Trident Review Boards

Controversy continues over whether Chief Petty Officer Edward R. Gallagher and other Navy SEALs should have been permitted to retain their Trident pins. Students of military justice may find it helpful to have a summary of the governing regulations and procedures.

Commander, Naval Special Warfare Command is required by OPNAVINST 1414.9B ¶ 5b to "establish and maintain an instruction that delineates strict prerequisites and formal procedures for qualification, re-qualification, disqualification, and failure to qualify within" the Sea, Air, and Land (SEAL) program. This has been accomplished by issuance of COMNAVSPECWARCOMINST 1221.1A.

According to Navy Military Personnel Manual 1220-085 ¶ 4a, "[m]embers whose Navy Enlisted Classification(s) (NEC(s)) is/are removed for disciplinary and/or administrative action per MILPERSMAN 1220-300 are no longer authorized to wear the insignia."  "An enlisted member previously qualified shall be disqualified by an appropriate qualifying officer if that member fails to continue to meet the requirements set forth in MILPERSMAN 1220-300" (¶ 5).

A Note on presidential power over military justice

The President of the United States has many powers with respect to military justice. Some are generic, others are case-specific. It may be worthwhile to catalog them. If this Note omits anything, please add a comment. (Use your full name; anonymous and pseudonymous posts are not permitted on this blog.)

Generic powers:

• Sign or veto Acts of Congress that amend the Uniform Code of Military Justice or other federal laws that may affect courts-martial. U.S. Const. art. I, § 7
• Prescribe and amend maximum punishments. Arts. 18(a), 19(a), 20(a), 56, UCMJ
• Prescribe and amend rules for impaneling courts-martial, waiving preliminary hearings, prescribing what disposition-related information submitted after a preliminary hearing must be analyzed; and pretrial, trial, and post-trial rules of procedure and evidence. Arts. 29(b)(1), 32(a)(1)(B), 32(c)(3), 36(a), UCMJ
• Prescribe regulations for non-judicial punishment. Art. 15(a), UCMJ
• Direct the Secretary of Defense to issue non-binding guidance for the disposition of charges. Art. 33, UCMJ; see MCM App. 2.1
• Withhold the authority of a subordinate to dispose of charges in types of cases or generally. R.C.M. 401(a)
• Empower commanding officers not otherwise authorized to convene courts-martial to be convening authorities. Art. 22(a)(9), UCMJ
• Appoint and remove judges of the U.S. Court of Appeals for the Armed Forces. Art. 142(b)-(c), UCMJ
• Appoint the Judge Advocates General. E.g., 10 U.S.C. § 7037(a) (Army TJAG)

Case-specific powers:

• Grant pardons, before or after conviction, and lesser forms of clemency. U.S. Const. art. II, § 2; see also art. 57(a)(3), UCMJ
• Approve death sentences adjudged by general courts-martial. Art. 57(a)(3), UCMJ; R.C.M. 1207
• Convene courts-martial. Arts. 22(a)(1), 23(a)(1), 24(a)(1), UCMJ; R.C.M. 504(b)
• Dismiss commissioned officers. Art. 4, UCMJ; R.C.M. 107
• Grant immunity. R.C.M. 704(c)
• Withhold the authority of a subordinate to dispose of charges in individual cases. R.C.M. 401(a)

More on Tridentgate

Rachel VanLandingham (along with Geoff Corn) follows her CNN interview with a piece in LawFare.

The Gallagher Case: President Trump Corrupts the Profession of Arms.

This chaos in military discipline and personnel actions is the direct result of Trump’s reckless dismissal of the judgments of his military commanders and his misunderstanding of the profession of arms. The president has legal authority to intervene in these matters, but his misguided actions risk not only undermining the authority of his commanders but also eroding the honor and integrity of the U.S. armed forces. The Spencer/Esper soap opera may be at the forefront of the news cycle, but the real story is the corruption of military good order and discipline.

Happy Thanksgiving

Tridentgate

Prof. Rachel E. VanLandingham
Southwestern School of Law

Global Military Justice Reform contributor Professor and Lt. Col. (Ret) Rachel E. VanLandingham sheds light on the Trident controversy in this CNN interview.