war on the rocks

In Search of Accountability at Sea: The Precedents for the Navy’s Case Against Benson and Sanchez

January 18, 2018

News that the Navy may file charges against Cmdrs. Bryce Benson and Alfredo Sanchez traveled fast on Tuesday. The charges faced by the two former commanders and four others include dereliction of duty, hazarding a vessel, and negligent homicide related to last summer’s fatal collisions between two U.S. Navy destroyers and merchant ships in the Pacific Ocean. While the intent may be clear on the part of the highest levels of the Navy’s leadership, the message received outside their offices may be less clear. However one takes the message, there is both good and bad news within the announcement. The law is in play and the law is not mocked.

First, the good: These officers are not immediately headed to courts-martial. Before charges are actually filed, each case will come before an Article 32 hearing, which is the military equivalent to a grand jury hearing. Someone, probably the chief or vice chief of naval operations, will appoint an investigating officer to conduct the Article 32 hearings. This officer will review the existing investigations and conduct separate hearings and interviews. The hearing and any supporting investigations will provide recommendations separate from the previously completed, and unreleased, dual-purpose investigations into last summer’s collisions. The accused will be afforded more rights and counsel than they would have under non-judicial punishment — an administrative process placed in U.S. military law in 1962 providing specified commanders the ability to impose punishment via administrative proceedings without resorting to courts-martial and under a lighter standard of proof. Non-judicial punishments are limited to reduction in rank for enlisted personnel, loss of pay, punitive letters, or admonitions. By going to courts-martial these officers will have a chance to defend themselves before an impartial arbiter. The rules of evidence apply and the standard of proof for courts-martial is higher than that of non-judicial punishment.

Once the Article 32 investigating officer reviews the existing investigations and conducts their own, he or she will recommend the next step. Like a prosecutor receiving a grand jury recommendation, the appointing officer can take that recommendation or make a different decision. The charges might be referred back to commanders for non-judicial punishment or other administrative action. Or the charges might move forward and the officers are charged with some or all of the recommended charges. But courts-martial are rare; so rare that yesterday’s announcement that charges may be filed are virtually unprecedented.

In Search of the Right Precedent

Where death of sailors is involved, courts-martial are not always certain. When the USS Stark (FFG 31) was struck by two missiles killing 37 sailors, Navy leaders chose to not court-martial Capt. Glenn Brindell, his executive officer, or his tactical action officer. Cmdr. Scott Waddell was not court-martialed for his actions in command of the USS Greeneville (SSN 772) that killed 9 Japanese citizens. Cmdr. Martin Arriola was not court-martialed after the USS Porter (DDG 78) was struck by another vessel in 2012.

If Benson and Sanchez are court-martialed, the odds are that both commanders will be acquitted. In the last 30 years, no commanding officer has been convicted at court-martial for an operational failing. In the last 40 years, two faced courts-martial and were convicted for operational decisions they made. Commanding officers were charged under Naval Regulations Article 0802, which delineates the responsibility of the commanding officer as absolute. Legal precedent established in the 1976 court-martial of Capt. Walter R. Shafer for his role in the USS John F. Kennedy and Belknap collision established this article as “a guideline for performance and not an order to be enforced with criminal sanctions.” Other charges revolve around dereliction of duty and hazarding of a vessel.

The 1975 Kennedy-Belknap collision and resulting fire killed seven sailors and sidelined a major warship for years. The ensuing investigation recommended court-martial for the officer of the deck and a punitive letter of reprimand for the commanding officer. The officer of the deck was found guilty at court-martial, but the conviction alone was deemed sufficient punishment.

Despite the investigator’s recommendation, Shafer was arraigned on two charges of violations of regulations and three charges of dereliction of duty. In the end, he was acquitted of all charges because the Navy could not prove a criminal case. The incident galvanized Navy leadership who saw an erosion of accountability in the fleet and Chief of Naval Operations James L. Holloway, III sent a letter to all flag officers and officers in command that summarized the collision’s circumstances as well as administrative and judicial processes. The Navy did not publish the investigation so this letter provides the only detailed information available in public.

The letter is worth quoting at length:

There has always been a fundamental principle of maritime law and life which has been consistently observed over the centuries by seafarers of all nations: The responsibility of the master, captain or commanding officer on board his ship is absolute. That principle is as valid in this technical era of nuclear propulsion and advanced weapons systems as it was when our Navy was founded two hundred years ago. This responsibility, and its corollaries of authority and accountability have been the foundation of safe navigation at sea and the cornerstone of naval efficiency and effectiveness throughout our history. The essence of this concept is reflected in Article 0702.1 of Navy Regulations, 1973, which provides in pertinent part that: “The responsibility of the commanding officer for his command is absolute, except when, and to the extent, relieved from that place by competent authority, or as provided otherwise in these regulations.”

To understand fully this essential principle, it must first be recognized that it is not a test for measuring the criminal responsibility of a commanding officer. Under our system of criminal justice, in both civilian and military forums, in order that a man’s life, liberty, and property may be placed at hazard, it is not enough to show simply that he was the commanding officer of a Navy ship involved in a collision and that he failed to execute to perfection his awesome and wide-ranging command responsibilities. Rather, it must be established by legally admissible evidence and beyond a reasonable doubt that he personally violated carefully delineated and specifically charged provisions of the criminal code enacted by the Congress to govern the armed forces-the Uniform Code of Military Justice-before a commanding officer can be found criminally responsible for his conduct. Military courts-martial are federal courts and the rules of evidence and procedure applicable therein are essentially the same as those which pertain in any other federal criminal court and the rights of an accused, whether seaman or commanding officer, are closely analogous to those enjoyed by any federal criminal court defendant. The determination of criminal responsibility is therefore properly the province of our system of military justice. The acquittal of a commanding officer by a duly constituted court-martial absolves him of criminal responsibility for the offenses charged. It does not, however, absolve him of his responsibility as a commanding officer as delineated in U.S. Navy Regulations.

The letter is available to everyone in Command at Sea , the unofficial publication that also serves as the definitive guide for Navy commanding officers. Despite its unofficial status, the book is issued to each new commanding officer graduating from the Navy’s Surface Warfare Officer School Command. While the coming trials are no doubt unsettling for the officers and families involved, every naval professional should welcome them. These trials will reaffirm accountability at all levels and have the potential to redefine how the Navy uses administrative discipline on its commanding officers.

Since Shafer’s acquittal, three Navy commanding officers have faced courts-martial for operational decisions. In 1984, Cmdr. Willard G. Chrisman was found guilty of negligent operation of the USS Thomaston after she ran aground off Hawaii. He faced charges of

being drunk on duty, negligently damaging government property, negligently hazarding a vessel by operating the ship in an unsafe condition, dereliction of duty and knowingly releasing an official Navy message containing false information.

In 1989, Capt. Alexander G. Balian was found guilty of dereliction of duty for not sufficiently assisting a boat of Vietnamese refugees in the South China Sea as commanding officer of the USS Dubuque. He was reprimanded for the dereliction, but acquitted of other charges. At least 31 refugees reportedly died after Balian provided them no more than just food and water before steaming away.

Both Balian and Chrisman acted as commanding officers and made direct decisions which led to their charges. The third court-martial is much similar to this summer’s issues. In 1990, Cmdr. John Cochrane was acquitted of negligence in the collision between the USS Kinkaid and a Panamanian merchant ship. The ship’s navigator was asleep in his bunk and crushed to death in the collision. Seventeen other sailors were injured. Like Bryce Benson, Cochrane was asleep in his cabin, and other officers made decisions, without notifying Cochrane, which placed the ship in danger. His acquittal and Shafer’s are the most important legal precedent for what we are seeing today.

The Present Case

The forthcoming openness of the Article 32 hearings is good. However, the likely acquittal will place Adm. Richardson in a position similar to Adm. Holloway in 1976. The chance of acquittal and the overall cost of courts-martial are the two primary reasons Navy leaders default to non-judicial punishment. The very act of taking a commanding officer to court-martial engenders uncertainty for both the accused and the government.

If, as some surmise, Fitzgerald’s officer of the deck is one of those facing charges, the precedent is different. Officers of the deck involved in collisions are convicted at court-martial. Their commanding officers are charged to ensure that the precedent of accountability for command is maintained. Accountability does not, however, beget culpability, and lack of culpability leads to acquittal.

This process, as fraught with uncertainty and ambiguity as it is, is the good. The severity of the charges, specifically the charge of negligent homicide, are the bad. And the bad far outweighs the good. To begin with, what message are other commanding officers receiving? Will they be more risk-averse? Will they be less likely to accept poor performance from their officers and sailors? Will they push harder against external impositions against time and maintenance? If they push back, as they should, will they get support? That question is open-ended.

Adm. Holloway was correct that commanders have responsibility. He was also correct in citing that simply commanding is insufficient reason for criminal culpability. These officers get their day in court to refute the charge that they “personally violated carefully delineated and specifically charged provisions of the criminal code enacted by the Congress to govern the armed forces-the Uniform Code of Military Justice.” Likewise, the Navy must prove its case — openly and publicly. Unlike non-judicial punishment, the rules of evidence apply.

The chief of naval operations testifies on Thursday. History and precedent should provide ample questions for Congress to pose. For the sake of leadership, transparency, and oversight, let us all hope they do.

 

Capt. Michael Junge is a U.S. Navy Surface Warfare Officer currently serving in the Joint Military Operations Department of the U.S. Naval War College. He commanded USS Whidbey Island (LSD 41) and served in amphibious assault ships, destroyers, and frigates. The views expressed in this article are the author’s and do not necessarily reflect the views of the U.S. Naval War College, the U.S. Navy, the Department of Defense, or the U.S. government. His cat is currently unhappy, but remains hopeful.

Image: U.S. Navy/Madailein Abbott