Many changes in the administration of discipline and justice will be apparent to the Naval Service while the new Uniform Code of Military Justice and the supplementary Manual for Courts-Martial, United States, 1951 are progressing through their growing pains. The obvious manifestations of these changes will be stories and rumors of miscarriages of justice, technical loopholes exploited by defense counsel, and a feeling of frustration when someone deserving punishment beats the system.
The Code and Manual, with their appendices, consist of approximately 250,000 words and replace most of the Articles for the Government of the Navy and Courts and Boards. The purpose of this article is to aid the Commanding Officers of ships and stations in understanding the disciplinary procedures applicable to them, utilizing as little legal language as possible and avoiding too many of the “special cases” which will form the basis of future Court Martial Orders.
The views expressed herein are the author’s and have no official standing with the Navy Department. The technical comments have been reviewed by several legal officers, and often represent the consensus of their opinions as to the proper procedure. A conscious effort has been made to spell out procedures erring on the side of conservatism in order that any views expressed which are in error favor the accused.
By way of introductory instruction, the new Code was enacted by Congress in May 1950 to become effective in toto on May 31, 1951. Offenses committed before May 31, 1951, were to be “pleaded” (that is, the Charge and Specifications written) under the old Courts and Boards, but the procedures of the courts are to follow the new procedures outlined in the Code and Manual.
Three types of court will exist. The “General Court-Martial,” similar to our present “General Court-Martial”; the “Special Court-Martial,” similar to our present “Summary Court-Martial”; and the unfortunately named (for the Navy) “Summary Court-Martial,” similar to our present “Deck Court.”
The new Code and Manual are replete with references to “Commanding Officers” and “Officers in Charge,” there being a definite limitation on the powers of officers in either category. In view of the fact that there are no fewer than fifty-nine different titles bestowed on the senior naval officer at the head of activities ashore as listed in the “Catalog of Naval Activities,” it will be necessary to obtain decisions from the Navy Department in some cases in order to determine the powers of the individual. Four categories of officers having the power to administer punishment are established:
(1) Officers having powers limited to nonjudicial punishment
(2) Officers having non-judicial and Summary Courts-Martial powers
(3) Officers having non-judicial, Summary and Special Courts-Martial powers
(4) Officers having non-judicial, Summary, Special and General Courts-Martial powers
All of these officers will be referred to as “commanders” in this article. Into which category a commander fits will be settled in most instances at sea by virtue of the wording of the code. Other commanders will have wider or more limited powers, but, basically, those serving ashore as Commanding Officers of Naval Activities will have Special Courts- Martial powers. This article is written for their information. Other commanders concerned will have to interpret their own position according to their circumstances or await determination of their position from superior authority. The powers specifically spelled out in the law, however, may be restricted by administrative decision by a superior in the chain of command (Articles 22(b), 23(b), 24(b)).
As a general rule the Commanding Officer will be involved, insofar as his command is concerned, with the “Special” and “Summary” courts, nonjudicial punishments, and referrals of charges for General Courts- Martial. It must be recognized at the outset that the importance which the Commanding Officer attaches to the Code and Manual and the degree of training which he requires of his officers will directly affect the administration of discipline. Many factors will be involved: time available, interest of the officers, other duties of the officers, operations or activity of the vessel and so forth, will be weighed locally.
First the Commanding Officer should require by positive means that every officer read the Code and become familiar with the Manual. With the reading an accomplished fact, many of the obvious pitfalls will be avoided. Some discussion will naturally follow if every officer has read the publications. Many questions will arise in the minds of each officer, and having the advantage of a common denominator, even the most disinterested will enter into the discussion even if merely to condemn.
Second, the law itself requires that certain sections be publicized to each enlisted man on his enlistment and re-enlistment and at least six months thereafter. This replaces the theoretical reading of “Rocks and Shoals” on a monthly basis. (See Article 137 of Code.)
The specific steps in the processes of reaching a legal solution of a disciplinary problem are outlined briefly below. Where the process wanders from the general trail, the discussion will be curtailed.
A typical act, the seriousness of which can spread-eagle the field of punishment, might involve the operation of a vehicle. The offense could range from a mere traffic violation of minor importance through hit-and- run manslaughter.
The actual process of bringing an accused to justice starts by “initiating the charge.” Any person, whether subject to the Code or not, may do this. The process involved consists of merely bringing to the attention of the proper military authorities the fact that an offense has been committed. In a traffic offense this may be a civilian police report, a report by any person performing military police duties or any other observer.
The next requisite after the initiating of the charge is “apprehension.” Although the Manual has several sections on apprehension in anticipation of the unusual cases, the basic idea is that all persons (above seaman) and those performing police duties have a duty to apprehend offenders.
Apprehension is defined as the “taking into custody.” It is predicted that many CMO’s will be written on this phase. The person “apprehending” will be allowed to hold the person apprehended, physically, until such time as he can be placed under arrest or confined by a person having that authority, or he may be “apprehended” by merely being informed that he has been apprehended and is in the custody of the apprehender. Consequently, as used, “apprehension” seems to be analogous to the “arrest” performed by the civilian police officer on civilian offenders. Unfortunately, throughout the Code and Manual, common terms have been used to which a somewhat different technical definition has been assigned by the layman. Thus the first branch in the tree is “apprehension” that is, finding the offender and detaining him morally or physically for further disposition.
Following on the heels of apprehension, three courses of action are open to the command exercising jurisdiction over the person. In the order of severity, the three avenues of further procedure are: restriction, arrest, and confinement. Collectively, they are termed “restraint.” Necessary in this step is the determination of who is competent to invoke this restraint.
Basically, the Commanding Officer may impose restraint on any person under his jurisdiction, and he is the only person who can impose such restraint on an officer, warrant officer, or civilian. Any officer can order an enlisted person into arrest or confinement. The Commanding Officer may delegate this authority to a warrant officer or petty officer as he sees fit. The Manual provides that any officer authorized to arrest or confine, may within his discretion and without imposing arrest, “restrict” an individual. Thus, the third step the Commanding Officer takes is to delegate that part of his authority to restrain, which the Manual allows him to delegate to the extent he sees fit.
The terms “restraint,” “arrest,” “confinement,” and “restriction,” as already pointed, have technical meanings. Thus “restraint” includes the other three terms. “Arrest” as used, is a moral restraint imposed orally or in writing (obviously writing is preferable) and is used to restrict the person’s personal liberty while the charges are being disposed of. Under this type of restraint, the person cannot perform his military duties, but may be assigned cleaning and policing duties, and training duties not involving the bearing of arms. Evidently to avoid this inconvenience and save the person for military duties the term “restriction in lieu of arrest” is used, by which the officer authorized to restrain may specify limits similar to arrest, but allow the person to perform his military duties as well.
“Confinement” is a physical restraint, and may be executed on oral or written orders by competent authority. This confinement is to be limited to the time necessary for the disposition of the charges.
All three types of restraint are within the discretion of the restraining officer as he sees fit under the circumstances. The Manual provides that, as a matter of policy, confinement should not be used for minor transgressions. Violation of the provisions of the restraint are punishable under the General Article (UCMJ 134).
The accused, once restrained, remains in that condition until released by proper authority (usually the person ordering the arrest or restriction or the commanding officer of the confining activity, as the case may be).
For the purposes of clarity, it is pointed out at this stage of the discussion that the technical terms used above are applicable for the stage of proceedings to which they refer. The same terms may be used subsequently for different purposes towards the completion of proceedings. Thus “confinement” may either be awaiting disposition of the charges or pursuant to the sentence of a court.
The next step in the disposition of the offender affords five different solutions: dismissal of the charges, non-judicial punishment or recommendations for summary court-martial, special court-martial, or general court-martial. This step involves judgment. From the facts available, the commander concerned must make a preliminary decision as to which of the four types of punishment will ultimately result or whether the charge can immediately be dismissed. In a vast majority of instances this will not be difficult. A minor traffic violation, for instance, will warrant non-judicial punishment. Hit-and-run manslaughter will warrant a general court-martial. In this decision it is probably better to err on the side of seriousness of offense, but this leads to a more complex routine.
Assuming that the case is a clear-cut nonjudicial punishment offense and Captain’s Mast will undoubtedly serve justice and discipline, the commander, no matter what the limits of his authority to convene courts- martial are, may bring the offender to mast if he wishes. This procedure has some technicalities.
(1) In the Navy, an accused may not object to non-judicial punishment, as such, and demand a trial as he may in the Army and Air-Force.
(2) The accused must be informed as to the nature of the offense.
(3) The accused must be warned that he does not have to make any statement regarding the offense, and that any statement he does make may be used against him as evidence in a trial by court-martial.
(4) The accused has a right to appeal to the next superior in the chain of command if he deems that the punishment is unjust or disproportionate to the offense.
(5) The non-judicial punishment may be pleaded in bar of trial in a court-martial for the same offense for which the punishment is awarded.
At mast, the accuser, if available, should be present and should be given the same warning as the accused as to his right to speak and the use of his statement against him. Similarly, any other witnesses called should be so warned.
The list of punishments which can be awarded are listed in the Code and Manual. These have been changed considerably from the old standards utilized in the Navy and should be thoroughly studied. If the immediate commander is not morally certain that the offense can be disposed of at mast as a non-judicial punishment, he must then reach a further decision. This decision involves several aspects.
Immediately, it becomes important as to who is the “accuser,” and who will investigate and prefer charges. The “accuser” by definition is any person who:
(1) Signs and swears to charges, or
(2) Who directs that charges be nominally signed and sworn to by another, or
(3) Any other person who has an interest other than an official interest in the prosecution of the accused.
The importance to the administration of naval justice of the “accuser” theory cannot be over emphasized. In effect, an officer with special court-martial (or greater) powers, by becoming an “accuser,” divests himself of legal authority to order a special court- martial or a general court-martial (if he has that power) to try the accused. It can be confidently predicted that many special courts- martial will be set aside for failure to observe the “accuser” concept, and that many more will be convened by higher authority than the commander initially empowered to do so, as a direct recognition of the “accuser” concept.
The third section (as broken down above) by implication disqualifies a commander from ordering a trial by special court-martial if, at mast or by direct observance of the offense, he gains any knowledge of the offense. This must be distinguished from the information that the commander may receive by virtue of his office. Thus, a traffic report laid on the desk of the commander does not make him an accuser; but bringing the man to mast and asking him (after proper warning as to his rights) about the offense, will make the commander an accuser.
The second section is evidently a “personality” section. It is semantically involved and evidently in its simplest terms is designed to keep Captain Bligh from peremptorily ordering a subordinate officer to prefer charges. However, this does not prevent a commander from ordering a subordinate to investigate a case and to prefer charges if his investigation shows that such action is warranted, for this procedure is entirely proper and should be followed.
The first section is designed to disqualify the subordinate or commander who actually does swear to the charge. The results of becoming an “accuser” vary with the circumstances of the incident. In brief, an accuser cannot order a special or general court-martial; he may not sit as a member of either court; he may not be the trial counsel for either court; he may not review either court; he may not sit as pre-trial investigator; if there is more than one officer attached to the command, he may not sit as the summary court.
The “accuser” is not a particularly important character as such in non-judicial or summary courts-martial cases insofar as jurisdiction is concerned, but it must always be borne in mind that since an accused can refuse trial by summary court-martial, the commander may find himself in a difficult position if the man so refuses and the commander has in fact become an “accuser.”
The commander (particularly in the Navy) must make a conscious effort to avoid becoming an accuser, in order that he does not lose the power to convene a special court- martial. The loss of the power itself does not mean that the accused goes free, it merely means that a superior in the chain of command must order the trial.
Having considered the consequences of becoming an “accuser,” the commander’s next step is to initiate an inquiry into the offense. If no Board of Investigation or Court of Inquiry has been convened at which the accused was a party and accorded full rights (or if there was one, and the accused wishes further inquiry), the commander may order either a “preliminary inquiry” (words coined by this author) or a “pre-trial investigation.”
A “pre-trial investigation” is a requisite to trial by general court-martial. It is a rather formal affair, conducted by a mature officer (preferably a lieutenant commander or major), which delves into every facet of the case. Its object is not to perfect a case against the accused, but to find facts both against and in favor of the accused and recommend to the commander the future course of action. The pre-trial investigator is aided by a long form which, when properly filled out, has personal data as well as investigative data. The end result of this form will be a recommendation for trial with sworn charges or a recommendation for dismissal of the charges. Neither is binding to the commander who can follow the recommendations, appoint another investigator, or award an unrecommended punishment.
A preliminary inquiry is less formal than a pre-trial investigation and is sufficient if the ultimate punishment will be no greater than a special court-martial. Again, the recommendations are merely advisory. The preliminary inquiry can be followed by a “pre-trial investigation” if the commander so desires.
The ultimate purpose of both of these procedures is to advise the commander and aid him in taking further steps. It insulates him from becoming an “accuser,” if properly conducted.
On receipt of the preliminary inquiry, or the pre-trial investigation, the commander should then have all of the information available to him to make his next decision. If it is apparent that no offense has been committed, he should order the accused released from restraint and file the papers. If it is apparent that non-judicial punishment is appropriate, he may call the accused to mast and either peremptorily award the punishment, or, if he cares to, question the man further after warning him of his rights. If it appears that the case should be tried by summary or special court-martial, the man may be brought to mast and informed of the award. 'For emphasis, it is again pointed out that any questioning at mast may cause a loss of jurisdiction. If after being questioned, the accused refuses trial by summary court- martial, a higher authority must then convene the special court-martial. Similarly, questioning a special court-martial case may oust the commander’s jurisdiction. Thus the commander is almost entirely divested of his old “investigative” powers at mast.
If the pre-trial investigation indicates that a general court-martial is the proper procedure, the commander endorses the charge sheet to his superior having general court- martial powers. Again, questioning at mast may be undesirable because the immediate superior may return the investigation for a special court-martial trial within the command or even lesser punishment.
All referrals to trial as outlined above may be done merely by endorsing the “charge sheet.” The referral to trial in the charge sheet assumes that an “appointing order” has been promulgated. This will be the general case. An “appointing order” is the substitute for our old “precept.” The form is simple and outlined in the appendices of the Manual. It, in effect, establishes a more or less permanent court which merely meets when charges are referred to it.
When the trial is completed, the commander ordering the trial becomes the initial reviewing authority. This authority vests in the office and is non-delegatable. The convening authority in the normal case need only approve the sentence. Express approval of the findings is unnecessary.
An exception to the general rule occurs when the commander has approved a sentence of a special court-martial which contains a bad conduct discharge and in the case of all general court-martial sentences. The record then must be sent either directly to the Judge Advocate General of the Navy for review or to a legal officer of a command exercising general court-martial powers.
As can be seen, there are many deviations imposed on the old system that the Navy followed under the Articles for the Government of the Navy and Courts and Boards. It will take intelligence and planning to gear the new system to the actualities of life. Whether the individual agrees or disagrees with the new Code and Manual is entirely immaterial in the augmentation of the new law; it is the law, and fighting it is unmilitary. As time goes on, the more obvious faults will be ironed out by virtue of constructive criticism. Forbearance will be a commendable virtue.