Judicial Activism For Submariners
[Intel Source: The Sub Report] Back in February 1998, USS La Jolla (SSN 701) collided with and sank a fishing boat off the coast of South Korea. Since I've seen the reports, I can't comment about what a cluster the whole operation was, but I can discuss the continuing legal efforts by one of the ship's officers at the time to clear his name. From the article:
"A Navy officer faulted in the collision of a U.S. submarine and a South Korean fishing vessel in 1998 has won the right to take his fight to clear his name back to federal court.
"The U.S. Court of Appeals on Friday said a federal judge could not prevent Cmdr. Charles H. Piersall III from trying to void a nonjudicial punishment against him, according to court records...
"...He then went to the Board of Correction for Naval Records, claiming that he had the right to reject the mast’s findings because the proceedings were held on dry land, not aboard the USS La Jolla, said Eugene Fidell, a military law expert who represented Piersall.
"When the correction board rejected Piersall’s claim, he pursued the matter in federal court.
But the judge tossed the suit. The Navy secretary had argued that Piersall lost the right to pursue the matter in federal court when he failed to request a court-martial before the mast, records say.
"The Navy secretary also claimed that civilian courts are prohibited from interfering with the military justice system, but the U.S. Court of Appeals found otherwise and overturned the district court’s ruling."
I'm not really sure that CDR Piersall has much of a leg to stand on, notwithstanding this procedural victory. (As I read it, the Court of Appeals ruling only had to do with plantiff's ability to pursue the case, and not on the merits of the case itself.)
Article 15 of the UCMJ covers administrative, "non-judicial punishment". This is how the military disposes of cases short of court martial. Normally, service members can request court martial (where rules of evidence apply, but the potential punishment is much greater) except in one important case:
"...However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment."
He didn't demand a trial by court martial, and the Navy wouldn't have had to give him one, due to the portion of Article 15 quoted above. His main argument seems to be that the NJP was held ashore, rather than on his ship. I've always been taught that the caveat was intended to allow a ship's CO to dispose of a case quickly, without a need for lawyers, when the ship was deployed and no lawyers were available. Nowadays, it's really only submarines that would not be able to get the people needed for a court martial onboard within a reasonable amount of time if needed; nevertheless, the caveat still exists. Since the UCMJ doesn't require the mast be held on the ship where the offense was committed, my guess is that the case will be laughed out of course.
On the other hand, if CDR Piersall ends up winning his case, just about every officer who's been taken to Admiral's Mast in the last several years would be able to contest their cases...