Accountability: A View from the Bridge

This html article is produced from an uncorrected text file through optical character recognition. Prior to 1940 articles all text has been corrected, but from 1940 to the present most still remain uncorrected.  Artifacts of the scans are misspellings, out-of-context footnotes and sidebars, and other inconsistencies.  Adjacent to each text file is a PDF of the article, which accurately and fully conveys the content as it appeared in the issue.  The uncorrected text files have been included to enhance the searchability of our content, on our site and in search engines, for our membership, the research community and media organizations. We are working now to provide clean text files for the entire collection.

The doctrine of accountability—facing page—was highlighted and immortalized in a widely reprinted editorial that appeared in The Wall Street Journal shortly after the collision of the USS Wasp (CV-18) and the USS Hobson (DD-464) during the night of 26 April 1952.

In the years since that collision, a long shadow of doubt has been cast over this doctrine’s viability, particularly after the general court-martial proceedings that followed the collision of the USS John F. Kennedy (CV-67) and the USS Belknap (CG-26) on 22 November 1975.¹ During his recent tenure as Chief of Naval Operations, Admiral James Watkins sought to restore this doctrine as part of a larger effort to promote integrity and efficiency. Follow­ing quickly on the initiatives of his predecessor, Admiral Tom Hayward, to restore pride and professionalism to the Navy, Admiral Watkins renewed the requirement that each service member be held strictly accountable for his or her acts and omissions.

Captain G. B. Powell’s August 1986 article “Account­ability Afloat” discusses the events surrounding the more recent deaths of two sailors from lack of adequate medical care. He shares the results of three separate investigations and provides valuable lessons for all officers. Several other recent events offer further opportunity to examine the current evolution of the long-standing naval custom of accountability. Similar lessons and broader conclusions can be drawn from these incidents.

In August 1982, the commanding officer of an oceango­ing minesweeper was relieved for cause and received non­judicial punishment for being drunk on duty and jeopar­dizing his ship in the process. The incident attracted congressional interest and considerable local publicity. Unfortunately, the events involved came to light through two “whistle-blowing” malcontents, whose allegations of Wrong-doing proved true. First reports addressed to the officer’s immediate superior in command failed to prompt an investigation until he was directed to do so by the type commander. This investigation resulted in the squadron commander himself providing positive assurances that the allegations were unfounded. Subsequently, the type com­mander directed that the report of investigation be for­warded to permit a proper response to several congres­sional inquiries. The review of the investigation disclosed substantial evidence that supported the allegations. Follow-on proceedings confirmed the alleged misconduct and resulted in immediate disciplinary and administrative actions.²

On 24 January 1984, the USS Thomaston (LSD-28) was en route to the Western Pacific. While departing Kauai, Hawaii, she grounded, causing substantial damage to her hull. Initial reports did not mention the grounding, al­though a later investigation revealed that there could have been no doubt as to the time it occurred. An underwater hull inspection conducted immediately after the incident disclosed substantial damage, including pieces of coral protruding from fractures in the hull plates. Yet neither the commanding officer nor the embarked immediate superior in command reported a grounding. An investigation was, however, initiated, which concluded that damage to the port screw occurred when the ship “touched bottom” and that the incident was the result of a nonculpable error of judgment. No individual’s performance was found lacking and no administrative or disciplinary action was recom­mended or initiated. The immediate superior in the chain of command and the cognizant group commander con­curred in this evaluation.

The type commander concluded that a grounding had occurred but that the investigation of the surrounding facts and circumstances was not thorough enough. Conse­quently, he directed a supplemental investigation that dis­closed the full nature and extent of the damage incurred. It also revealed that serious flooding had occurred in the well deck during the ship’s follow-on transit to Japan, along

“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 ...”

with additional damage to a landing craft in the well deck. There was substantial evidence that the commanding offi­cer was under the influence of alcohol at the time of the grounding. The second investigation resulted in the com­manding officer being punished by general court-martial. For the first time since the KennedylBelknap court- martial, a commanding officer was held accountable by general court-martial for professional dereliction.³ Collat­eral consequences included the commanding officer’s re­lief for cause and the nonpunitive censure of the original investigating officer.

On 27 January 1984, the USS Elliot (DD-967) was de­parting Naval Weapons Station Seal Beach when she suf­fered a propulsion casualty. An underwater hull examina­tion disclosed that one of four blades from her starboard screw was dislodged. A prompt and thorough investiga­tion initiated by the immediate superior in command left no reasonable doubt that the Elliot had departed the chan­nel and grounded in the soft bottom, causing the damage. The investigation revealed that the ship was not practicing commonly recognized procedures for piloting a vessel, including following available range markers, but appar­ently was maneuvered by seaman’s eye; the investigation also showed that the vessel was far right of the center of the channel. An observer ashore noted that the Elliot “was not in the middle of the channel and it was churning up a lot of dirt.”

Prompt action was initiated to relieve the commanding officer for cause, and the group commander imposed non­judicial punishment. Subsequently, however, efforts were begun to reverse these actions. Although a nonjudicial punishment appeal was denied, extraordinary review was sought and obtained from the fleet commander-in-chief. While this effort was ongoing, the former commanding officer’s new group commander brought pressure to set aside the nonjudicial punishment and to report the offi­cer’s relief as not for cause. The extraordinary actions concerning the nonjudicial punishment were unsuccessful. Yet the Chief of Naval Personnel initially refused to ap­prove the relief for cause, concluding that there was insuf­ficient evidence of a grounding; he permitted the officer to be reassigned to command a different ship on the opposite coast. It was only after the type commander provided Commander Naval Military Personnel Command with a follow-on engineering report that further supported the conclusion that a grounding had occurred that action was taken to approve the detachment for cause.⁴

In the Navy, accountability essentially is limited to mea­sures ranging from nonpunitive actions (e.g., oral admoni­tions, letters of instruction, letters of caution, and appro­priate marks or remarks in fitness reports) to punitive mea­sures, such as nonjudicial punishment and courts-martial. Once it is determined that nonpunitive measures are insuf­ficient, a commander or commanding officer is forced into the world of legal technicalities that surround punitive mea­sures. Often a commander finds his options narrowed or almost totally foreclosed by the legal requirements in­volved. In the Smith death case that Captain Powell re­counted, the group commander failed to take any action for so long that the type commander was foreclosed from considering a court-martial because of the speedy trial pro­visions.⁵ Therefore, the only alternative remaining was nonjudicial punishment for the one individual who more than anyone else was responsible for Smith’s death. Simi­larly, in the Thomaston grounding and the minesweeper officer misconduct incident, the immediate superiors in command failed to take appropriate action; and in the El­liot grounding, several senior naval officers struggled mightily to prevent their friend or colleague from being held accountable.

All service members should learn several lessons from these and similar cases. Investigations and accountability actions involve substantial legal complexities. The imme­diate superior in command and his superior need prompt and effective legal advice. Although the nearest naval legal service office may be helpful, too often the level of experience and lack of understanding encountered is more frustrating than helpful. To provide more meaningful ser­vice, several type commanders in both the Atlantic and Pacific fleets have established staff judge advocate billets within their administrative organization, usually on the staff of the group commanders. Obtaining and using legal advice as soon as possible are essential.

There is no substitute for a thorough investigation and integrity in accepting what occurred. Commanders and commanding officers must require that those assigned the collateral duty of conducting an investigation perform the task in a proper and timely fashion. Conducting an investi­gation is not particularly difficult if one employs simple logic and seeks the answers to the basic questions: “who, what, when, why, and how.” Fleet training centers and fleet and force commanders can provide much guidance.⁶

The severe consequences involved in implementing accountability often cause sincere and dedicated officers to question whether accountability is worth the price. Al­though the sincerity of these views is not in doubt, usually such questions arise when the commander is confronted with taking the hard but unpleasant action the doctrine demands. Historically, introspective consideration has always resulted in reaffirmation of the doctrine. Much has been written concerning “integrity and efficiency.” This is another dimension of that concept. Each echelon within the chain of command must do its duty. The type com­mander’s intervention in the cases described should not have been necessary. To his credit, he understood and ac­cepted the constraints placed on him by Article 37 of the Uniform Code of Military Justice.⁷ More significantly, he maintained the course set by the Chief of Naval Opera­tions although it was most unpleasant.

In his article, “The Cruel Business of Accountability” (.Proceedings, August 1977), Captain John E. Green- backer examined the results of the court-martial proceed­ings following the KennedylBelknap collision. He found the Uniform Code of Military Justice lacking and con­cluded that a “substitute for the general court-martial must be found.” History and experience indicate this is not nec­essarily true. Some changes may be useful, as this article will suggest, but the system will work as long as the indi­viduals involved—commander and lawyer alike—act with integrity.

The legal proceedings that followed the Smith death investigation and the Thomaston grounding investigation clearly demonstrate the need for greater flexibility with respect to the speedy trial provisions of the Manual for Courts-Martial. The current provisions fail to recognize that commanders within the chain of command have a legitimate role and must be afforded a reasonable opportu­nity to enforce their judgment. Simply put, more time is needed. The current rule provides a 120-day period from the date an accused is notified of formal charges to the date of trial. The several categories of exceptions account for a variety of circumstances, including military neces­sity, but without any specificity concerning precisely what circumstances fit into this category. Thus, the problem could be solved through a simple amendment to the “Dis­cussion” portion of Rules for Court-Martial (RCM) 707, or through promulgation of an express exception provid­ing an exclusion for any period of delay based on such circumstances as the Secretary concerned considers neces­sary and appropriate. Of course, such an exception would require appropriate implementation by each of the service secretaries.

Furthermore, as Captain Greenbacker discussed, histor­ically the court-martial of an officer, particularly a com­manding officer, was intended as the ultimate means for evaluating his performance. Since the adoption of the Uni­form Code of Military Justice, the tendency has been to view the court-martial process as exclusively involving a determination of criminal liability. This is not absolutely necessary. Clearly, it is not constitutionally necessary, for the Supreme Court of the United States repeatedly has recognized the separate and distinct nature of the military community.⁸ Trial by military judge alone may well be inappropriate to evaluate an officer’s performance. In this regard, I suggest amendment of the “discussion” section following RCM 903(c)(2)(B) so that it might read as follows:

“A timely request for trial by military judge alone should be granted unless there is substantial reason why, in the interest of justice, the military judge should not sit as a fact-finder. Where the accused is a commis­sioned officer, particularly where he or she is or was a commanding officer, accused of failing in the perfor­mance of his or her duties, e.g., a violation of U.C.M.J., art. 92(3), 94, 99, 104, 105, 106, or 110, such circumstance alone is a substantial reason why a military judge should not act as a fact-finder. The mili­tary judge may hear arguments before acting on the request. The basis for denial of a request must be made a matter of record.”

In addition, some modification of the Uniform Code of

A grounding or collision can have more far-reaching con­, sequences than their effect on a professional naval offi- 5 cer’s career. Either can put a ship in drydock, wasting valuable time and dollars.

Military Justice might be useful with respect to the find­ings of a court-martial. In this regard, I propose that Arti­cle 51(c) of the Uniform Code of Military Justice be amended to provide the unique finding of “acquitted” in the case of a commissioned officer. The article would read as follows:

“(c) Before a vote is taken on the findings, the military judge or the president of a court-martial without a mili­tary judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them. . . .

“(5) that, in the case of a commissioned officer, the court-martial, having found the accused not guilty of all charges and specifications, may return a finding of “acquitted” in lieu of findings of not guilty based upon its determination that the accused performed the duties assigned in a professional and competent manner as reasonably expected of one of his grade and experi­ence, without exception.”

These modifications would restore the court-martial to its historical role in resolving accountability.

'In the principal case which resulted from this incident, the Belknap's commanding officer was found not guilty. In a related case, the officer of the deck was convicted but was sentenced to "no punishment."

"Fortunately, the malcontents did not escape justice, and the disciplinary action taken against them prevailed. In a related case, the type commander also granted relief pursuant to Article 138 of the Uniform Code of Military Justice to a junior officer who was unjustly maligned by the commanding officer in a fitness report. "Although tried by a military judge alone, the commanding officer was convicted of negligently hazarding the vessel under his command. The sentence as approved on review consisted of a reprimand.

“Chief of Naval Personnel, Itr ser P821/1578 of 1 Aug. 85.

⁵The Smith case was governed by the provisions of Manual for Court-Martial (MCM), 1984 ed., R.C.M. 707, which sets a 120-day period during which an accused must be tried. The type commander received the case with less than 30 days of this period remaining.

⁶Detailed guidance usually is available from the cognizant type commander (e.g.. Commander, Naval Surface Force, U. S. Pacific Fleet, Instruction 5800.2, Force Legal Guides).

⁷U.C.M.J., Art. 37 prohibits undue command influence. Simply stated, this doc­trine prohibits a superior from directing a subordinate to impose nonjudicial punish­ment [MCM, 1984, Part V, para. !d(2)], or to deprive a subordinate of the proper exercise of his discretion regarding courts-martial. If a superior is dissatisfied with a subordinate’s resolution of a matter, he may within certain limits exercise his separate and independent authority concerning the matter.

⁸C/. Parker v. Levy, 417 U. S. 733 (1974). Compare also Goldman v. Weinberger,

----- U. S------ , 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986); United States v. Albertini,

----- U. S___ , 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985); Chappell v. Wallace, 462

U. S. 296 (1983); Brown v. Glines, 444 U. S. 348 (1980), et seq.

Upon graduation from Marquette University, Captain Horst was com­missioned as an unrestricted line officer from the NROTC Regular Pro­gram. After serving five years in destroyers, he obtained a law degree from Marquette University Law School through the Navy’s Excess Leave Program (Law). Recent duty as a judge advocate has included assignments as the Force Judge Advocate on the staff of Commander Naval Surface Force, U. S. Pacific Fleet, and as chief appellate counsel for the Navy and Marine Corps concerning courts-martial review. Cap­tain Horst retired on 1 October 1986 after 24 years of service.