A new Navy policy gives sailors and Marines assigned to ships in dry dock or maintenance the right to refuse nonjudicial punishments when they are accused of violations of the Uniform Code of Military Justice by their commanders.
Navy Secretary Carlos Del Toro announced in an administrative note last week that he is clarifying and loosening the rules around a controversial policy known as the "vessel exception," which held that sailors or Marines could not refuse nonjudicial punishment -- called captain's mast in the Navy -- when they were "attached to or embarked in a vessel."
Del Toro said commanders now may only invoke the Article 15 vessel exception when, at the time nonjudicial punishment is imposed, a vessel is "operational," and that the exception does not apply when the ship is in dry dock, extended maintenance or otherwise being refit.
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The main distinction between a captain's mast and a court martial is that the former is a much less formal and regulated proceeding that is run by the ship's commander and the burden of proof is much lower than the typical criminal standard of "beyond a reasonable doubt."
Sailors who refuse mast may see their charges dropped if officials feel like they wouldn't be able to make their case in a formal trial setting. However, if the case proceeds, courts martial are able to levy far harsher penalties than a commander at a mast.
Broadly, a commander can only reduce an enlisted sailor by one rank and impose a maximum of 60 days' restriction and 45 days of extra duty at a captain's mast. Navy chief petty officers cannot be demoted at a nonjudicial punishment.
In contrast, courts martial have the power to reduce sailors all the way to the lowest ranks, award jail time and hand down bad-conduct or dishonorable discharges, depending on the offense.
The Navy has faced criticism over the policy that essentially forced some sailors into accepting nonjudicial punishments over the years.
In 2015, the Navy relieved the commander and executive officer aboard the USS James E. Williams destroyer following an investigation into the ship's command climate. The pair were then reassigned to shore commands -- a common practice -- and then charged with UCMJ violations.
The executive officer, Ed Handley, was forced to undergo nonjudicial punishment, because he was still administratively attached to the ship and the Navy cited the vessel exception. Outside experts called the move an "appalling" application of the rule, and Handley called the investigation and resulting mast "deeply flawed" in reports at the time.
More recently, experts in military law have written editorials blasting the Navy's use of the rule as well.
"Due to the Navy's inappropriate use of the vessel exception, careers have unjustly been destroyed in cases where the sailor or Marine did not have the right to demand a court martial," David Johnson, a lawyer and former active-duty judge advocate, wrote in a Marine Times editorial in 2020.
"The Navy is essentially forcing service members to have their cases handled in a proceeding where most of the Military Rules of Evidence do not apply and the standard of proof is a preponderance of the evidence," Johnson wrote.
In the opening lines of his message, Del Toro seemed to say that he was aware of the criticism.
The Navy secretary said nonjudicial punishment proceedings have "long ensured our ability to maintain good order and discipline ... by swiftly addressing minor misconduct regardless of where the unit operates."
However, he also conceded that "as a learning organization, we must continue to self-assess, evaluate our strengths and weaknesses, and adjust policy when necessary to ensure guidance is clear and implementation meets our goals and intent."
-- Konstantin Toropin can be reached at konstantin.toropin@military.com. Follow him on X at @ktoropin.
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