It seems to be man’s nature to resist change, scorn novelty, and loathe substitution. Old forms, old friends, and old ships are particular loyalties to every Navy man, and forced changes, especially those which are neither desired, explained, nor understood, breed only aversion.
The Uniform Code of Military Justice was such a change. When it was implemented 12 years ago, it seemed revolutionary in military concept, burdened by Wigmore’s technicalities of evidence, and ineffective as an adequate substitute for the “Rocks and Shoals.” Indeed, among those who were detailed to explain, enforce, and enhance the Code’s stature, there was an almost universal attitude that it wasn’t even needed. Often, from a command viewpoint, it was barely tolerated—a law to be absorbed rather than accepted.
This unenthusiastic attitude was often succeeded by a contempt born of experience, as obvious infractions and violations of military conduct, proceeding to Special or General Court Martial level, went unpunished on the grounds of heretofore unknown loopholes in the law.
Confessions, invalidated by failure to “formally warn,” “formally witness,” or “formally fail to promise,” were thrown out of courts almost on presentation. Real evidence, taken through OODs, MAAs, and SPs without a “consent to search” from the accused, or without the formal written authority of commanding officers, was ruled inadmissible. The objections of a defense counsel that a statement was “highly prejudicial to the rights of my client” often sent both court and command into a state of nervous frenzy— commonly known as “acquittalitis.” In fact almost any objection by a defense counsel that a matter seemed “immaterial, irrelevant, and prejudicial” was automatically sustained. In addition, the rule of hearsay was almost consistently misinterpreted by defense counsels in the early days of the UCMJ to the benefit of many an accused.
Inexperienced, and often lax, legal officers who excused their own ignorance of formal court procedures on the “inconsistencies” of the UCMJ, found themselves well listened to. It became a mark of pride to “feel the same way the old man feels about it.” In retrospect, it seems that too many people—trial counsels, legal officers, and court members—were more aware of the “way the old man felt” than was the “old man” himself.
Some staff experts during the Korean War were reluctant to learn. They damned the Code for personal reasons; the “old man,” believing their insinuations that it prevented adequate enforcement, damned it for command reasons; and the enlisted men, confused by the loud bickering that echoed down, damned it for no reason at all. Generally speaking, from 1951 to 1954, at least thrice daily, from all levels, and without basis, the UCMJ was roundly, emphatically, and thoroughly castigated.
But, just as the abolishment of “keelhauling,” “flogging through the fleet,” “tying the bowsprit,” etc., was in no way related to the British mutinies after World War I, so the technicalities of the UCMJ can scarcely be blamed for a lesser degree of discipline alleged to exist in the U. S. Navy today.
What can be related to the belief that the UCMJ is partially responsible for a lesser degree of discipline is the failure, at all levels, to comprehend, adapt to, believe in, and apply the UCMJ to modern military life. The UCMJ lends itself to as high a degree of discipline as a commanding officer could desire. But, just as it is not militarily destructive, so it is also not self-applying.
No degree of judicial osmosis can incorporate the tenets of justice into a unit; no authority can be abolished or discipline destroyed, except by indifference; and no standards can be injected into an organization, regardless of how fair and well meaning the members of that organization may be, unless the reasons for these standards are sincerely understood, personally adopted, and honestly construed.
We hear, over and over again, of the “decline” in discipline within the military. But authority and discipline can never decline, in a military sense. One is either clothed or nude, mustered or missing, pregnant or barren. Nor is there a gradual slope leading down from a crest of military authority to a valley of anarchy. Military discipline must be either present or absent.
Still, we must concede that discipline varies from century to century, from country to country, from service to service, and from leader to leader. Military discipline was so oriented to personal conduct under the Mongols of Genghis Khan that “a virgin, carrying a pot of gold, could travel at night through the lands of his armies without fear of personal harm.” The Mongol leader had, to be sure, rather harsh methods of enforcing his codes, but they were then acceptable. Napoleon was a tyrant in the field; Caesar, forgiving. Wellington was a martinet; Grant, an “undisciplined soldier.” Many German paratroopers in World War II suffered mental breakdowns due to their rigorous training; yet the Turks in Korea were immovable as a result of even more severe basic indoctrination.
There are no clear guidelines for policies of harshness or leniency. In each of the above cases, discipline was what the individual senior interpreted it to be. Does not discipline, then, come back to the personal authority of the leader?
Military authority and discipline, no longer dependent on harsh and excessive sentences or severe corporal punishments, is no less effective for the loss. Today, an even more admirable type of legal and moral enforcement of an individual’s conduct exists, but it must be thoughtfully and artfully administered by the military leader before it can result in effective disciplinary control.
This enforcement requires of the leader a justly fair and consistent interpretation of our Navy’s judicial system, a thorough knowledge of the UCMJ, and a wide and varied experience in working with people. In addition, there must exist in each commanding officer an investigative wariness of certain evidences, a disregard for the legal effect of heated personal remarks, a desire to make the UCMJ work, and a corrective bit on the rein of subordinates whose personal discouragement leads to the practice of leaving the system instead of learning it.
It is easier, of course, to obstruct change than it is to comprehend it. This lack of comprehension of the UCMJ can be traced to the fact that group and individual indoctrination has been hampered in the last dozen years by:
(1) The Korean War
(2) The initial unavailability of Justice School quotas for the Fleet from 1951 to 1954 (Staff legal officers had precedence)
(3) Disinterest in the new Code by seniors
(4) The absence of early technical interpretation by JAG and the Court of Military Appeals
(5) Little enthusiasm for divisional training in the UCMJ by junior officers
(6) Belief that complexities of the Code required expert professional interpretation.
Questionable practices such as assigning unqualified and disinterested seniors as court presidents on the basis of seniority and assigning trial counsels on the basis of availability led to some unjustified acquittals, incomprehensible sentences, and a wide span of punishments for similar offenses. Such results bred a vague uneasiness regarding the Code within our enlisted ranks.
To add to the confusion, the publication of bare charges, specifications, and sentences or non-judicial punishment in Plans of the Day, though intended as a deterrent, seemed (and still seems in the eyes of enlisted men) to reek of inconsistency. The brief published resumes contain no explanation of the effect on the verdict of previous good conduct, mitigation, extenuation, character testimony, additional convictions, or personal aggravation. With only the terse Plan of the Day as a reference, it often appears that assigned punishments are summary in content, arbitrary in nature, legally indefensible, and unrelated in any way to the offense.
Certainly the enlisted man could not gain from the Plan of the Day, nor from any other source in most commands, an adequate idea of what he must defend himself against from a moral standpoint, nor was he apprised of his command’s expectations in the realm of military authority and discipline. These apparent inconsistencies produced, in mass, the false assumption that the UCMJ was a detrimental, impractical, and even devious code when adopted as a military standard.
This, and other arguments equally weak in content, were used against the UCMJ. They were, at best, individual and convenient excuses. They should not have been voiced; but the aura of judicial mystery expanded and expounded by wardroom oracles for many years became embedded, still rises tauntingly, and now reflects ominously the negative attitude of many officers and enlisted men toward the effective use of the UCMJ as an aid to the enforcement of discipline.
It is unfortunate that these opinions, no matter how invalid, have so consolidated themselves and persisted in the military services that they can become paramount when related to the enlisted men’s concept of discipline. It is even more appalling that procedures continue that are not conducive to swaying these inherent beliefs.
A change can be made, but only by competent instructions; opinions can be modified, but only through diligent explanation; and the UCMJ can be a positive instrument, but only when accepted and applied in an obviously fair and consistent pattern throughout the Navy. The notion that the UCMJ was and is a “weakening influence” is only preserved where leaders lack the ability to destroy the concept logically.
The UCMJ must be accepted into the family of military authority and discipline as an influential member, but certainly not the only member, of the family. This Code has been hurt equally by its admirers, who credit it with the reduction in the number of disciplinary cases (see box), and by its detractors who blame it for a general lessening of command control. The first remedy is for officers and enlisted men to view the UCMJ in its rightful perspective. This can be accomplished by:
In addition, the number of General Courts Martial per 1,000 men has not exceeded 1.5 since 1956, and dropped to .5 in 1961—the lowest percentage ever.
(1) Extensive instruction of officers in the UCMJ through correspondence courses, practical application of courtroom procedures (mock courts, courts martial attendance, and legal research), and presentations which explain local and state regulations, court customs, and civilian procedures.
(2) Widespread familiarization with the UCMJ by enlisted men through interesting lectures (using myriad examples of pertinent and humorous incidents), attendance at courts martial (these are open courts in almost every case), and specific practical instruction concerning specification proofs for relatively common offenses, e.g., larceny, disobedience of lawful orders, drunk and disorderly conduct, improper performance of duty, unauthorized absence, etc.
(3) Scheduled training programs for both officers and enlisted men concerning their “authority and its derivation.”
(4) Analysis of “discipline” by all leaders in a unit and of the many methods by which it may be thoughtfully and positively applied.
(5) A review of the proper degree of emphasis to be placed on the UCMJ when weighing the many factors in the Navy which affect “military authority and discipline.”
(6) Consideration of the other equally important statutories, i.e., Navy Regulations, bureau manuals, and fleet and type commander publications. These are especially important from a historical viewpoint in order that officers and men can be fully aware of the way their individual powers were derived. On a legal basis, these documents can also be introduced in military or civilian courts as non-objectionable lawful orders through the doctrine of “constructive knowledge.”
(7) Finally, an understanding by officers and senior petty officers that the necessary personal prerogatives and powers are as conspicuously present today as they ever were. “The failure lies not in the stars” (or the UCMJ), “but in ourselves.” If authority is not personally invoked, and discipline is not individually enforced, a weakened command will inevitably result from the sum of its weakened parts.
There is always a tendency to “let things slide,” to abhor the inconvenience of corrective measures, to allow “someone else” to square away minor infractions of dress or petty violations, and to “toss away” minor report slips requiring personal testimony and administrative action. The UCMJ, alone, will neither correct nor contribute to this slipshod approach to discipline.
Even a thorough knowledge of the UCMJ will not be enough if the personal application of discipline is lacking in our leaders. A positive spirit must be imbued to provide the leadership that will sustain the highest standards of military authority.
Even a firm knowledge of regulatory and authorized powers, combined with outstanding executive ability, cannot engender respect if the basis of decisions is not reasonably apparent to subordinates. No matter how well individual cases are adjudicated, the results of UCMJ application must retain an obvious consistency if the Code is to be accepted at all levels.
The understanding by all military men that the UCMJ is a final, stern, and frightening prospect in the ladder of military authority and discipline must be instilled and maintained. Commanding officer’s non-judicial punishment need not follow the old axiom that hate plus fear equals power, but nonjudicial punishment must no longer be used as a military traffic court for moral parking violations.
Military authority and discipline must become apparent through effective application at the petty officer, division officer, department head and executive officer levels. In this manner the existing regulatory grants that comprise the basis of leadership will, when thoughtfully administered, assure an individual’s control while guaranteeing the individual’s rights.
To strengthen the Code further, in order to provide unquestioned power, would hurt the Navy immeasurably. Such false authority could only breed tyranny, create resentment, excuse weakness, and assure regression. It would violate our precept that “leadership is the art of accomplishing the Navy’s mission” by assuming that no art and no thought need be given to command control.
It is much harder to provide the knowledge, training, and instruction that provides leaders, confident in their own use of authority and discipline, than it is to debase the UCMJ. It is much more difficult to make men comprehend their responsibilities and learn the entire written “control complex” than it is to show them a report chit and tell them that “a court martial’s the only thing he’ll understand.” And it is convenient to say, “Military authority and discipline is declining as a result of the Uniform Code of Military Justice,” rather than take a personal, responsible, direct, and continual interest in maintaining the highest standards in a division, department, unit, fleet, or Navy.
Altogether, since 1951, we have been doing quite well under the UCMJ. We can anticipate that the recent increase in commanding officer’s authority, under Article 15 (see “Important UCMJ Change,” by Rear Admiral Robert D. Powers, Jr., U. S. Naval Institute Proceedings, December 1962, page 139) will, in the next 12 years, result in a substantial drop in our summary court martial rate. In addition, this revised Code, together with the ever-increasing emphasis now being placed on leadership and the high caliber of today’s Navy recruits, will also aid us at every disciplinary level.
We must remember, however, that the UCMJ can do no more than influence the approach to military authority and discipline by any senior. It cannot destroy, nor can it substitute for, a true leader.