Journal of Criminal Law and Criminology

Volume 61 | Issue 3 Article 2

1971

Court Martial Jurisdiction--The ServiceConnection Standard in ConfusionPaul J. Rice

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Recommended CitationPaul J. Rice, Court Martial Jurisdiction--The Service Connection Standard in Confusion, 61 J. Crim. L. Criminology & Police Sci. 339(1970)

Trim JounNAL or CammA. L&w, CpmnmoLoav AxD Pom= SxmxcaCopyright 0 1970 by Northwestern University School of lAw

VoL 61, No. 3Printed in U.S.A.

COURT MARTIAL JURISDICTION-THE SERVICECONNECTION STANDARD IN CONFUSION

PAUL J. RICE*

In a speech entitled "The Bill of Rights and theMilitary," I former Chief Justice Earl Warren dis-cussed the problems arising from the existence of alarge standing army. His purpose was to examinethe "role to be assigned the military in a demo-cratic society." 2 He noted that our governmentwas founded upon "traditional subordination ofmilitary to civil power," and that "with minorexceptions, military men throughout our historyhave not only recognized and accepted this re-lationship in the spirit of the Constitution, butthat they have also cheerfully cooperated inpursuing it." I

The Chief Justice discussed the role of theSupreme Court in resolving conflicts between theBill of Rights and military discipline. He empha-sized the existence of one acceptable conflict inparticular-that the role of constitutional courtsremains limited when the military is dealing withits own personnel. The Supreme Court has gen-erally held that it lacks jurisdiction to review de-cisions of military courts.4 The motivation for this"hands-off" attitude rests on strong historicalprecedent. "The tradition of our country, from thetime of the Revolution until now, has supportedthe military establishment's broad power to dealwith its own personnel." 5

This long-standing policy, reaffirmed with thecomments of the Chief Justice, lay largely un-challenged6 before O'Callahan v. Parker.7 Indeed,

* Major, United States Army, Judge AdvocateCorps. A.B., 1960, L.L.B., 1962 University of Missouri;LL.M., 1970, Northwestern University. The presentarticle was prepared by Major Rice, as his thesis, inpartial fulfillment for his LL.M. degree.

' Warren, The Bill of Rights and the Military, 37N.Y.U. L. Rav. 181 (1962).

2 Id. at 182.3 1d. at 186.4 See Ex parte Vallandigham, 68 U.S. (1 Wall.) 243

(1863). When the Court has released prisoners con-victed by court-martial it has based its action uponlack of military jurisdiction over the person. See Reidv. Covert, 354 U.S. 1 (1957).

5 Warren, supra note 1 at 187.6 One article challenging the military's authoritywas Duke & Vogel, The Constitution and the StandingArmy: Another Problem of Court-Martial Jursdi ton,13 Vqmm. L. REv. 435 (1960). See also Note, O'Callahanv. Parker, 395 U.S. 258 (1969): New Lmitatiotns on

little had occurred in the field of military law toprepare the system for the shock of O'Callahan.

Army Sergeant James F. O'Callahan left hisduty station with an evening pass. Dressed incivilian clothes, O'Callahan forced his way into ahotel room and seized a sleeping fourteen year oldgirl. An attempted sexual attack upon the young-ster was unsuccessful. He was immediatelyapprehended by a hotel security guard and wasreturned to military authorities. After interroga-tion, he confessed.

He was charged with attempted rape,8 house-breaking,9 and assault with intent to commitrape.'0 A general court-martial tried the case andfound him guilty as charged. The Army imposed asentence of dishonorable discharge, forfeiture of allpay, and confinement at hard labor for ten years.The conviction was affirmed by an Army Board ofReview, and the United States Court of MilitaryAppeals later denied a petition for review."

Court Martial Jurisdiction, 61 J. Cmy. L.C. & P.S.195 (1970).

7395 U.S. 258 (1969).8 Uniform Code of Military Justice, art. 80, 10

U.S.C. § 880 (1968) [hereinafter cited as U.C.M.J.].9 U.C.M.J. art. 130, 10 U.S.C. § 930 (1968).0 oU.C.M.J. art. 134, 10 U.S.C. § 934 (1968).

1 United States v. O'Callahan, 7 U.S.C.M.A. 800(1957). There are five steps in the review of a generalcourt-martial. The first review is- by the conveningauthority under the U.C.MJ. art. 60. The conveningauthority is the commanding officer of a unit. He sub-mits the case to the Battalion judge Advocate Generalwho issues an opinion under Art. 61 of the U.C.M.J.After rereading the transcript, the convening authoritycan review the facts, pass on the appropriateness ofthe sentence, reduce the penalty, or chnge the findingto "not guilty."

Next, the case goes to the office of the Judge Advo-cate General under Art. 66. He reviews the case buthas no real power to change the finding of the lowercourt.

The Court of Military Review is the third step in theappeals structure. It is composed of three qualifiedlawyers, officers or civilians serving short terms. Theappeal is automatic when the death penalty is imposed.Under Art. 66(c), they weigh evidence, judge credi-bility of witnesses, and determine controverted ques-tions of fact.

The fourth step in the military appeal structure isthe United States Military Court of Appeals. Art. 67,U.C.M.J., established the court which is composedof three civilians sitting for fifteen year terms. The

PAUL J. RICE

In April 1966,"2 O'Callahan petitioned theUnited States District Court for the Middle Dis-trict of Pennsylvania for a writ of habeas corpusalleging that the court-martial had no jurisdictionto try him for a non-military offense committedwhile on leave." The district court refused to con-sider that issue since O'Callahan had formerly ob-tained an unfavorable ruling from the district courtin Massachusetts where he had once been con-fined. 4 The United States Court of Appeals for theThird Circuit affirmed the decision of the Pennsyl-vania court without discussion of the question."On certiorari, the United States Supreme Courtreversed the lower courts by holding that thecrimes for which O'Callahan was convicted werenot "service connected," and therefore not triableby court-martial. 6

accused must petition for review but the court musthear every request for review involving capital sen-tences. Generally review is limited to matters of lawby Art. 69(d), but under extreme conditions it canhear mixed questions of law and fact.

The President as commander-in-chief holds finalappellate authority. But he, as any other appeal body,cannot increase the court-martial sentence. M. ComsKY& L. AporTaAxz, CamiNA. Pxocx Eua i TUNITED STATES DisTRIcT AND MITARY CouRTs, 172ff (1963).

"O'Callahan was sentenced in 1956, paroled in1960, and returned to confinement in 1962 as a paroleviolator. See O'Callahan v. Attorney Gen., 230 F.Supp. 766 (D. Mass. 1964).

1'The other allegations unsuccessfully raised in thewrit were: (a) that his confession, which had been ad-mitted in evidence without objection, had been ob-tained by use of coercion; (b) that testimony by use ofwritten interrogatories had been admitted into evi-dence violating his sixth amendment right to con-frontation of witnesses; (c) that his conviction by two-thirds vote rather than by unanimity violated hisconsitutional right to trial by jury. United States ex relO'Callahan v. Parker, 256 F. Supp. 679 (M.D. Pa.1966).

"1 United States ex rel O'Callahan v. Parker, 256 F.Supp. 679 (M.D. Pa. 1966). 28 U.S.C. § 2244 (1948)permits, in part, a district judge to refuse to entertainan application for a writ of habeas corpus where a priorapplication on the same grounds has been deniedpursuant to a judgment of a court of the United States.Chief Judge Wyzanski had denied the Massachusettswrit of habeas corpus stating "there is no merit inplaintiff's position, which conflicts with an unbrokenline of contrary authority." O'Callahan v. UnitedStates Marshal, 293 F. Supp. 441, 442 0D. Mass. 1966).

"6 United States ex rel O'Callahan v. Parker, 390 F.2d360 (3d Cir. 1968). Judge Hastie relied upon Thompsonv. Willingham, 318 F.2d 657 (3d Cir. 1963) in deter-mining that the court-martial had jurisdiction. Thomp-son had alleged that a military court held no jurisdic-tion over him for a capital offense in time of peace.

16O'Callahan v. Parker, 395 U.S. 258 (1969). TheCourt defined the issue as follows:

Does a court-martial, held under the Articles ofWar, Tit. 10 U.S.C. § 801 el seq., have jurisdictionto try a member of the Armed Forces who is

Speaking for the majority, Justice Douglasemphasized that the offenses in question werecommitted off duty and off post by a soldierdressed in civilian garb. O'Callahan's conduct, itwas held, represented a "civilian" offense against acivilian victim. In establishing no service connec-tion,17 the majority further noted that peacetimeoffenses were involved which had been "committedwithin our territorial limits, not an occupied zoneof a foreign country." '8

The Court ignored the government's contentionthat status as a member of the Armed Forcesgranted military jurisdiction. As Mr. JusticeDouglas phrased it,

That is merely the beginning of the inquiry, notits end. Status is necessary for jurisdiction; but itdoes not follow that ascertainment of status com-pletes the inquiry, regardless of nature, time, andplace of the offense.19

The majority compared military tribunals withfederal courts and concluded that courts-martialare not entitled "to rank along with Article Imcourts as adjudicators of the guilt or innocence ofpeople charged with offenses for which they canbe deprived of their life, liberty, or property." 20

It was asserted that "a court-martial is not yet an

charged with commission of a crime cognizable ina civilian court and having no military significancealleged to have been committed off-post and whileon leave, thus depriving him of his constitutionalrights to indictment by a grand jury and trial bya petit jury in a civilian court?

395 U.S. at 261. The U.C.M.J. replaced the Articlesof War in 1951. Act of May 5, 1950, 64 Stat. 108.

It was a 5-3 decision. Together with Justice Douglasin the majority stood Chief Justice Warren and Jus-tices Black, Brennan and Marshall.

1" O'Callahan v. Parker, 395 U.S. 258, 273 (1969).11 Id. at 273-74.19 Id. at 267.0 Id. at 262. In that comparison, the Court observed

that federal judges are appointed for life and that theirsalaries may not be diminished, whereas their mili-tary counterparts do not have the benefit of suchconstitutional protections. Military judges, it wasasserted, are subject to the "will of the executive de-partment which appoints, supervises and ultimatelycontrols them." Toth v. Quarles, 350 U.S. 11, 17 (1955).The Court frowned on a military system in which theguilt of a soldier can be established by two-thirds ofthe court-martial as compared to the civilian systemin which a unanimous jury decision is required for afinding of guilty. Finally, the Court noted the uniquecharacter of the authority vested by the militaryjudicial system in the officer who convenes a court-martial-in particular the power he holds to appointnot only members of the court but counsel for bothsides as well. O'Callahan v. Parker, 395 U.S. 258, 263-64 (1969).

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independent instrument of justice" 21 and thatAnglo-American history supported the propositionthat a soldier could not be tried by court-martialfor civilian type offenses. 22 The conclusion of theCourt naturally followed:

[A soldier's] crime to be under military jurisdictionmust be service-connected, lest "cases arising in.the land and naval forces or in the militia, whenin actual service in time of war or public danger,"as used in the Fifth Amendment, be expanded todeprive every member of the armed services ofthe benefits of an indictment by a grand jury anda trial by a jury of his peers.P

Mr. Justice Harlan, joined by Justices Stewartand White, strongly dissented. Harlan assertedthat the majority had usurped Congress's consti-tutional power to determine the "appropriate sub-ject matter jurisdiction of courts-martial." 24 Heobjected to the majority's interpretation of his-torical precedents. In his view, "English constitu-tional history provide[d] scant support" for theCourt's position. Furthermore, "pertinent Ameri-can history" was "quite the contrary." 26 He feltthat if the majority insisted on balancing govern-mental interests, the interests on both sides shouldhave been examined including that of the military.That, he insisted, the Court has not done. Lastly,his dissent decried the confusion created by theCourt's failure to explain the scope of serviceconnected crimes. "Absolutely nothing," he added,"in the language, history, or logic of the Constitu-tion justifie[d] the uneasy state of affairs which theCourt ... created."

2 6

Mr. Justice Douglas assumed solid support forhis opinion in the pre-revolutionary English andearly American law. He referred to the Crown'sabuses of court-martial power in 17th centuryEngland which had prompted Parliament to seize

21 O'Callahan v. Parker, 395 U.S. 258, 265 (1969).22 See notes 27-35 infra. and accompanying text.23 O'Callahan v. Parker, 395 U.S. 258, 272-73 (1969).4 Id. at 276. Congress's power derives from the

language of Art. I, sec., 8, cl. 14 of the Constitutionwhich grants to Congress the power "to make rulesfor the government and regulation of the land andnaval forces." In Kinsella v. Singleton, 361 U.S. 234(1960), that constitutional language was reviewed andthe assertion made that military jurisdiction was basedupon whether a person could be regarded as fallingwithin the term "land and naval forces." Id. at 241.Given the constitutional language, it would be forCongress and not the Judiciary to determine subjectmatter jurisdiction of courts-martial. See Coleman v.Tennessee, 97 U.S. 509, 514 (1879).

25 O'Callalmn v. Parker, 395 U.S. 258, 276 (1969).26Id. at 284.

the power to define court-martial jurisdictionDouglas argued that Parliament's seizure of thatauthority mirrored its "disapproval of the generaluse of military courts for trial of ordinarycrimes." 2 He acknowledged that the Mutiny Actof 17209 allowed martial trial of common lawfelonies, but treated the Act as an exception to theBritish rule "that a soldier could not be tried bycourt-martial for a civilian offense." 3 0

With the acceptance of the Bill of Rights in1688,1 authority to control the Army was vestedin Parliament.P But conflict continued betweenCrown and legislature as to where. jurisdictionover the Army rested.33 Justice Harlan's dissent

27Parliament exercised its authority through thepassage of annual mutiny acts the first of which(enacted in 1689) read:

Noe Man may be forejudged of Life or Limbe, orsubjected to any kinde of punishment by MartiallLaw or in any other manner than by the Judgmentof his Peeres and according to the knowne andEstablished Laws of this Realme.

1 W. & M., c.5 (1689).2 O'Callahan v. Parker, 395 U.S. 258, 268 (1969).9 The act provided that a soldier could be court-

martialed forany violence or Offense against the Person, Estate,or Property of any of the Subjects of this Kingdomwhich is punishable by the known Laws of theLand.

Civil authorities could within eight days of the conductin question request that the accused soldier be turnedover to them for trial. Such requests had to be honored.7 G o. 1, c.6 (1720).

0 O'Callahan v. Parker, 395 U.S. 258, 269 (1969).31 For a discussion of the Bill of Rights see generally

F. MAiTLAN, THE CONS=UTIONAL HISTORY OFENGLAND (1908).

n See Duke & Vogel, The Constitution and the Stand-ing Army: Another Problem of Court-Marlial Juris-diction, 13 VAND. L. Rzv. 442-43 (1960). Having seizedauthority, Parliament moved with the passage of thefirst Mutiny Act (1 W. & M., c.5) to limit court-martialjurisdiction to three offenses-mutiny, sedition anddesertion. See W. WINTHRoP, MnriARY LAW ANDPRECEDNTiS 18-19 & 929-30 (2d ed. 1920). Later,however, Parliament initiated a series of legislativemeasures expanding allowable court-martial authority.First, it authorized courts-martial of soldiers overseasin time of peace. See Duke & Vogel, supra. at 444.Then, the Crown was granted the power to prescribearticles of war which were to be operative within theKingdom as well as overseas. See W. WinTHRoP, supra.at 20. A Mutiny Act of 1720 led to even broader mili-tary jurisdiction allowing court-martial for Britishsoldiers committing common law felonies if withineight days subsequent to an offense civilian officialshad not themselves asserted jurisdiction. 7 GEo. 1, c.6(1720).

uIt has been suggested that the seeds of the con-flict rested with the very nature of martial law itself.

For martial law, which is built upon no settledprinciples, but is entirely arbitrary n its decisions,is... m truth and reality no law, but somethingindulged rather than allowed as a law.

BLAcxsToNE, Co maNTARIs ON TEm LAWS or ENG-mitm 413 (1915).

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PAUL ". RICE

in O'Callahan analyzed that conflict. He notedthat "the King's asserted prerogative to trysoldiers by court-martial in time of peace" was onepoint of contention in the "long standing...struggle for power between the military and theCrown on the one hand and Parliament on theother." 14 The fact that military law proved soharsh, he argued, made it understandable that aParliament vested with exclusive authority overthe military would use it sparingly. 5 Harlan con-cluded that in that tradition control of the militarymust remain in the hands of the people throughtheir representatives in Congress. The adoption ofArticle I, Section 8, Clause 14 represented Ameri-can affirmation of that principle, for it vested inCongress authority "[tlo make rules for the govern-ment and regulation of the land and naval Forces."

The O'Callahan majority pointed to early in-stances of the assertion of legislative control overthe military as precedence for its contemporarymove to restrict court-martial jurisdiction. Inparticular, reference was made to the Articles ofWar of 1776.36

That act did require that the soldier accused of acivilian offense be delivered to a civil magistrate,but only after a request had been made for suchdelivery. When no request was received fromcivilian authorities, the commanding officer wasrequired to insure that disciplinary action wastaken against his officers and men for the offensesin question. Indeed, if an officer failed to intitiate

O'Callahan v. Parker, 395 U.S. 258, 276 (1969).81 Id. at 276.31 Those articles were passed by the Continental

Congress.37 Sec. X, Art. 1 of the Articles of War of 1776 read:When any officer or soldier shall be accused of acrime, or of having used violence, or committed anyoffense against the persons or property of the goodpeople of any of the United American States, suchas is punishable by the known laws of the land, thecommanding officer and officers of every regiment,troop, or party, to which the person or persons soaccused shall belong, are hereby required uponapplication duly made by or in behalf of the partyor parties injured, to use his utmost endeavor todeliver over such accused person or persons to thecivil magistrate; and likewise to be aiding andassisting to the officers of justice in apprehendingand securing such person or persons so accused, inorder to bring them to a trial. If any commandingofficer or officers shall wilfully neglect or shallrefuse, upon the application aforesaid, to deliverover such accused person or persons to the civilmagistrates, or to be aiding and assisting to theofficers of justice in apprehending such person orpersons, the officer or officers so offending shall becashiered.

W. Wn mn os, MILITARY LAW AND PRECEDENuS 964-65 (2d ed. 1920).

such action, he was compelled to stand court-martial himself for the crimes committed by hissubordinate. s The commanding officer wasordered to charge the accused under a generalarticle of war enacted in 177519 which sanctionedmilitary punishment for "all crimes [by service-men] not capital." 40 The 1776 legislation, then,requiring delivery of an accused to civil authoritiesin no way limited court-martial jurisdiction whencivil application for such delivery was not forth-coming.

Furthermore, historical precedent indicates thatcivilian offenses have long been tried by courts-martial. An appendix to the Government's briefcited over 100 instances of military punishmentapplied to non-military crimes tried between 1775and 1815.41 Justice Douglas challenged the importof that list asserting that "in almost every casesummarized, it appears that some special militaryinterest existed." 4 He termed the crimes involvedpeculiarly military-prosecutions for abuse ofmilitary position, crimes involving officers, andcourts-martial held in wartime between 1773 and1783.4

1 Yet, he ignored those additional cases whichdid not fall into one of the above categories.

Indeed, the Douglas attempt to discredit the

's Every officer commanding in quarters, garrison,or on a march, shall keep good order, and, tothe utmost of his power, redress all such abusesor disorders which may be committed by anyofficer or soldier under his command; if, uponcomplaint made to him of officers or soldiersbeating or otherwise ill-treating any person; ordisturbing fairs or markets; of committing anykind of riots to the disquieting of the good peopleof the United States; he the said commander whoshall refuse or omit to see justice is done on theoffender or offenders, and reparation made tothe party or parties injured, as far as part of theoffender's pay shall enable him or them, shall,upon proof thereof, be punished, by a generalcourt-martial, as if he himself had committed thecrimes or disorders complained of. Articles ofWar 1776, § IX, Art. 1.

W. Wnqrrop, supra note 37 at 964."The General Article remained structurally con-

sistent from 1775 to 1916:All crimes, not capital, and all disorders andneglects, which officers and soldiers may be guiltyof, to the prejudice of good order and militarydiscipline, though not mentioned in the articles ofwar, are to be taken cognizance of by a generalor regimental court-martial, according to the natureand degree of the offense, and be punished attheir discretion.

W. WNqTRoP, supra note 37 at 957.40 O'Calahan v. Parker, 395 U.S. 258, 271 (1969).41 Brief for Respondent at 35-52, O'Callahan v.

Parker, 395 U.S. 258 (1969).42 O'Callahan v. Parker, 395 U.S. 258, 270 n.7 (1969).4 Id. at 270 n.7.

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Government's list was not persuasive, for some ofthose cases failed to fit any of the Justice's cate-gories. One case, for instance, involved "killing acow, stealing fowls, and stealing geese;" 44 an-other "stealing a horse from the Widow Dun-can." 41 Others arose from "beating a woman keptas a mistress," 46 the "beating [of] a Mr. Williams... living near [a] garrison," 7 and the use bf"violence on Mrs. Cronkhyte, a citizen of theUnited States." '8 Those offenses could not be de-fined as "peculiarly military." Still, court-martialdisposition of them was allowed.

History belies the O'Caflahan majority's addi-tional assertion that the 1777 General Article ofWar failed to take cognizance of civilian crimes.A noted military historian has written that crimeswere cognizable by a court-martial under the Gen-eral Article only when "committed under suchcircumstances as to have directly offended againstthe government and discipline of the militarystate." 49 However, he later commented that thestrict interpretation of the General Article had notbeen realized in practice. As long as commandersinstituted courts-martial for crimes commitedagainst civilians, civil courts avoided such cases."

Support for the propriety of that broadenedapproach to the authority of courts-martial oversoldiers received support with the SupremeCourt's comments on the "General Article" inGrafton v. United States.

The crimes referred to in [the General] [A]rticemanifestly embrace those not capital, committedby officers or soldiers in violation of public lawas enforced by the civil power. No crimes com-mitted by officers or soldiers of the Army are ex-cepted by the... [A]rticle from the jurisdictionthus conferred upon courts-martial except thosethat are capital in nature .... EIThe jurisdiction of

" Brief for Respondent at 41, O'Callahan v. Parker,395 U.S. 258 (1969).

" Id. at 43.41 Id. at 43.7Id. at 49.48Id. at 49. It is doubtful that Mr. Justice Douglas

would find service connection today for many of thecases he summarily dismissed from the government'slist because of their "military significance." E.g., in acase in which a soldier absented himself from campwithout leave and rioted in Cincinnati, the fact thatthe soldier was AWOL at the time he was arrested forhis role in the civil disturbance in question wouldhardly be sufficient grounds for a finding of serviceconnection. Brief for Respondent at 43, O'Callahan v.Parker, 395 U.S. 258 (1969).

49 W. Wnrmop, M=Any LAw AND PRECEDENTS723-24 (2d ed. 1920).

0 Id. at 725.

general courts-martial [is] ... concurrent with thatof the civil courts. 1

The Supreme Court had, prior to O'Callahan,consistently treated the military status of an ac-cused as sufficient "service connection" to justifycourt-martial jurisdiction. 52 While the particularissue in O'Callahan had never been decided, areading of the earlier opinions set out below raisesa strong jresumption that a questioning of militarystatus as a valid jurisdictional base for courts-martial had never been considered.

In Ex parte Milligan," the Supreme Court hadruled that a military commission held no juris-diction to try a civilian citizen of the State ofIndiana. The state had neither been under siegenor engaged in rebellion at the time of the offense.Federal courts were open and functioning. Never-theless, comparing the constitutional guarantees ofcivilians with those of military personnel theCourt stated,

The discipline necessary to the efficiency of thearmy and navy required other and swifter modesof trial than are furnished by the common lawcourts; and, in pursuance of the power conferredby the Constitution, Congress has declared thekinds of trial, and the manner in which they shall be

conducted, for offenses committed while the partyis in the military or naval service. Every one con-nected with these branches of the public serviceis amenable to the jurisdiction which Congress hascreated for their government, and, while thusserving, surrenders his right to be tried by the civilcourts."

The Court determined in Coleman v. Tennessee 5

that during the Civil War a hostile state had no

-1206 U.S. 333, 348 (1907).5" See notes 53-58 infra. and accompanying text. It

was held that Article I, Section 8, Clause 14 of the Con-stitution granted to Congress "the power to provide forthe trial and punishment of military... offenses in amanner ... practiced by civilized nations.. ." Dynesv. Hoover, 61 U.S. (20 How.) 65, 79 (1857). Further-more, the Court had ruled that the language of thefifth amendment excepted "cases arising in the landand naval forces" from the right to indictment by grandjury, and, by implication, from the sixth amendmentright to trial by jury. Whelchel v. McDonald, 340 U.S.122; 127 (1950). Accord, Ex park Quinn, 317 U.S. 1,40 (1942).

71 U.S. (4 Wall.) 2 (1866)."Id. at 123. The government was asserting juris-

diction over Milligan under martial law which may beimposed when the civil courts cannot function becauseof invasion, rebellion or some other disorder. SeeEverett, Military Jurisdiction Over Civilians, 1960Du=n L.J. 366, 366-67 (1960).

8 97 U.S. 509 (1878).

PAUL J. RICE

jurisdiction over a member of the occupying army.In holding that the Army possessed exclusivejurisdiction the Court asserted,

As Congress is expressly authorized by the Con-stitution "to raise and support armies," and "tomake rules for the government and regulation ofthe land and naval forces," its control over thewhole subject of the formation, organization andgovernment of the national armies, includingtherein the punishment of offenses committed bypersons in the military service, would seem to beplenary6A

As recently as 1960, the case of Kinsella v.United States7 forwarded military status as thejurisdictional foundation for the power of courts-martial over members of the Armed Forces.

The test for jurisdiction... is one of status,namely whether the accused in the court-martialproceeding is a person who can be regarded asfalling within the term "land and naval forces." M

The O'Callahan majority attempted to over-come the weight of such precedents. 9 Difficult todeny, however, was the reality of a tradition ofmilitary justice in the United States based upon anunderstanding that Article I, Section 8, Clause14 empowered Congress to establish discipline forcitizens "in the land and naval forces." Militarystatus was accepted as the Congressionally sanc-tioned jurisdictional test for courts-martial. "Tosay that military jurisdiction defies definition interms of military status [would be] to [deny theimport of] unambiguous language [in] ... Clause

6 1 Id. at 514. In a later case, Ex parte Quirin, 317U.S. 1 (1942), the Court affirmed a military trial forservicemen who attempted sabotage in the UnitedStates in wartime. The basis for military jurisdictionwas examined with the Court concluding that the Con-stitution

authorized the trial by court-martial of the mem-bers of our Armed Forces for all that class of crimeswhich under the Fifth and Sixth Amendmentsmight otherwise have been deemed triable in thecivil courts. The [crimes so triable] are not restrictedto those offenses against the law of war alone, butextend to trial of all offenses, including crimeswhich were of the class traditionally triable by juryat common law. Id. at 43'7361 U.S. 234 (1960). The Court concluded that

the military lacked jurisdiction to court-martialcivilian dependents accompanying the Armed Forcesoverseas.

18 Id. at 240-41.59 The Court's approach led one commentator to

observe that "the majority opinion in O'Callahan mustbe viewed as a triumph of abstract concept overpractical realities." Everett, O'Callahan v. Parker-Milestone or Millstone in Military Justice, 1960 DuxEL.J. 853, 867 (1969).

14." 60 Yet, the Court decided in O'Callahan to for-ward a new interpretation of that language. Themajority reasoned in part upon a distrust of andan aversion to military justice.

Justice Douglas asserted that courts-martialafford only "so called justice." a He compared thecivilian trial "held in an atmosphere conducive tothe protection of individual rights" with themilitary trial "marked by the age old manifestdestiny of retributive justice." 62 He condemnedthe entire court-martial institution as being"singularly inept in dealing with the nice subtletiesof constitutional law." 6

That disparagement of military justice over-looked a history of adjustments by the court-martial system to insure protection of the accused'sbasic rights. Military police and criminal investi-gators, as part of their standard procedure, wereadvising suspects of their right to remain silentlong before Miranda.64 The exclusionary rule wasbeing applied by courts-martial in search andseizure cases before Mapp v. Ohio and Lee v.Florida applied the rule to the state civil courts. 65

The military furnished counsel for indigent de-fendants years before Gideon v. Wainwright", re-quired state courts to do likewise. Indeed, courts-martial jurisdiction presented an unexpected tar-get for judicial attack since military tribunalshave stood with the vanguard in moving to insurethe rights of the accused.

One wonders, in light of the Court's attack,whether there is any justification for the militaryjudicial system. The answer remains clear. Themilitary holds a vested interest in deterring thecommission of crimes by soldiers regardless ofwhere they are perpetrated. The discipline, morale,and integrity of our Armed Forces are at stake."

10 Kinsella v. United States, 361 U.S. 234,243 (1960).61 O'Callahan v. Parker, 395 U.S. 258, 266 n.7(1969).

62 Id. at 266.6Id. at 265.14 Compare U.C.M.J. art. 31, 10 U.S.C. § 831 (1968),

with Miranda v. Arizona, 384 U.S. 436 (1966). AfterMiranda, the Court of Military Appeals required allsuspects to be advised of their right to free counsel atall custodial interrogations irrespective of their abilityto hire an attorney. United States v. Tempia, 16U.S.C.M.A. 629 (1967).

65 Compare MAxuAL FOR CoimRs-MARrAL, para.152, which has been substantially the same since 1951will Mapp v. Ohio, 367 U.S. 643 (1961) and Lee v.Florida, 392 U.S. 378 (1968).

66 372 U.S. 335 (1963).67 Moreover, when civilian courts assume jurisdic-

tion over a member of the military, he becomes in-effective as a soldier until the conclusion of his case. If

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In its distrust of military justice, the majoritystressed the significance of affording the uniformeddefendant two right's of the accused civilian-indictment by grand jury and jury trial. The Courtfailed to recognize that a grand jury would providequestionable advantage to the accused serviceman.The grand jury procedure often represents anoppressive tool of the prosecutox" since such pro-ceedings are held in secrecy without the presenceof the accused or his counsel. The same cannot besaid of the military equivalent-the Article 4269investigation. The article provides that prior toeach general court-martial a thorough hearingmust be conducted at which the accused may bepresent and represented by counsel. 1 The in-vestigating officer must call all available witnesseswhom the accused is entitled to cross-examine'

his unit or vessel is alerted and relocated, he will beleft behind. Military courts dispose of cases swiftlywith punishment for guilt often leaving the soldier ina duty status encouraging his rehabilitation.

A defendant found guilty would be retained in dutystatus under any of the following sentences: reprimandor admonishment; restriction; hard labor withoutconfinement; forfeiture, fine or detention of pay; andreduction in rank. MAxu~A roR COURTs-MART=L,para. 126 (1969).

Army statistics for 1967 indicate that 85% of thecases involving serious offenses committed off post wereretained by the civilian authorities. Brief for Respond-ent at 27 n.16, O'Callaban v. Parker, 395 U.S. 258(1969). The other 15%, probably involving defendantswith the best potential for rehabilitation, will be theones affected by the O'Callahan limitation upon mili-tary jurisdiction.

'8See Antell, The Modern Grand Jury: BenightedSupergovernment, 51 A.B.A.J. 153 (1965).

19 Article 32 reads in part as follows:No charge or specification may be referred to ageneral court-martial for trial until a thoroughand impartial investigation of all the matters setforth therein has been made. This investigationshall include inquiry as to the truth of the matterset forth in the charges, consideration of the formof the charges, and a recommendation as to thedisposition which should be made of the case in theinterest of justice and discipline

U.C.MJ. art. 32, 10 U.S.C. § 832 (1968).70The accused shall be advised of the charges

against him and of his right to be representedat that investigation by counsel. Upon his ownrequest he shall be represented by civilian coun-sel if provided by him, or military counsel ofhis own selection if such counsel is reasonablyavailable, or by counsel detailed by the officerexercising general court-martial jurisdiction overthe command.

U.C.M.J. art. 32, 10 U.S.C. § 832 (1968).n It is not the function of the investigating offi-

cer to perfect a case against the accused, butto ascertain and impartially weigh all availablefacts in arriving at his conclusion.

MANUAL FOR COUMrS-MARTIAL, para. 34 at 7-9.

The suspect himself may call witnesses, enter evi-dence, or testify on his own behalf.2

Trial by jury may seem most desirable as well.But is the accused serviceman a peer of the com-munity just outside the gate? In Orloff v. Wil-loughby,73 the Court acknowledged that "themilitary constitutes a specialized communitygoverned by a separate discipline from that of thecivilian." 74 The soldier does not choose where heis to be stationed. Many times local civilian in-habitants house antagonism toward members ofthe military who are stationed near their commu-nity, especially those of different ethnic or racialbackgrounds. Jury trial, then, may well provideno benefit to the serviceman accused of criminalconduct far from his home.

The Judiciary's call for new restrictions oncourt-martial jurisdiction was based upon a dis-trust of the military judicial system coupled withthe expressed need to afford certain military de-fendants the civil amenities of grand jury andjury trial proceedings. Disagreement over thestrength of such arguments as the basis for theoverthrow of well established principles of militaryjurisdiction continued unabated. No more satis-factory was the fact that the O'Callahan opinionleft unexplained the new jurisdictional standard.What were the proper bounds of "service con-nected" crime?

Justice Harlan, alarmed by the majority'sfailure to define "service connection", proclaimed,

Whatever role an ad hoc judicial approach mayhave in some areas of the law, the Congress andthe military are at least entitled to know withsome certainty the allowable scope of court-martial jurisdictionY7

The extent of confusion over jurisdictional stand-ards in the wake of O'Callahan soon became ap-parent.

The Court of Military Appeals quickly initiatedthe task of interpreting the decision and handling

72 At that investigation full opportunity shall begiven to the accused to cross-examine witnessesagainst him if they are available and to presentanything he may desire in his own behalf, eitherin defense or mitigation, and the investigatingofficer shall examine available witnesses re-quested by the accused.

U.C.MJ. art. 32, 10 U.S.C. § 832 (1968). See alsoMANuAL FOR CouTS-MARTiAL, para. 34 at 7-10 &7-I1.

354 U.S. 83 (1953).74 Id. at 94.75O'Callahan v. Parker, 395 U.S. 258, 284 (1969).

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PAUL J. RICE

its jurisdictional uncertainties. In United States v.Borys78, that court first indicated how it wouldrespond to the O'Callahan ruling.

Army Captain Stephen Borys had been triedand convicted by court-martial in a case similar onits facts to O'Callahan.' Like defendant O'Calla-han, Borys was found guilty of a rape attemptedwhile off duty and dressed in civilian clothes.nThe comparison with O'Callahan satisfied themajority that service connection was not presentleaving court-martial jurisdiction invalid. Themilitary court's conviction was reversed withcharges dismissed.

The Borys opinion represented a mechanicalapplication of O'Callahan principles. Judge Fergu-son, speaking for the majority, envisioned no basisfor distinguishing Borys from the earlier case. Thefact that in both instances civilian courts wereopen, that the situs of the conduct in question wasnot territory under siege, an armed camp or adistant military outpost convinced the majoritythat the fact situations were indistinguishable. AsJudge Ferguson phrased it,

(the] accused's military status was only a hap-penstance of chosen livelihood... none of his actswere service connected under any test or standardset out by the Supreme Court. In short, they, likeO'Ca~lahan's, were the very sort remanded to theappropriate civil jurisdiction in which indictmentby grand jury and trial by petit jury could be af-forded the defendant.79

Chief Judge Quinn, in dissent, questioned whathe termed the majority's application of O'Callaltan"by rote." 3 0 He asserted that before the militarycould be precluded from trying its own personnelthe offense in question would have to be bothcognizable in a federal civilian court and markedby a lack of military significance. He insisted thatthe Supreme Court in O'Callahan had looked tothe fact that the offenses in issue there had oc-curred in the Federal Territory of Hawaii prior tostatehood. The federal government in such terri-

76 18 U.S.C.M.A. 547 (1969).7 Borys had been charged with rape, robbery,

sodomy and attempted rape in violation of U.C.M.J.arts. 120, 122, 125, and 80 respectively.

8Borys' crime, like that of O'Callahan, could betermed "civilian" in nature. In fict, the accused hadbeen tried and acquitted by a civil court in Aiken,South Carolina of seven of twelve counts against him.See United States v. Borys, 39 C.M.R. 608, 611 (1968).

79 United States v. Borys, 18 U.S.C.M.A. 547, 549(1969).80Id. at 550.

tory possessed criminal jurisdiction over bothcivilian and military personnel. As Quinn viewedit, O'Callahan stood for the narrow principle thatCongress in exercising that federal authoritycould not prescribe different forums for the prose-cution of a civilian and military man's misconductunless the service member's offense was serviceconnected.

Quirn's dissent noted that defendant Borys'offenses had occurred off base in Georgia and SouthCarolina. He stressed the fact that federal andstate governments remained separate sovereignsvested with authority to determine what actionwould be criminal within their jurisdictions. Thata state criminal code declared a particular actcriminal in no way limited the federal power ofCongress to grant to the military jurisdiction overits personnel responsible for such criminal con-duct.81 Quinn reasoned that Borys' offenses werenot cognizable in a civilian court since civiliancourt as used in O'Callahan meant federal court.P

Furthermore, the dissent viewed Borys' mis-conduct as militarily significant tolling serviceconnection. Congress, it was argued, had exercisedits power under Article I, Section 8, Clause 14 tomake rules for government and regulation of theArmed Forces in order to afford federal protectionof the civilian population from the military.Congress sanctioned courts-martial for that pur-pose. Military status of an accused in his allegedmisconduct toward a civilian would properlyprecipitate court-martial action in light of Con-gress's jurisdictional grant.P

81 Chief Judge Quinn compared the carnal knowledge(statutory rape) statutes in the State of Florida-".. unmarried person, of previous chaste character... under the age of eighteen years," FRA. STAT. ANx.tit. 44, § 794.05(1) (1961); and in the State of Hawaii-"... with any female under the age of sixteen years,"HAwAu REv. STAT. tit. 38, § 768.62 (1955); with themilitary counterpart-"... has not attained the ageof sixteen years." U.C.M.J. art. 120(b), 10 U.S.C.§ 920(b) (1968). If the girl involved in a rape case werefifteen and not of previously chaste character, theoffense would be cognizable in a Hawaii court but notin Florida. Quinn, assuming arguendo that "cognizablein a civilian court" meant either state or federal court,showed that the military would be able to court-martialthe service member in Florida but not Hawaii. Thatwould mean that the ability of Congress to exerciseits enumerated constitutional power over the militarywould, in fact, be controlled in part by each state'sdetermination as to what acts are criminal in thatstate. United States v. Borys, 18 U.S.C.M.A. 547,556-7 (1969).

82United States v. Borys, 18 U.S.C.M.A. 547, 557(1969).

8i Id. at 557-60. The dissent in Borys, then, joined

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In reality the dissent in Borys represented aninitial attempt to place a precise definition uponthe term service connection.13 A majority of theCourt of Military Appeals soon took up the task aminority had begun in Borys. Results of that ef-fort revealed a tendency to assume much from anopinion (O'Callahan) that offered little in terms ofspecific guidelines.

The Supreme Court had stated that O'Calla-hans "offenses did not involve any question of...the security of a military post." 85 The questionthen arose-what if defendant O'Callahan'sattempted rape had occured on a military post?Would his status plus occurrence of the offenseupon a military installation permit trial by court-martial? The Court of Military Appeals answeredaffirmatively8 The situs of a serviceman's crimi-nal conduct was termed one factor in resolvingthe service connection question. Authority togovern its own posts invested the military withauthority to act in insuring their safety. Crimescommitted on base were to be dealt with by acourt-martial.

This standard was invoked in United Stakes v.Crapo.P Defendant Crapo stood convicted ofrobbery and attempted robbery. His two victimswere taxicab drivers. One was attacked on amilitary reservations and the other in Seattle,Washington. On appeal, court-martial conviction

that of O'Cailahan in decrying judicial assault upon thetraditional scope of court-martial jurisdiction.

84The jurisdictional watchword in O'Callakan re-mained largely undefined. The Court's creation of the"service connection" standard was not designed toquestion court-martial jurisdiction over many cases.The military's authority to court-martial a soldier fordesertion or for wilful disobedience of the lawful orderof a superior officer remained unchallenged. But con-cern arose as to designation of the proper forum tohandle cases involving servicemen's crimes in which"service connection", or the lack thereof, was not soclear.

85 O'Callahan v. Parker, 395 U.S. 258, 274 (1969).8 See United States v. Henderson, 18 U.S.C.M.A.

601 (1969) and United States v. Smith, 18 U.S.C.M.A.609 (1969). Defendants Henderson and Smith werecourt-martialed and convicted .of rape in separatetrials. Their victims were the daughters of fellow ser-vicemen. Henderson lured the one girl to his quartersoff post, while Smith took a girl to his quarters onpost. Henderson's conviction was reversed by theappeals court while Smith's conviction was affirmed.The court acknowledged that the cases differed "in onlyone respect-the place where the offense occurred."United States v. Smith, 18 U.S.C.M.A. 609, 609 (1969).

- 18 U.S.C.M.A. 594 (1969).8 The driver was struck over the head on the reser-

vation but was forced to drive off the base before de-fendant Crapo took his money. Id. at 595-96.

for the attempted robbery in Seattle was reversed.Conviction for the on-base offense was affirmed.8 9

The situs criterion if strictly applied would bringwithin court-martial jurisdiction cases which in noway involved the security of a military post. Forinstance, a serviceman's preparation of a fraudu-lent income tax form or his forgery of a check to becashed off base would fit that category. That theCourt of Military Appeals may have establishedtoo broad a standard proved no problem. Excep-tions to that general jurisdictional rule were soonrecognized. 0

Furthermore, the broad general rule was work-able. The Court of Military Appeals had recognizedthat military trial and lower appellate courts wereawaiting guidelines to assist them in sorting outthe O'Callahan puzzle. Anything less than ajurisdictional standard simple in applicationwould have left the lower courts in a continuingstate of uncertainty.9

Additional refinement in the definition of"service connected" crime in terms of the situs ofthe conduct in question came with the decision inUnited States v. Kealon.9' Airman Keaton wastried and convicted by general court-martial in theRepublic of the Philippines for the crime of assaultwith intent to commit murder. He appealedarguing that the purpose of O'Callahan was toprotect for servicemen the constitutional privi-leges of indictment and trial by jury. The Courtof Military Appeals answered that such privileges

89 United States v. Crapo, 18 U.S.C.M.A. 594, 596(1969). Accord United States v. Shockley, 18 U.S.C.M.A. 610 (1969), where a conviction for sodomycommitted off post was reversed while conviction forthe same offense committed on post was affirmed.United States v. Wiffliams, 18 U.S.C.M.A. 605 (1969),where the offense of cashing a bad check on post washeld to be service connected while the cashing ofanother at a civilian grocery store was not.

90E.g., United States v. Castro, 18 U.S.C.M.A.598 (1969), in which the Court of Military Appealsheld that the court-martial did not have jurisdictionover an on post concealed weapon offense when thefacts indicated that the bringing of the weapon ontothe post was not a voluntary act. Castro had been in-jured in a traffic accident off post and was transportedto an Army hospital by military police. The weapon wasdiscovered at the hospital.

91 The Supreme Court may within the year rule ona case that could affect even the situs criterion formilitary jurisdiction. On February 27, 1970 the Courtgranted certiorari on the issue of whether O'Callahan v.Parker would bar a court-martial from trying a soldiercharged with committing rape and kidnapping againstcivilians on a military post. Relford v. Commandant,397 U.S. 934 (1970).

9219 U.S.C.MA. 64 (1969).

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PAUL J. RICE

would only be available through the civil courts ofthe United States. It noted that "military courts[alone] are authorized to function within the Re-public of the Philippines." 93 The Keaton courtstated that while some offenses committed abroadare triable in the federal civilian courts, "thenumber and kind of offenses in which such actioncan be taken is limited." 91 The Supreme Court, itwas added, did not intend to proscribe court-martial jurisdiction in friendly foreign countries.Court-martial jurisdiction over defendants chargedwith offenses in a foreign land represented a "validexercise of constitutional authority." 91

Specific offenses as well were found by their verynature to be service connected. In United States v.Beeker95, for instance, the Court of MilitaryAppeals reaffirmed jurisdictional guidelines fortreatment of drug cases involving military per-sonnel.

Beeker had been convicted of numerous mari-juana offenses-unlawful importation and trans-portation; wrongful possession on a militarypost; wrongful use off and on post.93 The court up-held military jurisdiction over the accused for useoffenses both off and on base. It reasoned that druguse anywhere by the military prejudiced the orderand discipline of the Armed Forces. A court-martialwas also held proper in instances of on base posses-sion of marijuana consistent with the situs cri-terion for jurisdiction established in Crapo.99

Subsequent cases extended the bounds of serviceconnection to cover off post use of heroin andcocaine,' possession of dangerous drugs,' 0' and offpost transfer of drugs to another service member.j' 2

In addition, the petty offenses of military menhad long been tried by courts-martial. 3 O'Calla-han's denial of military jurisdiction over cases in-

3Id. at 67.9 Id. at 67.95 Id. at 67.96 18 U.S.C.M.A. 563 (1969).97In violation of 21 U.S.C. § 176(a).98 In violation of U.C.M.J. art. 134, 10 U.S.C. § 934

(1968).99 United States v. Crapo, 18 U.S.C.M.A. 954 (1969).

See notes 87-90 supra. and accompanying text.309 See United States v. Boyd, 18 U.S.C.M.A. 581

(1969).101 See United States v. Castro, 18 U.S.C.M.A. 598

(1969).102 See United States v. Rose, 19 U.S.C.M.A. 3

(1969).103 The exact limits upon the definition of a petty

offense are not certain, though it is generally held thatany crime carrying a maximum punishment of sixmonths is a petty offense. See Duncan v. Louisiana, 391U.S. 145 (1968); Cheff v. Schnackenberg, 384 U.S. 373(1966).

volving civilian type crimes not service connectedin no way disturbed the jurisdictional authority ofcourts-martial in the petty offense realm.

The Court of Military Appeals in United States v.Skarkey04 asserted the propriety of a petty offenseexception to the O'Callahan rule. The sole issuebefore the court was whether the military heldjurisdiction to court-martial a marine for the of-fense of drunk and disorderly conduct. 1 5 The courtnoted that O'Callahan should be read "with an eyeto the important constitutional protections whichit sought to preserve," namely the benefits ofindictment and trial by jury.10 6 Emphasis wasplaced on the fact that the Supreme Court itselfrecognized no constitutional right to grand juryindictment or jury trial in cases of petty offense.1

Under O'Callahan then, military trial of that typeof case would be entirely proper.

The Armed Forces gain much from continuedjurisdiction over petty offense cases. Courts-martial expeditiously handle petty charges leavingthe uniformed defendant available for immediatefurther duty. The slower civil court procedureslead to undesirable delay: Holding O'Callahan in-applicable to cases of petty offense relieved whatotherwise would have been a judicial hindrance toefficient military operations.

Many crimes committed against fellow service-men likewise fall outside the bounds of O'Callahanapplicability. The Court of Military Appeals firstdefined that genre of crime as service connected inUnited States v. Rego. s

Defendant Rego's court-martial conviction forlarceny was affirmed. The victim of the crime wasa fellow airman. The court relied on language ofthe O'Callahan majority which had recognized''assaults on and thefts from other soldiers" as"peculiarly military crimes." 09

The Rego holding led the way for a broader rule

10419 U.S.C.M.A. 26 (1969).105 The maximum penalty for the offense is confine-

ment at hard labor for six months and forfeiture oftwo-thirds pay per month for a like period. MANUAL FOR

CouiTs-MRTrAL, para. 127(c).100 United States v. Sharkey, 19 U.S.C.M.A. 26, 27

(1969)."07See Duncan v. Louisiana, 391 U.S. 145 (1968);

District of Columbia v. Clawans, 300 U.S. 617 (1937);Ex parte Wilson, 114 U.S. 417 (1885).

108 19 U.S.C.M.A. 9 (1969).109 O'Callahan v. Parker, 395 U.S. 258, 270 n.14

(1969). In Rego, Judge Ferguson of the United StatesCourt of Military Appeals dissented. He asserted thatthe offense in question was not service connected. Heargued that service connection in such a case ought todepend on whether the victim, a serviceman, had beenaffected in the performance of his military duty.

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of court-martial jurisdiction over cases involving amilitary defendant and a military victim.

[WI]here an offense cognizable under the UniformCode of Military Justice is perpetrated againstthe person or property of another serviceman,regardless of the circumstances, the offense is cog-nizable by court-martial.110

Instances of abuse of military status also havesignaled court-martial jurisdiction in the wake ofO'Callahan. In particular, cases arose involvingservicemen's breach of faith placed in them bybusinessmen in recognition of their militaryidentity. United States v. Peak,11' for example, up-held a court-martial conviction for wrongful ap-propriation of a motor vehicle 12 The accusedescaped from the post stockade and went to a usedcar lot in a neighboring community. He wasdressed in fatigues and identified himself and hismilitary unit to the salesman. He was permitted totake a car for a test drive, but never returned.The court recognized that

such an abuse of a military status is likely to in-fluence the extent of confidence by the public inmembers of the Armed Forces. We believe theimpact of such abuse is direct and substantialenough to provide the requisite service connectionfor the Armed Forces to exercise jurisdiction overthe offense.1

Court-martial action in response to a marine'sforgery of a check while off base likewise receivedapproval on appeal."' The accused used hismilitary identification card in presenting the check.The court held that the soldier utilized militarystanding to facilitate commission of the crime.Service connection, therefore, was presentuS

no United States v. Everson, 19 U.S.C.M.A. 70, 71(1969). This case involved the off post offenses ofassault with a dangerous weapon and careless dischargeof a firearm under circumstances such as to endangerhuman life in violation of U.C.MJ. arts. 128 & 134,10 U.S.C. §§ 928 & 934 (1968).

1 19 U.S.C.M.A. 19 (1969)."2In violation of U.C.MJ. art. 121, 10 U.S.C. § 921

(1968).reUnited States v. Peak, 19 U.S.C.M.A. 20-21

(1969)."'See United States v. Frazier,. 19 U.S.C.M.A. 40

(1969)."'1Dissenting opinions by Judge Ferguson in both

Peak and Frazier forwarded the view that discreditupon the Armed Forces was not in issue. "Reliance onone's status as a serviceman," he insisted, was not"an element of the forgery offenses." United States v.Frazier, 19 U.S.C.M.A. 40, 42 (1969). In anotherforgery case, the court examined five checks holdingthat one instance of forgery was service connected

The defendant in United States v. Frynzan"6 hadregistered in a hotel under a ficticious name wear-mng the uniform and insignia of a first lieutenant.He amassed a $203.13 bill, advised the manage-ment that he was on temporary duty with $600 inback pay due to him, and left with credit granted.A later conviction for wrongful and dishonorablefailure to pay that debt" 7 was affirmed. The courtstated that "positive misuse of [military] statusto secure privileges or recognition not accordedothers cause[d] the Armed Forces to have a sub-stantial interest in punishing the abuse." u

Establishment of the bounds of service con-nected crime involved not only demarcation ofthose factors which would bring a case within thestandard, but also recognition of those that wouldforce one without. The Court of Military Appealshas since O'Callahan specifically designated twocriteria upon which court-martial jurisdiction maynot be based.

The majority in O'Callahan had stated thatcrimes committed by officers were traditionallycognizable in military tribunals.11 9 Nothing morewas said. The Court of Military Appeals thenmoved to specifically reject any implication thatthe commissioned status of a defendant alonetolled service connection. 20

The court also ruled that "the wearing of the[military] uniform at the time of arrest" alone

because the check in question was cashed on a militaryinstallation. The forgery of three others was serviceconnected because the endorsements contained theaccused's military address. The last forgery was heldto be cognizable in a civilian court because neither theinstrument nor other available evidence pointed to theaccused's use of military standing in cashing the check.United States v. Halalan, 19 U.S.C.M.A. 46 (1969).

nG 19 U.S.C.M.A. 71 (1969).n7 In violation of U.C.MJ. art. 134, 10 U.S.C. § 934

(1968).U8 United States v. Fryman, 19 U.S.C.M.A. 71, 73

(1969). In finding service connection in cases such asFryman the Court of Military Appeals appeared tooverlook one key question-was the victim's relianceon the military status of the accused justifiable?Justification for reliance on military status would ap-pear sound in cases where the accused was dressed inuniform or presented military identification. If, however.a serviceman dressed in civilian clothes entered an offpost business establishment and represented himself asa military man, justification for reliance on the mili-tary status of the accused would seem weak.

"1 O'Callahan v. Parker, 395 U.S. 258, 270 n.14(1969).

120" United States v. Borys, 18 U.S.C.M.A. 547, 550-51 (1969). Chief Judge Quinn, who dissented in Borys,specifically rejected the implication that a crime by anofficer would be service connected while the same crimecommitted by an enlisted man would not. The majorityin Borys rejected the theory by implication-theopinion included no comment on the issue.

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PAUL J. RICE

would not confer jurisdiction on the courts-martial l There as before the military courtresponded to offer definition for the O'Callahanpronouncement on military jurisdiction. Its con-tinuous effort at refinement of the term "serviceconnection" precluded widespread confusionwithin the military judicial system as to the courseof appropriate action in the O'Callahan era.

O'Callahan aroused more than confusion overthe extent of court-martial jurisdiction. Doubtarose as well on the question whether courts couldapply the decision retroactively. Once again theCourt of Military Appeals stepped in to offer aninterim view" with the matter set for final resolu-tion by the Supreme Court within the next year."3

The military court's decision forwarded at leastone approach available to the Supreme Court inhandling the issue.

Treatment of this matter arose in considerationof the appeal of an officer from a rape conviction."4

Original proceedings in the case had become finalin August 1968. His petition for reconsiderationunder O'Callahan was denied. The Court of Mili-tary Appeals held that it would "apply the decision[O'Callahan] only to those convictions that werenot final before June 2, 1969, the date of the...decision."'2 The court acknowledged that itopposed retroactivity save in cases subject to di-rect review on the O'Callahan decision date. 6

The military court assumed the approach of the1965 Linkletter v. Walkerm decision of the SupremeCourt where it was asserted that "the constitutionneither prohibits nor requires retrospective ef-fect." " The military tribunal assumed that itwould have to determine whether retroactive orprospective application was appropriate. As toretroactive application of the new O'Callahanstandard for military jurisdiction, the court notedthat the issue could only be resolved by weighingin balance

[t]he extent of the reliance of law enforcement121 United States v. Armes, 19 U.S.C.M.A. 15, 16

(1969)."'See Mercer v. Dillon, 19 U.S.C.M.A. 264 (1970)."'On February 27, 1970 the Supreme Court granted

certiorari to determine whether O'Callahan v. Parkershould be applied retroactively. Relford v. Comman-dant, 397 U.S. 934 (1970).

m Mercer v. Dillon, 19 U.S.C.M.A. 264 (1970).1 Id. at 265.28 Id. at 265." 381 U.S. 618 (1965).

Id. at 629. See Haddad, Retroactivity Should beRethought: A Call for the End of the Linkletter Doctrine,60 J. Crmu. L.C. & P.S. 417 (1969), for a criticalanalysis of Linkletter.

authorities on the old standards and the effect onthe administration of justice of a retroactive ap-plication of the new standard. 1"

Decision against retroactivity came with thetribunal's analysis of those two factors.

Congress, the military, and even the SupremeCourt had accepted or relied upon status as thejurisdictional test prior to O'Callahan.Y° Courts-martial had accepted cases through June of 1969with a view to well established jurisdictionalprinciples. The Supreme Court, in DeSefano v.Woods,"' stated that a decision would not beapplied retroactively if cases decided prior toassertion of new principles of law had been handledwith good faith reliance upon past opinions of theCourt."' It would be difficult to argue that disposi-tion by the military of the type of case later af-fected by O'Callahan was in bad faith.

Decision against retroactive application ofO'Callahan would seem even more necessary inlight of the second factor-the effect such applica-tion would have upon the administration ofmilitary justice. Rehearing of cases tried bycourts-martial under pre-O'Callahan principles ofjurisdiction would bring the military judicialsystem to a standstill. As the Court of MilitaryAppeals emphasized, the Armed Forces conductedapproximately 74,000 courts-martial in 1968 alone.

If only the smallest fraction of these courts-martialand those conducted in the other years since 1916involved an O'Callahan issue, it is an understate-ment that thousands of courts-martial would stillbe subject to review."'

Nevertheless, the Supreme Court's approach tothe retroactivity issue could well rest, as didO'Callahan, upon an analysis of the fairness of themilitary judicial system compared with civiliancourts." 4 Should such an approach be taken, it ishoped that the examination of military courts willprove more objective than that undertaken inO'Callahan.

The O'Callahan decision shocked the Armed

= Mercer v. Dillon, 19 U.S.C.M.A. 264, 266 (1970).m See notes 52-58 supra. and accompanying text."392 U.S. 631 (1968).1 Id. at 634." Mercer v. Dillon, 19 U.S.C.MA. 264, 271 (1970).

Judge Ferguson dissented in Mercer. He felt that theCourt of Military Appeals should not rule on theretroactivity issue until the Supreme Court had actedon the matter. Further, he expressed basic oppositionto the Linkletter approach to retroactivity particularlywith jurisdictional rules in question. Id. at 271.

" See note 123 supra.

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Forces. The military judicial system had operatedfor years with a workable jurisdictional standardestablished under the authority of Congressgranted by the Constitution. The Supreme Courtrejected that standard and offered a new interpre-tation of constitutional language heretofore termed"unambiguous." 3 r The Court's justification forthe move was not persuasive. Historical suppottfor the O'Callahan holding drawn from the historyof English and early American practice was notfoolproof. Inferences raised by the Court that thepresent day court-martial system denied de-fendants fundamental justice were unfounded. Ifindeed limits are required upon the constitutionalgrant of power to Congress over the military inorder to preserve other constitutional guarantees,careful consideration should be given to the legiti-mate needs of the military to preserve discipline.The O'Callahan decision did not do so.

Furthermore, the new jurisdictional standard of

135 See note 60 supra. and accompanying text.

service connection was proclaimed in vague termsgiving rise to widespread confusion. The Court ofMilitary Appeals accepted the task of definingservice connection and pursued it vigorously. Fora period of six months beginning with UnitedStates v. Borys36 thirty-five per cent of that tri-bunal's decisions dealt with interpretation ofO'Callahan on military jurisdiction. That courthas, with a view to the distinctive legal problems ofthe military, justifiably established liberal stand-ards for defining the bounds of service connection.

It will be a substantially different SupremeCourt that resolves subsequent questions arisingout of O'Callahan.ln Reexamination by the Courtof O'Callahan issues may well lead to limitation ofthe opinion's ultimate effect on military jurisdic-tion.

-6 18 U.S.C.M.A. 545 (1969).117 It remains to be seen what course the Court will

follow in treating O'Callahan issues now that ChiefJustice Burger and Justice Blackman have replacedChief Justice Warren and Justice Fortas.

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