8 M.J. 560 | U.S. Navy-Marine Corps Court of Military Review | 1979
Lead Opinion
The issue raised by appellant presents this Court with a case of first impression.
During the presentencing stage of his special court-martial, the prosecution was permitted, over defense objection, to introduce into evidence a document purporting to reflect that appellant had previously been punished by his commanding officer at a proceeding conducted in accordance with Article 15, Uniform Code of Military Justice (USMJ), 10 U.S.C. § 815, for the wrongful use of marijuana in violation of Article 92, UCMJ, 10 U.S.C. § 892, as being violative of Article 1151, U. S. Navy Regulations, 1973. Appellant at trial, as he does here, challenged the admissibility of this document, averring that, because at the time that this prior nonjudicial punishment was imposed appellant was a member of the precommis-sioning unit of the USS MEMPHIS (SSN-691), appellant should have been advised of his right to refuse punishment under Article 15, and that his punishment should not have been considered by the military judge in this case as a matter bearing on the appropriate punishment for appellant’s present offenses. See United States v. Booker, 5 M.J. 238, 243-244 (C.M.A.1977). The linchpin for appellant’s argument in support of his position is that since, at the time the non-judicial punishment at issue here was administered, appellant was not “attached to or embarked in a vessel,” within the contemplation of Article 15, UCMJ, see paragraph 132, Manual for Courts-Mar
The pertinent facts are not in dispute. Appellant’s prior punishment was meted out by the commanding officer of the pre-commissioning unit
Sixty years ago, Mr. Justice Pitney, writing for an undivided Court in a case dealing with asserted admiralty jurisdiction over a contract dispute wherein the basic claim was for recovery of a balance claimed to be due for work, labor, material, and related services furnished to repair the steamship Yucatan, paused to note that:
‘[A] ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron — an ordinary piece of personal property — as distinctly a land structure as a house, and subject to mechanics’ liens created by state law enforceable in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction.’ Tucker v. Alexandroff, 183 U.S. 424, 438, 22 S.Ct. 195, 46 L.Ed. 264, 270.
North Pacific Steamship Company v. Hall Brothers Marine Railway & Shipbuilding Company, 249 U.S. 119, 127, 39 S.Ct. 221, 63 L.Ed. 510 (1919). Later, Mr. Justice Butler addressed the question of whether a wharf boat which had sunk in a river causing damage to the merchandise which had been placed thereon was, as respects admiralty jurisdiction, a “vessel” at the time it sank. Answering that question in the negative, that jurist noted several dispositive factors, among which were that the wharf boat was not capable of being used as a means of transportation; that the various water, power, and telephone systems linked between the boat and the adjacent city evidenced a permanent location; and that the boat performed no function that could not have been also suitably performed by an appropriate structure on land. Evansville & Bowling Green Packet Company v. Chero Cola Bottling Company, et al., 271 U.S. 19, 22, 46 S.Ct. 379, 70 L.Ed. 805 (1926). Other federal courts have, on occasion, conducted exhaustive inquiries into the same matter, in the main seeking to define the ebb and flow of admiralty jurisdiction for the ulti
The federal judiciary has not labored alone in its quest for an adequate definition of the term at issue here. Congress, in enacting legislation dealing with myriad facets of this nation’s maritime interests, has established varying definitional criteria for specific individual purposes. However, for general purposes, the word “vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. 1 U.S.Code § 3.
It is considered that the definition of the term “vessel” in 1 U.S.C. § 3 is applicable to other legislation affecting the naval service unless otherwise expressly indicated in the pertinent statute or regulation.
From the foregoing, it would be difficult, if not impossible, to conclude other than that a ship commissioned into the service of the U. S. Navy is, at all times, a “vessel” for Article 15 purposes. Similarly, such other fully operational ships as may come under the jurisdiction of the Department of the Navy in time of war should be considered “vessels” for Article 15 purposes.
Current practice indicates that a new conventionally powered surface ship or submarine is commissioned at or shortly after the date of delivery to the Navy; nuclear powered surface ships and submarines, such as the USS MEMPHIS (SSN-691), are normally placed “in commission” concurrent with delivery by the builder to the Navy. This status signals approximate readiness for the performance of all mission requirements. See OPNAVINST 9080.3E of 7 August 1972. Further, nuclear powered surface ships and submarines in construction normally are assigned to an active status of “in service”
The purpose to be served by the exception clause of Article 15 is justified by a number of factual conditions relating to the state of operational readiness of an expectant commissioned surface ship or submarine of the U. S. Navy. These factors are best marshalled by consideration of the status category assigned by the Chief of Naval Operations or his designee and obtaining at the time of the imposition of summary punishment under the auspices of Article 15. Perforce, an ad hoc approach must be utilized to determine the overall state of affairs which, although it does not facially delineate individual criteria, see Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), nonetheless embraces an analytical balancing of these criteria. See United States v. Moore, 1 M.J. 448 (C.M.A.1976). Thus, when, as here, a question arises as to the applicability of the exception clause of Article 15 to a member of a precommissioning unit, the touchstone for resolution shall be whether the Chief of Naval Operations or his designee has assigned the ship or submarine one of the following status categories:
1. “In service,” as respects nuclear surface ships and submarines.
2. “In commission, special,” as respects non-nuclear surface ships.
3. “In commission”/“in service,” as respects non-nuclear submarines, as appropriate.
If such a category has been assigned, then the servicemember attached to or embarked in that surface ship or submarine, see par. 132, Manual for Courts-Martial, 1969 (Rev.), has neither the right to refuse punishment under Article 15, nor standing to complain that documentary evidence memorializing
In the case at bar, no direct evidence appears of record indicating whether, on 7 November 1977, the Chief of Naval Operations of his designee assigned the status category or “in service” to the nuclear submarine USS MEMPHIS (SSN-691). However, there is clear evidence that, prior to imposition of Article 15 punishment on that date, appellant had functioned aboard as a sonar operator during builder’s trials. Additionally, and of equal import, other specific evidence establishes that on or before 7 November 1977 the commanding officer of the precommissioning unit had assumed the additional duties and responsibilities of officer-in-charge of the submarine. In sum, this circumstantial evidence
To reiterate, commissioned ships of the U.S. Navy are clearly “vessels” for Article 15 purposes, as are newly constructed ships which have been duly designated “in commission, special,” and “in service.” What other watercraft as may be found.within the definitional ambit of “vessel” under the statute must await an ad hoc determination appropriate to a future case or controversy.
Accordingly, the assignment of error is rejected. The findings of guilty and the sentence, as approved below, are affirmed.
Judge PRICE concurs.
. Upon commissioning of the USS MEMPHIS (SSN-691), this officer acceded to the status of the submarine’s commanding officer with all duties, responsibilities, and privileges pertaining to that office.
. This language, without substantial change, was taken from an act of Congress passed in 1866 for the prevention of smuggling, 14 Stat. 178. It took effect in its present form, under Title 1 of the United States Code, as part of the Act of July 30, 1947, 61 Stat. 633. The language appears verbatim in KERCHOVE’S INTERNATIONAL MARITIME DICTIONARY 822 (1948), and in U. S. Navy Regulations, 1973.
. Act of June 5, 1920, ch. 250, § 30, Subsec. P, 41 Stat. 1005.
. See JAG Opinion, JAG:202.2:JRB:dc, Ser: 4755 of 5 June 1973.
. See, e. g., Hearings Before Committee on Armed Services, H.R. 2498, 81st Congress, 1st Session (1949); Senate Reports, Report No. 1911, 87th Congress, 2d Session, Vol. 19 (1962); Hearings Before Committee on Armed Services, H.R. 7656, 87th Congress, 2d Session, Book 2 (1962).
. See, Note to Art. 2(10), UCMJ, 10 U.S.C. § 2(10).
. This is the same category into which naval ships and ships of the Military Sealift Command (MSC) are placed which are being utilized in an active fleet supporting role. See OPNAVINST 4700.8F of 24 June 1972.
. Builder’s trials are evaluation trials and inspection conducted underway by the builder for the purpose of assuring the builder and the Navy that the ship is, or will be, ready for acceptance trials, and should be a comprehensive test of all ship’s equipment, and which should approximate the scope of the acceptance trials. See id.
. These categories are not intended to be all-inclusive in that some other existing equivalent category may have escaped the notice of this Court or may be created and duly assigned in the future by the Chief of Naval Operations or his designee.
. See Prosecution Exhibit 1 and Defense Exhibit A, Record.
Concurrence Opinion
(concurring):
I agree with Judge Michel’s conclusion that a nuclear, submarine “in service” is a “vessel” as contemplated under Article 15, Uniform Code of Military Justice (UCMJ) and I, too, am convinced that on 7 November 1977 the not-yet-commissioned MEMPHIS (SSN-691), a nuclear submarine, was “in service.”
. Prosecution Exhibit 9 and Defense Exhibit A both indicate that the prospective commanding officer had assumed the title of Officer in Charge, MEMPHIS (SSN-691) which reflects “inservice” status of the submarine pursuant to OPNAVINST 9080.3E of 7 August 1972.