Navy leaders have tried to force a direct confrontation with the commander in chief over the administrative process to remove the SEAL warfare device from Special Warfare Operator Chief Edward “Eddie” Gallagher and three SEAL officers.

Is this confrontation worth the candle? And, what impact does this public dispute have on good order and discipline?

This week’s post-clemency administrative action by Rear Adm. Collin Green — the commander of Naval Special Warfare — against Chief Gallagher appears to be a public disagreement with the results of the prosecution.

But there may be more.

This administrative action will have no operational effect since Chief Gallagher is going to retire and will no longer serve on active duty.

What is the purpose of the message being sent to the SEAL community beyond the possibility that Chief Gallagher will not be able to wear his trident even when being buried?

President Harry S. Truman is piped aboard the battleship Missouri during the Navy Day fleet review in the Hudson River, New York City, 27 October 1945. Fleet Admiral William D. Leahy is just behind the President. (National Archives)
President Harry S. Truman is piped aboard the battleship Missouri during the Navy Day fleet review in the Hudson River, New York City, 27 October 1945. Fleet Admiral William D. Leahy is just behind the President. (National Archives)

Firing flags

Do the senior naval leaders remember the firing of Chief of Naval Operations Adm. George Anderson by Secretary of Defense Robert S. McNamara following the Cuban Missile crisis?

It was reported as a result of a public disagreement as to the disposition of the U.S. Navy warships “quarantining” Cuba during the tense 13 Days in October 1962.

Adm. Anderson refused to disclose, in public, that some Navy destroyers were “sitting on top” of Soviet submarines.

The senior Navy leaders also need to recall the 1949 Revolt of the Admirals when Chief of Naval Operations Adm. Louis E. Denfeld was fired by President Harry S. Truman’s administration because he and many flag officers opposed the secretary of defense’s decision to cancel building the first post-war supercarrier in favor of additional Air Force B-36 Peacemaker bombers.

Ultimately, President Truman asked for the resignation of Defense Secretary Louis Johnson and replaced him with former Secretary of State Gen. George C. Marshall.

Adm. Denfeld was replaced by a young naval aviator, Adm. Forrest P. Sherman, who commanded the aircraft carrier Wasp in combat, but died in office at age 55.

Photographers and film cameramen swarmed President John F. Kennedy at his desk in the Oval Office upon signing the Cuba Quarantine order, 23 October 1962. (Robert Knudsen/ John F. Kennedy Presidential Library and Museum, Boston)
Photographers and film cameramen swarmed President John F. Kennedy at his desk in the Oval Office upon signing the Cuba Quarantine order, 23 October 1962. (Robert Knudsen/ John F. Kennedy Presidential Library and Museum, Boston)

Post-retirement adverse administrative actions

Post-retirement adverse administrative action is a relatively new phenomenon.

The Reagan administration compelled Adm. Hyman G. Rickover to retire in 1982 and then he was criticized by the Navy secretary.

The New York Times reported that “the Navy released a detailed accounting of more than $67,628 in gifts given by General Dynamics to Adm. Rickover.

The gifts, which he received from 1961 to 1977 while overseeing submarine construction contracts worth billions of dollars at General Dynamics’ Electric Boat division, were disclosed in the investigative report of the Navy’s Ad Hoc Gratuities Board.”

Adm. Rickover vocally disputed these allegations.

Subsequent administrations, particularly President Bill Clinton’s Pentagon, issued post-retirement letters to flag officers forced out prematurely.

These widely have been viewed as “piling on”.

Hyman George Rickover, 27 January 1900 - 8 July 1986 (U.S. Naval History and Heritage Command)
Hyman George Rickover, 27 January 1900 - 8 July 1986 (U.S. Naval History and Heritage Command)

Post-Trial Administrative Action in the Gallagher case

Here, administrative action to remove the warfare qualifications should have been considered promptly by former Chief of Naval Operations Adm. John Richardson and SEAL leaders.

If they suspected wrongdoing, the Navy should have commenced administrative actions to remove the SEAL devices of Chief Gallagher, Lt. Cmdr. Robert Breisch and Lt. Jacob Portier, who were alleged to have not promptly reported accusations about Gallagher, and Lt. Thomas MacNeil, who posed in a trophy photo with the chief and the corpse of the victim.

Breisch and Portier have long denied the allegations.

Nearly 75 years ago, the Navy’s most serious war crimes trial involved Cmdr. Charles E. Loughlin.

He was the commanding officer of the submarine Queenfish who was convicted and given a letter of admonition from a court-martial for sinking a Japanese merchant ship given safe passage by the United States to facilitate deliver of Red Cross packages to Allied POWs.

Distressed by the “inappropriate sentence” given by the panel, Adm. Chester W. Nimitz issued Letters of Reprimand to the court members, a more serious punishment.

Cmdr. Loughlin retained his submarine warfare devices and, after the war, he commanded the heavy cruiser Toledo and the oiler Mississinewa.

He retired as a rear admiral, nearly 25 years after his trial.

The submarine Queenfish rescuing British and Australian prisoners of war, survivors of the Japanese ship Rakuyo Maru, sunk in the China Sea by the submarine Sealion, September 1944. (National Archives)
The submarine Queenfish rescuing British and Australian prisoners of war, survivors of the Japanese ship Rakuyo Maru, sunk in the China Sea by the submarine Sealion, September 1944. (National Archives)

Punishing juniors for the same incident

The executive clemency that set aside the reduction in grade in Chief Gallagher’s case conforms with a long-standing Navy practice of not punishing a junior more heavily than a senior for offenses arising out of the same incident.

It may also impact his retirement pay and thus his family, a common reason for clemency.

Since Chief Gallagher was found guilty by the court members solely of the offense of posing with a dead detainee and Lt. McNeil was not convicted, Chief Gallagher should not have been punished.

This policy was restated in the aftermath of the fatal collision between the aircraft carrier John F. Kennedy and the guided-missile cruiser Belknap in 1975.

Belknap’s commanding officer was acquitted of all offenses arising from the mishap but the officer of the deck was found guilty.

The OOD’s punishment was set aside by senior Navy leaders because of this policy.

Firefighters on board the guided-missile destroyer Claude V. Ricketts direct spray from their hoses onto a fire on board the guided missile cruiser Belknap. The Belknap was heavily damaged and caught fire when it collided with the aircraft carrier John F. Kennedy during night operations. (National Archives)
Firefighters on board the guided-missile destroyer Claude V. Ricketts direct spray from their hoses onto a fire on board the guided missile cruiser Belknap. The Belknap was heavily damaged and caught fire when it collided with the aircraft carrier John F. Kennedy during night operations. (National Archives)

Restore this chief’s anchors

While the White House is considering clemency in military justice cases, now would be the time to revisit the case of the former chief boatswain’s mate on board the guided-missile destroyer John S. McCain during its fatal 2017 collision with a commercial vessel.

After two decades in service, Jeffery D. Butler entered a guilty plea to dereliction of duty at a summary court-martial. He was sentenced to a demotion to petty officer first class.

Butler had pleaded to keep his anchors. Removing them cost his family $200,000 in lost retirement income over time.

Butler received greater punishment than McCain’s commanding officer.

As part of a pretrial agreement, Cmdr. Alfredo J. Sanchez pleaded guilty to a single charge of negligence and admitted to not setting the proper watch team or taking proper action when the bridge crew lost control of the ship.

A military judge sentenced Sanchez to a punitive letter of reprimand and forfeiture of $6,000 in pay. The results of the court-martial also put a federal misdemeanor on his record.

Sanchez had faced admiral’s mast shortly after the collision and was given credit for his punishment at sentencing.

The economic impact on the Butler family is far greater than the four figure forfeiture required of Cmdr. Sanchez.

Accordingly, the Navy and the White House should do the right thing and set aside all punishment and consider restoring Butler to full retirement pay as a chief.

The Arleigh Burke-class guided-missile destroyer John S. McCain is loaded onto the heavy lift transport MV Treasure, Oct. 11, 2017, in Changi, Singapore. Treasure transported John S. McCain to Fleet Activities Yokosuka for repairs. (Capt. Keith Lehnhardt/Navy)
The Arleigh Burke-class guided-missile destroyer John S. McCain is loaded onto the heavy lift transport MV Treasure, Oct. 11, 2017, in Changi, Singapore. Treasure transported John S. McCain to Fleet Activities Yokosuka for repairs. (Capt. Keith Lehnhardt/Navy)

Impact on the SEAL Community

The SEAL community has been suffering internal stress and disciplinary and leadership problems for a substantial time.

The uniformed commanders have an overarching concern in the warfighting capabilities of these elite forces and that includes leadership, down to the smallest units.

Shock troops should not be employed for lengthy times but during the past 18 years the Special Warfare Community has been under combat stress. That has had a wide-ranging impact on good order and discipline.

The results of Gallagher’s court-martial are final.

The CNO, as convening authority acted. The president granted clemency and set aside the one grade reduction in rank.

The difference between petty officer first class and chief petty officer is the most substantial step in the Navy enlisted community. These acts certainly were within presidential prerogatives, as established by Abraham Lincoln, who disliked death penalties for deserters and frequently set aside orders for execution.

There certainly are political questions associated with this case and serious questions of prosecutorial misconduct, which is the subject of internal review. The president also previously set aside the award of low level personal awards (medals) to prosecutors involved in the Gallagher case.

Rear Adm. Green properly is attempting to address good order and discipline issues in the SEAL community and emphasize the role of leaders.

CNO Adm. Michael Gilday, noted in his speech assuming the uniformed leadership of Navy, "We will question our assumptions; we will think differently about the competition we are now in.”

The SEAL community has witnessed something like this before.

Although he’d been selected for a second star, in 2016 the Navy decided not to promote Rear Admiral (Lower Half) Brian Losey.

Losey had been accused of violating laws meant to protect whistleblowers, which angered Congress.

Subsequently, based on the recommendations provided by the Board for Correction of Navy Records, then-Navy Secretary Ray Mabus approved the retirement and retroactive promotion of Losey to rear admiral (upper half) on Jan. 12, 2017.

The retroactive date was set to Losey’s eligibility date to rear admiral (upper half). Along with his promotion to second star, Rear Adm. Losey received back pay and an increase to his annual military retirement pension.

The accelerated review in 7 weeks and final week memo by Mabus granting the promotion were widely criticized by members of Congress and military law observers.

Rear Adm. Brian L. Losey, then-commander of Naval Special Warfare Command, delivers remarks during the Naval Special Warfare Group 1 change of command ceremony at Naval Amphibious Base Coronado on June 28, 2013. Capt. Todd J. Seniff relieved Capt. Collin P. Green as the commander of NSWG-1. (Mass Communication Specialist 1st Class John R. Fischer/Navy)
Rear Adm. Brian L. Losey, then-commander of Naval Special Warfare Command, delivers remarks during the Naval Special Warfare Group 1 change of command ceremony at Naval Amphibious Base Coronado on June 28, 2013. Capt. Todd J. Seniff relieved Capt. Collin P. Green as the commander of NSWG-1. (Mass Communication Specialist 1st Class John R. Fischer/Navy)

Free speech and retired and service officers

Seven years ago, then-Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey suggested that retired flag and general officers were restricted in their ability to make public comments, particularly in the political arena.

On Sept. 10, 2012, The Wall Street Journal published “Politics and the U.S. Armed Forces,” an op-ed which I co-wrote with retired Rear Adm. Steven B. Kantrowitz.

In it, we vigorously supported the free speech rights of retired military members and observed that Gen. Dempsey “recently criticized former members of the armed forces for ‘political activities.’ He didn’t name names, but his criticism was aimed at former members of special-operations forces supporting a political-action committee critical of President Obama.”

Videos distributed by the Special Operations Opsec Education Fund had claimed that the president used the operation that killed Osama bin Laden for political gain.

Recent public statements by retired Adm. William McRavven might have had unintended consequences on the community of special warfare operators.

While Adm. McRaven and all other men and women who served in uniform have a right — and, I would suggest, a duty — to speak out on important issues, all must be conscious of the impact of our words.

Those in uniform may listen and respect the guidance of their shipmates and mentors but they also must remember their obligations to maintain good order and discipline, a particularly complex objective in these cases.

Like physicians and damage control officers, our duty is to do no harm.

A retired Navy Judge Advocate General’s Corps captain, Lawrence B. Brennan is an adjunct professor of Admiralty and International Maritime Law at Fordham Law School. He has litigated and investigated many ship collision and casualty cases both for the Navy and in private practice. He was a federal litigator for the U.S. Department of Justice. His views do not necessarily represent those of Navy Times or its staffers.