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Fire at sea, a killer storm, and a collision at high speed are hut three ' peacetime catastrophes that demand instantaneous, disciplined action hy seamen. Discipline must he instilled, hut it must also he reinforced periodically, which is why swift and appropriate punishment is necessary. Liberals—and, lately, military judges—have difficulty accepting this.
Discipline is inherent in the military profession. Further, military professionals consider that punishment is a necessary element in discipline. But it is becoming more difficult to administer punishment when it is needed. It is no secret that the Uniform Code of Military Justice is under attack by liberals.
A steady stream of books, written by earnest and concerned men and women, has appeared in the years of disillusionment which have emerged from our involvement in Southeast Asia. The public press has labeled as excessive the use of nonjudicial punishment in marijuana cases, particularly those on board nuclear-powered ships, and has compared it unfavorably with penalties meted out by civilian legal systems. In the face of these challenges, every military professional must have a clear conceptual understanding of the relationships inherent in punishment, discipline, and military service.
Punishment: In terms of its objectives, punishment can be classified as primarily retributive, demonstrative, or corrective. All three elements can contribute to the goal of discipline, but their effect is best achieved when punishment is applied with a clear idea of the distinctions between the categories, and an understanding of the milieu from which an offense emerged. Every judgment contains some of each of these facets, and he who imposes sentence should carefully assess what he intends in terms of each. A sentence can be so heavily weighted toward one of these purposes that it loses nearly all effectiveness in the other two. Punitive discharge from the service, for example, is not likely to modify the insubordinate behavior which may have prompted the sentence. Nor will a “Dutch uncle” talk to a man who is guilty of assaulting an officer go far in preventing future attacks by the offender or in serving as an example to his shipmates.
Retributive punishment seeks to balance the equation of injury by imposing society’s penalty on an offender who has injured one of its members. It stems from the “eye for an eye, tooth for a tooth of antiquity. It is easy to pronounce judgment (one merely needs to determine guilt, then assess a penalty suitable to the offense), and its long-term effect has both demonstrative and corrective side effects. The' human dilemma of Captain Vere in Herman Melville’s Billy Budd provides eloquent testimony to the shortcomings of this primitive system.1 Automatic sentencing of any type, whether at captain’s mast (nonjudicial punishment) or in a traffic court, always seems to have a quality of inhumanity about it. Most of us intuitively feel that such sentencing is a violation of our basic rights as American citizens. Few of us go further than that in condemnation of the system which imposed the judgment, but we do resent it. And so do our sailors when subjected to it at mast or court-martial.
There is a fine line between demonstrative and corrective punishment. In order to distinguish between them, let us think of demonstrative (deterrent) punishment as being directed primarily at the bystanders of an offense or at the population in general- It is the object lesson of “crime doesn’t pay” for the society as a whole. It is why we publicize the results of courts-martial and captain’s mast proceedings (without names, of course, to avoid the infringement of the privacy act). All judgment has a measure of this element in it, because most of us unfortunately require the threat of sanction at the fringes of our consenting subordination to society’s rules.
Finally, corrective punishment is targeted squarely at the offender. It is crafted to correct a behavior pattern by inducing or coercing (in order of preference) conformity with the behavior of the other members of the society. This is the sort of intelligent punishment meted out by a parent to his child in the process of upbringing. In families with several children, the demonstrative objective may be present also, and the punishment may “fit the crime” in form as well. But the overriding objective is corrective in nature.
In addition to classifying military punishment in terms of objective, we may also categorize its basis- judicial, non-judicial, informal or illegal.
Judicial military punishment is that system ot societal law which is perhaps most respectful of the rights of the accused, despite the loud criticisms by its civilian detractors. Long before formal warnings against self-incrimination and absolute right to counsel became standard for civilians, military law was providing these protections and more, with vigor, because of the dictates of the Uniform Code of Military Justice, and a group of young, idealistic Navy lawyers (members of the Judge Advocate Generals Corps) at the base of their specialty’s rank pyramid. In fact, many professional line officers view the lawyers’ spirited defense of assigned cases with thinly
'The Royal Navy Laws of War provided for the automatic sentence of death with the verdict of guilty of murder. In Billy Budd's case, it was obvious that Budd had assaulted and killed — most probably accidentally—Master-at-Arms Claggart. However, he had been provoked beyond reason by Claggart, who had wrongfully accused Budd of plotting mutiny, and who knew that Budd's speech impediment would prevent him from adequately defending himself. Captain Vere, who knew the facts and was convinced of Budd’s innocence, was bound by the strict military law to pronounce the death sentence upon the young sailor, tl Christ-like figure of human perfection. Billy Budd was thus hanged by his shipmates, under the reluctant command of Captain Vere.
veiled contempt. Some lawyers argue that we com- nianders do not send questionable cases to court, that all we want is for the court to mete out the proper punishment as retribution and demonstration to those whose guilt has already been determined. It is not necessary in this view to waste so much time and effort to ascertain guilt beyond a reasonable doubt.
Such views are wrong, of course, and the technical requirements of the court-martial have now placed it ashore under the aegis of the judge advocates. They control its scheduling and conduct because of the necessity for legal involvement in the process. Only rhe summary court-martial (tried by one officer) was left in the hands of the line, and a stream of technical reversals has eroded that residual avenue of justice rather quickly. Today, the accused has an absolute right to counsel even at sea, and the proceedings must await the arrival of the defending lawyer in nearly every case. This movement ashore has removed rnuch of the old English quality of the court-martial. Cases are no longer judged frequently by a panel of Peers and superiors who have shared the common experience of sea service. Instead they are in the hands °f technical experts in military law, with sufficient )nnior line officers to fill out the court. Many cases are judged by military judges alone, for there is a common perception among defense counsels that line officers are more harsh in punishment. By practical necessity, the president of a court and the military judge must be professionals in the law first, and seagoing naval officers second. Ideally, they are both, but more often they are not.
Nonjudicial punishment is the province of the commanding officer. Article 15 of the Uniform Code °f Military Justice (UCMJ) is the statutory recognition °f the special requirements of military legal systems, and it is impossible to conceive of the military as we know it without this avenue of unit punishment or something which serves the same function. By comparison, judicial methods are slow, cumbersome, and unsuited to minor offenses.2
In the “old Navy,” minor offenses were handled by customary administration of on-the-spot corporal Punishment, which was subject to unchecked abuse and brutality in the hands of a bully like Master-at- Arms Claggart in Melville’s work. Article 15 is a substantial compromise of traditional military law in
fact, this is the most persuasive argument advanced by the advocates °f decriminalization of prostitution, marijuana use, drunkenness, and °ther so-called victimless crimes—that the system is overburdened and Cannot cope with the demand for judicial assessment of punishment for these offenses. The result is an admission that the clearly communicated ’’tandards of society at large must be compromised. The effect on societal discipline is a matter of lively debate.
the direction of individual rights and statutory limitation. When correctly administered, it provides for careful investigation, review of the elements of proof in the matter, and finally the administration of swift, legally prescribed punishment by the offender’s commanding officer. At each stage of the process, the rights of the accused are made clear. The result depends heavily on the personality of the person imposing the judgment, and here is the weakness of the proceeding. Fortunately the vast majority of commanders are just, humane, and distinctly aware of the fragile and rare responsibility they bear in this role. Pride of person should be absent and only the humanity of the man allowed to temper the judgment of the commanding officer. Crew members as individuals are objects of the commanding officer’s concern, but the well-being of his small society must be paramount.
Successful nonjudicial punishment is predicated primarily on the corrective aspect, to the extent that correction is not contradictory to the well-being of the military unit. The sacrifice of the individual to the betterment of the small society, particularly for demonstrative purposes, is not easily justified at mast, and it may have a severe backlash effect among other crew members who expect justice (in the sense of demonstrated guilt) and reasonableness to be necessary and prized characteristics of their captain. If these expectations are destroyed needlessly through misjudgment or capricious use of power, the command is endangered. The crew members presume, unless they have indications otherwise, that they will be treated fairly by the commanding officer, and that presumption is a major element in their respect for the position (not necessarily the man) of CO. If, on the other hand, he is perceived as unfair or capricious in dispensing justice, that respect declines—with wide-ranging effect on morale, performance, and retention. It has the same effect on the wardroom. Poor shiphandling also damages a captain’s reputation, but a crew will forgive that in a way it will not forgive perceived unfairness or injustice.
Informal punishment is not legally punishment at all, but rather a means of correcting behavior within the normal relationship of superior and subordinate. In the Navy, it is generally called "extra military instruction” or EMI. Few officers or petty officers really understand the clear distinction between EMI and nonjudicial punishment. Only the commanding officer can impose the latter. Many commanders fail to provide their subordinates the firm guidance they need with regard to this distinction. Infotmal means to correct behavior must be strictly that totally corrective, having little or no retributive or demonstrative aspects to them. They must be directly related to the man’s shortcomings and clearly associated with their correction. Otherwise, the measures become punitive in the legal sense and thus are unlawful unless imposed at mast.
This brings to mind an interesting question. What is the status of withholding of privileges such as liberty, the storage of civilian clothes, and the wearing of civilian clothes on liberty? May these be withheld administratively from those deemed unde-
serving of privileges, as distinct from rights? I suspect that a court might rule negatively, but for the moment such administrative measures are not illegal, provided they are not permanently imposed and are not inflicted as punishment at mast. Presumably the restoration should be contingent on the correction of errant behavior, completion of assigned work or duty, possession of a full seabag, or some other clearly communicated requirement.
Finally, all other punishment is simply illegal. All forms of corporal punishment are properly outlawed by the UCMJ. Restriction, extra duty, fines, or even “hack” (being confined to one’s stateroom) for officers can be imposed only by formal captain s mast proceedings. And commanding officers should be aware of the BuPers [Bureau of Naval Personnel] Manual requirement that any nonjudicial punishment imposed on officers requires a report by letter to the bureau.
Pre-mast voluntary agreement between the parties is still a viable practice. In such cases the command decides to withhold formal charges in return for the offender’s agreement to forgo liberty, to perform extra work to make up lost time, or to submit to some other voluntary form of “punishment. One should be completely aware of the informal nature of these agreements between the parties. They have no legal validity and cannot be enforced if the offender chooses to default. They constitute "gentlemen’s
When faced with a long deployment and hot engineering spaces, a boiler technician might well wonder if life wouldn’t he easier if he went over the bill.
U- S. NAVY
agreements” only. Charges may be brought after default, on the original offenses, but the time delay in prosecution might be justifiable grounds for an appeal to the next superior in the chain of command.
Punishment should be rationally derived from these variations to suit the occasion, the offense, and the offender. Every commanding officer develops his own style of punishment, as do military judges of the Judge Advocate General’s Corps. But both groups t>eed to keep in mind the ultimate objective of military punishment—the establishment and mainte- uance of disciplined behavior in a military force. It is to this objective that we now turn.
Discipline, whether applied in the academic field (as in the discipline of physics”) or military service, connotes the subordination of emotion to an accepted set of rules. Both seek to produce a pattern of predictable behavior. Military discipline demands conformity with the established fundamentals of loyalty, service to the state above self, obedience, courage, and much more. But above all it demands subordina- Cton. In the United States, where every military man ls by definition subordinate to his superior, this basic fact of military service is difficult for our young People to accept, reared as they were with the Philosophies of Dr. Benjamin Spock and a generally Permissive society. The military services are definitely not the place to “do your own thing.” One first iearns to subordinate himself to a rigorous system. "This requirement is the underlying justification for basic training and other preliminary periods of tran- s*tion from civilian to military life.
Most professionals know implicitly that military service is essentially the offering up of oneself to the society. But few have explored it very deeply or pursued the reasoning involved in its acceptance. Understanding the necessities involved in subordination and communicating that understanding to subordinates (particularly to the youngest members of the organization) can go far in assisting them to reconcile their civilian past with their military present.
What is the purpose of military discipline and its Principal element, subordination? I think it is the
achievement of predictable behavior in each member of the organization. In the military environment, it is this aspect of discipline that enables us to rely on each other in common efforts. We don’t have to assess each situation from scratch. Discipline, like the nautical rules of the road, tells us what an individual can be expected to do in a given situation.
What makes military discipline so much more demanding than its civilian counterpart is that we deal with life-or-death situations, under great stress, and in small groups which cannot rely on the aggregated strength of a functional group to fulfill the role. The freedom to assume that a “muddling through” effect will occur is feasible in a large society, where a sufficient number of citizens vote in an election, for example, to maintain credibility in the process, and thus provide for an orderly change in government—and where enough workers pay their taxes as assessed to finance its operation. Neither a sizable number of absentees at the polls, nor a number of tax delinquents imperil a large society. But the absence of even a few men from a shipboard fire party or a machinery repair group can have a serious effect on the outcome of an emergency situation at sea. In a few jobs in the military, the failure of a single individual to do his assigned task can preclude the accomplishment of the military unit’s mission. A much higher order of predictability is necessary for military service, and this necessity is nowhere greater than in sea service.
At sea, sailors share an implicit social contract of fundamental interdependence. Few state the obvious, but the sleeping crew members below-decks have forfeited control of their very survival because they trust the officer of the deck and his watch. This trust requires highly predictable behavior by the watch standees in their maintenance of prudent, professional, seamanlike standards.
Naval discipline is the sine qua non of life at sea. Without it, nothing is possible. Compromise it through poor judgment or ignorance of the special requirements of the sea, and the service itself is shaken in its foundation. This is where the judge advocates domination of the courts-martial realm is most disturbing. The final objectives of civil law are simply not the same as those of military law. American civil law is sharply focused on the rights of the individual, assuming that the polity will survive if these are served. One may question the assumption, but
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The technical requirements of the court-martial have now placed it largely ashore under the aegis of judge advocates. A number of line officers view the change as deleterious.
most liberal theorists would argue that the rights of the individual are paramount even to those of society at large, and with this assumption the American people have survived for more than 200 years. But this is not the case in military law, nor should it be.
In military law the end desired is organizational survival and the accomplishment of a mission under conditions of violence. The rights of the individual are not paramount to that objective. Indeed, the ultimate meaning of military service is a tacit statement that one will sacrifice his life to the service if asked. In military service, the rights of the individual are important hut not at the expense of the predictable behavior necessary for interdependence and survival.
It was in recognition of this fact that the Uniform Code of Military Justice was written, and it serves well in most respects. However, it must continue to reflect the special requirements of military service in application as well as in origin. Some judge advocates prosecuting cases or serving as military judges apparently see their roles as more consonant with their training in the civilian law and act accordingly in their pursuit of individual rights as an ultimate objective. Perhaps they have never seen a fire at sea or a collision in which one’s familiar world is ripped into jagged shards of hot metal. They may have never known the numbing effect of a tropical storm under conditions which imperil survival. If they have experienced these or other dangers of sea service, they implicitly understand the requirement for disciplined behavior as the proper objective of the military legal system and the need to enforce this discipline, when it is breached, with appropriate punishment.
The blame for much of the problem may be laid at the door of the Court of Military Appeals. It has steadily enlarged its role from an initial posture as a rather passive forum for substantive appeal, a necessary leaven for a military legal system operating in a larger civilian context. It prevented excesses and acted as a potential check to illegality, which is the intention of the drafters of the legislation establishing it. However, in recent years, many cases have
been reversed solely on the basis of procedural error which should not significantly affect the outcome of the case. The technical requirements which emerged from these cases have, for all practical purposes, removed the line officer from the military legal system- Only captain’s mast remains, and that is not securely anchored, particularly when isolated cases of its misuse are spread across the front pages of the press.
Prescription: There is no single solution to a problem with as many sides as this one. There are, however, actions possible at each level of the military legal system.
First, all concerned, from the Congressman down to the new recruit, must understand that the requirements of military service are fundamentally different from those of civilian life. We are still citizens, but we have willingly placed our lives and some of our rights in jeopardy for the sake of a larger objective. Individual rights are not ultimate values in the military services. Rather, military discipline is one of the ultimate values, coupled with the moral discipline required to preclude the development of tyrannical tendencies among military professionals.
Specifically, Congress should restrict, through legislation, the Court of Military Appeals to whatever role Congress deems appropriate. A change in composition might be considered as well—to add personnel familiar with both military law and line service—in order to ensure the representation of the military perspective and value system. Expansion of the numbers involved should be considered also, because the present three-member character places an enormous importance on the influence of the swing voter. Most controversial cases have been settled by two-to-one decisions. The court itself should reassess its conceptual role in the system. It is in danger of jeopardizing the content and objective of the law. In an effort to achieve technical perfection of form, the court creates the need for an ever-larger corps of judge advocates to cope with an ever-growing case load at lighter costs—costs that take the form of money, personnel, and the ultimate deleterious effect on military discipline.
Members of the Judge Advocate General s Corps should also reassess their role in the Navy’s disciplinary system, of which the legal system is a part. Courts-martial must not become the perceived easy way out” of unpleasant situations for our young men. Some sentences for long periods of absence have suggested this to many enlisted men. We must recognize that a boiler technician’s lot in a fireroom before the visit of a Propulsion Examining Board may be more rigorous and demanding of him than confinement at hard labor for a similar period. Confinement
for even several months, following what may be an equal period in a holding company with light duty and weekend liberty, may be viewed as distinctly preferable to a seven-month deployment in which °ne cannot go home on weekends. Only if the rigors °f sea service are understood by the judge is it likely that an appropriate sentence can be imposed.
In this regard, the determination of which aspect °f punishment is to be dominant must be made. There will be conflicting judgment among the par- t'es. The ship prefers demonstrative punishment to he used as a symbol in deterrence of other offenses. The man’s shipmates watch the outcome of the proceedings with a keen interest. The defense counsel argues for corrective punishment and seeks to demonstrate the contrite spirit of his client. Too frequently, the judge is more concerned with the consistency of his record on review than with the effect °f a sentence on the discipline of the parent command or the service. When consistency is the goal, retributive punishment with its near-automatic determinations can dominate the logic of judgment. There is a trap in this, because the normal determination of severity of offense may not be a valid guide to sentencing. An absence of ten months is not necessarily ten times worse than an absence of 30 clays. Nor is an absence of 30 days a tenth as severe as one of ten months. Military offenses have two aspects which must be considered before determining their severity. One is the offense itself, and the other ,s the environment of the offense. An absence of 30 days, when incurred to avoid deployment with the ship, or when it has that effect, may be far more destructive of unit discipline and mission effectiveness than an absence of ten months from a large naval air station. The smaller the unit, the more severe any violation of discipline because of the increased criticality of each man. As things are now handled, che disastrous effect of a man’s absence to a ship forced to deploy shorthanded is seldom at issue, nor ls the real increase in physical danger to his shipmates involved in sailing without him and his skills, fo is a problem perhaps beyond solution until all JAG Corps officers are also veterans of sea duty.
Finally, at the lowest level of the system, all commanding officers must exercise prudent judgment in the use of captain’s mast, if we are to keep it as a useful tool. While strict rules of evidence are not Squired, charges must be specific as to time, place, and offense. Witnesses must be heard and the accused permitted to rebut their testimony and to call Witnesses in his own behalf. The burden of proof is °n the government, not the accused. Of course, the executive officer should dismiss those cases in which the proof is clearly absent and send forward only those with reasonable validity for the commanding officer to hear. But the commanding officer should not presume guilt by presence; he should demand that his subordinates make the case and dismiss those in which the case is not proved. Then, the captain must impose sanctions carefully, not with automatic retribution but with an alert eye to the mixture of the aspects of punishment he deems proper in each case. One warning is offered: the captain should always leave room for further misconduct, rather than suspend so much punishment that the man sees no other choice but desertion if he falls from grace again. There may be cases in which no salvage is desired, and there are appropriate avenues for these men, but they should not be dictated by a dearth of remaining options.
The cool logic of determining which of the primary facets of punishment is most appropriate may be of some help to the fleet’s commanding officers. It may provide a conceptual framework for their thought beyond personal emotion and tradition. Captain’s mast is the most valuable tool remaining to those responsible to the nation for discipline in the military services. It must not be lost as a result of unthinking abuse by a few.
Beyond all these recommendations, one overriding requirement must be kept in the foreground by all levels of the military legal system. The irreducible objective of the system is the establishment and maintenance of military discipline, which is the very essence of military service. It is the end which justifies the separate legal system itself, and it is the ultimate value by which every phase of the system’s operation is judged. Discipline must not be compromised by the technical aspects of its legal subsystem or by a basic confusion about its essential character. Beyond legal theories, beyond debates about rights, beyond arcane opinions on procedures, discipline must be preserved. Our survival depends on it.
Commander Bonds was commissioned through the reg- nlar NROTC program at Rice University in 1962 and holds master's degrees from George Washington and Brown universities in international affairs and American
politics. He has served in destroyers and on a destroyer flotilla staff. Following a year at the Weapons Systems Evaluation Group, he commanded the USS Firm (MSO-444) for 32 months in the Pacific. A student at the Naval War College in 1972-1973, he remained at the college as an assistant for strategy in the Center for Continuing Education until 1976. He served as executive officer of the USS Ponce (LPD-15) from 1976 until September of this year and reports this month as commanding officer of the ammunition ship Mount Baker (AE-34). Commander Bonds has written two previous Proceedings articles, “The Navy Needs More Sailors" in February 1976 and "Surface Reflections” in March 1978.