tional laws of war and neutrality, when a nation permits the military forces of another nation to use its territory, land, water or air, for the conduct or support of military operations, it subjects itself to being tarred with the same brush as the user nation. If the nation conducting the military operations is engaged in the commission of belligerent acts, the nation whose territory is being used may be declared or considered to be a cobelligerent. If the military operations of the one nation are condemned in the United Nations or other forum of world public opinion, any nation which actively or passively assists such operation shares the condemnation as a coparticipant. This possible damper on the enthusiastic support of military operations, even among the closest friends and allies, must not be overlooked and demands an investigation of the political aspects of the problem.

From the beginning of nations as we now know them, all countries have jealously guarded their sovereignty. The acceptance of the stationing of foreign troops on a nation's soil has long been considered to be too important a matter to be based upon mere implication of consent by the territorial nation. It is with that fact uppermost in one's mind that an examination should be undertaken of the arrangements which the United States has with its allies to permit the construction of our military facilities, the stationing of our military forces and the conduct of military operations in, on and over their territory.

These arrangements may differ in detail but the principle upon which all are based is mutual security. They all contemplate that in the event something happens which threatens the security, sovereignty or national integrity of one of the member nations, all of the others will take certain measures to assist the beleaguered member. Under these arrangements, the United States has established military facilities in certain countries and has stationed large numbers of troops and vast quantities of military equipment and supplies on the territory of several of its partners.

Our use of these overseas troops and materials for anything other than routine peacetime operations and exercises, however, generally requires the consent of the host government and this should only be anticipated in the event three conditions exist. First, there must have been an overt act on the part of some nation or group of nations which poses a threat to the security, sovereignty and national integrity of one or more of the mutual security pact partners; second, it must be recognized as a threat by the

United States; third, and perhaps the most important, it must also be recognized as a threat by the foreign nation whose territory we desire to use. Only under those circumstances is it possible to have a meeting of the minds among the member nations that one of the contingencies against which the alliance was intended to guard has occurred and that summary action is necessary.

The factors involved in attaining such a meeting of the minds are myriad and beyond the scope of this discussion. The citation of only one factor may, however, sufficiently illustrate the difficulties involved. The variety of national interests among even the closest of mutual security partners and the relative importance which each partner attaches to its own interests make any international meeting of the minds a most complex matter. Each single national interest of each partner may be materially affected, either permanently or temporarily, by domestic economic or political affairs which are of little or no importance outside the domestic scene. Many of the interests of the partners may not have existed or have been of any significant importance at the time the mutual security pact was signed. It must be contemplated, however, that any proposal for action to be taken under the terms of a mutual security agreement may be rejected by one or more of the member nations if it is not in accord with their present national interests. This could well be like matching apples with oranges.

With this factor in mind, it must be recognized that in any situation in which the United States desires to conduct military combat actions or other military activities beyond the normal peacetime routine we now carry on overseas, we should anticipate that some foreign nations will not be willing to permit us to use them for the support of our military ventures. Similarly, some foreign air and territorial sea routes may be denied to us or subjected to severe restrictions on our use of them.

This is the stage of the problem where geography becomes of paramount importance.

If it be assumed that one of our allied nations in Europe will permit us to use our military facilities and forces within its boundaries for a unilateral, national military operation, the most that we can hope for is access to the free high seas without having to ask for permission to cross the territory of another nation. When we do reach the high seas, a slight glance at the map of Europe will reveal that very few areas where we might reasonably expect to want to conduct (Continued on page 80)

AN

NEWLY COMMISSIONED officer on a destroyer in World War II once boldly asked his Exec whether there were any Executive Officer's Morning Orders. Looking the junior officer squarely in the eyes, the Exec replied, "This ship doesn't have Executive Officer's Morning Orders, it has an Executive Officer." While the Captain's Mast may not be that personal, there is probably as much variation in the conduct of the Mast as there are Captains of ships. The requirements of law and regulation must be satisfied, but because of the summary nature of the Mast proceedings considerable discretion is permitted the commanding officer in the exercise of his power of administering nonjudicial punishment.

Before the accused appears before the Captain at Mast, a number of preliminary steps will have been taken within the command. While these procedures are largely based on custom and do not directly involve the Captain, he would be prudent to insure that a ship's order or instruction is issued prescribing the handling of reports of offenses, the preliminary inquiry, restraint, and the Executive Officer's review. The first of the steps is the placing of the apparent offender's name on report by someone having knowledge of the commission of an offense. In the case of unauthorized absence from the ship, the most common offense in practice, the officer of the deck at the time of return of the absentee usually fills in the report slip.

"Captain Benjamin R. Fern, U.S. Navy, is currently assigned to the Office of Legislative Affairs. He holds the A.B. degree from Queens College and the LL.B. degree from The George Washington University. Captain Fern is a member of the bar of the District of Columbia and holds membership in the American Bar Association. He has held various operating commands and has served as Naval Attaché to Uruguay.

With disobedience, the second most encountered offense, the report is generally made by the officer or petty officer who was enforcing the order.

From the report slip, which has been turned into the ship's office, the legal yeoman prepares an entry on the form, Report and Disposition of Offenses (NAVPERS Form 2696 and NAVMC 10132-PD) and turns the report over to an officer designated to conduct a preliminary inquiry. This officer merely determines if the accused appeared to have committed the reported offense and if such offense is punishable under the Uniform Code of Military Justice. Protection of the legal rights of the accused begins at this point, for the preliminary inquiry officer is required by Article 31 (b) of the U.C.M.J. to inform the accused of the nature of the accusation, the accused's right to remain silent, and the possible use of any statements by the accused as evidence against him in a courtmartial. The commanding officer should periodically note the time taken by the preliminary inquiry, as there may be a tendency for this investigation to unduly delay the prompt disposition of offenses.

To a large degree, the smooth administration of the Captain's Mast is a reflection of the ability of the Exec. It has been said that the Executive Officer holds by far the most onerous, most difficult, and most thankless office on board ship. He is held responsible for, among other things, the good order of the ship and the faithful execution of his Captain's orders. Although he has probably long known about the report through his Master-at-Arms force, the Exec's first official contact with a potential Mast case is probably his review. In some ships the Captain may

designate another officer to conduct this review, but because of the maturity of judgment required, the Executive Officer is probably the best choice.

The Executive Officer must first decide whether or not to continue or impose restraint to insure the presence of the accused at Mast. Although such restraint may be by arrest, restriction to the limits of the ship or station is almost invariably used if a guarantee of appearance is considered necessary. While many commanding officers prefer to personally rule on each pre-Mast restraint, there appears to be little reason why such authority may not be delegated by the C.O. In exercising this discretion, the Executive Officer should consider whether the accused was involuntarily returned to the ship, threatened to jump ship, has a propensity for flight, or would be dangerous if at liberty.

The principal purpose of the review is to ascertain that the matter is ready for Mast. Available to the Executive Officer are the preliminary inquiry report and the option of reconsidering the evidence. If a hearing, or screening mast as it is sometimes called, is held in the presence of the accused, his rights must again be safeguarded by an Article 31 warning. Thus, the Executive Officer may direct further investigation; dismiss or excuse very minor or frivolous offenses, subject to confirmation by the C.O.; or approve the case for Captain's Mast.

If not "attached to or embarked in a vessel", the accused may demand trial by court-martial in lieu of non-judicial punishment. Although this option may be exercised at any time before punishment is imposed, the Executive Officer's review appears to be an opportune time for the accused to make such a demand, as the Exec is well situated to explain the consequences of a court-martial trial as contrasted to non-judicial punishment. It has been observed recently that the relatively few demands for trial by courtmartial in lieu of mast are a tribute to our commanding officers because they indicate that our men have confidence that they will be treated fairly by their commanding officers.

The Executive Officer then confers with his Captain in order to recommend disposition of the case. This conference is a very valuable adjunct to every commanding officer's program of discipline and morale, permitting the Exec to glean his Captain's philosophy on the treatment

of offenders, assuring that the Captain is well prepared to conduct the Mast, and encouraging both officers to seek for underlying causes of disciplinary infractions. The Captain has the opportunity to read the report slip, the preliminary inquiry report, and the service record of the accused-in the privacy of his cabin and with his Exec standing by to provide information and advice. It is here that the accused and the offense may be evaluated in terms of the individual, the crew, and the command. Successively resolving final alternatives to a Mast, that of referring the case directly to a court-martial for trial or to a superior commander for disposition, the Captain concludes by setting a date and time for the conduct of the Mast. The availability of witnesses, preemption of the Captain's attention by operations at sea, or other unavoidable reasons may delay the holding of a Mast; but, otherwise, the commanding officer must zealously insist that the accused be brought before Mast as soon after being reported for the commission of an offense as possible. It is an axiom of justice that punishment (or exoneration) be swift. The commanding officer may prefer to hold Mast immediately following his conference with the Exec while the circumstances are fresh in his mind. If so, it is incumbent upon the Exec to obtain the Captain's desires as to the time of the Mast sufficiently in advance in order to assemble all required persons.

The Mast should be formalized as to place, time, uniforms, military etiquette, and procedure in order to lend dignity and impressiveness to the proceedings. Many a captain of a ship whose sides are badly in need of repainting has been faced with the rueful necessity of knocking off the chipping hammers so that he could hear what was being said at Mast. Intrusions and distractions should not be tolerated, and the Mast space should be large enough to accommodate all the persons needed.

The commanding officer should require the attendance of certain persons at Mast, among whom should always be the Executive Officer, Legal Officer, Chief Master-At-Arms, and Legal Yeoman. In addition to the accused, his division officer and all witnesses should be present. Although the commanding officer can appoint an officer to conduct the hearing for him, if there are a great number of witnesses, by invoking

the extraordinary circumstances of paragraph 133b. of the Manual for Courts-Martial, it is strongly recommended that if at all practicable, the C.O. himself hear all witnesses.

When the permanent party to the Mast is present and the accused and all witnesses are standing by outside of the Mast area, the Chief Master-At-Arms reports to the Captain that the Mast reports are assembled and escorts the Captain to the Mast. The C.M.A.A. then presents the accused who is informed of the offenses for which he has been reported and of his rights under Article 31. It is here that the commanding officer's homework first begins to manifest itself, for he should be able to explain in words which are readily understandable to the accused how the alleged facts of the accused's act (or omission) comprised an offense under the U.C.M.J. Or, in other words, the accused is entitled to know with what he is charged. advising the accused of his rights under Article 31, the Captain will make the best impression if he memorizes the elements of each of the rights and then extemporizes them in simple words. A few thoughts on the Captain's own image may be in order here. Above all he must remain calm, cool and collected at Mast. There are times when a C.O. is provoked beyond exasperation when the accused before him has flagrantly disregarded previous admonitions and indifferently dishonored himself and the Naval service. But the Captain epitomizes fairness and justice, so he must speak in a firmly modulated voice, listen attentively, and encourage frank admissions and understanding.

In

After the charge and warning, the accused should be permitted to plead whether or not he is guilty. This can be handled by the Captain's asking the accused whether he was in fact absent at the time stated, whether he did speak the words in question, whether he failed to observe reveille on the particular day, etc. If the accused admits the offense, technically all that remains is to award punishment; however, many C.O.s continue the examination in order to determine the reason for the offense.

When the accused denies committing the offense for which he was reported, the Captain should first call on the reporting officer or petty officer to relate the happening of the offense, and then the accused's version should be requested. Additional witnesses are called as necessary to support or deny essential elements of previous testimony until the Captain is satisfied that he

has elicited the truth or that further testimony would prove nothing. Careful questioning by the Captain will help to bring out the knowledge which the witness has of the facts in dispute. Other evidence, such as a note from a conductor stating that a train was delayed, or another man's jumper which had been found in the accused's locker, should be likewise admitted for consideration by the Captain. Sometimes the accused will testify freely only if he can speak privately to his Captain, who should be inclined to grant the request and temporarily excuse all other persons from the Mast. The Commanding Officer is not required to follow any rules of evidence, and he is well advised to avoid becoming unnecessarily technical in this area; however, in deciding whether the charge was proved, he should at least in his mind distinguish between fact and opinion, recognize that there are variations in the competency of witnesses, and allow for the weakness of hearsay evidence.

In developing the proof or seeking the motive for the offense, the Captain must also be receptive to any mitigating or extenuating aspects.

After hearing all the evidence, the C.O. should request the division officer of the accused to state his opinion of the character and reputation of the accused. This not only permits the Captain to account for all of the circumstances of the offense before awarding punishment, much as a judge in a criminal court would require a report from probation authorities, but it reinforces the authority of the division officer.

The Captain may now dispose of the case. He may dismiss the charges because of insufficient evidence, excuse the offense because of mitigation or extenuation, refer the case to a summary or special court-martial (if he has the authority to convene), order an Article 32 investigation to determine appropriateness of referral to a general court-martial, refer to a superior, or award punishment.

Nonjudicial punishment, under Article 15 and SecNav regulation, which may be imposed upon officers comprises admonition or reprimand and restriction to limits for 30 days, or for 15 days if the C.O. is below the grade of LCDR. The following table shows the nonjudicial punishments which the U.C.M.J. and Presidential and SecNav regulations authorize for award to enlisted personnel.

(1) One or more of the authorized punishments, subject to apportionment when applicable, in addition to or in lieu of admonition or reprimand.

(2) Normally should not be imposed for more than two hours per day.

(3) Imposable only on personnel below pay grade E-4. (4) Imposable only on shipboard personnel below pay grade E-4.

(5) If within the promotion authority of the officer imposing the punishment. Pay grades E-7 (permanent) and above in the Marine Corps may be reduced only by the Commandant.

It is in the measure of punishment that the discretion of the commanding officer finds its greatest outlet. He is provided with a wide variety of punishments from which to select the particular combination which in his judgment best applies to the offense, the offender, and the circumstances of the offense. The judicious. commanding officer reflects long and hard on these relationships. Of course he also takes into account practical limitations on particular punishments, such as the lack of accessible detention facilities or the relatively nonpunitive effect of forfeiture or detention of pay in a ship at sea.

Rather than just pronouncing sentence, the Captain should explain to the accused why the particular punishment was awarded. Here the Captain can comment on repeated offenses, extenuation and mitigation, and character and reputation as they influenced the punishment selected. At this time also, the Captain has a wonderful opportunity to slant a few words toward the prevention of recurrence of the offense and for the benefit of the crew. In addition, this explains to the crew why apparently identical offenses receive different punishments.

One more formality, that of informing the

accused of the right of appeal permitted by Article 15 (e) as expanded by the JAG Manual, is required before conclusion of the Mast. As in the earlier step of the Article 31 warning, the C.O. should set the right forth in his own words, if possible. Parenthetically, it may be noted that there have been relatively few appeals, which observers consider a tribute to the fairness of the C.O. Now the Mast is ended and the C.O. is escorted out.

After the Mast the disposition should be published immediately and the punishment executed. Publication to the crew should not be overlooked and may take the form of a note in the plan of the day, a notice on bulletin boards, or announcement at morning quarters.

The Commanding Officer and superior authority on appeal are authorized to suspend, remit, mitigate or set aside nonjudicial punishments, whether executed or not. The imposing officer or his successor in command may:

1. Remit or mitigate any part or amount of the punishment which is unexecuted.

2. Set aside all or some part of the punishment, executed or not, and restore all rights privileges and property affected.

3. Mitigate reduction, executed or not, to forfeiture or detention of pay.

4. Suspend on probation any unexecuted part or amount of the punishment.

5. Suspend a reduction or forfeiture, whether executed or not. A forfeiture or detention of pay is considered to be unexecuted as long as it remains uncollected.

Additional regulations on suspension, remission, mitigation, and setting aside may be found in the Manual for Courts-Martial and the JAG Manual. The Captain may utilize these options at the time of awarding punishment, as, for example, imposing a reduction in grade but suspending it on probation for six months. Not only is the flexibility of punishments available to the C.O. enlarged, but the advantage of the Mast over a court-martial is apparent.

This article is an attempt to suggest some ideas which have characterized the effective use of the Captain's Mast as a tool of discipline, morale, and justice. Some of the less commonly applied features of Article 15, such as the peculiar authority of a flag officer, have been omitted, and although the setting described for the Captain's Mast is usually imagined to be a ship the ideas have application to a shore station or Marine Corps "Office Hours" as well.