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JAG: High-op tempo may cut courts-martial

Far fewer sailors are finding themselves in hot water.

The overall number of sailors facing courts-martial has dropped dramatically during the past several years, Navy records show.

General courts-martial for the most serious offenses have fallen by nearly half, from 172 in 2005 to 94 last year. Court cases for lesser crimes have fallen by even more, according to data provided by the Navy’s judge advocate general.

The Navy’s top lawyer said the decline is across the board and not caused by a large drop in any particular type of prosecution. A key reason may be that sailors are spending more time at work and on deployment than in past years.

“These people are busy,” Vice Adm. James Houck, the Navy’s judge advocate general, said in a recent interview. “Things that people can do in garrison environment they simply can’t do in a deployed environment.”

An actual decline in misconduct is at least partly driving the decline.

For example, the number of sailors facing drug-related charges has fallen by about 60 percent since 2001, according to data. At the same time, the Navy has seen a similar drop in sailors “popping positive” when faced with random urinalysis tests — positive tests are down by about 60 percent, according to data provided by Navy Personnel Command.

In addition, commanding officers — who have final say over who goes to court — may be opting against the costly, time-consuming court-martial process for junior sailors involved in low-level misconduct.

Some defense attorneys say COs are opting to send cases straight to a separation board, especially if the incident occurs on shore and the sailor has the option of refusing nonjudicial punishment in an Article 15 hearing, or a captain’s mast.

“If a sailor calls the command’s bluff and says, ‘No, I demand a court-martial,’ the command will usually send it straight to an admin board. In the last couple of years, I’ve seen reluctance on the part of the Navy to take those cases to court-martial,” said Grover Baxley, a Virginia Beach, Va., military defense attorney who frequently handles Navy cases.

Houck agreed that CO decisions may be a factor in the falling caseloads. “If a commander is busy and has a high op tempo and realizes that he can get essentially the same result ... by taking somebody to an administrative forum as opposed to a court-marital, they may elect to go that way,” the JAG said.

Most drug cases are resolved by nonjudicial punishment. In 2009, nearly 2,000 sailors tested positive for drug use, yet only 453 cases ended up before a judge facing a charge under Article 112A, according to data provided by the JAG and Navy Personnel Command.

Because decisions are up to the individual commanders, pinpointing reasons for the decline is difficult.

“We don’t conduct exit polls of the commanders to see why they are doing what they are doing,” Houck said.