In addressing minor disciplinary offenses, the commander has little discretion in applying an appropriate punishment to the crime.
Seaman Jones stood at attention at mast, accused of arriving 20 minutes late to work for the fourth time in the past month. The seaman, otherwise, was a stellar performer, one of the best in the operations department, with the potential to be an outstanding junior petty officer. The leading petty officer, the chief, and division officer had counseled SN Jones verbally and in writing, all without the desired impact. The commanding officer felt mast was the right tool for the situation: however, if he awarded any punishment, service policy requires SN Jones to lose his place on the "A" school waiting list, not be able to reapply for six months, and lose his good-conduct eligibility.
The commanding officer wanted to wield the non-judicial punishment scalpel of good order and discipline. What the service has given him is a 16-pound sledgehammer: an unwieldy, inflexible tool that leaves the commander little practical discretion for disposing of minor offenses.
Commander as Cornerstone
The commander is ultimately responsible for maintaining good order and discipline in the command and employs a broad spectrum of measures to achieve it. including non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice. If the commander finds an accused committed the offenses at NJP. he may award as little punishment as a verbal admonition and as much, depending on seniority of the commander and rank of the accused, as reduction in one grade of rank, two months restriction, 45 days of extra duties, and forfeiture of half pay for two months.1
Although the UCMJ and Rules for Court-martial discuss a commander's use of administrative measures as one option to dispose of minor offenses, military justice is a command function-not an administrative matter-that requires the direct participation, personal discretion, and judgment of the commander. For that reason. NJP is never required for minor offenses and there are no Article 15 minimum mandatory punishments or sentencing guidelines. The objective isn't to achieve consistency of punishment for similar offenses, but to promote military order and discipline. The entire military justice system vests tremendous discretion with the individual commander, who is in the best position to determine how to appropriately dispose of an offense to promote good order and discipline.
Personnel Experts or Commander's Judgment?
Non-judicial punishment is no longer an effective tool for commanders to maintain good order and discipline because any time it is awarded, service policies mandate an array of administrative sanctions against the accused. In short, the services have substituted the policies of personnel experts for the commander's judgment in order to promote administrative consistency and efficient policy application. These administrative sanctions, which range from impacts on advancement, training, assignment, and awards, are triggered any time an Article 15 is administered, regardless of the nature of the offense, the member's reeord, or the command climate.
For example, if a Coast Guard non-rated enlisted memhe r is awarded non-judicial punishment, the following administrative measures are required:2
* Member is no longer eligible for transfer without CG Personnel Command approval.
* Supervisor must prepare a special, adverse evaluation.
* Supervisor must assign an "unsatisfactory" mark in conduct on the member's evaluation, with automatic loss of Good Conduct eligibility.
* Member cannot he advanced during the remainder of the marking period.
* Member is ineligible to apply for officer commissioning programs for 36 months.
* Member must be removed from any "A" school wait ing list and is ineligible to reapply for 6 months.
* Member is ineligible for special duty assignments for 4 years.
* Member is ineligible for nomination to the CG Enlisted Person of the Year Program.
* Member may likely he deemed ineligible for unit awards.
* Member may receive an adverse impact on ability to be assigned overseas.
For commissioned officers, non-judicial punishment carries its own sanctions, including requiring a special (adverse) Officer Evaluation Report and automatic headquarters review of the officer's record for the purpose of assessing whether administrative separation is appropriate, no matter how minor the officer's misconduct. NJP effectively sounds the death-knell to an officer's career in every case. Anecdotally. it was not uncommon for a senior enlisted member (or on occasion a commissioned officer) to have received an Article 15 at an early point in their careers. Today it is extremely rare, primarily because it hits been transformed into a severe sanction with a stigma that approaches that of a court-martial.
Like the Coast Guard, the Navy and Marine Corps administrative policies require similar mandatory administrative measures for every Article 15. impacting assignment, promotion, and transfer opportunities.3
Undoubtedly, the purpose behind mandating administrative penalties with any non-judicial punishment is to ensure consistent application of personnel, training, and assignment policies throughout the service. While a laudable organizational goal, it has produced unintended and undesirable consequences. Although these mandatory administrative measures are intended to he less severe than NJP when considered alone (they are not legally considered punishment), the service policies have so stacked the mandatory sanctions deck that these consequences are almost always more severe and longer Listing than the maximum punishment the commander can award. Unfortunately, this has rendered NJP an inflexible, unwieldy tool that is frequently too big for the job at hand.
As a result, commanders either hesitate to Lise non-judicial punishment for minor offenses because the administrative sanctions are disproportionate to the offense, or worse, they administer illegal punishment to avoid the administrative requirements. Commanders who chose not to administer NJP because of the administrative sanctions involved are left with very limited options for handling minor offenses, none of which involve legal punishment. Commanders who find non-punitive measures inadequate to address a misconduct problem may be tempted to turn to illegal punishment, either by allowing subordinate supervisors to administer unofficial punishments while they look the other way or holding unofficial mast.
Using illegal punishment to avoid mandatory administrative measures may seem like an attractive option to some: a senior officer has even publicly sanctioned its use in this forum.4 However, illegal non-judicial punishment is just that: an illegal act in violation of Article 93, UCMJ (Cruelty and maltreatment) and strong grounds for relieving the commander for cause and the commander's own Article 15. Moreover, the illegal punishment dangerously undermines command authority, risks abuse by supervisory personnel without any possibility of appeal or review, and quickly destroys the military order and discipline it seeks to preserve.
Trade the Hammer for a Scalpel
The solution to the problem isn't to remove administrative sanctions as tools to promote military efficiency and discipline, but to permit the commander the discretion to decide which administrative sanctions are appropriate given the circumstances of each case. The Manual for Courts-martial specifically recognizes the utility of administrative measures, even when used in conjunction with punishment, as an effective tool for promoting discipline. The key to employing them appropriately is to replace the policies of personnel experts with the discretion of the commander.
The services take extraordinary measures to ensure only those personnel who demonstrate sustained, superior performance. exhibit the strongest leadership, and possess the highest levels of judgment and responsibility are selected as commanders. Commanders are chosen following a careful screening, selection, and assignment process and held to a higher standard of accountability than any other member of the military. Further, as commanders they are in the best position to assess the unique needs of their unit climate, state of military order and discipline at the command, and facts and circumstances of each case of misconduct.
This solution would enable the commander, upon administering non-judicial punishment and awarding punishment, to select and apply the appropriate additional administrative sanctions from a ranee of options. The only required administrative measure should he documentation of the Article 15 on an administrative remarks form in the member's service record. The commander can assess whether awarding NJP warrants a negative conduct mark on an enlisted evaluation. In most cases, commanders will likely agree that non-judicial punishment justifies such a mark for the evaluation period.
However, there may be circumstances where the member's performance is otherwise superior and a negative conduct mark fails to accurately reflect the member's overall conduct. Commanders possess the discretion to assign the conduct mark in the absence of awarding NJP. What makes non-judicial punishment so unique, so fundamentally special, that the services no longer trust the commander-having exercised discretion to administer that punishment-Io make the right judgment regarding appropriate administrative sanctions? Nothing.
There is no question this proposal will lead to inconsistent application of personnel, training, and assignment policies for members who have undergone non-judicial punishment. Some members who receive Article 15s may still he awarded a Good Conduct Medal while others are not. Some may be advanced while others are removed from the advancement list. This may seem unfair, but the underlying principle of military law isn't consistency, but military order and discipline within the individual unit. No unit is the same, no accused the same. Each instance of misconduct that goes to NJP may seem alike, bin inevitably involves different facts, circumstances, and individuals.
Military law has vested the commander with the sole authority and means to handle violations of the UCMJ using a variety of measures. including non-judicial punishment. The service has placed the commander in the position to make the best judgment on how to handle each case of misconduct in the unit. As with all things, we must trust the commander to do the right thing.
1 Article 15, VCMJ (IO U.S.C. XISl; CC Military Justice Manual, COMDTlNST M58IO.I (series); Manual of the Judge Advocate General (JAGMAN). JAG 5800.7C.
2 CG Personnel Manual. COMDTINST M1000.6A; Coast Guard Recruiiiiix Manual. COMDTINST M1100.2D: CG Training and Education Manual. COMDTINST M1500. IOB; Coast Guard Enlisted Person of the Year (EPOYl Program. COMDTINST 1650.36B; Coast Guanl Medals and Awards Manual. COMDTINST MI650.25B.
3 e.g.. Naval Miliiarv Personnel Manual. NAVPERS ISSftO.D; MCO PI400.32C (MARCORPPROMMAN. VoI 2. ENLPROM); MCO PI.12n.6D (SDAMAN).
4 Capt Raynumd J. Brown. "Dues 'Justice' Gt) Tot) Far?." Proceedings. U.S. Naval Institute. March 1999. While I applaud Capt Brown's candor and agree with his complaint, I deplore his workaround solution of holding unofficial mast and administering illegal punishment.
Commander Lunday is Chief, Command Advice and Operational Law Branch, Coast Guard Maintenance and Logistics Command Atlantic and the Fifth Coast Guard District Staff Judge Advocate. He has prior command afloat experience.