Let’s Talk Process: The USS Fitzgerald and USS John S McCain Collisions

We are all well aware of the tragic collisions last year involving USS Fitzgerald and USS John S McCain. Seventeen sailors died, both ships were severely damaged, and the lives of the surviving crewmembers were forever changed. What’s left to say? Well, a lot, especially about an aspect of the aftermath now unfolding but less well understood — the military justice process.

If you are a current or former military officer or senior enlisted member, the odds are you’ve had some interaction with the military justice process. You may have had someone in your unit disciplined at nonjudicial punishment or even imposed the punishment yourself. You are much less likely, however, to have had any interaction with the court-martial process simply because courts-martial occur far less often.

Why is this a concern for the Fitzgerald and McCain cases? Because if you aren’t familiar with the process, when you hear announcements about how cases are being handled, you may reach premature or inaccurate conclusions about the fairness of the process, the precedent such actions may set, and the possible outcomes of any court-martial proceedings. And, if you are in a leadership position, you’ll need to be ready for the inevitable questions that will come from your subordinates and members of the civilian community who look to you for insight into all things military. So, let’s take a closer look at the process.

After each collision, the Navy convened “dual purpose” investigations to determine what happened. The investigations are dual purpose because they not only establish the facts for attorneys representing the Navy in any monetary claims or litigation that may result, but they also may be used to assess accountability for those involved. Because dual purpose investigations are prepared at the direction of Navy attorneys in contemplation of litigation and may contain opinions and recommendations in addition to facts, they cannot be publicly released the way investigations without liability considerations typically are. The Navy has, however, released reports on both collisions.

Although some Fitzgerald and McCain crewmembers had already received nonjudicial punishment or other administrative actions, on Oct. 30, the vice chief of naval operations determined that it would be more appropriate for a single authority to consider all of the cases from both collisions. Accordingly, the vice chief designated Adm. Frank Caldwell to serve as a consolidated disposition authority. His instructions were “to review the accountability actions taken to date in relation to USS Fitzgerald (DDG 62) and USS John S. McCain (DDG 56) collisions, and to take additional administrative or disciplinary actions as appropriate.”

What does this mean? It means the vice chief gave Caldwell complete, independent authority to review the investigations into the collisions and to decide how to assess accountability for those involved. This was a rational move because it avoids inconsistent treatment and the perception of an unfair process that might result if multiple commanders assessed accountability for these similar incidents.

Caldwell essentially has four options under Rule for Courts-Martial 306, all of which begin with a thorough review of the evidence and the consideration of factors relevant to the allegations. These factors include the nature and circumstances surrounding the allegations and the extent of harm caused. With respect to each individual involved, Caldwell can:

• Decide to take no action, dismissing any pending charges;
• Take administrative action, like counseling and other corrective measures;
• Resolve the allegations at nonjudicial punishment; or,
• Initiate the process to have the allegations considered by a court-martial.

Given that the first two options are straightforward and unlikely to spark debate at least in terms of process, I will focus on the more complex nonjudicial punishment and court-martial options.

Nonjudicial punishment, also known as captain’s mast or admiral’s mast in the Navy depending upon who imposes it, is a disciplinary measure — but as the name implies, the imposition of punishment at mast does not result in a judicial finding of guilt. Instead, if the individual is found to have committed the offense, administrative punishment is imposed. Admittedly, imposing punishment at mast impacts the recipient’s career, especially if he or she is an officer or a senior enlisted sailor. But the recipient will have no federal conviction and the punishments are far less significant than those that can be awarded by a court-martial. Thus far, 17 Fitzgerald and McCain sailors have received nonjudicial punishment.

Because nonjudicial punishment is administrative, the Navy protects the privacy of those on whom it is imposed. That is why you will rarely see the results of nonjudicial punishment hearings publicly released, unless the service member involved is a “public figure” and the public’s need to know outweighs the individual’s right to privacy. Commanding officers, executive officers, and command master chiefs are usually considered public figures. Other crewmembers must be assessed on a case-by-case basis.

The court-martial process begins when charges are “preferred” against the accused. For the Fitzgerald cases, the consolidated disposition authority decided to prefer charges against the commanding officer, two lieutenants, and one lieutenant junior grade. The charges include dereliction of duty, hazarding a vessel, and negligent homicide. For McCain, the consolidated disposition authority decided to prefer the same three charges against the commanding officer. Also for McCain, a dereliction of duty charge is being preferred against a chief petty officer.

Preferring charges is a legal term that means the charges have been formally alleged on a charge sheet, commencing the disciplinary process. None of the individuals from Fitzgerald or McCain against whom charges have been preferred have been found guilty of anything. In fact, everyone is presumed innocent unless and until prosecutors prove the defendants’ guilt beyond a reasonable doubt at a court-martial.

Once charges have been preferred, the consolidated disposition authority may decide to “refer” the charges to a summary or special court-martial. These courts-martial have limits on the types and amounts of punishments that may be imposed if the accused is found guilty by the court. In fact, officers cannot be tried by summary court-martial and the range of sanctions a special court-martial can impose on officers is very limited. To put the special court-martial into the civilian context, think of it as court that can award sanctions appropriate for misdemeanor offenses.

The final type of court-martial is the general court-martial. Like the special court-martial, a general court-martial entitles the accused to all of the rights associated with being a defendant in a military criminal trial, including representation by qualified counsel and trial by jury (in the military, the jurors are called “members”). Unlike the special court-martial, the general court-martial may impose the full range of sanctions — from no sanction to the maximum allowed — for each offense for which the accused is found guilty beyond a reasonable doubt.

No charge can be tried by a general court-martial unless it has been investigated at an Article 32 hearing (or the accused waives the Article 32 hearing requirement). This is where we are in the Fitzgerald and McCain officer cases — the charges preferred against the officer defendants from both ships are pending investigation at an Article 32 hearing.

“Article 32” is simply a reference to the section of the Uniform Code of Military Justice that governs the process for formally investigating preferred charges. Loosely translated, the purpose of an Article 32 hearing is similar to that of a civilian grand jury, but the Article 32 is generally open to the public and gives greater rights to the accused.

To begin the Article 32 process (which is set out in Rule for Courts-Martial 405), the consolidated disposition authority appoints an experienced officer, usually a judge advocate (military lawyer), to conduct a hearing. At the hearing, the prosecution presents the government’s evidence supporting each charge. The defense is not only present, but it may also cross-examine government witnesses. In turn, the defense may present any evidence or call any witnesses it desires, although the defense has no obligation to do so because the burden of proof rests entirely on the government.

After the hearing, the Article 32 officer will issue a report to the consolidated disposition authority concluding whether there is probable cause to believe the accused committed the offenses charged. The Article 32 officer must also make a recommendation as to how the consolidated disposition authority should dispose of the charges (e.g., dismiss the charges, take administrative action, resolve at non-judicial punishment, or trial by special or general court-martial).

After considering the Article 32 officer’s report, the consolidated disposition authority will determine the next step in the process. The consolidated disposition authority is not bound by the recommendations of the Article 32 officer, but he must consider them. In addition, he must consider the advice of his military lawyer (the staff judge advocate). Only after weighing this information can he determine what the next step will be.

Just like the consolidated disposition authority, we should let the military justice process work its way through the Article 32 investigations. If we do that, we will be on the right course for fairness, impartiality, and accountability, whatever that course may be.

Capt. David E. Grogan served as Fleet Judge Advocate for U.S. Fleet Forces Command and Force Judge Advocate for U.S. Naval Forces Central Command. In these and similar assignments, he advised commanders on investigations into significant operational incidents and the associated accountability actions. He also served as Commanding Officer, Region Legal Service Office Southeast, where he was responsible for Navy prosecutions in the Southeast Region. He is a successful author, with his second legal thriller, Sapphire Pavilion, being published by Camel Press in May 2017. Capt. Grogan retired from active duty in 2014.

Image: U.S. Navy/Peter Burghart