Commentary

End the Navy’s vessel exception. Give sailors and Marines the due process afforded to every other US service member

The Navy vessel exception to Article 15 non-judicial punishment (NJP) is outdated and needs to be removed. Whether you are familiar with NJP by the terms “captain’s mast,” “office hours," “Article 15,” “NJP’d” or “ninja punched,” fundamental fairness demands the end to the vessel exception.

When Article 15 was first enacted by Congress in 1950, there was no right to turn down NJP and demand trial by court-martial. When Article 15 was amended in 1962, service members were granted the right to turn down NJP unless “attached to or embarked in a vessel;” this is what is known as the Navy’s “vessel exception.” The vessel exception was only intended to apply to military members aboard ship. This is clear by the advice from the assistant attorney general at the time, Norbert A. Schlei, to President Kennedy when he wrote the possibility that the vessel exception might be applied to persons “considerably removed from the vessel involved, and without regard to whether actual boarding of the vessel is planned for the immediate future … would appear to be inconsistent with the congressional intent.” In 1997, the Court of Appeals for the Armed Forces (CAAF) ruled that the vessel exception should be, “limited to situations such as where the service members were aboard a vessel, in the immediate vicinity and in the process of boarding, or attached to vessels and absent without authority in foreign ports.”

The reason the vessel exception was created was to ensure combat capability. The Manual for Courts-Martial defines “vessel” as capable as being used as a means of transportation on water. If a unit was underway in the 1960s, the readiness could not be compromised to coordinate the necessary logistics of a court-martial at sea to deal with minor misconduct. NJP is designed to be a swift and efficient way to resolve alleged minor misconduct and maintain good order and discipline. Even though your commanding officer (CO) ultimately determines what a minor offense is, minor offenses are generally considered offenses that can be dealt with at summary court-martial with a maximum confinement of 30 days, and not offenses that if tried by a general court-martial could be punished by a dishonorable discharge or confinement for more than one year. The CO is required to consider your evidence and endeavor to find the truth. Unfortunately, the reality is that most COs have made up their mind about your guilt or innocence before the captain’s mast begins. Nearly all sailors and Marines appearing at captain’s mast will be found guilty.

Washington, UNITED STATES: President of National Institute of Military Justice Eugene Fidell (R) looks on as Director of the Washington Office of Human Rights First Elisa Massimino (L) speaks during an Emerging Threats and Capabilities Subcommittee hearing on detainee trails in light of Supreme Court ruling Hamdan v Rumsfeld on Capitol Hill in Washington, DC, 19 July 2006. AFP PHOTO/Jim WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
Lawyers: Navy abused UCMJ ship exception

Law experts knock the vessel exception that the Navy uses to reject court-martial requests as an antiquated power that denies sailors their rights.

The reason you have the right to turn down NJP, outside of the Navy’s vessel exception, is to protect yourself against an unfair determination of guilt. While the risk of a court-martial is great and could result in a federal conviction, a court-martial offers rules and procedures that protect you against losing your career without due process. For example, the standard of proof at a court-martial is beyond a reasonable doubt (far greater than the standard of proof required at NJP).

The lowest level of court-martial, a summary court-martial, is only authorized to try enlisted personnel, not officers. All enlisted personnel, sea and shore duty, have an absolute right to refuse summary court-martial, a forum that has similar punishment options to NJP. As a result, due to the Navy’s inappropriate use of the vessel exception, careers have unjustly been destroyed in cases where the sailor or Marine did not have the right to demand a court-martial. This is significant because the Navy is essentially forcing service members to have their cases handled in a proceeding where most of the Military Rules of Evidence do not apply and the standard of proof is a preponderance of the evidence (or greater than a 50 percent chance that the allegation is true).

The right to refuse NJP and the right to consult with counsel go hand in hand. The Navy interprets the right to consult with a lawyer as only the right to consult about whether to accept NJP. Therefore, if you do not have the right to refuse NJP because you are attached to or embarked on a vessel, you also do not have the right to consult with counsel. The obvious red flag here is that your CO has the unrestrained authority to unilaterally, without meaningful checks or balances, take action to end your career.

The congressional language makes it clear that the vessel exception was intended to be used in “some cases where a ship is at sea.” The vessel exception was never intended to be used in all cases when a ship is at sea, much less when not at sea or not even on a ship. Unfortunately, Navy leaders often abuse this loophole to due process. An example of this abuse occurred in 2015 when two Navy officers were taken to NJP following an investigation into the command climate of a ship. Both were denied their right to refuse NJP, although neither were aboard the ship, near the ship, or in a foreign port. Both officers were already reassigned to shore commands and physically detached from the ship. Using the technicality that the officers were assigned to a “sea-going command” in order to remove their right to refuse NJP and demand a court-martial has nothing to do with maintaining good order and discipline and everything to do with abuse of power.

And that is not the only possibility of abuse. Generally, there is a two-year statute of limitations for imposing NJP, and the vessel exception applies at the time the NJP is imposed. So, a sailor could be accused of committing an offense a year ago while on shore duty, but since NJP is being imposed while you are attached to a vessel, you have lost your right to refuse NJP and demand trial by court-martial. If you committed the violation and there is sufficient evidence to convict you at court-martial, then this may not seem so bad. But if you are innocent and you are being falsely accused, or the evidence against you is lacking, these distinctions make a significant difference and greatly affect your ability to defend yourself against baseless and career-ending accusations of misconduct.

Today’s Navy is not only capable of administering NJP on a vessel, it can coordinate a court-martial if necessary. If a judge advocate is not available on the ship in person, today’s technology affords the opportunity to video-teleconference (VTC) or transport personnel if necessary. In fact, the military has been using VTC to conduct attorney advisements for years in deployed environments and more recently during the COVID pandemic. The Navy has successfully conducted courts-martial at sea on vessels that were underway.

While a finding of guilty at NJP cannot result in a punitive discharge as punishment at the NJP, many sailors and Marines find themselves being administratively discharged, with their service being characterized as other than honorable (OTH), shortly after being found guilty at NJP and based solely on being found guilty at NJP. A less than honorable characterization of service can cost you your hard-earned benefits like the GI Bill and Veteran’s Administration (VA) health care. This is hardly a fair result for minor misconduct processed with little to no due process for the service member.

So why does the Navy’s vessel exception to NJP still exist? There is no good reason. What would the Navy lose if it ended the vessel exception? Nothing. It would gain the intended check on a CO’s power and ensure that sailors and Marines are not being unjustly punished at captain’s mast without due process. The purpose of this article is to recommend the Navy revoke its ship exception to NJP and bring the Navy into the current century.

David Johnson, a graduate of Regent Law School, is a former active duty Army judge advocate, paratrooper, and combat veteran. He saved the careers of countless soldiers as one of the top JAG military defense attorneys, and now he continues to represent service members as the Military Practice Group Director at Invictus Law in Virginia Beach, VA. He can be reached via www.invictus-law.com or directly at davidjohnson@invictus-law.com.

Editor’s note: This is an Op-Ed and as such, the opinions expressed are those of the author. If you would like to respond, or have an editorial of your own you would like to submit, please contact Military Times managing editor Howard Altman, haltman@militarytimes.com.

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