitutionality of other existing or conceivable self-
reporting regulations.
                                   5
United States v. Castillo, No. 14-0724/NA


     ALNAV 049/10.

     In December 2011, the Chief of Naval Operations released

Dep’t of the Navy, Chief Naval Officer, NAVADMIN 373/11 (Dec. 8,

2011) [hereinafter NAVADMIN 373/11], which amended OPNAVINST

3120.32C, the service instruction at issue in the case now

before the Court.    The instruction as amended requires self-

reporting of arrests by civilian authorities, and prohibits

commanders from taking disciplinary action regarding the

underlying offense for which the servicemember was arrested,

unless that disciplinary action is based on independent

evidence:

     Any person arrested or criminally charged by civil
     authorities shall immediately advise their immediate
     commander of the fact that they were arrested or charged .
     . . . No person is under a duty to disclose any of the
     underlying facts concerning the basis for their arrest or
     criminal charges. Disclosure is required to monitor and
     maintain the personnel readiness, welfare, safety, and
     deployability of the force. Disclosure of arrest/criminal
     charges is not an admission of guilt and may not be used as
     such, nor is it intended to elicit an admission from the
     person self-reporting. No person subject to the Uniform
     Code of Military Justice (UCMJ) may question a person self-
     reporting an arrest/criminal charges regarding any aspect
     of the self-report, unless they first advise the person of
     their rights under UCMJ Article 31(b).

     . . . .

     Commanders shall not impose disciplinary action for failure
     to self-report an arrest or criminal charges prior to
     issuance of this NAVADMIN. In addition, commanders shall
     not impose disciplinary action for the underlying offense
     unless such action is based solely on evidence derived
     independently of the self-report.

                                  6
United States v. Castillo, No. 14-0724/NA


     . . . .

     Per this NAVADMIN, commanders may impose disciplinary
     action for failure to self-report an arrest or criminal
     charges. However, when a servicemember does self-report
     pursuant to a valid self-reporting requirement, commanders
     will not impose disciplinary action for the underlying
     offense unless such disciplinary action is based solely on
     evidence derived independently of the self-report.
     Commanders should consult a judge advocate prior to
     imposing disciplinary action.

     . . . Commanders shall ensure their instructions do not
     include additional self-reporting requirements.

     . . . .

     In February 2012, Appellant was arrested in Kitsap County,

Washington for driving under the influence. 3   She did not report

the arrest to her command.   Her command learned of the arrest

during an unrelated visit to the local courthouse, during which

one of her supervisors noticed her name on the court’s docket.

She was subsequently charged with violating a lawful order, to

wit, wrongfully failing to report the arrest, in violation of

Article 92, UCMJ.

     Appellant unsuccessfully challenged the Navy’s self-

reporting requirement at trial, arguing that it conflicted with
3
 The new version of the Chief of Naval Operations’s self-
reporting requirement was published as OPNAVINST 3120.32D in
July 2012. Dep’t of the Navy, Chief of Naval Operations Instr.
3120.32D, General Guidance and Regulations para. 5.1.6 (July 16,
2012). NAVADMIN 373/11 makes clear, however, that the self-
reporting requirement was amended in December 2011. In other
contexts, this Court has noted that NAVADMIN messages have
substantive force. See, e.g., United States v. Davis, 60 M.J.
469, 471 n.2 (C.A.A.F. 2005); United States v. Davis, 52 M.J.
201, 204 n.3 (C.A.A.F. 1999).
                                 7
United States v. Castillo, No. 14-0724/NA


U.S. Naval Regs., Article 1137, and the Fifth Amendment.     She

now pursues that argument on appeal from her conviction.     In

Appellant’s view, “[the] self-reporting requirement is clearly

aimed at extracting information on criminal activity.”     Thus,

Appellant argues that the service instruction exceeds what U.S.

Naval Regs., Article 1137, permits, and unconstitutionally

compels self-incrimination by requiring the disclosure of a

civilian arrest.   Because the regulation is directed toward

criminal activity, under this view, it is not saved by any

purported regulatory purpose.   See California v. Byers, 402 U.S.

424, 430 (1971) (plurality opinion) (finding no Fifth Amendment

violation with a reporting requirement that is “essentially

regulatory, not criminal”); United States v. Oxfort, 44 M.J.

337, 341 (C.A.A.F. 1996) (applying a three-part test to

determine whether the regulatory exception applies).   The fact

that commanders are prohibited from imposing discipline on the

underlying arrested offense does not render the self-reporting

requirement constitutional, according to Appellant, because the

grant of immunity does not comply with Rule for Courts-Martial

(R.C.M.) 704, and fails to provide immunity coextensive with the

Fifth Amendment’s protection against self-incrimination.    See

United States v. Kastigar, 406 U.S. 441, 445–47 (1972).

     The Government counters that, because the self-reporting

requirement is regulatory in nature, it is authorized by U.S.

                                 8
United States v. Castillo, No. 14-0724/NA


Naval Regs., Article 1137.   As a threshold matter, the

Government advances the argument that an arrest is a matter of

public record, and requiring that a servicemember disclose the

mere fact of an arrest does not compel a communication that is

testimonial and incriminating.   See Hiibel v. Sixth Judicial

Dist. Court, 542 U.S. 177, 189 (2004) (“To qualify for the Fifth

Amendment privilege, a communication must be testimonial,

incriminating, and compelled.”).       But even if the self-reporting

requirement would otherwise be subject to Fifth Amendment

analysis, in the Government’s view, the requirement satisfies

the regulatory exception criteria discussed in Oxfort.

      The CCA agreed with the Government’s position.     In the

CCA’s analysis, “the use restriction in NAVADMIN 373/11 . .       .

removed any real and appreciable danger of legal detriment for a

self-reported arrest or criminal charge.”      Castillo, No. NMCCA

201300280, slip op. at 10.   The CCA found that this conclusion

removed the need to address whether the self-reporting

requirement qualifies under the regulatory exception to the

Fifth Amendment.   Nonetheless, the CCA proceeded to address

whether the requirement was regulatory in nature to determine

whether it was authorized by U.S. Naval Regs., Article 1137.

Id.   Applying the seven-factor test from Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168–70 (1963), the CCA concluded that

the self-reporting requirement was regulatory rather than

                                   9
United States v. Castillo, No. 14-0724/NA


punitive.    Castillo, No. NMCCA 201300280, slip op. at 11.    Thus,

the CCA held that the self-reporting requirement is authorized

by superior regulatory authority and not prohibited by the Fifth

Amendment.

                             DISCUSSION

                    SUPERIOR REGULATORY AUTHORITY

      Interpretation of a service instruction is a question of

law, which we review de novo.   Serianne, 69 M.J. at 10.      The

United States Navy Regulations serve as “the principal

regulatory document of the Department of the Navy,” and other

regulations “shall not conflict with, alter or amend any

provision of Navy Regulations.”    Id. at 11 (quoting U.S. Naval

Regs., Article 0103).   Thus, U.S. Naval Regs., Article 1137, as

amended by the Secretary of the Navy through ALNAV 049/10, is

superior regulatory authority in relation to the self-reporting

requirement found in OPNAVINST 3120.32C. 4   If the self-reporting

requirement conflicts with U.S. Naval Regs., Article 1137, then

failure to adhere to the requirement cannot serve as the basis

for a prosecution under Article 92, UCMJ.    Serianne, 69 M.J. at

11.



4
 This conclusion is bolstered by the fact that, except as
otherwise provided by law, the Chief of Naval Operations acts
“under the authority, direction, and control of the Secretary of
the Navy and is directly responsible to the Secretary.” 10
U.S.C. § 5033(c) (2012).
                                  10
United States v. Castillo, No. 14-0724/NA


     Our analysis begins with the plain text of U.S. Naval

Regs., Article 1137.   As amended by ALNAV 049/10, the article

authorizes the Chief of Naval Operations to promulgate

“instructions that require servicemembers to report civilian

arrests or filing of criminal charges if those regulations or

instructions serve a regulatory or administrative purpose.”     The

article also retains its prior language stating that

servicemembers are required to report “offenses under the

Uniform Code of Military Justice which come under their

observation, except when such persons are themselves already

criminally involved in such offenses at the time such offenses

first come under their observation.”

     Appellant contends that U.S. Naval Regs., Article 1137, is

therefore internally inconsistent, because the long-standing

provision that servicemembers need not report offenses in which

they are criminally involved conflicts with the recent amendment

specifically authorizing administrative regulations requiring

the self-reporting of civilian arrests.   The problem for

Appellant is that she would have us read one provision of a

regulation to “make[] nonsense of” a second provision in the

same regulation.   United Sav. Ass’n of Texas v. Timbers of

Inwood Forest Associates, Ltd., 484 U.S. 365, 374 (1988).     We

decline to do so, particularly when the drafters’ intent to

amend U.S. Naval Regs., Article 1137, “in light of United States

                                11
United States v. Castillo, No. 14-0724/NA


v. Serianne” is obvious on its face.     See Timbers, 484 U.S. at

375 (petitioner’s proposed interpretation of one section would

render a second section “a practical nullity and a[n] . . .

absurdity”).

        Rather than read these two provisions to conflict with one

another, we read them as a whole, and conclude that they do not

conflict.     See generally United States v. Harrison, 19 C.M.A.

179, 182, 41 C.M.R. 179, 182 (1970) (command directive is “read

as a whole”).     U.S. Naval Regs., Article 1137, directs that

servicemembers need not report UCMJ offenses in which they

themselves are “criminally involved,” and that protection --

addressed to substantive reports of offenses, not factual

reports of arrests -- survives the amendment at issue in this

case.     The amendment specifically authorizes regulations that

require the self-reporting of arrests, and that requirement does

not conflict with or alter the substantive protection against

the required self-reporting of offenses.

        We therefore conclude that the provision of U.S. Naval

Regs., Article 1137, excepting from compulsory reporting

offenses in which servicemembers are “themselves already

criminally involved” does not conflict with the July 2010

amendment by ALNAV 049/10, which specifically authorizes

regulations or instructions requiring the self-reporting of

civilian arrests.     This latter authorization, however, is

                                  12
United States v. Castillo, No. 14-0724/NA


contingent upon the regulation serving “a regulatory or

administrative purpose.”   The question of whether the self-

reporting requirement serves such a purpose is also related to

the question of whether the requirement conflicts with the Fifth

Amendment, Oxfort, 44 M.J. at 341, and it is to that question we

turn.

        FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

     We review questions of constitutional law de novo,

including the question of whether the self-reporting requirement

conflicts with the Fifth Amendment privilege against self-

incrimination.    Serianne, 69 M.J. at 10.   In pertinent part, the

Fifth Amendment provides that no person “shall be compelled in

any criminal case to be a witness against himself.”    U.S. Const.

amend. V.   This protection addresses “real and appreciable, and

not merely imaginary and unsubstantial, hazards of self-

incrimination.”   Marchetti v. United States, 390 U.S. 39, 48

(1968) (citations omitted) (internal quotation marks omitted).

“To qualify for the Fifth Amendment privilege, a communication

must be testimonial, incriminating, and compelled.”    Hiibel, 542

U.S. at 189.

     This appeal necessarily arises in the context of a facial

challenge to the self-reporting requirement, because Appellant

did not incriminate herself, but rather contends that the

service instruction unconstitutionally compels her to do so.

                                 13
United States v. Castillo, No. 14-0724/NA


“Facial challenges . . . run contrary to the fundamental

principle of judicial restraint that courts should neither

anticipate a question of constitutional law in advance of the

necessity of deciding it nor formulate a rule of constitutional

law broader than is required by the precise facts to which it is

to be applied.”   Washington State Grange v. Washington State

Republican Party, 552 U.S. 442, 450 (2008) (citations omitted)

(internal quotation marks omitted).   Thus, a regulation will

only be held to be facially unconstitutional when the challenger

convinces the Court that “no set of circumstances exists under

which the [regulation] would be valid.”   Wright, 53 M.J. at 481.

     The questions before the Court are whether the self-

reporting regulation can be applied in a manner that upholds the

Constitution, and whether it was so applied to Appellant.    We

are not called to resolve “hypothetical situations designed to

test the limits of” the regulation, such situations are properly

the subject of future litigation with the benefit of a developed

factual record.   Holder v. Humanitarian Law Project, 561 U.S. 1,

22 (2010).   Put another way, “[w]hat is not ready for decision

ought not to be decided.”   Quill v. Vacco, 80 F.3d 716, 732 (2d

Cir. 1996) (Calabresi, J., concurring in the result).

     In asking whether the government may apply the self-

reporting requirement in a manner that is constitutional, we

look first to the nature of the compelled disclosure.   As

                                14
United States v. Castillo, No. 14-0724/NA


implemented by NAVADMIN 373/11, the service instruction requires

that a servicemember disclose “the fact that they were arrested

or charged.”   The instruction proceeds further:    “No person is

under a duty to disclose any of the underlying facts concerning

the basis for their arrest or criminal charges.”    And no person

subject to the UCMJ may use this report to initiate disciplinary

action absent an independent investigation, or to question the

reporting servicemember absent an Article 31(b), UCMJ, 10 U.S.C.

§ 831 (2012), warning against self-incrimination.

     The question then becomes whether the factual report of an

arrest, accompanied by the safeguards against further

questioning or prosecution contained in the service instruction,

presents a “real and appreciable” hazard of self-incrimination,

where the regulation is in fact followed as drafted.    Marchetti,

390 U.S. at 48 (citations omitted) (internal quotation marks

omitted).   We conclude that it does not.   In the first instance,

we note that the mere fact of an arrest is a matter of public

record.   See Paul v. Davis, 424 U.S. 693, 713 (1976); Ficker v.

Curran, 119 F.3d 1150, 1154 (4th Cir. 1997); Cline v. Rogers, 87

F.3d 176, 179 (6th Cir. 1996).   It communicates only that a

police officer believed that probable cause existed to arrest an

individual on suspicion of committing an offense.    See Terry v.

Ohio, 392 U.S. 1, 20 (1968) (arrest must be accompanied by

warrant or probable cause).

                                 15
United States v. Castillo, No. 14-0724/NA


     Most importantly, although a reasonable argument exists

that the compelled disclosure of an arrest by civilian

authorities is testimonial and incriminating, the reporting

requirement prohibits commanders from imposing disciplinary

action on the basis of the underlying arrested offense, 5 “unless

such disciplinary action is based solely on evidence derived

independently of the self-report.”   See Kastigar, 406 U.S. at

453 (“[I]mmunity from use and derivative use is coextensive with

the scope of the privilege against self-incrimination, and

therefore is sufficient to compel testimony over a claim of the

privilege.”).   Thus, even if the self-report would otherwise be

incriminating because it (1) communicates a fact or information;

and (2) that information may be used as the basis for military

prosecution, or as a substantial link leading to additional

incriminating evidence, Hiibel, 542 U.S. at 189–90, the

functional immunity provided by the instruction allows the

government to compel the disclosure.

     Appellant argues that the restrictions on how the Navy may

use the compelled report are not sufficient, because they do not

5
 Appellant correctly notes that the service instruction itself
does not define the “underlying offense,” and leaves open the
hypothetical possibility that the government will prosecute the
arrested offense under a distinct charging theory, or will use
the self-report to discover and charge some aspect of the
interaction with civilian police other than the underlying
offense. In these hypothetical cases, the accused remains free
to argue that the prosecution violates his Fifth Amendment
privilege against self-incrimination.
                                16
United States v. Castillo, No. 14-0724/NA


comply with R.C.M. 704, which governs grants of transactional

and testimonial immunity.    Further, Appellant contends that the

service instruction does not bind commanders and cannot be

enforced at court-martial.    These arguments are not persuasive

in the context of a facial challenge.    First, the service

instruction is a directive that “commanders shall not impose

disciplinary action” on the basis of the self-report.    Such a

directive is not a grant of immunity governed by the Rules for

Courts-Martial, although it functions to immunize the compelled

disclosure against prosecution.    Thus, while the service

instruction may not bind commanders in a manner directly

enforceable by a hypothetical accused, the accused remains free

to argue that by disregarding the use restrictions in a

particular case, the government violated his Fifth Amendment

privilege against self-incrimination.

     Appellant also contends that the regulation is aimed at

compelling disclosures of criminal activity rather than

achieving a regulatory purpose, and therefore violates the Fifth

Amendment and exceeds the grant of authority in U.S. Naval

Regs., Article 1137. 6   To evaluate this contention, we must look



6
 As we have concluded that the use restrictions provide
functional immunity and allow the Government to compel the
disclosure, we need not address this issue as a Fifth Amendment
matter. We must determine whether the instruction serves a
regulatory or administrative purpose, however, to determine
                                  17
United States v. Castillo, No. 14-0724/NA


to the essential intent of the regulation.      Oxfort, 44 M.J. at

341.    In determining whether the drafters’ intention is

essentially regulatory or punitive, we find the seven factors

identified in Mendoza-Martinez, 372 U.S. at 168–70, to be

instructive, but decline to hold that they necessarily prescribe

the required analysis in evaluating the essential intent of

service regulations. 7

       The core inquiry of Mendoza-Martinez, Byers, and Oxfort is

not the formulaic application of multifactor tests, but rather

consideration of whether the challenged provision is grounded in

a valid regulatory, as opposed to punitive, governmental

purpose.    In Mendoza-Martinez, the government sought to punish

individuals who fled abroad in avoidance of conscription by

revoking their citizenship through a statutory scheme without

due process of law.      372 U.S. at 186.   In Byers, by way of

contrast, California’s legitimate, nonpunitive state interests

permitted a statute requiring motorists to stop and identify



whether it is authorized by U.S. Naval Regs., Article 1137.       See
Castillo, No. NMCCA 201300280, slip op. at 10.
7
  They are: (1) whether the sanction involves an affirmative
disability or restraint; (2) whether it has historically been
regarded as a punishment; (3) whether it operates only upon a
finding of scienter; (4) whether it will serve the traditional
aims of punishment, i.e., retribution and deterrence; (5)
whether it applies to behavior that is already a crime; (6)
whether it serves an alternative (i.e., noncriminal) purpose;
and (7) whether it is excessive in relation to that purpose.
Mendoza-Martinez, 372 U.S. at 168–69.
                                   18
United States v. Castillo, No. 14-0724/NA


themselves when involved in a vehicular accident.   402 U.S. at

433–34.   Similarly, in Oxfort, the government’s nonpunitive

interest in the return of national security information

justified a statutory provision requiring unauthorized

possessors of such information to deliver it to the government.

44 M.J. at 342.

     Applying this core inquiry under OPNAVINST 3120.32C, we

conclude that while the instruction does provide for sanctions

for noncompliance, the instruction is drawn for a regulatory or

administrative purpose.   On its face, the service instruction

states that “[d]isclosure is required to monitor and maintain

the personnel readiness, welfare, safety, and deployability of

the force.”   It does not target any highly selective group

inherently suspect of criminal activities, Oxfort, 44 M.J. at

341, but rather applies to all members of the Navy. 8   Further, as



8
  The inquiry of whether a regulation targets a highly selective
group inherently suspect of criminal activities derives from an
era in which the federal government targeted administrative
actions against the Communist Party of the United States.
Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 71–
73 (1965). A reasonable argument exists that individuals
detained by the police should be viewed as such a class.
Hiibel, 542 U.S. at 191–93 (Stevens, J., dissenting). However,
our view is that Byers provides the correct analogy, and that
the regulation in this case applies to all members of the Navy,
just as the statute in Byers applied to all California
motorists, not merely those actually involved in vehicular
accidents. See Byers, 402 U.S. at 430 (the statute applies to
“all persons who drive automobiles in California”); see also
United States v. Heyward, 22 M.J. 35, 37 (C.M.A. 1986) (Air
                                19
United States v. Castillo, No. 14-0724/NA


discussed above, the service instruction provides safeguards

against further questioning or military prosecution. 9

     We have no doubt that, for the reasons stated in the

service instruction, the Navy has a legitimate administrative or

regulatory interest in knowing whether sailors have been

arrested by civilian authorities.      We are further convinced,

given the protections included in the service instruction, that

the regulation is not drawn for a punitive purpose.      As a

result, the service instruction is facially constitutional and

authorized by U.S. Naval Regs., Article 1137.

     In this case, Appellant has ably advanced questions of

constitutional law, and has directed our attention to issues

that may arise in future cases.    None of those issues are

properly presented in this case, because Appellant was


Force requirement to report drug abuse by others analogous to
Byers).
9
 The fact that the regulation contemplates further questioning
necessitating an Article 31(b), UCMJ, warning, in Appellant’s
view, demonstrates its punitive purpose. We disagree. In the
first instance, this provision merely restates the law, which is
that a military questioner operating in an official law
enforcement or disciplinary capacity must warn the suspect
against self-incrimination. United States v. Gilbreath, 74 M.J.
11, 12 (C.A.A.F. 2014). Read as a whole, the clear purpose of
the regulation is to require self-reporting of an arrest while
providing procedural safeguards against military prosecution for
the underlying offense. In the hypothetical case where the
government pursues additional questioning and brings a
prosecution based on that questioning, the parties remain free
to argue whether that questioning infringed on the Fifth
Amendment privilege against self-incrimination in view of the
required disclosure.
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United States v. Castillo, No. 14-0724/NA


constitutionally prosecuted for the failure to report her

civilian arrest under Article 92, UCMJ.   OPNAVINST 3120.32C as

amended by NAVADMIN 373/11 is constitutional on its face, and

any unconstitutional government action taken under color of the

self-reporting requirement must be addressed in subsequent

litigation.

                           CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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