Opinion — Lowe v. United States

—

NOTE: Where it is deemed desirable, a syllabus (headnote) will

be released, as is being Sone in connection with this case, at the time

the opinion is issued. The syllabus constitutes no part of the opinion

of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Lumber

Co., 200 U.8. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

RELFORD v. COMMANDANT, U.S. DISCIPLINARY

BARRACKS, FT, LEAVENWORTH

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 98. Argued December 15-16, 1970—Decided February 24, 1971

Petitioner, then an Army corporal, was convicted in 1961 by a gen-

eral court-martial for violating Articles 134 and 120 of the Uniform

Code of Military Justice by kidnaping and raping, within the

bounds of a military reservation, two women—one, who was wait-

ing for her serviceman brother who was visiting the base hospital;

the other, who was on her way from the home on the base where

she lived with her serviceman husband to the post exchange where

she worked. In this habeas corpus proceeding the Court granted

certiorari on the issue of the retroactivity and scope of O’Callahan

v. Parker, 395 U.S. 258 (1969), which held that a court-martial

had no jurisdiction to try a member of the armed forces charged

with attempted off-post rape of a civilian and related offenses since

such crimes were not “service connected.” Held:

1. Though some of the factors are present here that the Court

relied on for its result in O’Callahan (the offenses were committed

in peacetime within this country’s territory, did not relate to the

accused’s military duties, were traditionally cognizable in civilian

courts (which were available to try them), and did not directly

flout military authority or violate military property), this case

significantly differs from O’Callahan in that the crimes there were

committed by a serviceman away from his base against a victim

who had no connection with the base, whereas here the crimes were

committed on the base against women properly there, one of whom

was returning to her work on the base when the attack occurred.

Pp. 9-10.

2. An offense committed by a serviceman on a military post that

violates the security of a person or of property there is service

connected and may be tried by a court-martial. Pp. 12-14.

3. The question of O’Callahan’s retroactivity is not decided.

P. 15.

409 F. 2d 824, affirmed.

BiackMUN, J., delivered the opinion for a unanimous Court.

—_——e CORR HE see,

EA OTE ETT Ore "RENESAS RPE SNE IIT TIER

—

NOTICE : This opinion is subject to formal revision before publication

1. the preliminary print of the United States Reports. Rea: are re-

to notify the Reporter of Decisions, Supreme Court of the

Paited States, yon ye D.C, 20543, of 4 -4-- hical & yo

errors, in order that corrections may

~~ print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 98.—OctToser Term, 1970

Isiah Relford, Petitioner,

v.

Commandant, U. S. Disci-

plinary Daeeshe Ft.

Leavenwortn, Kansas.

On Writ of Certiorari to the

United States Court of

Appeals for the Tenth

Circuit.

[February 24, 1971]

Mr. Justice BLACKMUN delivered the opinion of the

Court.

In O'Callahan v. Parker, 395 U.S. 258, decided June 2,

1969, by a five-to-three vote, the Court held that a

court-martial may not try a member of our armed

forces charged with attempted rape of a civilian, with

housebreaking, and with assault with intent to rape,

when the alleged offenses were committed off-post on

American territory, when the soldier was on leave, and

when the charges could have been prosecuted in a civilian

court. What is necessary for a court-martial, the Court

said, is the the crime be “service connected.” 395 U. S.,

at 272.

O’Callahan’s military trial, of course, was without those

constitutional guarantees, including trial by jury, to

which he would have been entitled had he been prose-

cuted in a federal civilian court in the then Territory of

Hawaii where the alleged crimes were committed.

O'Callahan already has occasioned a_ substantial

amount of scholarly comment.’ Much of it character-

1 Everett, O'Callahan v. Parker—Milestone or Millstone in Mili-

tary Justice’, 1969 Duke L. J. 853; MeCoy, Equal Justice for Serv-

icemen; The Situation Before and Since O'Callahan v. Parker, 16

N. Y. L. Forum 1 (1970); Nelson and Westbrook, Court-Martial

ae eS Aiea Se ote MO he A ee ee oe

a

2 RELFORD v. U. S. DISCIPLINARY COMMANDANT

izes the decision as a significant one because it is said

to depart from long-established, or at least long-accepted,

concepts. Some of the literature is generally approv-

ing. Some of it is generally critical.’ Some of it, as

did the O’Callahan dissent, 395 U. S., at 284, forecasts

a period of confusion for both the civil and the military

courts.‘ Not surprisingly, much of the literature is con-

cerned with the issue of O’Callahan’s retrospectivity.

Some writers assert that the holding must be applied

retroactively.’ Others predict that it will not be so

Jurisdiction Over Servicemen for “Civilian” Offenses: An Analysis

of O'Callahan vy. Parker, 54 Minn, L. Rev. 1 (1969); Wilkinson, The

Narrowing Scope of Court-Martial Jurisdiction: O'Callahan vy,

Parker, 9 Washburn L. J. 193 (1970); Wurtzel, O’Callahan v. Parker:

Where Are We Now?, 56 A. B, A. J. 686 (1970); The Supreme Court

1968 Term, 83 Harv. L. Rev. 7, 212-220 (1969); O'Callahan v.

Parker, 395 U. S. 258 (1969): New Limitation on Court-Martial

Jurisdiction, 61 J. Crim. L. C. & P. 8S. 195 (1970); Comment, 22

Baylor L. Rev. 64 (1970); Comment, 18 J. Pub. L. 471 (1969);

Comment, 21 Mercer L. Rev. 311 (1969); Comment, 7 San Diego

L. Rev. 55 (1970); Comment, 15 Vill. L. Rev. 712 (1970); Comment,

21S. C. L. Rev. 781 (1969); Note, 70 Col. L. Rev. 1262 (1970);

Note, 18 Kans. L. Rev. 335 (1970); Note, 3 Lovola (L. A.) L. Rev.

188 (1970); Note, 24 Miami L. Rev. 399 (1970); Note, 68 Mich.

L. Rev. 1016 (1970); Note, 48 N. C. L. Rev. 380 (1970); Note,

64 Nw. U. L. Rev. 930 (1970); Note, 49 Ore. L. Rev. 237 (1970);

Note, 23 Sw. L. J. 948 (1969); Note, 37 Tenn. L. Rev. 421 (1970);

Note, 44 Tulane L. Rev. 417 (1970); 36 Brooklyn L. Rev. 259

(1970); 19 Buffalo L. Rev. 400 (1970); 38 Geo. Wash. L. Rev. 170

(1969) ; 31 Ohio St. L. J. 630 (1970); 22 Vand. L. Rev. 1377 (1969).

2? McCoy, supra; 61 J. Crim. L. C. & P. S. 195; 18 Kans. L. Rev.

335; 19 Buffalo L. Rev. 400; 18 J. Pub. L. 471.

8 Everett, supra; Nelson and Westbrook, supra; Wilkinson, supra;

Wurtzel, supra; 15 Vill. L. Rev. 712; 24 Miami L. Rev. 399; 38 Geo.

Wash. L. Rev. 170; 22 Vand. L. Rev. 1377.

*Comment, 22 Baylor L. Rev. 64; Comment, 18 Jour. Pub. L.

471; Note, 18 Kans. L. Rev. 335; Note, 23 Sw. L. J. 948; Note, 24

U. Miami L. Rev. 399; 31 Ohio St. L. J. 630,

* Wilkinson, supra; Comment, 22 Baylor L. Rev. 64; Note, 64 Nw.

L. Rey. 930.

RELFORD »v. U. S. DISCIPLINARY COMMANDANT 3

applied.* Naturally enough, O’Callahan has had its ref-

erences in the federal courts of appeals’ and in a sig-

nificant number of cases in the United States Court of

Military Appeals.‘

* Nelson and Westbrook, supra; Comment, 21 S. C. L. Rev. 781;

Note, 3 Loyola (L. A.) L. Rev. 188, 198 n. 67; 44 Tulane L. Rev.

417, 424.

"See, for example, Latney v. Ignatius, 416 F. 2d 821 (CADC

1969); Harris v. Ciccone, 417 F. 2d 479, 488 (CAS 1969), cert. de-

nied, 397 U. 8S. 1078; Gallagher v. United States, 423 F. 2d 1371 (Ct.

Cl. 1970), cert. denied, 400 U. S. 849; Silvero v. Chief of Naval Air

Basic Training, 428 F. 2d 1009 (CA5 1970); King v. Moseley, 430

F, 2d 732 (CA10 1970); Zenor v. Vogt, 434 F. 2d 189 (CA5 1970).

* United States v. Borys, 18 USCMA 547, 40 CMR 259 (1969);

United States v. Prather, 18 USCMA 560, 40 CMR 272 (1969);

United States v. Becker, 18 USCMA 563, 40 CMR 275 (1969);

United States v. DeRonde, 18 USCMA 575, 40 CMR 287 (1969);

United States v. Boyd, 18 USCMA 581, 40 CMR 293 (1969) ; United

States v. Cochran, 18 USCMA 588, 40 CMR 300 (1969); United

States v. Chandler, 18 USCMA 593, 40 CMR 305 (1969); United

States v, Crapo, 18 USCMA 594, 40 CMR 306 (1969) ; United States

v. Harris, 18 USCMA 596, 40 CMR 308 (1969); United States v.

Castro, 18 USCMA 598, 40 CMR 310 (1969); United States v.

Henderson, 18 USCMA 601, 40 CMR 313 (1969): United States v.

Riehle, 18 USCMA 603, 40 CMR 315 (1969); United States v. Wil-

liams, 18 USCMA 605, 40 CMR 317 (1969) ; United States v. Pariao,

18 USCMA 608, 40 CMR 320 (1969); United States v. Smith, 18

USCMA 609, 40 CMR: 321 (1969); United States v. Shockley, 18

USCMA 610, 40 CMR 322 (1969) ; United States v. Rose, 19 USCMA

3, 41 CMR 3 (1969); United States v. Armstrong, 19 USCMA 5,

41 CMR 5 (1969); United States v. Rego, 19 USCMA 9, 41 CMR

9 (1969); United States v. Camacho, 19 USCMA 11, 41 CMR 11

(1969) ; United States v. Cook, 19 USCMA 13, 41 CMR 13 (1969) ;

United States v. Armes, 19 USCMA 15, 41 CMR 15 (1969); United

States v. Morisseau, 19 USCMA 17, 41 CMR 17 (1969); United

States v. Peak, 19 USCMA 19, 41 CMR 19 (1969); United States

v. Plamondon, 19 USCMA 22, 41 CMR 22 (1969); United States v.

Sharkey, 19 USCMA 26, 41 CMR 26 (1969); United States v. Wein-

stein, 19 USCMA 29, 41 CMR 29 (1969); United States v. Allen,

19 USCMA 31, 41 CMR 31 (1969); United States v. Safford, 19

4 RELFORD v. U. S. DISCIPLINARY COMMANDANT

In the present federal habeas case, instituted several

years after the applicant’s conviction by court-martial,

certiorari was granted “limited to retroactivity and scope

of O’Callahan v. Parker... .” 397 U. S. 934 (1970).

We thus do not reconsider O’Callahan. Our task here

concerns only its application.

USCMA 33, 41 CMR 33 (1969); United States v. Frazier, 19

USCMA 40, 41 CMR 40 (1969); United States v. Nichols, 19

USCMA 48, 41 CMR 43 (1969); United States v. Hallahan, 19

USCMA 46, 41 CMR 46 (1969); United States v. Huff, 19 USCMA

56, 41 CMR 56 (1969); United States v. Keaton, 19 USCMA 64,

41 CMR 64 (1969) ; United States v. Easter, 19 USCMA 68, 41 CMR

68 (1969); United States v. Stevenson, 19 USCMA 69, 41 CMR 69

(1969); United States v. Everson, 19 USCMA 70, 41 CMR 70

(1969); United States v. Fryman, 19 USCMA 71, 41 CMR 71

(1969); United States v. Higginbotham, 19 USCMA 73, 41 CMR

73 (1969); United States v. Adams, 19 USCMA 75, 41 CMR 75

(1969); United States v. Wysingle, 19 USCMA 81, 41 CMR 81

(1969); United States v. Gill, 19 USCMA 93, 41 CMR 93 (1969);

United States v. McGonigal, 19 USCMA 94, 41 CMR 94 (1969):

United States v. Fields, 19 USCMA 119, 41 CMR 119 (1969) ; United

States v. Bryan, 19 USCMA 184, 41 CMR 184 (1970); United States

v. Blackwell, 19 USCMA 196, 41 CMR 196 (1970); Mercer v. Dillon,

19 USCMA 264, 41 CMR 264 (1970); United States v. Peterson,

19 USCMA 319, 41 CMR 319 (1970); Gosa v. United States, 19

USCMA 327, 41 CMR 327 (1970); Wright v. United States, 19

USCMA 328, 41 CMR 328 (1970); Hooper v. Laird, 19 USCMA

329, 41 CMR 329 (1970); United States v. Haagenson, 19 USCMA

332, 41 CMR 332 (1970); Jn re Watson, 19 USCMA 401, 42 CMR

3 (1970); Brant v. United States, 19 USCMA 493, 42 CMR 95

(1970); United States v. Daniels, 19 USCMA 529, 42 CMR 131

(1970) ; United States v. Wills, 20 USCMA 8, 42 CMR 200 (1970):

United States v. Lovejoy, 20 USCMA 18, 42 CMR 210 (1970):

United States v. Ortiz, 20 USCMA 21, 42 CMR 213 (1970); United

States v. Hargrave, 20 USCMA 27, 42 CMR 219 (1970); United

States v. Davis, 20 USCMA 27, 42 CMR 219 (1970); United States

v. Snyder, 20 USCMA 102, 42 CMR 294 (1970); United States v.

Morley, 20 USCMA 179, 43 CMR 19 (1970).

RELFORD v. U. S. DISCIPLINARY COMMANDANT 5

I

Isiah Relford, in 1961, was a corporal on active duty

in the United States Army. He was stationed at Fort

Dix, New Jersey.

On September 4, 1961, the visiting 14-year-old sister

of another serviceman, who was on leave from his Army

station at Fort Campbell, Kentucky, and who came to

Fort Dix when his wife delivered a child at the base

hospital, was abducted at the point of a knife from an

automobile in the hospital’s parking lot as she waited for

her brother. The girl was raped by her abductor.

A few weeks later, on October 21, the wife of an Air

Force man stationed at McGuire Air Force Base, adjacent

to Fort Dix, was driving from her home on the base to

the post exchange concession, also on the base, where

she worked as a waitress. As the woman slowed her

automobile for a stop sign, a man gained entry to the

car from the passenger side and, with a knife at her

throat, commanded the woman to drive on some distance

to a dirt road in the fort’s training area. She was raped

there.

The second victim, with her assailant still in the

automobile, was able to make her predicament known

to military police. The assailant was apprehended and

turned out to be Relford. He immediately admitted

vonsensual intercourse with the victim. The next morn-

ing, after a brief interrogation, he confessed to kidnaping

and raping both women.

At the time of each incident Relford was in civilian

clothes.

It is undisputed that these events all took place on

the military reservation consisting of Fort Dix and the

contiguous McGuire Air Force Base.

————— ee

6 RELFORD v. U. S. DISCIPLINARY COMMANDANT

Relford, in due course, was charged with raping and

kidnaping each of the women, in violation of Articles 120

and 134, respectively, of the Uniform Code of Military

Justice, 10 U. 8. C. §§ 920 and 934.° He was tried by a

general court-martial in December 1961 and was con-

victed on the four charges. Relford’s sentence was the

forfeiture of all pay and allowances, reduction to the

lowest enlisted grade, and death. The customary refer-

ence to the staff judge advocate was made and the

convening authority approved. U.C. M. J. Arts. 60-65,

10 U. S. C. $§ 860-865. Upon the review by the Army

Board of Review,"® required under the Code’s Article 66,

10 U. S. C. $866, the conviction was sustained; the

sentence, however, was reduced to hard labor for 30

years, total forfeitures, and a dishonorable discharge.

The Court of Military Appeals denied a petition for

review on September 24, 1963. United States v. Relford,

14 USCMA 678.

® Rape is specified in Article 120 (a):

“$920. Art. 120. Rape and carnal knowledge

“(a) Any person subject to this chapter who commits an act of

sexual intercourse with a female not his wife, by force and without

her consent, is guilty of rape and shall be punished by death or such

other punishment as a court-martial may direct.”

Kidnapping is not specifically mentioned in the Code. The charge

for that offense, therefore, was laid under Article 134, the General

Article:

“$934. Art. 134. General article

“Though not specifically mentioned in this chapter, all disorders

and neglects to the prejudice of good order and discipline in the

armed forces, all conduct of a nature to bring discredit upon the

armed forces, and crimes and offenses not capital, of which persons

subject to this chapter may be guilty, shall be taken cognizance of

by a general, special, or summary, court-martial, according to the

nature and degree of the offense, and shall be punished at the dis-

cretion of that court.”

1° Now the Court of Miltiary Review. Pub. L. 90-632, § 2 (27),

82 Stat. 1341 (1968).

REPRE TRANS SSE A TORSO aS RISB AR TREES & LE MARERE SAGA RP PAE ere eas

RELFORD v. U. S. DISCIPLINARY COMMANDANT 7

Relford’s case thus became final more than five and

a half years prior to this Court’s decision in O’Callahan

v. Parker.

In 1967, Relford, being in custody in the United States

Disciplinary Barracks at Leavenworth, Kansas, filed his

application for a writ of habeas corpus with the United

States District Court for the District of Kansas. He

alleged inadequate representation by counsel in the mili-

tary proceeding. Chief Judge Stanley found no merit

in the claim and denied the application. On appeal,

Relford repeated the inadequate representation claim

and, for the first time, raised questions as to the admis-

sibility of his confession, as to a lineup procedure, and

as to the fairness of his military trial. The Tenth Cir-

cuit reviewed all these claims on the merits, but affirmed

the District Court’s denial of relief. Relford v. Com-

mandant, 409 F. 2d 824 (CA10 1969)."

The Tenth Circuit’s opinion was filed on April 23,

1969, several weeks prior to this Court’s decision in

O’Callahan v. Parker. The issue as to the propriety of

trial by court-martial, perhaps understandably, was not

raised before Judge Stanley or on the appeal to the Tenth

Circuit; the issue, however, had been presented in O’Cal-

lahan’s chronologically earlier appeal in his habeas pro-

ceeding. See United States ex rel. O’Callahan v. Parker,

390 F. 2d 360, 363-364 (CA3 1968).

II

This case, as did O'Callahan, obviously falls within the

area of stress between the constitutional guarantees con-

tained in the Constitution’s Article III, § 2, Clause 3,

in the Sixth Amendment, and possibly in the Fifth

Amendment, on the one hand, and, on the other, the

11 We are advised by the parties that Relford was reieased on

parole on May 20, 1970.

a

8 RELFORD v. U. 8S. DISCIPLINARY COMMANDANT

power vested in the Congress, by the Constitution's

Article I, §8, Clause 14, “to make Rules for the Gov-

ernment and Regulation of the land and naval Forces,”

with its supportive Necessary and Proper provision in

Clause 18, and the Fifth Amendment’s correlative excep-

tion for “cases arising in the land or naval forces.”

Relford argues that O’Callahan’s requirement that the

crime be “service connected” before a court-martial may

sit demands that the crime itself be military in nature,

that is, one involving a level of conduct required only

of servicemen and, because of the special needs of the

military, one demanding military disciplinary action.

He further states that the charges against him—like

those against O’Callahan—do not involve a level of con-

duct required only of servicemen. He maintains that

occurrence of the crimes on a military reservation and

the military-dependent identity of one of his victims do

not substantially support the military’s claim of a special

need to try him.

In further detail, it is stated that the Court in O’Cal-

lahan recognized that a court-martial “remains to a sig-

nificant degree a specialized part of the overall mech-

anism by which military discipline is preserved,” 395

U. S., at 265; that military courts, of necessity, are not

impartial weighers of justice, but have as their primary

consideration the enforcement of the unique discipline

required of a fighting force; and that, as a consequence,

the court-martial must be limited to the “least possible

power adequate to the end proposed.” United States

ex rel. Toth v. Quarles, 350 U.S. 11, 22-23 (1955), citing

Anderson v. Dunn, 19 U. S. (6 Wheat.) 204, 230-231

(1821).

It is then said that the level of conduct Relford is

alleged to have violated, that is, intercourse only with

consent, is the very same level required in the civilian

SSIS RE UO RR ORSON RR RE SAO PIO TRE Se Pea a

RELFORD v. U. S. DISCIPLINARY COMMANDANT 9

community and is not altered by considerations of mili-

tary dependency; that his alleged crimes are no more

military than were O’Callahan’s; that the ability of the

military to perform its mission remains the same whether

the crimes with which he was charged were committed

on base or off base; that any interest in the maintenance

of order on the base is adequately served by apprehen-

sion of the offender and trial in a civilian court; that

the on-post/off-post distinction has little meaning; that

it is the nature of the crime that is important; that the

crimes charged to Relford stand in contrast to purely mili-

tary crimes such as desertion, absence without leave,

missing movement, assaulting a superior commissioned

officer, and being drunk on duty, Arts. 85, 86, 87, 90, and

112, 10 U.S. C. §§ 885, 886, 887, 890, and 912; and that

only crimes of the latter type have “an immediate ad-

verse impact upon the ability of the military to perform

its mission,” and are “proper subjects for the exercise

of military jurisdiction.”

III

In evaluating the force of this argument, the facts of

O’Callahan and the precise holding in that case possess

particular significance. We repeat: O’Callahan was in

military service at the time and was stationed at a base

in American territory. His offenses, however, took place

off base in a civilian hotel while he was on leave and

not in uniform.

Mr. Justice Dove.as, in speaking for the Court, said:

“In the present case petitioner was properly ab-

sent from his military base when he committed the

crimes with which he is charged. There was no con-

nection-——not even the remotest one—between his

military duties and the crimes in question. The

crimes were not committed on a military post or

+o SRE

10 RELFORD v. U. 8S. DISCIPLINARY COMMANDANT

enclave; nor was the person whom he attacked per-

forming any duties relating to the military. More-

over, Hawaii, the situs of the crime, is not an armed

camp under military control, as are some of our

far-flung outposts.

“Finally, we deal with peacetime offenses, not

with authority stemming from the war power. Civil

courts were open. The offenses were committed

within our territorial limits, not in the occupied

zone of a foreign country. The offenses did not in-

volve any question of the flouting of military author-

ity, the security of a military post, or the integrity

of military property.” 395 U. S., at 273-274.

We stress seriatim what is thus emphasized in the

holding:

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 defend-

ant’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.

One might add still another factor implicit in the

others:

12. The offense’s being among those traditionally

prosecuted in civilian courts.

BG eae eats Reha R ores tae

ahs

PTE PO PRR PSS ARO a aE SR BR Pe eS AIRE RE Hse

RELFORD v. U. S. DISCIPLINARY COMMANDANT 11

IV

This listing of factors upon which the Court relied for

its result in O’Callahan reveals, of course, that it chose

to take an ad hoc approach to cases where trial by court-

martial is challenged. We therefore turn to those factors

in Relford’s case that, as spelled out in O’Callahan’s,

bear upon the court-martial issue.

It is at once apparent that elements 4, 4, 8, 11, and 12,

and perhaps 5 and 9, operate in Relford’s favor as they

did in O’Callahan’s: The offenses were committed within

the territorial limits of the United States; there was no

connection between Relford’s military duties and the

crimes with which he was charged; courts in New Jersey

were open and available for the prosecution of Relford;

despite the Vietnam conflict we may assume for present

purposes that the offenses were committed in peacetime

and that they were unrelated to any problem of author-

ity stemming from the war power; military authority,

directly at least, was not flouted; the integrity of military

property was not violated; and the crimes of rape and

kidnaping are traditionally cognizable in the civilian

courts.

Just as clearly, however, the other elements, present

and relied upon in O’Callahan’s case, are not at hand in

Relford’s case. These are elements 1, 2, 3, 7, and 10:

Relford was not absent from the base; the crimes were

committed on the military enclave; the second victim,

because of her duties at the post exchange and because

of the fact that her abduction and the attack upon her

took place as she was returning to the PX at the end of

a short and approved break in her work, was engaged in

the performance of a duty relating to the military; and

the security of two women properly on the post was

threatened and, indeed, their persons were violated.

nmi

12 RELFORD v. U. 8. DISCIPLINARY COMMANDANT

There are still other significant aspects of the Relford

offenses: The first victim was the sister of a serviceman

who was then properly at the base. The second victim

was the wife of a serviceman stationed at the base; she

and her husband had quarters on the base and were living

there. Tangible property properly on the base, that is,

two automobiles, were forcefully and unlawfully entered.

V

With the foregoing contrasting comparison of the perti-

nent factual elements of O’Callahan with those of Rel-

ford’s case, we readily conclude that the crimes with

which Relford was charged were triable by a military

court. We do not agree with petitioner when he claims

F that the “apparent distinctions” between this case and

} O’Callahan “evaporate when viewed within the context

: of the ‘service-connected’ test.” ** We stress: (a) The

: essential and obvious interest of the military in the

: security of persons and of property on the military

‘ enclave. Relford concedes the existence of this vital

interest."* (b) The responsibility of the military com-

mander for maintenance of order in his command and

4 his authority to maintain that order. See Cafeteria &

Restaurant Workers Union, Local 473, AFL-CIO v.

McElroy, 367 U. S. 886 (1961). Relford also concedes

this. (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 Arti-

cle I, § 8, Clause 14, vesting in the Congress the power

“To make Rules for the Government and Regulation

iil ae

Be SRE WIENS

12 Brief, p. 9.

13 Reply brief, p. 2.

RELFORD v. U. 8. DISCIPLINARY COMMANDANT 13

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 “Regulation”

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 problems within

its own community. See W. Winthrop, Military Law

and Precedents, 725 (2d ed. 1896, 1920 Reprint) ; Wilkin-

son, 9 Washburn Law J. 193, 208 (1970). (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 sig-

nificance. (g) The recognition in O’Callahan that, his-

torically, a crime against the person of one associated

with the post was subject even to the General Article.

The comment from Winthrop, 723-724:

“Thus such crimes as theft from or robbery of an

officer, soldier, post trader, or camp-follower .. .

inasmuch as they directly affect military relations

and prejudice military discipline, may properly be—

as they frequently have been—the subject of charges

under the present Article. On the other hand, where

such crimes are committed upon or against civilians,

and not at or near a military camp or post, or in

breach or violation of a military duty or order, they

are not in general to be regarded as within the de-

scription of the Article, but are to be treated as civil

rather than military offenses.” (Footnotes omitted.)

cited both by the Court in O’Callahan, 395 U. S., at

274, n. 19, and by the dissent at 278-279, certainly so indi-

14 RELFORD v. U. 8. DISCIPLINARY COMMANDANT

cates and even goes so far as to include an offense against

a civilian committed “near” a military post. (h) The

mis-reading and undue restriction of O'Callahan if it were

interpreted as confining the court-martial to the purely

military offenses that have no counterpart in nonmilitary

criminal law. (i) Our inability appropriately and mean-

ingfully to draw any line between a post's strictly mili-

tary areas and its nonmilitary areas, or between a service-

man-defendant’s on-duty and off-duty activities and

hours on the post.

This leads us to hold, and we do so hold, that when a

serviceman is charged with an offense committed within

or at the geographical boundary of a military post and

violative of the security of a person or of property there,

that offense may be tried by a court-martial. Expressing

it another way: a serviceman’s crime against the person

of an individual upon the base or against property on

the base is “service connected,” within the meaning of

that requirement as specified in O’Callahan, 395 U.S., at

272. This delineation, we feel, fully comports with the

standard of “the least possible power adequate to the end

proposed” referred to in O'Callahan, 395 U. S., at 265.

By this measure, Relford’s alleged offenses were obvi-

ously service-connected. There is, therefore, no consti-

tutional or statutory barrier and Relford was properly

tried by a court-martial.

VI

We recognize that any ad hoc approach leaves outer

boundaries undetermined. O'Callahan marks an area,

perhaps not the limit, for the concern of the civil courts

and where the military may not enter. The case today

marks an area, perhaps not the limit, where the court-

martial is appropriate and permissible. What lies be-

tween is for decision at another time.

RELFORD v. U. 8, DISCIPLINARY COMMANDANT 15

VII

Having reached this result on the court-martial issue,

the additional issue, that the parties have argued, of

O’Callahan’s retrospectivity, need not be decided. See

Alabama State Federation of Labor v. McAdory, 325

U. S. 450, 461 (1945). We recognize that the retro-

activity question has important dimensions, both direct

and collateral, and that the Government strongly urges

that the question be decided here and now. We have

concluded, however, that the issue is better resolved in

other litigation where, perhaps, it would be solely dis-

positive of the case. We take some comfort in the hope

that the present decision should eliminate at least some

of the confusion that the parties and commentators say

has emerged from O'Callahan."

Affirmed.

™% The Solicitor General supplied the following data relative to

selected types of offenses over which the Army assumed jurisdiction

in 1967:

Number Occurring Number Occurring

on Military off Military

Offense Reservations Reservations

1, Homicides 30 24

2. Sexual crimes

(Rape, indecent assaults, ete.) 214 105

3. Robbery 112 ay

4. Assaults 451 160

5. Burglary and Housebreaking 165 28

6. Arson 24 3

7. Larceny 1029 74

8. Larceny of motor vehicle 221 56

9. Narcotics offenses

(including marihuana and

dangerous drugs) 833 106

10. Disorderly conduct 59 22