The Navy and the U.S. Coast Guard have traditionally fallen under the so called “vessel exception” to Article 15, UCMJ, Non-Judicial Punishment, colloquially called Captain’s Mast in the sea services.
When invoked, the vessel exception acts to deprive a servicemember facing Captain’s Mast of significant procedural rights—rights to which they would have otherwise been entitled. Most significant amongst those is the right to decline the Article 15 forum altogether, and to have the advice and counsel of an attorney to make that decision.
The declination of Article 15 is officially referred to as refusing or declining the Article 15 and demanding trial by court-martial. While most services’ paperwork uses that or similar terminology, the wording is misleading. One might infer from “demanding” trial by court-martial that the servicemember’s demand is binding on the service and the service must then oblige him or her with a court-martial. It is not. Ultimately, the “demand” of trial by court-martial operates as nothing more than a declination of Non-Judicial Punishment.
After a servicemember declines an Article 15, the Command retains all of the disciplinary and administrative options that they had before the declination, except for proceeding with the Article 15.
Throughout the history of Article 15, the limits of the so called vessel exception lacked any meaningful limitations. Because Article 15 proceedings are not directly reviewable by any court of law, military or civilian, this broad exception existed virtually unchecked.
By large measure, the only cases in which a prior Article 15 proceedings would gather attention by a military court would be when a military prosecutor would attempt to utilize a prior Article 15 record against a servicemember during a sentencing proceeding at a court-martial. In that situation, if the Defense objected to its admission, the military judge would have to ensure that the prior Article 15 was properly administered.
A few military cases existed on this issue. In 1992, the military’s highest court held that the Navy violated Article 15 when the USS KITTY HAWK was undergoing a long-term overhaul and was not in an operational status and yet the Navy utilized a provision of Article 15 which was only authorized for persons “attached to or embarked in a vessel.” The Court found that the statutory language in Article 15, UCMJ “attached to or embarked in a vessel” had a certain intent by Congress such that these limited exceptions were meant to apply to situations where a person was “at sea or about to go to sea” and not situations where a person is assigned to a vessel that is not remotely close to deploying or going to sea.
In 1997, the Court of Appeals for the Armed Forces reversed the Navy-Marine Corps Court of Criminal Appeals decision by holding that simple assignment to a ship did not make a person attached to a vessel such that they had no right to refuse NJP. In that case, the court alluded that a vessel undergoing long-term overhauls in the shipyard was not likely an operational vessel. The case was reversed and the trial judge was instructed to make additional essential findings of fact on the operational status of the vessel at the time in question.
Despite the existence of the above referenced military appellate cases where the misuse of Article 15 found its way into a few opinions, there was no binding authority to constrain the use of this broad exception. The only guidance on the issue was found in JAGINST 5800.7G, which advised commanders to consider the totality of the circumstances when considering whether a servicemember is attached to or embarked on a vessel. In practice, this general advice offered very little discouragement for commanders who sought to exercise the broadest authority possible.
It became quite common for any seagoing servicemembers who were simply by name or billet attached a vessel to fall under the “vessel exception.” This included those attached to vessels who were far from in an operational or deployable status. One often seen example was those who were assigned to a Navy vessel but that vessel was in the shipyard for major repairs or overhauls.
Our firm recently represented a client where the abuse of this process reached critical mass. Our client was forced to face Captain Mast without the right to decline the Article 15 due to the ancient vessel exception. In this particular situation, our client was attached to a vessel which had been in shipyard drydock already for 2 years for repairs, and was anticipated to remain in the shipyard for another 4 years before becoming operational again.
Our firm attempted to prevent the injustice before it happened by raising the legal issues to the command’s JAGs and providing the limited relevant military case law to them before the Captain’s Mast took place. Nonetheless, the command opted to press ahead with the Captain’s Mast without entitling our client to the rights he would normally have without invoking the vessel exception.
As is quite common at Commander’s Non-Judicial Punishment, our client was found to have committed the offenses and given punishment. We followed the prescribed NJP Appeal procedures and appealed the Commander’s decision to the NJP Appeal Authority. We also made notifications to other influential Navy decision makers advocating that the abuse of this exception needed to be curtailed.
After review our Appeal was granted and the servicemember’s Captain’s Mast was set aside. Alongside the granting of our appeal, the Secretary of the Navy also issued ALNAV 091/23 which as of 8 November 2023 now prohibits Navy commanding officers from invoking the vessel exception to NJP anytime their vessel is not in an operational status—including amongst other situations—when their vessel is undergoing shipyard repairs.
This was a historical win and a long needed policy change which will now give similarly situated servicemembers more a meaningful opportunity to exercise their full rights.
Whether the U.S. Coast Guard will follow suit and adopt a similar policy change is yet to be determined.
If you are facing a Captain's Mast and your ship is not currently in a deployable operational status it is important that you consult with an attorney to fully understand your rights.