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43 Naval L. Rev. 57 (1996)
Overhauling the Vessel Exception

handle is hein.journals/naval43 and id is 63 raw text is: NAVAL LAW REVIEW OVERHAULING THE VESSEL EXCEPTION Major Dwight H. Sullivan* I. INTRODUCTION The Uniform Code of Military Justice (UCMJ) was designed to provide for uniformity in the administration of military justice.1 Yet the UCMI has created two classes of servicemembers. Unlike their shore-based counterparts, servicemembers attached to or embarked in a vessel have no right to refuse nonjudicial punishment.2 As a result, they can be punished based on . Head ofthe Evidence Division, Naval Justice School, Newport, Rhode Island. I am grateful to my colleagues who reviewed earlier versions of this article and provided many useful comments and criticisms: LTBany R. Blankfield, JAGC, USN; LTJames R. Crisfield, Jr., JAGC, USN; John B. Holt, Esq.; LCDR Scott M. Lang, JAGC, USN; LCDR Linda J. Lofton, JAGC, USN; LCDR John L. Maska, JAGC, USNR; MAJ Zeb Pischnotte, USAF; MAJ Donna M. Wright, JAGC, USA; and CAPT Timothy C. Young, JAGC, USN. I am especially indebted to Mrs. Linda L. Tiller, Office Manager of the Navy-Marine Corps Appellate Defense Division, and Ms. Donna K. Labrozzi, Assistant Office Manager of the Navy-Marine Corps Appellate Defense Division, for their assistance in conducting a survey of cases docketed with the Navy-Marine Corps Court of Criminal Appeals. I Letter from Secretary of Defense James Forrestal to the Speaker of the House of Representatives (Feb. 8, 1949), reprinted in H.R. REP. No. 491, 81st Cong., 1st Sess. 39 (1949) [hereinafter HousE REPORT]. Z UCMJ art. 15(a), 10 U.S.C. § 815(a) (1994). Article 15(a) provides, in part, [E]xcept 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. Id. The portion of Article 15 that deprives servicemembers attached to or embarked in a vessel of the right to refuse nonjudicial punishment is commonly known as the vessel exception. Phyllis W. Jordan, Navy justice: a conflict of interest?, VIRGINIAN-PILOT, Sept. 22, 1991, at Al, A8. The Navy Court of Military Review rejected equal protection challenges to the vessel exception in United States v. Nordstrom, 5 M.J. 528 (N.C.M.R. 1978), United States v. Lecolst, 4 M.J. 800 (N.C.M.R. 1978), and United States v. Penn, 4 M.J. 879 (N.C.M.R. 1978). For a discussion of Penn, see infra notes 83-87 and accompanying text. Butsee Jones v. Commander, Naval Air Force, U.S. Atlantic Fleet, 18 M.J. 198, 203 (C.M.A. 1984) (Everett, C.J., dissenting) (maintaining that the vessel exception can create an equal protection violation) (for a discussion of Jones, see infra XLIII

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