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Lawyers: Navy abused UCMJ ship exception

March 16, 2015 (Photo Credit: Jim Watson/AFP/Getty Images)

The high-profile punishment of two Navy officers who demanded courts-martial but were denied has drawn the attention of legal scholars who say the service is abusing the so-called "vessel exception," a decades-old clause that allows the Navy to deny the right to a court-martial for service members attached to ships.

One commander was blocked from appealing his nonjudicial punishment in October under the vessel exception, despite having been reassigned a month earlier off the deployed ship; the other had transferred off three months before and was attending Command Leadership School.

The decision to block their courts-martial requests is an "appalling" application of the vessel exception, said Eugene Fidell, a military law expert at Yale who's familiar with the Navy's reliefs of Cmdrs. Curtis Calloway and Ed Handley, who had been the commanding officer and executive officer aboard destroyer James E. Williams.

"These officers should have been given the right to a court-martial," said Fidell, a former Coast Guard judge advocate, in a Wednesday telephone interview.

At issue is a UCMJ clause that dates back to the law's adoption, which is as controversial among military law experts today as it was then. Law experts knock it as an antiquated power that's being overused to deny sailors their rights.

The high-profile reliefs aboard the destroyer came after a suicide and liberty incident prompted an investigation into the ship's command climate.

Fidell argues that the Navy routinely violates the intent of the vessel exception as it was understood at the time it was signed into law in 1962, citing an influential law review written in 1996 by an Air Force judge advocate.

The paper cites a memo from Assistant Attorney General Norbert Schlei issued at the time President Kennedy signed the UCMJ amendments, which prescribe a narrow definition of the vessel exception.

"The Schlei Memorandum indicated that the military services agreed that the vessel exception would apply in only three circumstances: (1) if the service member is aboard a vessel; (2) if the service member is in the immediate vicinity of the vessel and is in the process of boarding; or (3) if a service member who is attached to a vessel becomes an unauthorized absentee in a foreign port," according to the article "Overhauling the Vessel Exception," which appeared in a 1996 issue of the Naval Law Review.

To Fidell and others, the Schlei memo is the smoking gun that proves the Navy is overreaching in using the vessel exception and undermines the Navy's expansive interpretation of the vessel exception.

Asked for the Navy's interpretation of the vessel exception, a Navy spokesman declined to comment.

'Has got to go'

Handley, the former XO, once months away from assuming command and who's fighting for his career, blasted the investigation and nonjudicial punishments as "deeply flawed" in a March 3 statement. He says he was improperly denied his right to a court-martial because he was attending commanding officer leadership school and not receiving sea pay at the time he was charged with dereliction of duty. However, he was still administratively attached to the James E. Williams.

Calloway, who also demanded court-martial, had turned over his command and was temporarily assigned to Naval Surface Force Atlantic when he was taken to mast.

The Navy, another expert agreed, used a "dubious reading" of its vessel exception to prosecute Handley at non-judicial punishment, said a reserve Marine judge advocate.

"It appears the Navy was trying to avoid the difficulties of proving the charge of dereliction of duty against the XO beyond a reasonable doubt — something that would potentially have been difficult for the government," said Ken Lee, an attorney with Tully Rinckey who reviewed Handley's case in December for Navy Times. "The standard of proof at Captain's Mast is simply a preponderance of the evidence and, furthermore, the rules of evidence do not apply.

"So frankly it made it easy for the Navy to impose NJP on CDR Handley, deny him his right to demand trial by court-martial, find him guilty and effectively end his career without having to abide by the constitutional safeguards provided to the accused at a court-martial."

Fidell points out that the Navy's Manual of the Judge Advocate General specifies that service members whose actions while attached to a unit are before a fact-finding body (such as a command investigation) are considered to be attached to that unit for legal purposes.

But this gets to the heart of the Navy's overbroad interpretation of the exception, he said, violating the Schelei memo's interpretation of the amendment.

Furthermore, the communication and logistic complexities that prevented the Navy from preparing courts-martial for members attached to ships don't apply in an era of video-teleconference calls and rapid transportation. This was true in the case of the James E. Williams, for example, where officials dispatched the deputy commodore to the deployed ship to conduct a thorough investigation that interviewed 65 crewmembers and gathered emails and other evidence.

"This has got to go, it's the 21st century," Fidell said. "This is an abuse, poor judgment on the part of the management, fancy footwork on the part of the attorneys, and it doesn't do anything to instill public confidence in the system."

At the very least, Fidell said, it's incumbent on the Navy to strictly define who is subject to the vessel exception, something he says the Navy has been reluctant to do.

"The Navy has been encouraged in the past to define when a vessel is a vessel for this purpose," he said. "They ought to just put in their [regulations] a definition of who is subject to the vessel exception. And that definition should be appropriately narrow."

Lee agreed, saying that for the Navy to maintain good order and discipline, it has to follow its own rules.

"When the Navy takes disciplinary measures against its sailors in a manner that violates its own rules, due process and fundamental fairness, it undermines the very notion of good order and discipline that it is seeking to uphold," Lee said.

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