Article 15 of the Uniform Code of Military Justice allows all personnel other than those attached to or embarked in a vessel to refuse non-judicial punishment (NJP) and, in effect, demand trial by court-martial. The Navy denies this important right to personnel who are no longer serving aboard ship in anything other than a technical sense. That practice is now under fire in a case involving the former executive officer of the destroyer USS James E. Williams. Details can be found here.
[Commander Ed] Handley argues he and [ex-CO Commander Curtis] Calloway requested court-martial instead of submitting to NJP, but were denied. The Navy claims he was not allowed to request court-martial because he was attached to a sea-going command.
But Handley counters he was not receiving sea pay and was temporarily reassigned, therefore he should have been eligible; he was in the commanding officer training pipeline until his reassignment in September.
"I had 10 former senior JAG lawyers review this and each and every lawyer said we were eligible for the court-martial," he wrote. "It is worthy to note, in court-martial, the rules of evidence apply, but in NJP proceedings the rules of evidence do not apply. By taking us to NJP, [Squadron Commodore Captain Fred] Pyle did not have to have tangible evidence."Editor's comment: the "vessel exception" to the right to turn down mast was not intended to cover cases like this, as the background documents underlying the 1963 amendment to the Manual for Courts-Martial make clear, specifically the memorandum prepared by Office of Legal Counsel Assistant Attorney General Norbert Schlei that physically accompanied the Executive Order submitted to President John F. Kennedy for signature. The Navy should honor its 1963 representations and abandon its unjustifiably expansive view of the scope of the vessel exception. If Commander Handley wants to take his chances in a court-martial, he should have that opportunity.
See generally Dwight H. Sullivan, Overhauling the Vessel Exception, 43 Naval L. Rev. 57 (1996).