(concurring in the result).
I concur in the result for the reason stated in the first two paragraphs of Chief Judge Geiser’s concurring opinion.
While I believe the mandates of Chief of Naval Operations Instruction (OPNAVINST) 5350.4C might present a constitutional dilemma if a convening authority chooses to criminally prosecute a servicemember who complies with the instruction, I also believe the instruction serves a legitimate administrative purpose to ensure that information regarding drug or alcohol related offenses is properly brought to the attention of commanders who have a responsibility to ensure appropriate administrative action is taken, e.g. report or reassess the member’s qualifications for promotion or to hold a security clearance. In other words, it is appropriate to require ser-vicemembers to put themselves on report for administrative purposes.
In cases where a convening authority might choose to refer charges against an accused that stem from the conduct self-reported in compliance with the order, I believe the proper remedy in certain cases would be to dismiss the charge or charges stemming from the self-reported conduct. Had the accused self-reported his civilian arrest in compliance with OPNAVINST 5350.4C, and if his self-reporting was the sole basis for the accuser’s preferral of charges, then I believe the Fifth Amendment right against self-incrimination would have barred his prosecution for the underlying misconduct, i.e., in this case the proper remedy would be to dismiss the Article 111 charge, not the Article 92 charge.