Sailors and Marines assigned to ships undergoing maintenance now have the explicit right to decline nonjudicial punishments under Article 15 of the Uniform Code of Military Justice, just as troops on shore duty already may do.

The Navy’s controversial “vessel exception,” instituted in 1962, stipulated that sailors or Marines could not refuse nonjudicial punishment in instances where they are “attached to or embarked in a vessel.” This allowed deployed ships to penalize sailors at sea without conducting a court-martial trial.

But, commanding officers’ interpretation of the policy has prevented some sailors assigned to ships stuck in dry docks for lengthy periods of time from refusing “captain’s mast” ― the Navy’s term for nonjudicial punishment.

To remedy any lack of clarity surrounding the policy, the Navy now says sailors assigned to ships are only barred from turning down nonjudicial punishment when the vessel is operational, Navy Secretary Carlos Del Toro said in a Wednesday memo.

Patty Babb, a spokeswoman for the Office of the Judge Advocate General of the Navy, told Navy Times the service released the guidance to help commanding officers “apply the vessel exception fairly, consistently and justly.”

The Uniform Code of Military Justice allows commanding officers to use nonjudicial punishment to handle what he or she deems “minor offenses,” and most service members have the right to reject this action.

Refusing nonjudicial punishment paves the way for a series of alternative legal options, including having the case dropped entirely, sending it to an administrative separation board or hearing it in a court-martial trial, according to Steph Kral, civilian defense counsel with Kral Military Defense based in San Diego.

That means sailors and Marines who are unable to decline nonjudicial punishment are instead solely subjected to the authority of their commanding officers, who are then essentially granted “unfettered discretion to take whatever actions she or he wants to against the sailor,” Kral told Navy Times.

The burden of proof also is lower if a sailor is taken to captain’s mast than in court-martial proceedings, according to Eugene R. Fidell, who teaches military law at Yale Law School.

“It’s just proof by preponderance rather than proof beyond a reasonable doubt, which is the normal criminal law, court-martial standard,” Fidell, a former Coast Guard judge advocate, told Navy Times. “So the government could win an iffy case at captain’s mast that it would lose in a court-martial.”

However, sailors or Marines could subject themselves to a harsher punishment if they turn down captain’s mast, Fidell said.

The Navy’s new guidance claims the service considers a ship non-operational if it is undergoing maintenance or modernization, is in a precommissioning status, or “otherwise designated as not operational by a higher authority.”

A maintenance and modernization phase includes significant shipyard or depot-level repairs, refueling for nuclear powered vessels and platform modernizations.

While the Court of Appeals for the Armed Forces determined in 1997 that the vessel exception should apply only in cases where the service members were aboard the ship, near or in the process of boarding the ship, or in foreign ports, some military law experts claim the Navy has used it too broadly and that it is outdated.

“Modernization and technology and the way that the Navy handles military justice actions now [make] the vessel exception pointless,” said Kral, a former Air Force judge advocate. “There’s truly no reason for this vessel exception to exist anymore.”

The policy also came under scrutiny in 2015 after the Navy relieved the commanding officer and executive officer aboard destroyer James E. Williams, following an investigation into the ship’s command climate.

Although both were reassigned to shore commands when they were charged, the vessel exception prohibited them from declining nonjudicial punishment — prompting both of them to claim they were improperly denied the right to a court-martial, Navy Times previously reported.

Meanwhile, Fidell doubts the Navy will entirely eradicate the vessel exception, and said it should continue to exist so commanding officers can swiftly deal with misconduct such as minor uniform discrepancies, disrespect or disobedience.

“I think there is a value in ensuring that really fast justice can be administered for really minor offenses where the wrongdoer is attached to or embarked in a vessel that is truly operational,” Fidell said. “It doesn’t shock my sense of justice. And I would be very surprised if this country ever did away with the vessel exception and basically gave everybody a right to turn down Article 15.”

Del Toro’s recent memo said the Department of the Navy “remains committed to the principle of keeping faith with all who serve.”

“Fair and consistent administration of justice for those subject to NJP protects service member rights while ensuring the maintenance of good order and discipline,” the guidance said. “Our sailors and Marines deserve nothing less, and our nation expects nothing less.”

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