Fitzpatrick Court Martial – Article 92(3) – Willfull/Negligent Dereliction in performance of Duty

Walt has argued that in response to the question:

Whether a specification for willful dereliction of duty was spelled out so that the accused knew the precise nature of his misconduct.

He considered it a “hard issue”:

(Note: Hard issue. No one has been able to name the act, or my failure to act, that constituted the alleged delict to this day no one can.)

Source: Cox Commission Report, Sunday,10 June 2000, p376

So let’s look in more detail at Specification 1, Dereliction of Duty Article 92(3). From the documentation, it seems quite clear to me what the specification charged. Since the Court Martial Report is not available to me, I am not sure as to the extent the government proved its case. Needless to say, the panel found it sufficient to return a guilty verdict on this specification. Walt’s claim that he does not understand the charge, is without much relevance.

While Walt believed/believes that the specification failed to state an offense, the specification shows otherwise. (More on Walt’s first appeal submission in which he tries to attack the trial on ten issues in a later posting.)

RADM Legrand in a letter to Patty Murray explains:

The Manual for Courts-Martial (MCM) indicates that a person is derelict in the performance of his/her duties when that person willfully or negligently fails those duties or when the person performs them in a culpably inefficient manner. LCDR Fitz­patrick’s failure to supervise the expenditure of MWR funds exhibited a lack of that degree of care which a reasonably prudent person should have exercised given the notice he received from LT Samples.

Source: Jun 9, 1994, RADM LeGrand letter to Patty Murray (p. 329 of the Cox Commission report)

The specification as provided appears to be sufficient when compared with a sample specification

*** (4) Dereliction in the performance of duties.

In that  _____  , (personal jurisdiction data), who (knew) (should have known) of his/her duties (at/on board — location) (subject-matter jurisdiction data, if required), (on or about     _______ 19___    ) (from about______19___     to about  _____19___    ), was derelict in the performance of those duties in that he/she (negligently) (willfully) (by culpable inefficiency) failed  __________  , as it was his/her duty to do

Compare this with Walt’s Charge Sheet:

Charges: Violation of the UCMJ, Article 92. (Guilty)

Specification 1: In that Lieutenant Commander Walter F. Fitzpatrick, U. S. Navy, Combat Logistics Group 1, on active duty, who should have known of his duties as Executive Officer on board USS MARS (AFS1), from about July 1988  to about January 1989, was derelict in the performance of those duties in that he willfully failed to follow proper procedures for the accounting and expenditure of Morale, Welfare and Recreation funds on board USS MARS (AFS 1), as it was his duty to do. (Guilty)

As to the pleadings for dereliction of duty under Art 92(3), see Criminal Law Desk book Vol II, crime and defenses, which is based on the MCM.

1. The specification must spell out the nature of the inadequate performance alleged. United States v. Kelchner, 36 C.M.R. 183 (C.M.A. 1966); United States v. Long, 46 M.J. 783 (C.M.A. 1997) (misuse of credit card for official government travel).

2. The specification need not set forth the particular source of the duty violated. United States v. Moore, 21 C.M.R. 544 (N.B.R. 1956).

3. The specification must allege nonperformance or faulty performance of a specified duty, and a bare allegation that an act was “not authorized” is insufficient. United States v. Sojfer, 44 M.J. 603 (N-M. Ct. Crim. App. 1996) (specification alleging that accused corpsman committed acts beyond the scope of his duties, i.e. breast and pelvic examinations, failed to state the offense of dereliction), aff’d, 47 M.J. 425 (C.A.A.F. 1998).

4. Variance between the nature of the inadequate performance alleged and the nature of the inadequate performance proven at trial may be fatal. United States v. Smith, 40 C.M.R. 316 (C.M.A. 1969) (accused charged with dereliction by failure to walk his post by sitting down upon his post, but evidence showed he left his post before being properly relieved, in violation of Article 113, and was found asleep in a building off his post); United States v. Swanson, 20 C.M.R. 416 (A.B.R. 1950) (accused charged with dereliction by failure to forward funds, but finding was failure to properly handle funds).

5. For the enhanced maximum punishment for willful dereliction, the specification must allege willfulness, including actual knowledge of the duty. United States v. Ferguson, 40 M.J. 823 (N.M.C.M.R. 1994).

As to the concept of willful versus negligent, the difference is in severity of punishment. This is relevant since in a later review, willful was changed to negligent, as a lesser offense. Of course, Walt had expected a dismissal🙂

However, it is my understanding that OJAG reduced the conviction to a lesser included offense from an intentional criminal act to a negligent criminal act on the part of LCDR Fitzpatrick.

Source: Karen Hill, in a letter to the Oklahoma Bar Assoction, July 10, 1998 (p. 364 of the Cox Commission Report)

Walt was not impressed:

In response to overwhelming [NBC: sic] documentary evidence that I did nothing wrong, that my trial, a Federal Courts-Martial, had been maliciously tampered with, and that cruel and unusual treatment had been visited upon myself and my family, the Judge Advocate General’s office responded with a one paragraph legal statement changing the offense for which I’d been wrongfully found guilty from “willful” dereliction of duty to “negligent” dereliction of duty. This is an aberration!!

Source: Letter by Fitzpatrick to NCIS, Treasure Island: REPORT OF OFFENSES / FORMAL INITIATION OF CHARGES, September 23, 1993 (p. 405 of the Cox Commission report)

And finally the MCM which spells out the difference:

(3) Dereliction in the performance of duties.

(A) Through neglect or culpable inefficiency. Forfeiture of two-thirds pay per month for 3 months and confinement for 3 months.

(B) Willful. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

Walt claims that he did nothing wrong, however the record shows that an audit of the MWC funds for 1988 found more than 25 discrepancies, and that Lt Samples had informed LCDR Fitzgerald the the funds were ‘derelict’ and that he could not certify them. The Navy Hotline also received a complaint about misspending of MWC funds related to the funeral, and although I do not think that was part of the specifications, it set in motion a set of events, starting with the Command ordering RADM Bitoff to investigate the failed audit and the hotline complaint.

Failing to properly account for the expenditures, especially after having been made aware of problems several times, may have been instrumental in panel’s decision to return a guilty verdict. The letter of reprimand sentence illustrates that they did not consider the offense to be significant enough to warrant a 3 or 6 month incarceration, or discharge. Yes, in the end it was a relatively minor act that exploded into a Court Martial.

If only Walt had not turned down the Article 15…