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

Major Dwight H. Sullivan*
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
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


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