Petition for Writ of Certiorari — Puskaric v. United States

oe an ‘ om R —

86-9 34 LED. |

OL, JR,

In the Supreme Court of the Whitegates —

OCTOBER TERM, 1986

ROBERT T. PUSKARIC

TECHNICAL SERGEANT, UNITED STATES AIR FORCE

AND

CHESTER JENKINS

AIRMAN FIRST CLASS, UNITED STATES AIR FORCE

PETITIONERS,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARJ TO THE

UNITED STATES COURT OF MILITARY APPEALS

LEO L. SERGI

Colonel,

Office of the Judge Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AF'B, DC 20332-6128

(202) 767-1562

Counsel of Record

and

HARRY L. HEINTZELMAN, IV

Major,

Office of The Judge Advocate General

United States Air Force

DEBORAH J. HUDSPETH

Captain,

Office of The Judge Advocate General

United States Air Force

Il.

If.

QUESTIONS PRESENTED

Whether the military judges’ findings of “service con-

nection” over the challenged off-base offenses exceeded

the boundaries for the exercise of court-martial jurisdic-

tion established by this Court.

Whether it is constitutionally permissible for the

military to exercise court-martial jurisdiction over of-

fenses which, upon application of the detailed analysis

mandated by this Court, are not “service connected.”

Whether a servicemember’s rights under the Constitu-

tion to indictment by a grand jury and trial by petit jury

for offenses which are not “service connected” may be

abrogated by the Court of Military Appeals and lower

military courts through their overly expansive inter-

pretations of “service connection,” or by Congress’

authority to “make Rules for the Government and

Regulation of the land and naval forces.”

TABLE OF CONTENTS

Page

Ree TONNE 6. os Cai eas pa ee ee ee 1

I ss Son xs Sad oe eke eee ee 2

Constitutional and Regulatory Provisions Involved . . :

PON TE Sg ho ii ee Go ak Lees 3

Reasons for Granting the Writ ................... 13

AN i ii 5 Cacaks Jka ee ee 23

TABLE OF AUTHORITIES

Cases:

Brown v. Board of Education, 347 U.S. 483

POR) oo: ha eae Ss wa See eee 21

Carrington v. Rash, 380 U.S. 89, (1965) ........ 21

Lee v. Madigan, 358 U.S. 228 (1958) ........... 21

O'Callahan v. Parker, 395 U.S. 258 (1969) ...... 13, 18,

: ai. 22

Relford v. Commandant, 401 U.S. 355 (1971) .... 18, 14

SA, oe

Schlesinger v. Councilman, 420 U.S. 738 (1975) . 15

United States v. Alef, 3 M.J. 14 (C.M.A. 1977) ... 17

United States v. Lockwood, 15 M.J. 1 ‘

(oF 2. Pere ee Or re 2, 8, 17, 18, 20

United States v. Benedict, 20 M.J. 939

(Ao eee, Se 2a Ca a ee 18

United States v. Griffin, 21 M.J. 501

CAF Re Bei SR cca sae as ee 18

United States v. Shorte, 18 M.J. 518

(A.F.C.M.R. 1984), aff'd 20 M.J. 414

1). WOOD hike ves re eee 18-20

United States v. Solorio, 21 M.J. 251

(C.M.A. 1986), cert. granted, 54 U.S.L.W. 3823

(U.S. June 16, 1986) (No. 85-1581) ........... 2, &,

1S, ¥7, 20, 21

(ii)

ae

iil

Statutes and other regulations:

Manual for Courts-Martial, 1984

Rule for Courts-Martial 203 ..............

Rule for Courts-Martial 918 ..............

Miscellaneous:

Department of the Army, Pamphlet 27-9, para-

EC ccuacda stew bes ceaccoascuscees

Tomes, The Imagination of the Prosecutor:

The Only Limitation to Off-Post Jurisdiction

Now, Fifteen Years after O'Callihan v.

Parker, 25 AF L. Rev. 1(1985) ..........

In the Supreme Court of the Anited States

OCTOBER TERM, 1986

No.

ROBERT T. PUSKARIC

TECHNICAL SERGEANT, UNITED STATES AIR FORCE

AND

a CHESTER JENKINS

AIRMAN FIRST CLASS, UNITED STATES AIR FORCE

PETITIONERS,

v.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Petitioners, Robert T. Puskaric and Chester Jenkins

respectfully pray that a Writ of Certiorari issue to review the

judgments and opinions of the United States Court of

Military Appeals entered in these proceedings on October 9,

1986.

OPINIONS BELOW

The summary disposition by the Court of Military Appeals

(COMA) in the case of Technical Sergeant Puskaric is

reported at 23 M.J. (C.M.A. 1986) (Appendix A). The

summary disposition by COMA rendered in the case of Air-

man First Class Jenkins appears at 23 M.J. ___._ (C.M.A.

1986) (Appendix B). The summary opinions of the Air Force

Court of Military Review were issued on October 11, 1985, in

TSgt Puskaric’s case, United States v. Puskaric, ACM 24826

(A.F.C.M.R. October 11, 1985) (Appendix C), and on June 21,

1985, in A1C Jenkins’ case, United States v. Jenkins, ACM

24671 (A.F.C.M.R. June 21, 1985) (Appendix D)

(1)

2

JURISDICTION

The Court of Military Appeals granted petitions for review

in both cases under Article 67(bX3), Uniform Code of Military

Justice (10 U.S.C. § 867) on the issue of “service connection”

over off-base offenses. On October 9, 1986, the Court of

Military Appeals summarily affirmed both cases in light of

United States v. Solorio, 21 M.J. 251 (C.M.A. 1986) and

United States v. Lockwood, 15 M.J. 1 (C_M.A. 1983). The

jurisdiction of this Court is invoked under 10 U.S.C. § 867(h)

and 28 U.S.C. § 1259.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States provides:

Article I, § 8, Cl. 14: “(Congress shall have power] to

make Rules for the Government and Regulation of the

land and naval Forces. . . .”

Article III, § 2, Cl. 3: “The Trial of all Crimes, except in

Cases of Impeachment, shall be by Jury. . . .”

Amendment V: “No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall

any person be . . . deprived of life, liberty, or property,

without due process of law. . . .”

Amendment VI: “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district wherein the

crime shall have been committed. . . .”

MANUAL FOR COURTS-MARTIAL PROVISIONS

INVOLVED

The Rules for Courts-Martial, Manual for Courts-Martial,

United States, 1984, provides as follows:

Rule 201(b): “Requisites of courts-martial jurisdiction. A

court-martial always has jurisdiction to determine

whether it has jurisdiction. Otherwise for a court-martial

to have jurisdiction:

Fy.

is

“YU

3

(5) The offense must be subject to court-martial jurisdic-

tion.

Di

See R.C.M. 203. The judgment of a court-martial without

jurisdiction is void and is entitled to no legal effect. . . .”

Rule 203: “Jurisdiction over the offense. To the extent

permitted by the Constitution, courts-martial may try

any offense under the code and, in the case of general

courts-martial, the law of war.”

The discussion and analysis of Rule 203, are contained in Ap-

pendix E.

STATEMENT OF THE CASE

I

TSgt Robert T. Puskaric

In September 1984, Sergeant Valerie J. Puskaric, peti-

tioner’s ex-wife, advised the Air Force Office of Special In-

vestigation that she had received a letter from Noranne

Versberg, the wife of a retired servicemember, alleging peti-

tioner had molested Mrs. Versberg’s pre-teenage daughter

Melanie on two different occasions — one time, in April 1983,

when Melanie spent the night in the on-base residence peti-

tioner shared with his wife, and once later that summer after

petitioner's divorce in petitioner's off-base apartment. Dur-

ing an Air Force investigation of these allegations, petitioner

confessed to fondling Melanie’s breasts on these two occa-

sions.

As a result of these incidents, petitioner was tried by

general court-martial at Loring Air Force Base, Maine. Prior

to petitioner's arraignment, the defense moved to dismiss

Specification 2, the specification alleging the commission of

indecent acts with a child under sixteen years of age at peti-

tioner’s off-base apartment, for lack of subject matter

jurisdiction.

On the occasion of the off-base incident, the victim was to

baby-sit the weekend Jor petitioner's iniant son at iis

residence in a civilian community located near Loring Air

4

Force Base. The victim's parents drove her to appellant's off-

base home and dropped her off. (R. 21, 22). That day, peti-

tioner was not on duty nor in uniform. (R. 21, 30). Although

petitioner, his former wife, and the victim’s father were

assigned to the same squadron at Loring Air Force Base,

petitioner did not work with either of the victim's parents

prior to or during the time of the offenses and had no official

relationship with them. (R. 14, 32, 34). Petitioner met the vic-

tim and her parents through his wife who employed the vic-

tim and her mother to care for the Puskaric’s infant son. (R.

16, 21).

The jurisdictional statement attached to petitioner’s charge

sheet averred the following bases for exercising subject mat-

ter jurisdiction over the offenses:

Jurisdictional Basis (sic): The offenses were committed

by an active duty member of the United States Air Force.

The victim of the offenses was then the dependent of an

active duty member of the United States Air Force.

These offenses involved a direct flouting of military

authority, are a type which have been traditionally tried

by courts-martial, and present an affront to the interests

of the Commander and the United States Air Force in

maintaining a disciplined and effective fighting force

which can only be adequately vindicated in a trial by

courts-martial. In addition, the offense alleged- in

Specification i occurred on Loring Air Force Base, a

military installation under military control.

Additional Jurisdictional Basis (sic) for Specification 2:

The offense alleged in Specification 2 was committed at

or near Caribou, Maine, a small community located near

Loring Air Force Base, Maine. The victim of the offense

alleged in Specification 2 resided on Loring Air Force

Base at the time of the offense, and the accused had her

travel from her Loring residence to his off-base apart-

ment in Caribou under the pretense of babysitting for

him. The offense involves the same victim as that alleged

in Specification 1 and should be disposed of in the same

forum in the interest of judicial economy.

5

Attached to the record was a letter from the local county

prosecutor in which he declines “civil prosecution of the of-

fense and defers the entire matter to your [the Air Force's]

authority.” (App. Ex. VI).

In determining whether the off-base offense was “service

connected,” the trial judge found:

With respect to the defense Motion to Dismiss Specifica-

tion 2 of the Charge for lack of subject matter jurisdic-

tion, the court makes the following essential findings of

fact:

1. At the time of the alleged offenses, the accused was

properly absent from his duty station in a non-duty

status.

2. The alleged offense occurred outside the limits of the

military installation of Loring Air Force Base in the

civilian community of Caribou, Maine.

3. The accused was not performing military duties at

the time of the alleged offense.

4. The alleged offense occurred at a place not under

military control.

5. The alleged offense was committed within the ter-

ritorial limits of the United States.

6. The alleged offense was unrelated to authority stem-

ming from the war power.

7. There was no connection between the accused's

military duties and the alleged offenses.

8. The alleged victim was not a member of the United

States Air Force but was a dependent of an active duty

member of the United States Air Force who was at the

time a member of the accused’s squadron.

9. There is present and available a duly constituted

civilian court in which this offense could be prosecuted in

Aroostook County, Maine.

10. The District Attorney for Aroostook County has

declined prosecution of the offense alleged in Specifica-

tion 2 of the Charge and has deferred that matter to

military authority, upon his understanding that the more

6

serious misconduct with the alleged victim has occurred

on Loring Air Force Base, apparently the matter alleged

in Specification 1 of the Charge; in effect, deferring to

military disposition the entire course of alleged miscon-

duct with the same alleged victim.

11. The alleged offense does not constitute a flouting of

military authority.

12. The alleged offense does constitute a threat to

Loring Air Force Base, Maine, and its personnel in that

indecent acts by one military member against a depend-

ent of another military member of the same squadron

tend to have a particularly deleterious effect upon not

only the morale of the military sponsor of the dependent

victim, but also upon squadron morale as well as base

morale generally.

13. There was no violation of military property involved

in the alieged offense. ;

14. There is no evidence that the accused formulated

the criminal intent necessary to this alleged offense while

on Loring Air Force Base.

15. There is no evidence that the accused made

necessary and integral preparations for the commission

of the alleged offense while on Loring Air Force Base.

However, without the professional and social relationship

between the accused’s military wife and the alleged vic-

tim and her military family and the resulting on-base

social relationship between the accused and the alleged

victim and her military family, the arrangements which

facilitated the commission of the alleged offense could

not have been made. :

16. The alleged offense is one which is traditionally

tried in both civilian courts and courts-martial.

17. Economy of judicial effort would be achieved

through trial of all offenses alleged against the accused in

this court-martial.

Therefore, balancing all the facts enumerated in Relford

v. Commandant, I conclude that the factors I have just

listed weigh in favor of the exercise of military jurisdic-

7

tion, that the military interest in deterring this alleged

offense is distinct from, and greater than, that of civilian

society, and that that distinct and greater interest can be

vindicted adequately only in a trial by courts-maritial;

and that this court has jurisdiction over the offense

alleged in Specification 2 of the Charge. The defense mo-

tion to dismiss Specification 2 of the Charge for lack of

subject matter jurisdiction is denied.

(R. 41, 42).

As a consequence of the judge’s ruling, petitioner pleaded

guilty to fondling the victim’s breasts on one occasion at his

on-base residence and not guilty to the off-base incident.

After the presentation of evidence, the military judge, sitting

alone, convicted petitioner, by exceptions and substitutions,’

of both the on-base and off-base offenses and sentenced him

to a bad conduct discharge, confinement for 24 months,

forfeiture of $100.00 per month for 24 months and reduction

to the lowest enlisted grade, airman basic.

After considering the matters required under Article 60,

Uniform Code of Military Justice,? the court-martial conven-

ing authority approved the findings and sentence adjudged

by the court on March 8, 1985.

1 In military practice, the fact-finder may modify the specification to ex-

cept a matter on which they have doubt and still reach a finding of guilty so

long as (1) all the elements of the offense are proved beyond a reasonable

doubt and (2) the fact-finder modifies the criminal specification to correctly

reflect their findings. Rule for Court-Martial 918(a), Manual for Courts-

Martial, 1984; Department of the Army Pamphlet 27-9, paragraph 7-15. In

this case, petitioner was originally charged with “putting his hand under

(the victim’s}] nightgown and fondling her breasts, and by inserting his

hands inside her panties and touching her private parts.” In making his

guilty plea to the on-base incident, petitioner excepted the words, “and by

inserting his hand inside her panties and touching her private parts,” from

the specification. The judge, acting as fact-finder, excepted the words

“private parts” from the specification, and substituted therefore the words

“lower abdomen,” in finding petitioner guilty of committing indecent acts.

210 U.S.C. § 860. In contrast to civilian practice, an adjudged court-

martial sentence must be approved by the convening authority. Article 60

of the Uniform Code of-Military Justice requires the convening authority

8

At both the Air Force Court of Military Review and the

Court of Military Appeals, appellate defense counsel raised

the issue of subject matter jurisdiction over the off-base of-

fense. On October 11, 1985, the Air Force Court of Military

Review affirmed petitioner’s conviction. On March 3, 1986,

the Court of Military Appeals granted review in petitioner's

case as to “whether the military judge erred by denying the

defense motion to dismiss specification 2 for lack of jurisdic-

tion.” United States v. Puskaric, 21 M.J. 96 (C.M.A. 1986)

(order granting petition for review). On further consideration

of the granted issue, the Court of Military Appeals affirmed

petitioner's conviction of the off-base offense in light of its

decisions in United States v. Solario, supra and United States

v. Lockwood, supra.

II

AIC Chester Jenkins

On July 25, 1988, Lisa Acosta, a 14-year-old military

dependent obtained her mother’s permission to stay out late

so Lisa could ostensibly baby-sit for another family. In reali-

ty, Lisa wanted to go out with petitioner, a 25-year-old black

airman, whom Lisa had met on Edwards Air Force Base,

California, and started seeing earlier that month. As part of

her ruse, Lisa gave her mother a false address of the place

where she would supposedly be babysitting.

After Lisa left with petitioner at 7:00 p.m., some children

came to the Acosta on-base residence and told Mrs. Acosta,

“Your daughter is seeing a 21-year-old black guy.” After fur-

ther questioning Mrs. Acosta discovered her daughter was

not babysitting, but on a date with the petitioner. After fail-

to consider the result of trial, the recommendation of his or her stat judge

advocate and any clemency matters submitted by the accused or his at-

torney before taking action on the case. The convening authority may not

increase any sentence adjudged or change a finding of not guilty. The con-

vening authority may, based on matters submitted by the accused or other

matters, reduce the sentence adjudged, disapprove the entire sentence or

disapprove any or all of the findings of guilty.

9

ing to find the address on a map of Edwards Air Force Base,

Mrs. Acosta confirmed with the local civilian police that the

name and address her daughter had given her was a false

one.

Worried, Mrs. Acosta looked through her daughter’s

papers and discovered an unfinished letter in which Lisa

Acosta wrote about dating someone named Chester Jenkins,

who was a 21-year-old and an airman in the Air Force. Armed

with the suspected identity of her daughter's date, Mrs.

Acosta spoke with her husband who was working that eve-

ning. Using the locator, her husband confirmed a Chester

Jenkins was assigned to Edwards Air Force Base and gave

her petitioner’s‘dormitory and room number.

Mrs. Acosta then called the Security Police and explained

the situation to them. The Security Police went to petitioner’s

dormitory room to check if he and Lisa Acosta were there.

The Security Police inquiry revealed petitioner and Lisa had

been there and were seen heading back towards the housing

area. The Security Police informed Lisa’s parents what they

had found and staked out the Acosta residence. At about

11:00 p.m., the petitioner dropped Lisa Acosta off in front of

her residence. As soon as Lisa entered the house, her mother

confronted her and pointedly asked Lisa if she had had sexual

relations with petitioner. After initially denying any sexual

involvement, Lisa told her mother what allegedly had

transpired. Simultaneously, petitioner was stopped near the

Acosta home by the Security Police. The following day, Lisa

provided a detailed statement about her relationship with

petitioner. Before and at trial, petitioner denied engaging in

any sexual acts with Lisa.

Based in large part on statement solicited from Miss

Acosta, petitioner was tried at a general court-martial, sit-

ting with officer members, and convicted of carnal

knowledge and oral sodomy for incidents occurring on-base

on July 25, 1983; contributing to the delinquency of a minor

“by encouraging her [Lisa Acosta] to engage in sexual acts

and performing actions which tended to prevent the

discovery of those sexual acts by Lisa M. Acosta’s parents or

competent authority;” and “wrongfully soliciting] Lisa M.

10

Acosta [on an earlier occasion] to assist the said A1C Chester

Jenkins in the commission of the [off-base] offense of sodomy

... by requesting her ‘to give him head’ or words to that ef-

fect.”

The relevant testimony concerning this off-base solicitation

offense reveals that in late June or early July 1983, Miss

Acosta first saw A1C Jenkins in the commissary while shop-

ping with her parents. (R. 56). On 15 July 1983, on the way

home from the Youth Center, A1C Jenkins stopped his car

and started talking to her. (R. 57). She said that he asked her

how old she'was. When she told him fourteen and a half, he

initially said she was too young, but later changed his mind.

(R. 57-58). He ended up taking her and her girl friend, Violet,

for pizza. (R. 58). Before he dropped her off a couple of blocks

from her home, he gave her his telephone number. (R. 58-59).

She called him the next day, and he drove by her house,

although he did not stop. (R. 59).

On 17 July 19838, she and Violet needed a ride so she called

A1C Jenkins. He came, picked them up, and drove then to an

on-base swimming pool. When they were done there, he

drove them to Violet’s house. (R. 59).

A1C Jenkins, Lisa, and Violet had made arrangements to

go bowling on 18 July. A1C Jenkins and Lisa met at the bow]-

ing alley. They were later met by Violet. (R. 59-60). Eventual-

ly, they all went to the home of a friend of Violet’s (located on

base), where they talked for quite some time. (R. 60).

A1C Jenkins then drove Violet and Lisa to about one block

from Lisa’s house. The two girls went to see Lisa’s parents to

ask if she could spend the night at Violet’s. After receiving

her parents’ permission, they went back to A1C Jenkins’ car.

The three went to the barracks and picked up a friend of A1C

Jenkins. Then they all went to Lancaster, a neighboring com-

munity, where they had dinner at a McDonald’s. (R. 60-62).

After that, they went to Apollo County Park where the

solicitation to commit sodomy was alleged to have occured.

The jurisdictional bases alleged on the charge sheet were:

1. The accused in an active duty member of the United

States Air Force.

11

2. The offenses occurred at on near Edwards Air Force

Base, California, an active military installation of the

United States Armed Forces.

3. The offenses constituted a threat to the military in-

stallation and its mission.

4. The offenses constituted a flouting of military

authority.

At the trial, petitioner's defense counsel challenged the ex-

ercise of subject matter jurisdiction over the solicitation of-

fense. The defense argued that since this offense occurred in

Apollo County Park, California, approximately 20 miles away

from Edwards Air Force Base, there was no service connec-

tion pursuant to Rule for Court-Martial 203, M.C.M., 1984.

(R. 144). The government argued that the following factors

gave the military jurisdiction to try this offense: Miss Acosta

was a 14-year-old military dependent whose father was sta-

tioned at Edwards Air Force Base; the entire relationship

between petitioner and Miss Acosta occurred on the installa-

tion, except for two off-base trips known to the Government,

the solicitation offense was part of a continuing course of

conduct culminating in the on-base sodomy and carnal

knowledge offenses; and the local prosecutor had declined to

prosecute petitioner for the Apollo Park solicitation offense.

(R. 144, 145, App. Ex. J). .

The military judge denied the defense’s jurisdictional

challenge saying that:

Apollo County Park, California, is not a military installa-

tion, that it is off Edwards Air Force Base, and not on

any other installation. Taking into consideration the mat-

ters set forth in all the specifications on page 2 and the

jurisdictional basis on page 2, I find that the military has

jurisdiction over all of the offenses.

With respect to Specification 1, even though it was al-

leged to have occurred off base, I find that exercise of

jurisdiction by the military is more appropriate than ex-

ercise of jurisdiction by any civilian tribunal. The rela-

tionship between Lisa Acosta and the accused was the

direct result of their both residing on Edwards Air Force

Base, the accused being assigned here and Lisa Acosta

12

being a dependent residing on Edwards Air Force Base.

A majority of the alleged offenses are alleged to have oc-

curred on Edwards and the principle of judicial economy

certainly comes into play; and I find that handling of all

offenses in the same tribunal or the same judicial system

is the appropriate way to go about it. So the motion is

denied.

(R. 145).

As a result of his conviction for these various sex offenses,

the court members sentenced petitioner to a dishonorable

discharge, confinement for nine years, forfeiture of all pay

and allowances and reduction to the lowest enlisted grade,

airman basic. In approving petitioner’s sentence under Arti-

cle 60, U.C.M.J.,3- the court-martial convening authority

reduced petitioner's term of confinement to five years.

The issue of subject matter jurisdiction over the alleged off-

base offense, among other issues, was raised at both the Air

Force Court of Military Review and the Court of Military Ap-

peals. In a per curiam decision, the Air Force Court of

Military Review found an error not prejudicial to the peti-

tioner on an unrelated issue and affirmed. (See Appendix D.)

The Court of Military Appeals granted review on the issue

of whether the military judge erred in not dismissing the

solicitation specification for lack of subject matter jurisdic-

tion, United States v. Jenkins, 21 M.J. 154 (C.M.A. October

11, 1985) (order granting petition for review). On further con-

sideration of the granted issue, the Court of Military Appeals

summarily affirmed petitioner’s conviction of the off-base

solicitation offense on the same grounds as in TSgt

Puskaric’s case.

- $10 ULS.C. 860. See footnote 2, page 8.

13

REASONS FOR GRANTING THE WRIT

I

THE PETITIONERS’ OFFENSES ARE NOT SERVICE

CONNECTED WITHIN THE MEANING OF

O’CALLAHAN V. PARKER.

The question sub judice is whether the off-base incidents of

which petitioners were convicted were sufficiently service

connected for the Air Force to exercise jurisdiction over the

offenses. In personam jurisdiction over petitioners was

neither disputed at trial nor in issue. In these cases, any serv-

ice connection was too attenuated to support jurisdiction

under the criteria established by this Court’s precedents, and

the exercise of military jurisdiction is incompatible with the

broader purposes and needs of justice.

As more thoroughly discussed in the Petition for Writ-of

Certiorari in Solorio v. United States, 21 M.J. 251 (C.M.A.

1986), cert. granted 54 U.S.L.W. 3823 (U.S. June 16, 1986)

(No. 85-1581), and the A micus Curiae briefs in support of that

Petition, this Court restricted the exercise of court-martial

jurisdiction to only “service connected” offenses in O'Callahan

v. Parker, 395 U.S. 258 (1969). In that case, this Court re-

jected the proposition that a service member’s status, in and of

itself, conferred jurisdiction over all offenses no matter when

and where committed. Later in Relford v. Commandant, 401

U.S. 355 (1971), this Court established a number of bench-

marks by which the “outward boundaries” of court-martial

jurisdiction could be established.t These benchmarks provide

the logical starting point for considering the question of

jurisdiction in these cases.

+ The Relford Court identified twelve factors to be used in determining

service connection:

1. The serviceman’s proper absence from the hase.

2. The crime’s commission away from the base.

3. Its commission at a place not under military control.

4. Its commission within our territorial limits and not in an oc-

cupied zone of a foreign country. ‘

5. Its commission in peacetime and its being unrelated to authori-

ty stemming from the war power.

6. The absence of any connection between the defendent’s

military duties and the crime.

7. The victim’s not being engaged in the performance of any duty

relating to the military.

14

Applying the Relford factors in TSgt Puskarie’s case, it is

apparent that the off-base offense alleged is not service con-

nected. TSgt Puskaric was properly absent from the base at

8. The presence and availability of a civilian court in which the

case can be prosecuted.

9. The absence of any flouting of military authority.

10. The absence of any threat to a military post.

11. The absence of any violation of military property.

12. The offense’s being among those traditionally prosecuted in

civilian courts.

Reljord v. Commandant, supra, at 365 (1971). In addition, the Court

stressed nine other considerations:

(a) The essential and obvious interest of the military in the security

of persons and property in the military enclave.

(b) The responsibility of the military commander for maintenance of

order in his command and his authority to maintain that order.

(c) The impact and adverse effect that a crime committed against a

person or property on a military base, thus violating the base’s very

security, has upon morale, discipline, reputation and integrity of the

base itself, upon its personnel and upon the military operation and the

military mission.

(d) The conviction that Art. I, § 8, cl. 14, vesting in the Congress the

power “To make Rules for the Government and Regulation of the land

and naval Forces,” means, in appropriate areas beyond the purely

military offense, more than the mere power to arrest a serviceman-

offender and turn him over to the civil authorities. The term “Regula-

tion” itself implies, for those appropriate cases, the power to try and

to punish.

(e) The distinct possibility that civil courts, particularly nonfederal

courts, will have less than complete interest, concern and capacity for

all the cases that vindicate the military's disciplinary authority within

its own community. . . .

(f) The very positive implication in O'Callahan itself, arising from its

emphasis on the absence of service-connected elements there, that the

presence of factors such as geographical and military relationships

have important contrary significance.

(g) The recognition in O'Callahan that, historically, a crime against

the person of one associated with the post was subject even to the

General Article. . . .

(h) The misreading and undue restriction of O'Callahan if it were in-

terpreted as confining the court-martial to the purely military of:

fenses that have no counterpart in nonmilitary law.

(i) The inability appropriately and meaningfully to draw any line be-

tween a post's strictly military areas and its nonmilitary areas, or be-

tween a serviceman-defendant’s on-duty and off-duty activities and

hours on the post.

Id. at 367-369.

airy

15

the time of the offense;-the offénse was committed off-base

within the United States during peacetime, at a place not

under military control. This offense was not in any way

related to petitioner's military duties; the victim is not a

member of the military; a civilian court was available to pros-

ecute the case; the offense did not constitute a flouting of

military authority; there was no threat to the military post or

property; and the offense is one traditionally tried by civilian

courts.

There is nos vige-cennection over TSgt Puskaric’s off-

base offense even whew applying other factors this Court has

articulated in determining the existence of service connec-

tion.

[The issue of service connection] turns in major part on

gauging the impact of an offense on military discipline

and effectiveness, on determining whether the military

interest in deterring the offense is distinct from and

greater than that of civilian society and on whether the

distinct military interest can be vindicated adequately in

civilian courts.

Schlesinger v. Councilman, 420 U.S. 738, 760 (1975).

This off-base incident had little impact on the military. At the

time the offense was reported, the victim and her parents lived

in Michigan and had resided there for over a year. Unlike the

situation in United States v. Solorio, supra, concerns about

passionate anger and desire for personal retribution by the vic-

tim’s parents are not pertinent in this case because of the vic-

tim’s father’s retirement from active duty and the family’s at-

tenuated connection with the military community. There is no

evidence that this isolated off-base incident was the subject of

wide-spread or adverse publicity on Loring Air Force Base or

in the civilian community where the incident took place. Quite

simply the military interest in deterring this type of conduct is

neither distinct from nor greater than that of the civilian com-

munity. Maine state courts are well-established, entirely able

to prosecute, and child abuse is certainly an offense tradi-

tionally and aggressively prosecuted in Maine courts.

Although the military judge agreed with the defense that

most of the Relford criteria did not support the exercise of

jurisdiction, the military judge erroneously found two Relford

16

factors and one “Relford-like” consideration present. As the

judge stated in his findings of fact:

12. The alleged offense does constitute a threat to

Loring Air Force Base, Maine, and its personnel in that

indecent acts by one military member against a depend-

ent of another military member of the same squadron

tend to have a particularly deleterious effect upon not

only the morale of the military sponsor of the dependent

victim, but also upon squadron morale as well as base

morale generally.

15. There is no evidence that the accused made

necessary and integral preparations for the commission

of the alleged offense while on Loring Air Force Base.

However, without the professional and social relationship

between the accused's military wife and the alleged vic-

tim and her military family and the resulting on-base

social relationship between the accused and the alleged

victim and her military family, the arrangements which

facilitated the commission of the alleged offense could

not have been made.

17. Economy of judicial effort would be achieved

through trial of all offenses alleged against the accused in

this court-martial.

(R. 41, 42).

Simply because the petitioner and the victim's father

worked in the same squadron does not make the alleged off.

base offense a threat to the military installation. This is par-

ticularly true in this case because the victim's father was not

on the base and not in the Air Force at the time the victim

reported the alleged offense. The military judge's finding that

the alleged offense “... tend[s} to have a particularly

deleterious effect upon . . . the morale of the military sponsor

of the dependent victim, . . . [and] upon the squadron morale

as well as the base morale . . .” (R. 42). is not supported by the

evidence. Unlike Solorio, the government did not. and could

17

not, point to the deterioration of the victim’s father’s military

duty performance. See Brief for the United States at 13, 14,

Solorio v. United States, supra.

Significantly, the trial judge found that the appellant made

no necessary and integral preparations for the commission of

the alleged offense while on Loring Air Force Base. Instead

of stopping here, the judge then gets involved in wild specula-

tion. He purports to “conclude” that “but for” the professional

and social relationship between the appellant's wife and the

victim’s family, arrangements leading to the commission of

the alleged offense could not have been made. Hindsight is

wonderful, but surely we cannot wildly speculate that had the

victim's family been civilian the petitioner and his wife would

not have otherwise met them.

The judge also felt that judicial economy was a key element

in determining that jurisdiction existed over the offense in

specification 2. Judicial economy alone cannot confer subject

matter jurisdiction upon a military court. Not even pendent

jurisdiction (as the term was used in United States v.

Lockwood, supra,) would give the Air Force jurisdiction over

this off-base offense. As the Court of Military Appeals points

out in United States v. Lockwood, supra, at 7,:

{W]e are reluctant to rely heavily on a theory which is

predicated chiefly on considerations of judicial economy

and which had been developed for civil, rather than

criminal, trials. “Pendent jurisdiction” does not in itself

provide an adequate basis for depriving an accused serv-

icemember of constitutional protections to which he

would otherwise be entitled to in a criminal trial. See

United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).

The fact that the offense was committed in a civilian com-

munity near the base does not yield court-martial jurisdiction

either. The “commuter distance” theory of jurisdiction has

been rejected by the United States Court of Military Appeals.

United States v. Alef. 3 M.J. 414, 418 n.12 (C.M.A. 1977).

The Air Force Court of Military Review affirmed the find-

ings of guilty and sentence without opinion. However, the

ee

18

court cited several cases as authority for its decision.® In two (

of the cited cases, jurisdiction was based on the “impact of the ;

offense upon the reputation and integrity of the Armed Serv-

ices.” United States v. Benedict, 20 M.J. 939 (A.F.C.M.R.

1985); United States v. Griffin, 21 M.J. 501 (A.F.C.M.R.

1985). The rationale used by the Air Force court below in

Benedict and Griffin extends “service connection” to any of-

fenses committed by a military member off-base, in doing so

the Air Force Court of Review relied on speculated impact on

the reputation and integrity of the Armed Forces. Their in-

terpretation significantly extends the Court of Military Ap-

peal’s rationale in United States v. Lockwood,® supra, wherein

that Court gave renewed emphasis to such factors as “reputa-

tion,” “morale,” and “integrity of the base itself” in determin-

ing “service-connection” of off-base offenses. Jd. at 10. More

importantly, such an interpretation of the Lockwood decision’

effectively decouples the finding of service connection from

the Relford criteria and permits the exercise of jurisdiction

when an off-base offense has any articulable or perceptible

negative impact “on the military operation and the military

mission.” United States v. Lockwood, supra, at 10, citing

United States v. O'Callahan, supra, at 367.

> United States v. Benedict, 20 M.J. 939 (A.F.C M_R. 1985); United States

e. Grotin, 21 MJ. 501 (A.FLCM.R. 1985), United States ¢. Shorte, 18 M.A.

518 (A.F.C.M.LR. 1983), aff'd 20 M.J. 414 (C.M.A. 1985); United States ¢

Herring, 20 M.J. 1002 (A.FLC.M.R. 1985).

* Airman Lockwood pleaded guilty to stealing his roommate's wallet,

containing a military identification card and other forms of identification

and later pretending to be the owner of the stolen documents in order to ob-

tain an off-base loan. In obtaining the loan, Airman Lockwood executed a

promissary note on which he forged his roommate's signature. These off-

hase acts gave rise to a forgery and a second larceny charge

’ The Court of Military Appeals discussed the following issues in finding

jurisdiction in Lockwood:

(i) Although “pendent jarisdiction” does not in itself provide an ade-

quate basis for depriving an accused servicemenber of the constitu.

tional protection to which he would otherwise be entitled in a criminal

trial,” the same concerns which support “pendent jurisdiction” are rele-

vant in determining whether service connection exists. Consequently,

19

In Lockwood and in United States v. Shorte,® 18 M.J. 518

(A.F.C.M.R. 1984), aff'd 20 M.J. 414 (C.M.A. 1985), cited by

the Court of Military Review in affirming jurisdiction, there

was a legitimate, significant impact on the installation,

whereas in this case there is no impact. When the offense was

discovered, the victim and her parents had no nexus with

Loring Air Force Base, and the victim’s father had retired

from the Air Force.

Without the presence of a legitimate Relford factor, the

decision of the local prosecutor not to exercise jurisdiction

should not operate as the linchpin justifying the exercise of

court-martial jurisdiction. A servicemember should not suffer

a criminal trial and face conviction of a non-service connected

off-base offense merely because civilian prosecutors elect not

to prosecute. A civilian community cannot pass its jurisdic-

tion over a non-service connected offense to the military.

Turning to A1C Jenkins’ case, similar shortcomings in the

judge's finding of jurisdiction over the off-base solicitation of-

fense are to be found. The judge appeared to rest the court's

disposition of an entire course of criminal conduct at one trial (judicial

economy) may provide adequate basis for exercising court-martial

jurisdiction. Jd. at 7, 8.

(ii) Reputation of the Military. Adverse impact of off-base offenses

on the general reputation of the installation supports service connec-

tion. Jd. at 9, 10.

(iii) Use of military status or property in Jurtherance of the crime.

(Court of Military Appeals considered Lockwood's use of victim's 1D

card to commit offense as a “flouting of military authority”) /d. at 8, 9.

(iv) Jnitiation of crime on instalation. Military has interest in

punishing crimes initiated on-base, even if consummated off-base

(building on the reasoning first seen in United States v. Moore, 2 MAJ.

749 (A.F.C.M.R. 1977) and United States v. Hedlund, 7 M.J. 271

(C.M.A. 1979)). Jd. at 8, 9.

(v) Failure to contest jurisdiction. Defendant's failure to contest

jurisdiction justified “drawing any reasonable inferences against him

with respect to factual matters not fully developed in record of trial.”

Id. at 6, 7.

* In finding jurisdiction in United States v. Shorte, the Court determined

an on-base altercation was the catalyst that began the chain of events that,

shortly thereafter, resulted in Airman Shorte’s stabbing of another military

member, Moreover, the injuries the victim received were serious enough to

require his hospitalization for twelve days, thereby making the victim

unavailable to perform his military duties.

20

exercise of jurisdiction over the solicitation offense on two

theories. First, since the military had jurisdiction over the

other offenses, “the principle of judicial economy comes into

play; and I find that handling of all offenses in the same

tribunal or the same judicial system 's the appropriate way to

go about it.” (R. 145). The second theory was that of a con-

tinuing course of conduct which rested on the fact that the

relationship between the petitioner and Miss Acosta was the

direct result of their living on the military installation. (R.

145).

The first theory can be traced to the discussion of “pendent

jurisdiction” in United States v. Lockwood, supra, at 7. As

previously discussed, the concerns supporting “pendent

jurisdiction” are only relevant to a_ service-connection

analysis if there is some palpable impact on the military. The

alleged off-base solicitation did not have such an impact. The

incident occurred at night in a remote area of the California

desert in a private automobile with mo one present except

Miss Acosta and the petitioner. The evidence was such that

the local prosecutor declined to prosecute.

When compared with the circumstances in United States v.

Shorte, supra, quite clearly the off-base solicitation offense

which occurred over a week before the on-base sex offenses

did not constitute a continuing offense.

In conclusion, petitioners’ off-base offenses are not service

connected based on this Court’s precedents and the Air Force

could not constitutionally exercise jurisdiction over them.

II

THIS COURT’S PRECEDENTS STRIKE THE CORRECT

BALANCE BETWEEN THE UNIQUE INTERESTS OF

THE MILITARY AND THOSE OF ITS CITIZEN

SOLDIERS.

The maintenance of military discipline, morale, and effi-

ciency are undeniably important, but these factors are not

always, and in every situation, to be regarded as the United

States would suggest in Svlorio, to be paramount to a ser-

vicemember’s exercise of essential liberties under the Con-

stitution. Never has this Court held that all rights covered by

21

the Fifth and Sixth Amendments were abrogated by Article

1, § 8, cl. 14 of the Constitution empowering Congress to

make rules for the armed forces. This Court in O'Callahan

and Relford crafted the proper balancing test— service con-

nection— which ensures the servicemember’s right to civilian

trial is protected while limiting it so it does not interfere with

the legitimate need for discipline in the military.

As Justice Douglas aptly noted in Lee v. Madigan, 358 U.S.

228, 232 (1958), the Court does not write on a clean slate

when weighing the propriety of the military exercising

jurisdiction over non-military offenses. As counsel for Solorio

pointed out, service connection has evolved into a well-

defined principle of law. Brief for Petitioner at 36-39, Solorio

v. United States, No. 85-1581.

The United States has suggested that the service connec-

tion test conceived in O'Callahan was a radical departure

from this Court’s prior decisions where “status” was the test

for the exercise of court-martial jurisdiction. The ultimate

recognition of servicemember’s essential Constitutional

rights in O'Callahan is no different from other “departures”

of this Court in the field of civil rights. As Justice Stewart

observed in Carrington v. Rash, 380 U.S. 89, at 97 (1965),

“The uniform of our country must not be a badge of disfran-

chisement for the men or women who wear it.”

In Solorio, the United States argues that the service con-

nection test is burdensome.’ The requirement for service con-

nection is a no greater source of litigation than other subjects

involving similar tensions between conflicting constitutional

interests.

Until recently, service’ connection has been interpreted by

the Court of Military Appeals and the military Courts of

Review so as to limit its scope to the boundaries established

by this Court in O'Callahan and Relford and at the same time

* Using a similar analysis, the decision in Brown v. Board of Education,

347 U.S. 483 (1954), should be overturned because it is a similarly radical

departure from prior precedent and school desegregation “busing” cases

unnecessarily burden the courts.

») ))

supplying considerable specificity by the way of example of

the types of offenses encompassed within that term. The ~

Court of Military Appeals departed from this course in

Lockwood when that Court did not limit itself to the facts sup-

porting service connection and spoke in such sweeping terms

about discipline, morale and efficiency that the Relford

criteria were left in the dust. Since the Lockwood decision,

the Courts of Review have come close to embracing the view

that any negative impact on the military operation and

military mission warrants the exercise of court-martial

jurisdiction. Terms as amorphous as “discipline” and “morale”

invite the latitudinous interpretations the Courts of Review

have rendered in finding subject matter jurisdiction over off-

base offenses. As one commentator has wryly noted, the only

limitations to the finding of service connection over off-base

offenses is currently the imagination of the prosecutor.

Tomes, The Imagination of the Prosecutor: The Only Limita-

tion to Off-Post Jurisdiction Now, Fifteen Years after

O'Callihan v. Parker, 25 AF L. Rev. 1 (1985). 4

A product of the prosecutor’s imagination should not serve

to abrogate a servicemenber’s Constitutional rights as a

citizen. Such encroachments on a servicemember’s rights

should be curtailed by a clear pronouncement that an off-base

offense must be “service connected,” as this Court has ar-

ticulated that term, before the military exercises court-

martial jurisdiction.

23

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgments and opinions of the United States

Court of Military Appeals.

LEO L. SERGI

Colonel,

Office of the Judge Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

HARRY L. HEINTZELMAN, IV

Major,

Office of The Judge Advocate General

United States Air Force

\ DEBORAH J. HUDSPETH

Captain,

Office of The Judge Advocate General

United States Air Force

sahataneniin himedeeiadieaees dada reais

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 53866/AF

CMR Dkt. No. 24826

UNITED STATES, APPELLEE

VU.

ROBERT T. PUSKARIC (208-38-8707), APPELLANT

ORDER

On further consideration of the granted issue (22 M.J. 96)

in light of United States v. Solorio, 21 M.J. 251 (C.M.A.

1986), and United States v. Lockwood, 15 M.J. 1 (C.M.A.

1983), it is by the Court this 9th day of October, 1986.

ORDERED:

That the decision of the United States Air Force Court of

Military Review is affirmed.

For the Court,*

/s! JOHN A. Cutts, Il

John A. Cutts, Ill

Deputy Clerk of the Court

*Judge SULLIVAN did not participate.

(la)

Za

APPENDIX B

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 52772/AF

CMR Dkt. No. 24671

UNITED STATES, APPELLEE

vU.

CHESTER JENKINS (569-15-5951), APPELLANT

ORDER

On further consideration of the granted issue (21 M.J. 154)

in light of United States v. Solorio, 21 M.J. 251 (C.M.A.

1986), and United States v. Lockwood, 15 M.J. 1 (C.M.A.

1983), it is by the Court this 9th day of October, 1986.

ORDERED:

That the decision of the United States Air Force Court of

Military Review is affirmed.

For the Court,*

/s/ JOHN A. Cutts, [il

John A. Cutts, Ill

Deputy Clerk of the Court

“Judge SULLIVAN did not participate.

a ee eee mee eee Coat. SON Owe Mee ee | Ome

3a

APPENDIX C

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 24826

UNITED STATES

v.

TECHNICAL SERGEANT ROBERT T. PUSKARIC,

FR 203-38-8707

UNITED STATES AIR FORCE

11 OCT 1985

Sentence adjudged 8 March 1985 by GCM convened at

Loring Air Force Base, Maine. Military Judge: George R.

Stevens (sitting alone).

Approved sentence: Bad conduct discharge, confinement

for twenty-four (24) months, forfeiture of one hundred

dollars ($100.00) per month for twenty-four (24) months and

reduction to airman basic.

Appellate Counsel for the Accused: Colonel Leo L. Sergi

and Lieutenant Colonel Michael D. Wims. Appellate Counsel

for the United States: Colonel Kenneth R. Rengert, Captain

Joseph S. Kistler and Captain Teresa J. Stremel, USAFR.

Before HODGSON, FORAY and MICHALSKI, Appellate

Military Judges

DECISION

PER CURIAM:

We have examined the record of trial, the assignment of er-

rors and the government's reply thereto and have concluded

4a

that the findings and sentence are correct in law and fact and

that no error materially prejudicial to the substantial rights

of the accused was committed. United States v. Benedict, 20

M.J. 939 (A.F.C.M.R. 1985); accord United States v. Herring,

M.J. (A.F.C.M.R. 1985); accord United States v.

Griffin, M.J.__ (A. F.C.M.R. 1985); United States v.

Shorte, 18 M.J. 518 (A.F.C.M.R. 1984), pet. den. 20 M.J. 414

(C.M.A. 1985). Accordingly, the findings of guilty and

sentence are AFFIRMED.

OFFICIAL

/s/ ELVA J. SMITH

Elva J. Smith

Documents Examiner

Court of Military Review

ee

5a

APPENDIX D

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 24671

UNITED STATES

v.

AIRMAN FIRST CLASS CHESTER JENKINS, FR 569-15-5951

UNITED STATES AIR FORCE

21 JUN 1985

Sentence adjudged 21 September 1984 by GCM convened

at Edwards Air Force Base, California. Military Judge: Allan

C. Smith.

Approved sentence: Dishonorable discharge, confinement

for five (5) years, forfeiture of all pay and allowances and

reduction to airman basic.

Appellate Counsel for the Accused: Colonel Leo L. Sergi

and Major Kathleen G. O’Reilly. Appellate Counsel for the

United States: Colonel Kenneth R. Rengert and Major

Robert E. Ferencik, Jr.

Before RAICHLE, CANELLOS and CARPARELLI, Ap-

pellate Military Judges

DECISION

PER CURIAM:

We have examined the record of trial, the assignment of er-

rors and the government’s reply thereto. We find that it was

error for military judge to admit the accused’s Emergency

ba

Data Card, as a matter of aggravation. R.C.M. 1001(b\4). We

further find that the error did not prejudice the accused. The

approved findings of guilty and the sentence are correct in

law and fact and, on the basis of the entire record, are AF

FIRMED.

OFFICIAL

/s/ ELVA J. SMITH

Elva J. Smith

Docume nis KR ramine r

Court of Military Review

7a

APPENDIX E

EXTRACT FROM MANUAL FOR COURTS-MARTIAL,

/ UNITED STATES, 1984, ADDRESSING RULE FOR COURTS-

MARTIAL 203:

DISCUSSION

(a) In general. Courts-martial have power to try any of-

fense under the code except when prohibited from doing so

by the Constitution. (Jurisdiction over certain offenses and

individuals may be affected by Article 3; See R.C.M. 202.) The

major constitutional limitation on the subject-matter jurisdic-

tion of court-martial was established by the Supreme Court of

the United States in O'Callahan v. Parker, 395 U.S. 258

(1969), which held that an offense under the code may not be

tried by court-martial unless it is “service-connected.” Later

decisions by the Supreme Court, the Court of Military Ap-

peals, and other courts have established standards for apply-

ing the service-connection rule, as well as certain exceptions

to it. Because each case depends on its own facts, and

because these rules are subject to continuing interpretation,

careful attention must be paid to service-connection in every

case. The remainder of this discussion provides guidance con-

cerning service-connection based on judicial decisions.

(b) Pleading and proof. The prosecution should plead the

facts establishing jurisdiction (see R.C.M. 307(c\3) Discussion

(F)). If the issue is raised, the prosecution must prove the

disputed facts necessary to establish jurisdiction over the of-

fense. See R.C.M. 907(bM 1A). Jurisdiction must exist over

each offense. The fact that some offenses with which the ac-

cused is charged are service-connected does not necessarily

establish jurisdiction over others, even if they are of a similar

or related nature. However, where related on-base and off-

base offenses are involved, there is a military interest in

having all the offenses tried by court-martial, so that they can

be disposed of together without delay. The existence of this

interest helps provide a basis for finding service-connections

for the off-base offenses.

| |

Sa

(c) Determining service-connection.

(1) In general. In Relford v. Commandant, 401 U.S. 355

(1971), the Supreme Court identified 12 factors which may be

considered in deciding service-connection. The factors are-

1. The serviceman’s proper absence from the base.

2. The crime’s commission away from the base.

3. Its commission at a place not under military control.

4. Its commission within our territorial limits and not in

an occupied zone of a foreign country.

5. Its commission in peacetime and its being unrelated to

authority stemming from the war power.

6. The absence of any connection between the

defendant's military duties and the crime.

7. The victim's not being engaged in the performance of

any duty relating to the military.

8. The presence and availability of a civilian court in

which the case can be prosecuted.

9. The absence of any flouting of military authority.

10. The absence of any threat to a military post.

11. The absence of any violation of military property,

12. The offenses being among those traditionally prose-

cuted in civilian courts.

These factors are not exhaustive. The Supreme Court also

described nine additional considerations in Relford:

(1) the essential and obvious interest of the military in

the security of persons and of property on the military

enclave; (2) the responsibility of the military commander

for maintenance of order in the command and the com-

mander’s authority to maintain that order; (3) the impact

and adverse effect that a crime committed against a per-

son or property on a military base, thus violating the

base’s very security, has upon the morale, discipline,

reputation and integrity of the base itself, upon its per-

sonnel, and upon the military operation and the military

mission; (4) Article I, section 8, clause 14 of the Constitu-

tion of the United States, vesting in Congress the power

“To make Rules for the Government and Regulation of

the land and naval Forces,” means, in appropriate areas

beyond the purely military offense, more than the mere

power to arrest a servicemember-offender and turn that

Ya

person over to the civil authorities; (5) the distinct

possibility that civil courts, particularly nonfederal

courts, will have less than complete interest, concern,

and capacity for all the cases that vindicate the military's

disciplinary authority within its own community; (6) the

presence of factors such as geographical and military

relationships which have important significance in favor

of service-connection; (7) historically, a crime against the

person of one associated with the post was subject even

to the General Article; (8) the misreading and undue

restriction of O'Callahan if it were interpreted as confin-

ing the court-martial! to the purely military offenses that

have no counterpart in nonmilitary criminal law; (9) the

inability appropriately and meaningfully to draw any line

between a post’s strictly military areas and its non-

military areas, or between a servicemember’s duty and

off-duty activities and hours on the post. In addition, the

effect of the offense on the reputation and morale of the

Armed Services is an appropriate consideration in deter-

mining service-connection.

The test is not simply a numerical tally of the presence or

absence of these or other factors. Instead, the factors iden-

tify circumstances which may tend to weigh for or against

service-connection, depending on the facts of each case.

Thus, certain factors will tend to weigh more heavily than

others in given situations. This balancing test been described

by the Supreme Court:

[The] issue turns in major part on gauging the impact

of an offense on military discipline and effectiveness, on

determining whether the military interest in deterring

the offense is distinct from and greater than that of

civilian society, and on whether the distinct military in-

terest can be vindicated adequately in civilian courts.

Schlesinger v. Councilman, 420 U.S. 738, 760 (1975).

(2) Military offenses. Military offenses, such as unauthor-

ized absence, disrespect offenses, and disobedience of

superiors, are always service-connected.

(3) Offenses on a military installation. Virtually all of-

fenses which occur on a military base, post, or other installa-

tion are service-connected. Similarly, offenses aboard a

10a

military vessel or aircraft are service-connected. If an essen-

tial part of the offense occurs on a military installation,

service-connection exists even though the remainder of the

offense took place off base. However, on-base preparation to

commit an offense or introduction onto a military installation

of the fruits or instruments of a crime completed off base

may not necessarily be sufficient to prove service-connection

over an off-base offense. An offense which directly threatens

the security of an installation may be service-connected even

though it occurs off base. When an offense is committed near

a military installation, the proximity may support a finding of

service-connection, as when it injures relationships between

the military and civilian communities and makes it more dif-

ficult for servicemembers to receive local support.

(4) Drug offenses. Almost every involvement of service per-

sonnel with the commerce in drugs, including use, posses-

sion, and distribution, is service-connected, regardless of

location. However, examples of situations in which drug in-

volvement by a servicemember which after Relfird analysis

might not be service-connected include use of marijuana by <

servicemember on a lengthy leave away from the military, or

off-base distribution by a servicemember of a small amount of

illegal drugs to a civilian for personal use.

(5) Offenses involving military status and the flouting of

military authority. The fact that the victim of an offense is a

servicemember or that the accused used a military identifica-

tion card may establish service-connection, especially in con-

junction with other facts in a case. If the accused’s status,

either as a servicemember generally, or as the occ upant of a

specific position, is of central importance to the criminal ac-

tivity, as where it is crucial in enabling the accused to commit

the crime, service-connection will normally exist. The fact

that the accused is an officer or military policeman or was in

uniform when the offense was committed does not necessari-

ly establish service-connection, although such circumstances

may tend to support a finding of service-connection in con-

junction with other facts.

(6) During a declared war, or a period of hostilities as a

result of which Congress is unable to meet, virtually all of-

fenses would be service-connected.

(d) Exceptions to the service-connection requirement,

lla

(1) The overseas exception. Offenses which are committed

outside the territorial limits of the United States and its

possessions, and which are not subject to trial in the civilian

courts of the United States, need not be service-connected to

be tried by court-martial. This exception depends on the loca-

tion of the commission of the offense, not on the location of

the trial. Note that the overseas exception does not apply to

all offenses committed abroad, for some criminal statutes of

the United States apply to its citizens abroad. The offense

must be service-connected in this case because the offense

may also be tried in a civilian court of the United States. The

fact that the offense occurred overseas may be a factor tend-

ing to establish service connection, however, even if poten-

tially subject to trial in Federal civilian court.

(2) The petty offenses exception. Petty offenses may be tried

by court-martial whether or not they are service-connected.

An offense is petty if the maximum confinement which may

be adjudged is 6 months or less and no punitive discharge is

authorized.

ANALYSIS (APPENDIX 21)

Rule 203. Jurisdiction over the offense

This rule is intended to provide for the maximum possible

court-martial jurisdiction over offenses. Since the constitu-

tional limits of subject-matter jurisdiction are matters of

judicial interpretation, specific rules are of limited value and

may unnecessarily restrict jurisdiction more than is constitu-

tionally required. Specific standards derived from current

case law are treated in the discussion.

The discussion begins with a brief description of the rule

under O'Callahan v. Parker, 395 U.S. 258 (1969). It also

describes the requirements established in United States v.

Alef; 3 M.J. 414 (C.M.A. 1977) to plead and prove jurisdiction.

See also R.C.M. 907(b\1)(A). The last three sentences in

subsection (b) of the discussion are based on United States v.

Lockwood, 15 M.J. 1 (C.M.A. 1983). The remainder of the

discussion reflects the Working Group’s analysis of the ap-

12a

plication of service-connection as currently construed in

judicial decisions. It is not intended as endorsement or

criticism of that construction.

Subsection (c) of the discussion lists the Relford factors,

which are starting points in service-connection analysis,

although the nine additional considerations in Relford are

also significant. These factors are not exhaustive. United

States v. Lockwood, supra. See also United States v. Trottier,

9 M.J. 337 (C.M.A. 1980). Relford itself establishes the basis

for (cX2) and (cX3) of the discussion. It has never been

seriously contended that purely military offenses are not

service-connected per se. See Relford factor number 12. Deci-

_sions uniformly have held that offenses committed on a

military installation are service-connected. See, e.g., United

States v. Hedlund, supra; United States v. Daniels, 19

U.S.C.M.A. 529, 42 C.M.R. 131 (1970). See Relford factors 2,

3, 10, and 11. As to the third sentence in (c\(3), see United

States v. Seivers, 8 M.J. 63 (C.M.A. 1979); United States v.

Escobar, 7 M.J. 197 (C.M.A. 1979); United States v. Crapo, 18

U.S.C.M.A. 594, 40 C.M.R. 306 (1969); Harkcom v. Parker,

439 F.2d 265 (3d Cir. 1971). With respect to the fourth

sentence of (c\3), see United States v. Hedlund, supra;

United States v. Riehle, 18 U.S.C.M.A. 603, 40 C.M.R. 315

(1969), But cf. United States v. Lockwood, supra. Although

much of the reasoning in United States v. McCarthy, 2 M.J.

26 (C.M.A. 1976) has been repudiated by United States v.

Trottier, supra, the holding of McCarthy still appears to sup-

port the penultimate sentence in (cX3). See also United States

v. Lockwood, supra; United States v. Gladue, 4 M.J. 1(C.M.A.

1977). The last sentence is based on United States v.

Lockwood, supra.

The discussion of drug offenses in (c4) is taken from

United States v. Trottier, supra.

As to (c\(5), the first sentence is based on United States v.

Lockwood, supra. Whether the military status of the victim

or the accused’s use of a military identification card can in-

dependently support service-connection is not established by

the holding in Lockwood. The second sentence is based on

United States v. Whatley, 5 M.J. 39 (C.M.A. 1978); United

States v. Moore, 1 M.J. 448 (C.M.A. 1976). The last sentence

l3a

is based on United States v. Conn, supra; United States v.

Borys, 18 U.S.C.M.A. 547, 40 C.M.R. 259 (1969) (officer

status of accused does not establish service-connection under

Article 134) (note: service-connection of Article 133 offenses

has not been judicially determined); United States v. Saulter,

5 M.J. 281 (C.M.A. 1978); United States v. Conn, supra (fact

that accused was military policeman did not establish service-

connection); United States v. Armes, 19 U.S.C.M.A. 15, 41

C.M.R. 15 (1969) (wearing uniform during commission of of-

fense does not establish service-connection).

Subsection (c\(6) of the discussion indicates that virtually all

offenses by servicemembers in time of declared war are

service-connected. There is little case authority on this point.

The issue was : pparently not addressed during the conflict in

Vietnam; of course, the overseas exception provided jurisdic-

tion over offenses committed in the theater of hostilities. The

emphasis in O'Callahan on the fact that the offenses occurred

in peacetime (see Relford factor number 5) strongly suggests

a different balance in time of war. Furthermore, in Warner v.

F'lemings, a companion case decided with Gosa v. Mayden,

413 U.S. 665 (1973), Justices Douglas and Stewart concurred

in the result in upholding Flemings’ court-martial conviction

for stealing an automobile while off post and absent without

authority in 1944, on grounds that such an offense, during a

congressionally declared war, is service-connected. The other

Justices did not reach this question. Assigning Relford factor

number 5 such extensive, indeed controlling, weight during

time of declared war is appropriate in view of the need for

broad and clear jurisdictional lines in such a period.

Subsection (d) of the discussion lists recognized exceptions

to the service-connection requirement. The overseas excep-

tion was first recognized in United States v. Weinstein, 19

U.S.C.M.A. 29, 41 C.M.R. 29 (1969). See also United States v.

Keaton, 19 U.S.C.M.A. 64, 41 C.M.R. 64 (1969). The overseas

exception flows from O'Calluhan’s basic premise: that the

service-connection requirement is necessary to protect the

constitutional right of service members to indictment by

grand jury and trial by jury. While this premise might not be

evident from a reading of O'Callahan alone, the Supreme

Court subsequently confirmed that this was the basis of the

l4a

O'Callahan rule. See Gosa v. Mayden, supra at 677. Since nor-

mally no civilian court in which the accused would have those

rights is available in the foreign setting, the service-

connection limitation does not apply.

The situs of the offense, not the trial, determines whether

the exception may apply. United States v. Newvine, 23

U.S.C.M.A. 208, 48 C.M.R. 960 (1974); United States v.

Bowers, 47 C.M.R. 516 (A.C.M.R. 1973). The last sentence in

the discussion of the overseas exception is based on United

States v. Black, 1 M.J. 340 (C.M.A. 1976). See also United

States v. Gladue, 4 M.J. 1 (C.M.A. 1977); United States v.

Lazzaro, 2 M.J. 76 (C.M.A. 1976). Some Federal courts have

suggested that the existence of court-martial jurisdiction

over an overseas offense does not depend solely on the fact

that the offense is not cognizable in the United States civilian

courts. See Hemphill v. Moseley, 443 F. 2d 322 (10th Cir.

1971). See also United States v. King, 6 M.J. 553 (A.C.M.R.

1978), pet. denied, 6 M.J. 290 (1979).

Several Federal courts which have addressed this issue

have also held that the foreign situs of a trial is sufficient to

support court-martial jurisdiction, aithough the rationale for

this result has not been uniform. See, e.g., Williams v.

F'roehlke, 490 F.2d 998 (2d Cir. 1974); Wimberly v. Laird,

472 F.2d 923 (7th Cir.), cert. denied, 413 U.S. 921 (1973);

Gallagher v. United States, 423 F.2d 1371 (Ct. Cl.), cert.

denied, 400 U.S. 849 (1970); Bell v. Clark, 308 F.Supp. 384

(E.D. Va. 1970), affd, 437 F.2d 200 (4th Cir. 1971). As

several of these decisions recognize, the foreign situs of an of-

fense is a factor weighting heavily in favor of service-

connection even without an exception for overseas offenses.

See Reljord factors 4 and 8. The logistical difficulties, the

disruptive effect on military activities, the delays in disposing

of offense, and the need for an armed force in a foreign coun-

try to control its own members all militate toward service-

connection for offense committed abroad. Another considera-

tion, often cited by the courts, is the likelihood that if the

service-connection rule were applied overseas as it is in the

United States, the practical effect would be far more fre-

15a

quent exercise of jurisdiction by host nations, thus depriving

the individual of constitutional protections the rule is de-

signed to protect.

The petty offenses exception rests on a similar doctrinal

foundation as the overseas exception. Because there in no

constitutional right to indictment by grand jury or trial by

jury for petty offenses (see Baldwin v. New York, 399 U.S. 66

(1970); Duncan v. Louisiana, 391 U.S. 145 (1968); Duke v.

United States, 301 U.S. 492 (1937)), the service-connection

requirement does not apply to them. United States v.

Sharkey, 19 U.S.C.M.A. 26, 41 C.M.R. 26 (1969). Under

Baldwin v. New York, supra, a petty offense in one in which

the maximum sentence is six months confinement or less.

Any time a punitive discharge is included in the maximum

punishment, the offense in not petty. See United States v.

Smith, 9 M.J. 359, 860 n. 1 (C.M.A. 1980); United States v.

Brown, 18 U.S.C.M.A. 333, 32 C.M.R. 333 (1962).

Sharkey relied on the maximum punishment under the

table of maximum punishments in determining whether an

offense is petty. It is the view of the Working Group that of-

fenses tried by summary courts-martial and special court-

martial at which no punitive discharge may be adjudged are

“petty offenses” for purposes of O'Callahan in view of the

jurisdictional limitations of such courts. Whether the jurisdic-

tional limits of a summary or such special court-martial

makes an offense referred to such a court-martial petty has

not been judicially determined.

U.S. GOVERNMENT PRINTING OFFICE: 1986— 169-201/42067