Rocks and Shoals

I really don’t get the fascination with televised trials. As I write this in Florida the Zimmerman murder trial is going on, and every cable news channel is running “gavel-to-gavel” coverage. I’ve been on a civilian jury, and in the Navy I chaired a disciplinary board. To me, sitting in judgment of another person isn’t something to take lightly. It isn’t entertainment.

There is Zero Tolerance for drug use in the military, and has been for many years. I’ve written before (“A Sailor Looks Back Over Twenty Years”) about how as a young seaman some of the senior enlisted Sailors I served with told me sea stories from their early days when things were very different.

Just like registering to vote puts someone in the civilian potential juror pool, once I was promoted to Lieutenant Commander (equivalent rank is Major in the Army, Air Force or Marines) I became eligible to chair administrative boards (below from the Navy Military Personnel Manual (MILPERSMAN):

 1. Definitions. For the purpose of administrative separation processing only, the following phrases and terms are explained.

a. Administrative Board: A board appointed to determine the facts in a case; to recommend retention in the Naval Service, separation, or suspension of separation; the reason for separation; and the characterization of service or description of separation

It may be different now but when I was still on active duty only Sailors on their second or subsequent enlistment were given admin boards; unlike first-termers, the thinking was the Navy had invested enough time and money into them that a measured approach was warranted before kicking them to the curb. Fortunately few “career” Sailors at Naval Station Everett got into trouble so there wasn’t a great need for admin boards, but sure enough a few months before I departed on retirement leave I was appointed as chairman for a case involving a Petty Officer Second Class.

1963187Shortly after getting the “package” with my appointment letter and some background information, the base commanding officer called me into his office. The Captain told me the case involved drugs, and he wanted to be sure I realized his policy and that of the Navy was Zero Tolerance. I told him I knew this well, but he wanted to be sure I realized how important it was to take a firm stand when it came to drugs. In other words, as chairman of the board I should “max out” this petty officer, recommending not only immediate separation but also that the characterization of service be the worst possible. A Bad Conduct Discharge, jokingly referred to as The Big Chicken Dinner, could only be awarded by a court martial but I could recommend an Other Than Honorable (OTH) discharge.

For servicemembers, the type of discharge matters quite a bit. Some veterans benefits are tied to it but more importantly every time military service is listed on a job application there is an accompanying box asking for the type of discharge received. Listing an OTH or Big Chicken Dinner would certainly give potential employers pause, especially for jobs that require security clearances or responsibility for money or property.

Please note: I had, and have, the greatest respect for that Captain. Because this was an administrative and not a legal matter, he did not violate any regulations by suggesting what outcome he preferred. No orders were given.

The case seemed fairly simple. The petty officer was on leave, visiting his family in another state. During a picnic in a park he was — if I remember correctly — playing Frisbee when he stepped into a hole or trench hidden by vegetation and badly injured his knee. During the subsequent trip to the hospital, blood was drawn as part of the evaluation process and a lab screening revealed marijuana in his system.

This information was eventually discovered after his medical records were transferred from the civilian hospital to the Naval Station clinic. The situation presented some issues for the station legal staff, as the admissibility of the evidence of drug use was questionable. He had not consented to a search and there was no probably cause. Under military regulations he could be brought before the commanding officer for non-judicial punishment (NJP) where rules of evidence do not apply, but as a Sailor on shore duty the same regulations stated he could refuse NJP and request a court-martial.

COURT OF INQUIRY 001Requesting a court martial would be risky, however, as a conviction there would be considered “federal” and possibly a felony. On the other hand, without the evidence of the blood test, there was no case. As  the drug use was impossible to ignore (word travels fast in a military unit) the station lawyers decided the best course of action would be to process the Sailor for administrative separation.

Enter me and the two chief petty officers who comprised the admin board.

The Sailor, who had recovered from his injury by the time the board met, had a solid service record with glowing performance reviews and high marks for all schools and training courses. He was married, no children, and in his opening statement to the board he expressed remorse and a strong desire to remain on active duty and atone for a mistake he said was the result of a momentary and unprecedented lapse of judgment.

It was obvious to the three of us on the other side of the table that he could not stay in the military; Zero Tolerance, etc. I suspect his counsel knew that as well, and the request to remain on active duty was mere posturing. The real issue wasn’t the past but the future: was the mistake big and bad enough for us to recommend an OTH discharge that would forever hang over him like a dark cloud?

As one of the chiefs on the board with me said during our deliberations: Who among us hasn’t done something stupid? In this case, he only really hurt himself, so why salt the wound? He screwed up and hopefully learned a lesson, but for more than six years he was an above-average Sailor so let’s call it fair and allow him the chance to move on with his life.

That was the kind of thinking that prevailed when I first enlisted (again, covered in “A Sailor Looks Back Over Twenty Years”) and the other chief and I agreed. It was painful telling the Captain that I recommended the Sailor receive an Honorable Discharge based on his prior service and the legal Catch-22 of his case — it was the only time that particular CO ever chewed me out — but eventually I believe he understood why I did it. He didn’t agree, of course, but it was my decision and I owned it, and he respected that.

I don’t in the least regret making it.


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