Until 1999, when President Bill Clinton abolished it, "loss of numbers" was a permissible court-martial sentence in the sea services. Although this historical footnote may appear to be just "inside baseball" for military lawyers, it is highly pertinent to current conversations about accountability in naval circles and elsewhere. Abolition of loss of rank precedence numbers is one of those actions that seem inconsequential at the time, but prove to be of much greater significance later.
In 1999, among changes to the Manual for Courts-Martial was an amendment deleting Rule for Courts-Martial 1003(b)(4), which had been the basis for the court-martial punishment of loss of numbers. Loss of numbers once had been a permissible punishment in the Army, but it was used by that service rarely; from the beginning of the Uniform Code of Military Justice (UCMJ) era, it was applicable only in the Navy, Marine Corps, and Coast Guard. As a cultural matter, it had become quintessentially a sea services punishment, much like "bread and water." While adjudged occasionally in shoreside settings, loss of numbers had a distinctly nautical ring, and it had come to be associated primarily with crimes of command, such as hazarding a vessel and related derelictions.
Among those who suffered this punishment was Captain Edward L. Beach (father of the author of Run Silent, Run Deep), who was sentenced to a loss of 20 numbers while commanding the Memphis (ACR-10) in 1916. (The Secretary of the Navy later reduced the sentence to loss of five numbers.) The commanding officers of the Indianapolis (CA-35), Missouri (BB-63), Basilone (DD-824), Winnebago (WPG-40), Owasco (WPG-39), Cuyahoga (WIX-157), and Mesquite (WAGL-305) all lost numbers as well. (In the last incident cited, however, the conviction was overturned on appeal and the captain wound up at admiral's mast.) The executive officer of the Prestige (AM-465) lost numbers after a 1958 grounding, but this was set aside because the commanding officer had been acquitted. Loss of numbers had a lot of history behind it.
Despite the Navy's tradition of resistance to military justice reforms, abolition of loss of numbers was one it sought. Why? The explanation in the Joint Service Committee's 1997 notice of proposed rulemaking identified no pressing need for action. Rather, it treated the matter simply as clearing away a provision that was misunderstood and served little purpose. Although loss of numbers had the effect of lowering precedence for some purposes—such as quarters priority, board and court seniority, and actual date of promotion—it did not affect an officer's original position for purposes of consideration for retention or promotion. Accordingly, this punishment was deleted because of its negligible consequences and the notion that it was not a meaningful punishment.
Was this a valid reason? One of the leading treatises on military justice makes you wonder. It indicates that loss of numbers generally "adversely affected the officer in terms of obtaining quarters and in actual promotion in rank." The National Institute of Military Justice (NIMJ) commented: "While NIMJ intuitively agrees that this traditional punishment can now be dispensed with, we would feel more confident on this score if data on the actual imposition of loss of numbers were made available." Subsequently released internal records show that the Bureau of Naval Personnel already had estimated that there were one or two loss of numbers cases per year, but that was not made known to the public at the time and the proposal continued its way through the protracted executive branch approval process. No one has sought to reinstate loss of numbers as a court-martial punishment. Indeed, scarcely anyone has noticed the change.
Is abolition of loss of numbers more important than the Navy thought? For one thing, it brought the services a notch closer for military justice purposes, making the UCMJ that much more uniform. For another, it put less daylight between the punishment powers of a court-martial and those of a flag officer in command. Because dismissal and brig time are highly unlikely to be adjudged in courtmartial cases involving crimes of command, and involuntary separation can be effected through a board of officers (unless the offender chooses to retire or otherwise "go quietly"), abolition of loss of numbers means that the same sanctions—notably, letters of reprimand—an be imposed at admiral's mast as are likely to emerge from a court-martial. This was one of the factors that led the Commander-in-Chief Pacific Fleet, Admiral Thomas Fargo, to opt for mast in the recent case involving the collision of the USS Greeneville (SSN-772). Thus, abolition, coupled with the rise of administrative measures—such as removal from promotion lists, detachment for cause, and retirement grade determinations—seems to mark the demise of the general court-martial as the forum choice for administration of justice in cases involving crimes of command by naval officers.
This shift may make sense, but it is not without cost. It entails rejection of the court-martial apparatus with all its highly-touted protections for the individual—for example, proof beyond a reasonable doubt and cross-examination of witnesses—that have been developed over the past 50 years, as well as an incalculable loss of public confidence that justice has been done. Shifting a category of cases from the trial forum to a command-focused forum seems anomalous. Moreover, shifting to what may seem a more lenient forum a category of cases in which the accused is always an officer can be expected to generate consternation among enlisted personnel and the public. A court-martial still can reduce an enlisted member's pay grade; it no longer can reduce an officer's seniority within a pay grade. Separate disciplinary treatment of officers and enlisted personnel has become a little more separate, and crimes of command seemingly have been decriminalized, the UCMJ notwithstanding.
Beyond all these considerations lies the loss of something more elusive. The Joint Service Committee's explanation for abolition was correct on a certain level: loss of numbers had become a virtual museum piece. It was an 18th- and 19th-century sanction struggling to survive in the modern Navy. It had an unmistakably ritualistic ring to it, like the old requirement that holiday colors be displayed when a general court-martial was in session. Yet even today, precise seniority has consequences at every turn. Issues of seniority continue to pervade naval life. Given this, were we too hasty in throwing loss of numbers over the side?
Eugene Fidell practices law in Washington, D.C. His brother Jay practices law in Honolulu, Hawaii.