Many changes have been made in the laws relating to officer discipline, changes which are particularly apparent in the increased powers granted to the Commanding Officer in imposing Non-Judicial Punishment upon officer offenders. Obviously, these changes are important to each of us, not merely because we shall certainly be on the pumping end of the disciplinary pipeline at some time during our naval careers, but we may even be on the receiving end.
It behooves us to have more than a nodding acquaintance with this subject, since this knowledge can be of great assistance to us in discharging the twin responsibilities of maintaining morale and discipline within our commands. Furthermore, we are well aware that ignorance of the law is not a defense should we ourselves happen to stray and become enmeshed in the toils of the military law.
Officer morale and discipline is maintained primarily through leadership, through precept and example. It is important here to emphasize the point that we are forced to rely on the tools provided by law and regulation in situations where leadership has failed, either because the officer offender is not receptive or the commander is inept in applying the basic leadership principles.
Before discussing in detail the disciplinary tools provided we should first deal briefly with the federal law regulating the conduct of all members of the Armed Services in order to assist in the development of an efficient, disciplined, fighting team. This law, known to all of us as “UCMJ,” the Uniform Code of Military Justice, has proved to be one of the most controversial pieces of legislation enacted in the last decade. It is my honest contention that this law has become controversial for two reasons; first, the most persistent critics of our prior existing system of military justice were, by and large, individuals who knew very little about those systems, who knew little or nothing about the missions of the military forces and particularly what was required in the form of well-disciplined forces to accomplish the missions assigned, and who failed completely to realize the differences which must exist between a civilian society and a military society. As a result, continued attempts have been made over the years to foist upon the military the provisions of the civil codes and the civil procedures. That these attempts have failed is a tribute to a Congress fully aware of the fact that the military elements of the law to be enacted were just as important as the justice elements. The two are not incompatible, and a satisfactory balance was sought by the Congress in enacting the Uniform Code of Military Justice.
Furthermore, there are those among our critics who are not satisfied with the Uniform Code of Military Justice, and who are constantly seeking weaknesses in our application of this law in order to support their basic premise that the command and disciplinary functions must be separated.
Secondly, there are far too many naval officers who have vociferously criticized, and do continue to criticize, the Uniform Code without having taken the time or made the effort to read the Code or the Manual in an attempt to understand the law and its procedures. Some do not even know the correct name of the Code, and are all too willing to concede that this Code is a malodorous monster designed and drafted by lawyers for the benefit of lawyers who alone are alleged to be capable of understanding it.
Now such tactics proceed from ignorance and a faulty estimate of the situation. These tactics are all too similar to those adopted by our critics and contribute much too much in support of the argument that “command is incapable of taking disciplinary action under law.”
If the foregoing summation is valid it must follow that the naval officer who fails to realize that the lines of battle are drawn and who persists in a failure to acquire a working knowledge of the Code is guilty of culpable negligence in the performance of his duties as a naval officer, a commander, and a leader.
With this all too brief background, I hope that I have persuaded my brother officers that we must all approach UCMJ in the same forthright workmanlike manner that we employed in using the Articles for the Government of the Navy as a command tool to maintain discipline when, and as, necessary. The alternative is an invitation to disaster, for we may find ourselves saddled with a far more rigid Code, and we shall certainly not be able to justify changes in the present Code unless we can testify from knowledge and operating experience regarding its weaknesses, if any.
Perhaps this brief digression was unwarranted; however, I do feel that we can approach the topic at hand in a lean and hungry manner now that we are aware of the potency of the “witches’ broth” being brewed by those who sit on the sidelines all too ready to make capital gain of our every mistake, however slight it may be.
Being a firm believer in the midshipman maxim, “the picture works the prob,” there have been prepared certain sketches to help us in distinguishing between the various aspects of officer discipline.
Figure 1 sets forth the procedural steps involved in the imposition of Non-Judicial Punishment upon officer offenders. The sole authority for the imposition of this type of punishment is to be found in the language of Article 15 of the Uniform Code of Military Justice, the Article being entitled, “Commanding Officer’s Non-Judicial Punishment.” Actually the authority to punish is inherent in the Commander and the Article does nothing more than set up statutory limitations which are not to be exceeded or avoided in any proper case.
This title, “Non-Judicial Punishment,” may seem a bit confusing and may connote to some officers the actions which skippers use to take under the guise of administrative discipline. Instead, the title is just a new term for the punishment imposed at Mast and is employed to indicate that punishment is handed down without the formalities of a trial as the word is understood in our Anglo- Saxon system of jurisprudence. Mast is still the procedural vehicle, or conduit, through which the punishment is imposed.
A glance at Figure 1 will indicate that disciplinary cases develop from a reported offense. Not all offenses are punishable under the Code, and it is well to bear in mind that the acts alleged to constitute an offense must be specifically prohibited by the Code. In the case of officers, either the Executive Officer or the Captain normally receives the report of the actions of the officer concerned. Although not mandatory under the military law, it is recommended that a formal preliminary inquiry be conducted in all officer cases by either the Executive Officer or a relatively senior officer, depending upon the nature of the offense reported and the seniority of the officer involved. The results of the inquiry together with the facts developed should be discussed by the Commanding and Executive Officers at a Pre- Mast conference in order to explore more fully all factors bearing on the case. This is a crucial stage in the proceedings. Figure 1 indicates that quite a few courses of action are available to the Captain for his consideration.
He may decide that the information at hand warrants a dismissal of the case without any further consideration of the matter. In the event the facts are not of sufficient import to warrant more severe action the Captain may decide to administer a non-punitive reprimand in writing—which is more in the nature of instruction than punishment. This correspondence is not forwarded to the Chief of Naval Personnel, nor is it included in any other official record of the recipient. In proper cases, the Commanding Officer may recommend that such a reprimand be issued by the Type Commander.
It may be that the facts justify an adverse notation in the next fitness report of the officer. If so, the officer must be informed and must be advised that he is privileged to submit a statement to accompany this report, even though the Commanding Officer may not consider the report itself to be unsatisfactory.
Perhaps the facts establish the commission of an offense of such gravity that the Captain desires to process the case at Mast, or he may decide to refer the charges accompanying the preliminary inquiry report to a special court-martial, to be convened by himself, or he may direct that the charges be investigated by a pre-trial investigation with a view to recommending trial by general court- martial. It should be noted that the referral of the case for trial by special court-martial or the appointing of a pretrial investigation is not, strictly speaking, Non-Judicial Punishment and that such action may be taken without holding Mast. However, it is considered much better practice to take such action at Mast in the presence of the offender.
If the case of an officer is to be processed at Mast, the Mast should be held in the cabin with the offender, the Executive Officer, and the Captain’s writer present. Here the Captain can go as deeply into the matter as the situation dictates, bearing in mind that he must advise the officer of the nature of the offense alleged, that he has a right to remain silent, and that whatever he says may be used against him later should a court-martial develop.
I think it important to note that the Captain is not bound by the contents of the preliminary inquiry report or the recommendations contained therein. He should investigate and interrogate at Mast in a manner consistent with law, being careful that he does not display so much of a personal interest in the case as to render him the accuser.
At this semi-private Mast further facts may be developed justifying a dismissal of the case, or the Captain may impose Non-Judicial Punishment, or take action leading to trial of the case before a court-martial. If Non-Judicial Punishment is imposed, it must be imposed in accordance with Article 15 of the Code, and the procedures outlined in BuPers Circular Letter 145-51 must be followed explicitly.
Figure 2 sets forth the action which a Captain may take at Mast. Punishments 2 and 3 on Figure 2 represent punishments which a Captain may impose directly at Mast. I feel that the withholding of privileges is not, per se, too strong a punishment under the ordinary circumstances surrounding day to day operations. This punishment can be rigorous on an isolated station or during periods of prolonged cruising. For example, a skipper may deprive an officer of the privilege of attending movies, or of having guests on board. On shore, the Captain may deprive an officer of the privilege of attending the Officers’ Club, the station or base theatre, or of participating in the recreation activities available.
It should be apparent that the Commanding Officer can deprive the officer of any privilege which he is empowered to confer, but he must not impose a withholding amounting to cruel and inhuman punishment.
The imposition of restriction may, at first blush, appear to be the old form of punishment known as “hack,” but it is not quite the same in that a skipper cannot now summarily place an officer in his room as may have been the custom. A glance at Article 1405 of the Navy Regulations will indicate that the officer shall not be confined to his room or restrained from the proper use of any part of the ship to which, before his restriction, suspension or arrest, he had a right except the quarterdeck and bridges, unless such restriction shall be necessary for the safety of the ship, of the officer, or for the preservation of good order and discipline.
The power to restrict, with or without suspension from duty, granted by Article 15 of the Code is separate and distinct from the power inherent in command to relieve an officer of his duty at any time for cause. This relief is not an Article 15 punishment and may be done for example, when the safety of the ship is involved as in the case of a sleepy or negligent Officer of the Deck; or an officer may be relieved of his duties and placed under arrest, to await disciplinary action. In the case of the relief of a watch officer for any good cause his performance may later be made the subject of an adverse notation in his fitness report.
In most cases a Commanding Officer cannot directly impose a forfeiture of one-half of one month’s pay. Since he is not ordinarily the officer exercising general court-martial authority over the command, the Captain must transmit the facts in the case, together with his recommendation, to the general court-martial authority who will take the necessary action if he concurs in the recommendation. I would like to state that this is a rough punishment and is often productive of a most harmful and lasting effect, particularly in the case of married officers with dependents. Actually, the blow is taken by the dependents, and I would urge skippers to consider the case at hand most carefully before recommending the imposition of a forfeiture.
Before we discuss Punishment 5 on Figure 2, I must point out that all Non-Judicial Punishment imposed on officers must be set forth in writing, summarizing the facts and incidents completely and in specification language rather than in general charge terms.
Referring to Figure 1 again we note that the officer who has been the recipient of Non- Judicial Punishment must be afforded the right to make a statement in writing setting forth any matter in extenuation or mitigation and to appeal the imposition of Non- Judicial Punishment to the next superior in the chain of command. After an appeal has been resolved adversely to the officer, or in the absence of an appeal, a copy of the letter imposing punishment, together with the statement, shall be forwarded to the Chief of Naval Personnel for inclusion in the official record of the officer. The Captain must also make a notation of this correspondence in the next Fitness Report of the officer and he must spell out the punishment imposed in the “Remarks” section of the Fitness Report.
I think that we can all agree that an officer who has been the recipient of Non-Judicial Punishment has a selection jacket in a badly riddled condition. Of course, we cannot determine with any degree of finality how Selection Boards are reacting to such a flaming torch in an officer’s record. It is my guess, however, that the officer has been badly hurt.
Furthermore, it should be apparent that in the future Selection Boards may well have to establish a gradation, or a lineal list, in order of severity in order to properly weight the various punishments, erroneously termed minor, that an officer may now receive. If such a practice is not adopted, it is not difficult to visualize that all officer cases may well go to trial before a court-martial, or, in the alternative, minor offenses may be overlooked completely.
The tabulation set forth in Figure 2 indicates that a letter of censure (Punishment 5) may be imposed and issued in lieu of any one of the other punishments which may be imposed at Mast, or it may even be imposed in addition to any one of these other punishments.
Censure has always been an inherent power of command, regulated in the past by directives issued by the Secretary of the Navy and the Bureau of Naval Personnel. Today the issuance of formal letters of censure is specifically authorized by Article 15 of the Code and is regulated by SecNav Instruction 1621.1. In short, the Congress has seen fit to establish the formal letter of censure as one of the punishments which may be imposed under Article 15, and apparently was not willing to accept the concept that the issuance of such a formal letter was inherent in the commander. Therefore, it would appear that the recipient of such a letter, except as the result of a court-martial sentence, would be entitled to the right of appeal which is provided for by Article 15 in all cases wherein Non-Judicial Punishment has been imposed.
Censure is the generic term applied to the three types of formal disciplinary letters which are issued in the Navy and are made a matter of official record. These are better known to us as letters of reprimand, admonition and caution. It may be of interest to note that officers of the Army and Air Force may refuse to accept such a letter and may demand trial by court-martial. This anomalous situation arises because naval personnel may not refuse punishment imposed under Article 15, whereas Army and Air Force personnel may refuse such punishment and demand trial. Actually, the Congress authorized the Secretary of a Department to place limitations on the powers granted by Article 15 and the applicability of that Article to an accused person who demands trial by court- martial. For obvious reasons, and well founded, the Secretary of the Navy has decided that naval personnel shall not have a right to demand trial by court-martial in lieu of punishment under Article 15. In addition, ships of the Navy are not staffed with enough officers to accommodate all offenders who might otherwise demand trial by court- martial.
We should note, however, that the position of command still carries with it the power to censure, unshackled by the provisions of Article 15 of the Code, if a copy of the particular letter awarded is not to be forwarded to the Bureau of Naval Personnel for inclusion in the officer’s official record. The performance of duty or the facts upon which the censure is based may properly be mentioned in the next fitness report of the officer concerned. It is the Bureau’s position that this informal exercise of the prerogative of command is not punishment within the meaning of Article 15 of the Uniform Code of Military Justice. Article 1409 of Navy Regulations supports the Bureau in this interpretation as does Paragraph 128 of the Manual for Courts-Martial. If, however, the formal letter of censure is to be issued with a copy going to the Chief of Naval Personnel for inclusion in the officer’s official record, the provisions of Article 15 and the SecNav Instruction must be followed.
It is the policy of the Bureau of Naval Personnel that a commanding officer should rarely have cause to resort to the direct exercise of his power to issue, or recommend the issuance of a formal letter of censure and that periodic fitness reports afford sufficient means to record estimates of performance. If the Captain is of the firm opinion that the conduct of the officer warrants the issuance of a letter of censure, the Bureau considers it more appropriate and better practice to refer the facts to a superior in the chain of command together with the recommendation that the letter be issued. This practice is to insure a higher degree of severity in the punishment by causing the censure to issue from a higher echelon of command.
Figure 3 depicts the procedural steps involved in the imposition of Judicial Punishment on officer offenders. Here is the situation where the offense is of such a nature that the skipper deems Non-Judicial Punishment to be inappropriate and he refers the case to trial before a special court-martial or recommends trial by general court-martial. In short, a formal trial, as distinguished from the comparatively informal procedures at Captain’s Mast, is dictated by the circumstances.
We have had a Jew cases in the Navy wherein officers have been tried by special court-martial. However, it has long been the policy to try all officers by General Court- Martial if the offenses are of such a nature as to warrant trial. Why? Because the punishments that may be imposed at a general court-martial are very severe, and it is felt that if an officer has breached his responsibilities, his punishment should be commensurate with the trust and confidence placed in him, to wit, the highest. In addition, the sentences which a special court- martial may adjudge in officer cases are those shown in Figure 3 and they are not very severe when compared with those which may be handed down by a General Court- Martial. Operating experience has also proved that officers are either minor offenders, or they are prime candidates for a command performance before the highest tribunal.
Prior to recommending that a case be tried by a General Court-Martial, the matter must be inquired into at a pre-trial investigation normally appointed by the Commanding Officer. This procedural device has no exact counterpart in the criminal procedure followed in the civilian community, but it bears a very slight resemblance to proceedings before a grand jury in that the pre-trial investigation is employed to ascertain and impartially weigh all available facts in order to determine what disposition should be made of the case. However, the criminal in civilian life does not enjoy the procedural safeguards erected around and about the military offender, a few of which are plainly evident in the pre-trial investigative procedures.
It should be obvious that the provisions of UCMJ provide for increased punishments and more formal disciplinary procedures in the case of officer offenders than did the Articles for the Government of the Navy. Under the Articles an officer offender could be punished at Mast, but the Captain could impose only one of the following:
a. Private Reprimand
b. Confinement for ten days
c. Arrest for ten days
d. Suspension from duty for ten days
Of course, the Commanding Officer could recommend that an officer offender be tried by General Court-Martial, but he could not, under the Articles, refer the case of an officer to trial before a special court-martial.
The mere fact that officer punishments have been increased does not compel the conclusion that the cases of officer offenders were inadequately or improperly handled under the Articles. Quite to the contrary, the increases are believed to have resulted from the rash of hysteria which beset the nation at the termination of World War II and reflect an attempt to democratize our military forces by insuring, as nearly as possible, equal treatment for all members of those forces. It is not too difficult to appreciate that this concept completely ignores the position as well as the responsibilities of officers in the military, and the concept also overlooks the fact that any officer punishment, however slight, carries with it, even though not expressed, the strong possibility of a premature termination of a professional career.
There exists one other phase of officer discipline erroneously termed “Administrative Discipline.” Figure 4 sets out what I believe to be the best and safest approach to this subject while at the same time avoiding any discussion of semantics.
I do not like the phrase “Administrative Discipline” because I fear that officers may be inclined to apply the concept far too broadly and thus proceed outside the law in cases which should be processed under the Code. I also fear that the concept may be conducive to loose thinking on the subject of officer discipline coupled with improper action which will serve only to fill the ammunition lockers of our critics.
It is my contention that we should handle any problems arising in this twilight zone with extreme care, and that we should think of these problems as “Administrative Matters Relating to Discipline.” Our action in these cases, many types of which are tabulated on Figure 4, is considered to be non- punitive, and we are compelled to adhere closely to the administrative directives issued by the Bureau of Naval Personnel or the Secretary. We are not to attempt to impose punishment until the administrative procedures have been exhausted, nor should we attempt to evade the spirit of the Uniform Code in cases which may later be processed thereunder. Instead, our action may be taken as a preliminary to the imposition of punishment, or it may be taken to correct a situation which, if allowed to go to the obvious conclusion, will surely result in Judicial or Non-Judicial proceedings.
Once again, I deem it prudent to emphasize the point that officer morale and. discipline is maintained primarily through leadership, through precept and example, and we are forced to rely on the tools provided by law and regulations in situations where leadership has failed, either because the officer offender has not been receptive or the commander has been inept in applying the principles of leadership.