“One night past, some 30,000 tons of ships went hurtling at each other through the darkness. When they had met, 2000 tons of ship and 176 men lay at the bottom of the sea in a far-off place.
“Now comes the cruel business of accountability. Those who were there, those who are left from those who were there, must answer how it happened and whose was the error that made it happen.
“. . .on the sea there is a tradition older even than the traditions of the country itself. . . . It is the tradition that with responsibility goes authority and with them both goes accountability.
“This accountability is not for the intentions, but for the deed. The captain of a ship, like the captain of a state, is given honor and privileges and trust beyond other men. But let him set the wrong course, let him touch ground, let him bring disaster to his ship or to his men, and he must answer for what he has done. No matter what, he cannot escape . . .“
So reads in part the celebrated and widely reprinted editorial which appeared in The Wall Street Journal following the collision of the USS Wasp (CV- 18) and USS Hobson (DMS-26) on the night of 26 April 1952. Its authorship is generally attributed to Journal editor Vermont C. Royster, himself a World War II destroyer escort skipper. The Navy’s traditional ultimate vehicle for enforcing the accountability to which the editorial referred has been the court-martial. In the case of the Hobson there was an investigation but no court-martial; her captain was one of the 176.
The most publicized recent instance of a collision between a maneuvering aircraft carrier and her plane guard ship occurred the evening of 22 November 1975 when the USS Belknap (CG-26) collided with the flight deck overhang of the USS John F. Kennedy (CV-67). Eight crew members died, and 48 others were injured. In this case general courts-martial did follow for the captain and the officer of the deck of the Belknap, but with what many considered to be bizarre results. Neither appeared before a general court-martial made up of his professional peers. Each, in accordance with his legal right, was tried before a military judge only. In the case of the commanding officer, who was watching a movie in the Belknap's wardroom until the final, inevitable moments before the collision, the issue was narrowed to the question of whether he had left the ship in the hands of a properly qualified set of watchstanders. He was found not guilty on the determination by the military judge that the prosecution had not even established a prima facie case. The officer of the deck was found guilty, but no punishment was assigned, on the military judge’s determination that the very conviction by a general court-martial was by itself an adequate and appropriate punishment.
These amazing judicial resolutions naturally created a considerable amount of heartburn among many old and not-so-old sea dogs. One can fairly conjecture that the Navy will not again, in like circumstances, attempt to use the court-martial as a vehicle for enforcing the professional accountability of those in charge of its ships at sea.
The demise of the court-martial as an appropriate vehicle for the disposition of purely professional dereliction—in other than the rarest of cases involving willfulness or recklessness—might have been foreseen in 1951 with the substitution of the Uniform Code of Military Justice (UCMJ) for the venerable Articles for the Government of the Navy. Following World War II, public concern over alleged abuses of disciplinary authority, undue command influence over the outcome of courts-martial, and inconsistencies of treatment among the services led the enactment of the UCMJ and its greatly increase protection of the rights of an accused. The previous code was designed to ensure the maintenance of discipline and standards of performance and to prevent and punish purely criminal acts. The new UCMJ gave major emphasis to the criminal acts. Subsequent enactments and judicial interpretations intensified this characteristic to such an extent that there today little difference between a prosecution by court-martial and trial in a federal district court. Over the years, the law officer of a general court martial has gradually assumed greater and greater control over the proceedings. By now, the function of the members of a general court-martial is essentially that of a jury. Furthermore, a court-martial defendant enjoys a right greater than that provided by federal district courts. He is entitled to the right of trial by military judge alone, unfettered by the limitation in the federal courts of prosecution concurrence. It is significant that this right was also exercised by the commanding officer of the USS Frank E. Evans (DD-754) after that ship’s 1969 collision with the Australian aircraft carrier Melbourne. He was found guilty and sentenced to a reprimand on charges of negligence and dereliction of duty. While the long-range wisdom of choosing a one-man court may be questionable from a career viewpoint, it is obviously considered by defendants in such cases to offer an advantage at trial.
The practical result of all this is that, except in cases of criminal negligence or willful misconduct, courts-martial will no longer effectively deal with errors in the judgment of well-intentioned men responsible for the safety of the Navy’s ships and their crews. This was illustrated in the trial of the Belknap’s captain. The alleged violation of a Navy regulation making the commanding officer responsible for the safety and efficiency of his command was dismissed by the military judge on the basis that the regulation in question constituted a guideline for performance only and could not be enforced by criminal sanctions.
Supporting this approach is the concept of criminal intent. Such intent must be present under our system of criminal justice, in actuality or by presumption, before a finding of guilty may be reached. In the case of criminal negligence, the degree of negligence is such as to be deemed to provide the requisite criminal intent. This contrasts with that level of negligence for which redress is normally had by the aggrieved party through civil action. The distinction may be slight in many cases, but it is nevertheless important in the current applications of the Uniform Code of Military Justice.
It has not always been so. In perhaps the Navy’s most spectacular peacetime disaster, a squadron commander led seven of his fourteen destroyers onto the rocks near Point Arguello, California, on 8 September 1923. He was found guilty of “culpable inefficiency in the performance of duty” and of “negligently permitting vessels of the Navy to run upon rocks or shoals.” The first charge related only to standards of professional performance, containing the protective word “culpable” to convey the requirement for a serious level of inefficiency before court- martial charges could be found proved. Gone from the Uniform Code of Military Justice is this offense, together with the more colorful language of the Articles for the Government of the Navy, such as “rocks or shoals.”
There were other courts-martial associated with the Point Arguello disaster, and two of them illustrate a feature of the old system which is absent from the new. This is the concept of exoneration, an essential tool in any set of procedures for the regulation of professional conduct and the maintenance of standards of professional performance. Of the 11 officers tried for the loss of the seven destroyers, two division commanders and six of the commanding officers were found not guilty. There was, however, a significant distinction in the acquittal of charges. The six commanding officers were simply “acquitted.” The two division commanders were “fully and honorably acquitted.” The meaning of this distinction was that while the charges against the commanding officers were not proved beyond a reasonable doubt, those against the division commanders not only were not proved beyond a reasonable doubt but their actions with respect to the charges were found by the court to be blameless. This was exoneration of these two officers. Criminal codes in this country, including the Uniform Code of Military Justice, do not provide for exoneration. Other than dismissal of charges for technical legal reasons, acquittal comes only because guilt cannot be established beyond a reasonable doubt. Nothing more can be inferred from such an acquittal. Even a preponderance of the evidence, sufficient for liability in civil cases, does not meet the more rigorous standard of proof in criminal cases. The innocent accused, civilian or military, may well be deserving of exoneration, but neither the federal and state criminal codes nor the Uniform Code of Military Justice can give it to him.
All eight not guilty findings in the Point Arguello cases were disapproved by the Secretary of the Navy on the recommendation of the Judge Advocate General. This was a meaningless disagreement with the results. But it is significant that although Washington did not like the verdicts, the eight were found not guilty by a panel of their professional peers, two of them fully exonerated. The subsequent careers of these officers bore out the judgment of the general court-martial. Exoneration could then, of course, and can now come in other ways. An investigation or court of inquiry can recommend exoneration, but it can recommend only. If the convening authority does not agree, he can still take disciplinary action or institute judicial proceedings. The court-martial under the Articles for the Government of the Navy could exonerate with finality.
The expression of departmental disapproval in the Point Arguello cases was not unusual in such cases and perhaps reflects too narrow a range of sanctions available to courts-martial, even under the old Articles for the Government of the Navy. When the courts-martial which resulted from the 1950 grounding of the USS Missouri (BB-63) were in process, the convening authority, searching the precedents, examined every major grounding case which had occurred in the Navy over the preceding 30 years. In almost all such cases, the punishments imposed were viewed by the Navy Department as inadequate, although none of these endorsements offered any guidance as to what an adequate sentence might be. Typically, they involved loss of numbers on the Navy’s lineal list, admittedly not much of a tangible punishment if its only practical effect is to delay involuntary retirement for years of service beyond that point at which it would otherwise have occurred. Reduction in rank was available, but seldom used, and it suffered from the same shortcoming as loss of numbers in grade. Although dismissal from the service was a permitted sanction, the loss of pay and benefits to a retirement-eligible officer would have been severe. Perhaps if immediate involuntary retirement or separation with severance pay had been available these punishments might have been ordered in some cases. In the case of the Missouri, the captain, operations officer, and navigator were found guilty and sentenced to loss of numbers.
Whatever the shortcomings of the old Articles for the Government of the Navy, they still provided workable methods for dealing with professional error. The Belknap cases make it apparent that the general court-martial under the Uniform Code of Military Justice no longer offers a vehicle serving this purpose except in those almost nonexistent cases of willfulness or negligence so gross as to amount to reckless disregard. It must be kept in mind, of course, that there is still available a variety of lesser sanctions, some of them falling under the Uniform Code ans some of them administrative. The essential question is whether this narrowed range is sufficient. If not, a substitute for the court-martial must be found.
Regardless of the answer to this question, the effectiveness of those sanctions still available should not be minimized. At the lowest level is the disgrace and loss of professional esteem inherent in the publicity given to the happening. This, while real and sometimes personally catastrophic, is more of a subconscious restraint than sanction. Next is the record of performance accumulated in an officer’s fitness report file. It may ultimately result in failure of promotion and earlier separation from active duty, but its impact is usually widely separated from the event in time. Furthermore, in periods when the overall promotion opportunity is low, failure of selection will hit those with spotless records as well as those with unsatisfactory or unfavorable fitness reports. There, are, however, more immediate administrative sanctions, of which the most drastic is the summary removal from command. While an undeniably effective action, it almost always accompanies other sanctions in cases of major dereliction and may by itself be imposed for less serious breaches of standards. Examples would be unreasonable demands made upon his crew by an overzealous captain, or perhaps even a topless go-go dancer performing on the sail of a submarine. In the formal disciplinary area, the punitive letter of reprimand is undoubtedly the strongest action that can be taken short of the court-martial. When issued in conjunction with appropriate administrative sanctions, it is certainly sufficient to deal with the vast majority of untoward incidents that can befall a ship, such as dragging aground while anchored in bad weather, minor collisions, and various internal casualties.
But if the absolute responsibility of the captain for his ship is to be upheld, in cases of culpable inefficiency leading to major incidents, this lesser range of sanctions is not sufficient. A substitute for the general court-martial must be found. In the first place, all of the other actions may be taken against officers guilty of errors of judgment leading to less serious results. There seems to be little difference in the treatment of the commanding officer whose ship is severely damaged or lost and one whose ship is temporarily grounded or suffers a relatively minor collision. Perhaps as important is the loss of the collective judgment of a panel of disinterested professional peers. Although a letter of censure can be appealed one level, it is still essentially the action of a single senior in the chain of command. By the same token, exoneration by such a senior will have less impact than that by such a panel.
In the most serious cases the reaction outside the service must also be considered. It is questionable whether the public will accept what is primarily an administrative disposition in cases involving substantial loss of life or the loss of a major unit of the fleet. Removal from command and issuance of a letter of reprimand may be as devastating to the individual concerned as anything else that might conceivably be done to him, but the import of such actions is not understood by the public and is often perceived as a “slap on the wrist.” Finally, where there is pressure for more drastic action, the Navy will probably be increasingly hesitant to resort to the court-martial, in view of the increasing emphasis being given to the concept of criminality in the evolution of the law applicable to court-martial proceedings. The Navy should properly be reluctant to stigmatize as a criminal an officer of the deck who was doing his level best to stay out of the way of a maneuvering aircraft carrier while attempting to perform the evolution in a manner consistent with what he understood to be the desires of his commanding officer. In this connection it should be noted that among the charges recommended by the investigating command to be brought against the Belknap’s officer of the deck was that of manslaughter. Fortunately, this charge was not included among those actually preferred.
An adequate substitute for the now practically unavailable court-martial in cases of errors in professional judgment need not have all the powers of such a court. It would not need the power to fine or imprison, and it certainly should not be deemed to have the power to impose criminal sanctions. It should, however, be empowered to exonerate and to impose sanctions with finality, subject to mitigation through appeal. Such appeal should extend to court review in the case of the most severe sanctions. The powers of such a tribunal should include the imposition of several levels of censure such as, possibly, a letter of caution, letter of admonition, and letter of reprimand—and extend in the most serious cases to the loss of the privilege of continuing in the profession. Separation from active duty, with or without severance pay, should certainly be included among the actions permitted. Dismissal of a retirement-eligible officer, while not entirely indefensible, is perhaps too drastic a power to give an administrative body. Lesser disqualifications should include revocation of formal designation of qualification in a warfare specialty or for command at sea.
None of the various techniques currently available to the Navy, administrative or judicial, can fulfill the requirements outlined above. A regular officer’s right to tenure on the active list of the Navy is closely prescribed by statute, and therefore legislative authority would have to be obtained to establish any administrative body empowered to remove such an officer from active duty. It is certain that any approach which smacked of an attempted return to the general court-martial as it existed under the Articles for the Government of the Navy would never be acceptable to the Congress. However, there are other precedents, still in good standing, which have not only been established by legislative authority but have also been found constitutionally acceptable to the courts. Probably the professional licensing process, including revocation authority, as it exists under the regulation of various federal and state agencies, most closely parallels the administrative powers needed by the Navy as its chief method for the enforcement of professional standards through the use of sanctions. The Coast Guard regulates the licensing of merchant marine personnel. In cases of casualties involving merchant shipping, a Coast Guard board investigates, fixes blame, and can initiate action to suspend or revoke licenses.
At the state level, a similar function is provided for in various professional fields. All, or virtually all, states regulate the practice of professions within their respective borders by prescribing licensing requirements, establishing administrative bodies to supervise the licensing process, and by providing for the policing of licensed practitioners. Typically, an appointed board made up of members of the profession involved is responsible for the execution of both the licensing and policing functions, controlling those who would practice that profession within the boundaries of the state. The governing statute may provide, either generally or in detail, those standards the breach of which can lead to suspension or revocation of licenses. Procedures may include the right to a hearing, to be represented by counsel, and ultimate appeal to the courts. Highlighting the contrast between the administrative licensing procedure and the stricter constitutional requirements pertaining to a criminal statute, the list of professional derelictions may include “other unprofessional conduct.” The key similarities between this proposal and the instrument the Navy once had, are in the general charges of “culpable inefficiency” and “conduct unbecoming,” and the fact that these professionals must account to a body of their peers.
There also exists a useful precedent closer at hand. The Army and the Air Force have possessed in recent years statutory authority to convene a hierarchy of boards to determine whether an officer shall be required to show cause for his retention on active duty. This can come about either because his performance of duty has fallen below standards required or because of moral dereliction, professional dereliction, or because his retention is clearly not consistent with the interests of national security. In the development of a uniform officer personnel act beginning in 1960, a concept still awaiting enactment under the title of Defense Officer Personnel Management Act, this authority would have been extended to the Secretary of the Navy. While this provision would not fit the needs of the Navy for a board empowered to act with the required broad range of options following its investigation of a specific incident, it does include the parallel of “professional dereliction” and has the value of relatively recent (1950s) congressional approval.
The foregoing examples in no way represent an exhaustive search of all the possible precedents. Such a thorough study should, of course, be a preliminary to the actual task of formulating a legislative proposal. What these few examples do make clear is that there are in existence comparable systems which provide for portions of what is needed and which have proved acceptable to the legislative bodies which enacted them and to the courts which reviewed then operation. It should not be difficult to adapt a distillation of these approaches to the needs of the Navy.
Whatever the precise details of such a system for assigning responsibility and enforcing professional accountability in specific cases, its essential elements are clear. Judgment should be by a panel of professional peers, enabled to act with finality, except for mitigation. The maximum sanctions available should be stern, including dismissal from the service. Finally, and just as important as the power to condemn, it must have the power to exonerate, to “fully and honorably acquit.”