Solorio v. United States

483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364, 1987 U.S. LEXIS 2892

Opinions

Chief Justice Rehnquist

delivered the opinion of the Court.

This case presents the question whether the jurisdiction of a court-martial convened pursuant to the Uniform Code of Military Justice (U. C. M. J.) to try a member of the Armed Forces depends on the “service connection” of the offense charged. We hold that it does not, and overrule our earlier decision in O’Callahan v. Parker, 395 U. S. 258 (1969).

While petitioner Richard Solorio was on active duty in the Seventeenth Coast Guard District in Juneau, Alaska, he sexually abused two young daughters of fellow coastguardsmen. Petitioner engaged in this abuse over a 2-year period until he was transferred by the Coast Guard to Governors Island, New York. Coast Guard authorities learned of the Alaska crimes only after petitioner’s transfer, and investigation revealed that he had later committed similar sexual abuse offenses while stationed in New York. The Governors Island commander convened a general court-martial to try petitioner for crimes alleged to have occurred in Alaska and New York.

There is no “base” or “post” where Coast Guard personnel live and work in Juneau. Consequently, nearly all Coast Guard military personnel reside in the civilian community. Petitioner’s Alaska offenses were committed in his privately owned home, and the fathers of the 10- to 12-year-old victims in Alaska were active duty members of the Coast Guard assigned to the same command as petitioner. Petitioner’s New York offenses also involved daughters of fellow coast-guardsmen, but were committed in Government quarters on the Governors Island base.

After the general court-martial was convened in New York, petitioner moved to dismiss the charges for crimes committed in Alaska on the ground that the court lacked jurisdiction under this Court’s decisions in O’Callahan v. Parker, supra, and Relford v. Commandant, U. S. Disciplinary Barracks, 401 U. S. 355 (1971).¹ Ruling that the Alaska offenses were not sufficiently “service connected” to be tried in the military criminal justice system, the court-martial judge granted the motion to dismiss. The Government appealed the dismissal of the charges to the United States Coast Guard Court of Military Review, which reversed the trial judge’s order and reinstated the charges. 21 M. J. 512 (1985).

The United States Court of Military Appeals affirmed the Court of Military Review, concluding that the Alaska offenses were service connected within the meaning of O’Callahan and Relford. 21 M. J. 251 (1986). Stating that “not every off-base offense against a servicemember’s dependent is service-connected,” the court reasoned that “sex offenses against young children . . . have a continuing effect on the victims and their families and ultimately on the morale of any military unit or organization to which the family member is assigned.” Id., at 256. In reaching its holding, the court also weighed a number of other factors, including: the interest of Alaska civilian officials in prosecuting petitioner; the hardship on the victims, who had moved from Alaska, that would result if they were called to testify both at a civilian trial in Alaska and at the military proceeding in New York; and the benefits to petitioner and the Coast Guard from trying the Alaska and New York offenses together.² This Court subsequently granted certiorari pursuant to 28 U. S. C. § 1259(3) (1982 ed., Supp. III) to review the decision of the Court of Military Appeals. 476 U. S. 1181 (1986). We now affirm.

The Constitution grants to Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, § 8, cl. 14. Exercising this authority, Congress has empowered courts-martial to try servicemen for the crimes proscribed by the U. C. M. J., Arts. 2, 17, 10 U. S. C. §§ 802, 817. The Alaska offenses with which petitioner was charged are each described in the U. C. M. J. See n. 1, supra. Thus it is not disputed that the court-martial convened in New York possessed the statutory authority to try petitioner on the Alaska child abuse specifications.

In an unbroken line of decisions from 1866 to 1960, this Court interpreted the Constitution as conditioning the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused. Gosa v. Mayden, 413 U. S. 665, 673 (1973) (plurality opinion); see Kinsella v. United States ex rel. Singleton, 361 U. S. 234, 240-241, 243 (1960); Reid v. Covert, 354 U. S. 1, 22-23 (1957) (plurality opinion); Grafton v. United States, 206 U. S. 333, 348 (1907); Johnson v. Sayre, 158 U. S. 109, 114 (1895); Smith v. Whitney, 116 U. S. 167, 183-185 (1886); Coleman v. Tennessee, 97 U. S. 509, 513-514 (1879); Ex parte Milligan, 4 Wall. 2, 123 (1866); cf. United States ex rel. Toth v. Quarles, 350 U. S. 11, 15 (1955); Kahn v. Anderson, 255 U. S. 1, 6-9 (1921); Givens v. Zerbst, 255 U. S. 11, 20-21 (1921). This view was premised on what the Court described as the “natural meaning” of Art. I, § 8, cl. 14, as well as the Fifth Amendment’s exception for “cases arising in the land or naval forces.” Reid v. Covert, supra, at 19; United States ex rel. Toth v. Quarles, supra, at 15. As explained in Kinsella v. Singleton, supra:

“The test for jurisdiction ... is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’. . .” Id., at 240-241 (emphasis in original).

“Without contradiction, the materials . . . show that military jurisdiction has always been based on the ‘status’ of the accused, rather than on the nature of the offense. To say that military jurisdiction ‘defies definition in terms of military “status” ’ is to defy the unambiguous language of Art. I, § 8, cl. 14, as well as the historical background thereof and the precedents with reference thereto.” Id., at 243.

Implicit in the military status test was the principle that determinations concerning the scope of court-martial jurisdiction over offenses committed by servicemen was a matter reserved for Congress:

“[T]he rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers expressly entrusted that task to Congress.” Burns v. Wilson, 346 U. S. 137, 140 (1953) (plurality opinion) (footnote omitted).

See also Coleman v. Tennessee, supra, at 514; Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 187 (1962).³

In 1969, the Court in O’Callahan v. Parker departed from the military status test and announced the “new constitutional principle” that a military tribunal may not try a serviceman charged with a crime that has no service connection. See Gosa v. Mayden, supra, at 673. Applying this principle, the O’Callahan Court held that a serviceman’s off-base sexual assault on a civilian -with no connection with the military could not be tried by court-martial. On reexamination of O’Callahan, we have decided that the service connection test announced in that decision should be abandoned.

The constitutional grant of power to Congress to regulate the Armed Forces, Art. I, § 8, cl. 14, appears in the same section as do the provisions granting Congress authority, inter alia, to regulate commerce among the several States, to coin money, and to declare war. On its face there is no indication that the grant of power in Clause 14 was any less plenary than the grants of other authority to Congress in the same section. Whatever doubts there might be about the extent of Congress’ power under Clause 14 to make rules for the “Government and Regulation of the land and naval Forces,” that power surely embraces the authority to regulate the conduct of persons who are actually members of the Armed Services. As noted by Justice Harlan in his O’Callahan dissent, there is no evidence in the debates over the adoption of the Constitution that the Framers intended the language of Clause 14 to be accorded anything other than its plain meaning.⁴ Alexander Hamilton described these powers of Congress “essential to the common defense” as follows:

“These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. . . .

“. . . Are fleets and armies and revenues necessary for this purpose [common safety]? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them.” The Federalist No. 23, pp. 152-154 (E. Bourne ed. 1947).

The O’Callahan Court’s historical foundation for its holding rests on the view that “[b]oth in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion.” 395 U. S., at 268. According to the Court, the historical evidence demonstrates that, during the late 17th and 18th centuries in England as well as the early years of this country, courts-martial did not have authority to try soldiers for civilian offenses. The Court began with a review of the 17th-century struggle in England between Parliament and the Crown over control of the scope of court-martial jurisdiction. As stated by the Court, this conflict was resolved when William and Mary accepted the Bill of Rights in 1689, which granted Parliament exclusive authority to define the jurisdiction of military tribunals. See ibid. The Court correctly observed that Parliament, wary of abuses of military power, exercised its new authority sparingly.⁵ Indeed, a statute enacted by Parliament in 1689 provided for court-martial only for the crimes of sedition, mutiny, and desertion, and exempted members of militia from its scope. Mutiny Act of 1689, 1 Wm. & Mary, ch. 5.

The O’Callahan Court’s representation of English history following the Mutiny Act of 1689, however, is less than accurate. In particular, the Court posited that “[i]t was . . . the rule in Britain at the time of the American Revolution that a soldier could not be tried for a civilian offense committed in Britain; instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court.” 395 U. S., at 269. In making this statement, the Court was apparently referring to Section XI, Article I, of the British Articles of War in effect at the time of the Revolution.⁶ This Article provided:

“Whenever any Officer or Soldier shall be accused of a Capital Crime, or of having used Violence, or committed any Offence against the Persons or Property of Our Subjects, . . . the Commanding Officer, and Officers of every Regiment, Troop, or Party to which the . . . accused shall belong, are hereby required, upon Application duly made by, or in behalf of the Party or Parties injured, to use . . . utmost Endeavors to deliver over such accused ... to the Civil Magistrate.” British Articles of War of 1774, reprinted in G. Davis, Military Law of the United States 581, 589 (3d rev. ed. 1915).

This provision, however, is not the sole statement in the Articles bearing on court-martial jurisdiction over civilian offenses. Specifically, Section XIV, Article XVI, provided that all officers and soldiers who

“shall maliciously destroy any Property whatsoever belonging to any of Our Subjects, unless by Order of the then Commander in Chief of Our Forces, to annoy Rebels or other Enemies in Arms against Us, he or they that shall be found guilty of offending herein shall (besides such Penalties as they are liable to by law) be punished according to the Nature and Degree of the Offence, by the Judgment of a Regimental or General Court Martial.” Id., at 593.

Under this provision, military tribunals had jurisdiction over offenses punishable under civil law. Nelson & Westbrook

11. Accordingly, the O’Callahan Court erred in suggesting that, at the time of the American Revolution, military tribunals in England were available “only where ordinary civil courts were unavailable.” 395 U. S., at 269, and n. 11.

The history of early American practice furnishes even less support to O’Callahan’s historical thesis. The American Articles of War of 1776, which were based on the British Articles, contained a provision similar to Section XI, Article I, of the British Articles, requiring commanding officers to deliver over to civil magistrates any officer or soldier accused of “a capital crime, . . . having used violence, or . . . any offence against the persons or property of the good people of any of the United American States” upon application by or on behalf of an injured party. American Articles of War of 1776, Section X, Article I, reprinted in 2 Winthrop 1494. It has been postulated that American courts-martial had jurisdiction over the crimes described in this provision where no application for a civilian trial was made by or on behalf of the injured civilian.⁷ Indeed, American military records reflect trials by court-martial during the late 18th century for offenses against civilians and punishable under civil law, such as theft and assault.⁸

The authority to try soldiers for civilian crimes may be found in the much-disputed “general article” of the 1776 Articles of War, which allowed court-martial jurisdiction over “[a]ll crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline.” American Articles of War of 1776, Section XVIII, Article 5, reprinted in 2 Winthrop 1503. Some authorities, such as those cited by the O’Callahan Court, interpreted this language as limiting court-martial jurisdiction to crimes that had a direct impact on military discipline.⁹ Several others, however, have interpreted the language as encompassing all noncapital crimes proscribed by the civil law.¹⁰ Even W. Winthrop, the authority relied on most extensively by the majority in O’Callahan, recognized that military authorities read the general article to include crimes “committed upon or against civilians ... at or near a military camp or post.” 2 Winthrop 1124, 1126, n. 1.

We think the history of court-martial jurisdiction in England and in this country during the 17th and 18th centuries is far too ambiguous to justify the restriction on the plain language of Clause 14 which O’Callahan imported into it.¹¹ There is no doubt that the English practice during this period shows a strong desire in that country to transfer from the Crown to Parliament the control of the scope of court-martial jurisdiction. And it is equally true that Parliament was chary in granting jurisdiction to courts-martial, although not as chary as the O’Callahan opinion suggests. But reading Clause 14 consistently with its plain language does not dis-serve that concern; Congress, and not the Executive, was given the authority to make rules for the regulation of the Armed Forces.

The O’Callahan Court cryptically stated: “The 17th century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes.” 395 U. S., at 268. But such disapproval in England at the time of William and Mary hardly proves that the Framers of the Constitution, contrary to the plenary language in which they conferred the power on Congress, meant to freeze court-martial usage at a particular time in such a way that Congress might not change it. The unqualified language of Clause 14 suggests that whatever these concerns, they were met by vesting in Congress, rather than the Executive, authority to make rules for the government of the military.¹²

Given the dearth of historical support for the O’Callahan holding, there is overwhelming force to Justice Harlan’s reasoning that the plain language of the Constitution, as interpreted by numerous decisions of this Court preceding O’Callahan, should be controlling on the subject of court-martial jurisdiction. 395 U. S., at 275-278 (dissenting); cf. Monell v. New York City Dept. of Social Services, 436 U. S. 658, 696 (1978) (“[W]e ought not ‘disregard the implications of an exercise of judicial authority assumed to be proper for [100] years’”), quoting Brown Shoe Co. v. United States, 370 U. S. 294, 307 (1962).

Decisions of this Court after O’Callahan have also emphasized that Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military. As we recently reiterated, “ ‘[j]udicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.’” Goldman v. Weinberger, 475 U.. S. 503, 508 (1986), quoting Rostker v. Goldberg, 453 U. S. 57, 70 (1981). Since O’Callahan, we have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated. See, e. g., Goldman v. Weinberger, supra, at 509-510 (free exercise of religion); Chappell v. Wallace, 462 U. S. 296, 300-305 (1983) (racial discrimination); Rostker v. Goldberg, supra, at 64-66, 70-71 (sex discrimination); Brown v. Glines, 444 U. S. 348, 357, 360 (1980) (free expression); Middendorf v. Henry, 425 U. S. 25, 43 (1976) (right to counsel in summary court-martial proceedings); Schlesinger v. Councilman, 420 U. S. 738, 753 (1975) (availability of injunctive relief from an impending court-martial); Parker v. Levy, 417 U. S. 733, 756 (1974) (due process rights and freedom of expression).

The notion that civil courts are “ill equipped” to establish policies regarding matters of military concern is substantiated by experience under the service connection approach. Chappell v. Wallace, supra, at 305. In his O’Callahan dissent, Justice Harlan forecasted that “the infinite permutations of possibly relevant factors are bound to create confusion and proliferate litigation over the [court-martial] jurisdiction issue.” 395 U. S., at 284. In fact, within two years after O’Callahan, this Court found it necessary to expound on the meaning of the decision, enumerating a myriad of factors for courts to weigh in determining whether an offense is service connected. Relford v. Commandant, U. S. Disciplinary Barracks, 401 U. S. 355 (1971). Yet the service connection approach, even as elucidated in Relford, has proved confusing and difficult for military courts to apply.¹³

Since O’Callahan and Relford, military courts have identified numerous categories of offenses requiring specialized analysis of the service connection requirement. For example, the courts have highlighted subtle distinctions among offenses committed on a military base, offenses committed off-base, offenses arising from events occurring both on and off a base, and offenses committed on or near the boundaries of a base.¹⁴ Much time and energy has also been expended in litigation over other jurisdictional factors, such as the status of the victim of the crime, and the results are difficult to reconcile. ¹⁵ The confusion created by the complexity of the service connection requirement, however, is perhaps best illustrated in the area of off-base drug offenses.¹⁶ Soon after O’Callahan, the Court of Military Appeals held that drug offenses were of such “special military significance” that their trial by court-martial was unaffected by the decision. United States v. Beeker, 18 U. S. C. M. A. 563, 565, 40 C. M. R. 275, 277 (1969). Nevertheless, the court has changed its position on the issue no less than two times since Beeker, each time basing its decision on O’Callahan and Relford.17

When considered together with the doubtful foundations of O’Callahan, the confusion wrought by the decision leads us to conclude that we should read Clause 14 in accord with the plain meaning of its language as we did in the many years before O’Callahan was decided. That case’s novel approach to court-martial jurisdiction must bow “to the lessons of experience and the force of better reasoning.” Burnet v. Corona do Oil & Gas Co., 285 U. S. 393, 406-408 (1932) (Brandeis, J., dissenting). We therefore hold that the requirements of the Constitution are not violated where, as here, a court- martial is convened to try a serviceman who was a member of the Armed Services at the time of the offense charged.¹⁸ The judgment of the Court of Military Appeals is

Affirmed.

Footnotes

1

Petitioner was charged with 14 specifications alleging indecent liberties, lascivious acts, and indecent assault in violation of U. C. M. J., Art. 134, 10 U. S. C. § 934, 6 specifications alleging assault in violation of Art. 128, 10 U. S. C. § 928, and 1 specification alleging attempted rape in violation of Art. 80, 10 U. S. C. § 880. The specifications alleged to have occurred in Alaska included all of the Article 128 and Article 80 specifications and 7 of the Article 134 specifications.

2

Following the decision of the Court of Military Appeals, petitioner unsuccessfully sought a stay from that court and from Chief Justice Burger. The court-martial reconvened and petitioner was convicted of 8 of the 14 specifications alleging offenses committed in Alaska and 4 of the 7 specifications alleging offenses committed in New York. These convictions are currently under review by the convening authority pursuant to U. C. M. J., Art. 60, 10 U. S. C. § 860.

3

One pre-1969 decision of this Court suggests that the constitutional power of Congress to authorize trial by 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, 23 (1955) (emphasis deleted). Broadly read, this dictum applies to determinations concerning Congress’ authority over the courts-martial of servicemen for crimes committed while they were servicemen. Yet the Court in Toth v. Quarles was addressing only the question whether an ex-serviceman may be tried by court-martial for crimes committed while serving in the Air Force. Thus, the dictum may be also interpreted as limited to that context.

4

See O’Callahan, 395 U. S., at 277 (Harlan, J., dissenting); 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 329-330 (1911); 5 J. Elliot, Debates on the Federal Constitution 443, 545 (1876).

5

See, e. g., 1 W. Winthrop, Military Law and Precedents 8-9 (2d ed. 1896) (hereinafter Winthrop); G. Nelson & J. Westbrook, Court-Martial Jurisdiction Over Servicemen for “Civilian” Offenses: An Analysis of O’Callahan v. Parker, 54 Minn. L. Rev. 1, 7-11 (1969) (hereinafter Nelson & Westbrook).

6

There is some confusion among historians and legal scholars about which version of the British Articles of War was “in effect” at the time of the American Revolution. Some cite to the Articles of War of 1765 and others to the Articles of War of 1774. Compare, e. g., 2 Winthrop 1448, with J. Horbaly, Court-Martial Jurisdiction 34 (1986) (unpublished dissertation, Yale Law School) (hereinafter Horbaly). For present purposes, however, the two versions of the Articles contain only stylistic differences. In the interest of simplicity, we will refer to the 1774 Articles.

7

See Nelson & Westbrook 14; cf. Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435, 445-446 (1960) (hereinafter Duke & Vogel).

8

See O’Callahan, 395 U. S., at 278, n. 3 (Harlan, J., dissenting); see also J. Bishop, Justice under Fire 81-82 (1974); Nelson & Westbrook 15; Comment, O’Callahan and Its Progeny: A Survey of Their Impact on the Jurisdiction of Courts-Martial, 15 Vill. L. Rev. 712, 719, n. 38 (1970) (hereinafter Comment).

9

See 2 Winthrop 1123; Duke & Vogel 446-447.

10

See, e. g., Grafton v. United States, 206 U. S. 333, 348 (1907); Hearings before the Senate Committee on Military Affairs, Appendix to S. Rep. No. 130, 64th Cong., 1st Sess., 91 (statement of Brig. Gen. Enoch Crowder).

George Washington also seems to have held this view. When informed of the decision of a military court that a complaint by a civilian against a member of the military should be redressed only in a civilian court, he stated in a General Order dated February 24, 1779:

“All improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other.” 14 Writings of George Washington 140-141 (J. Fitzpatrick ed. 1936).

11

The history of court-martial jurisdiction after the adoption of the Constitution also provides little support for O’Callahan. For example, in 1800, Congress enacted Articles for the Better Government of the Navy, which provided that “[a]ll offences committed by persons belonging to the navy while on the shore, shall be punished in the same manner as if they had been committed at sea.” Act of Apr. 23, 1800, ch. 33, Art. XVII, 2 Stat. 47. Among the offenses punishable if committed at sea were murder, embezzlement, and theft. In addition, the Act also provided that “[i]f any person in the navy shall, when on shore, plunder, abuse, or maltreat any inhabitant, or injure his property in any way, he shall suffer such punishment as a court martial shall adjudge.” Art. XXVII, 2 Stat. 48. This broad grant of jurisdiction to naval courts-martial would suggest that limitations on the power of other military tribunals during this period were the result of legislative choice rather than want of constitutional power.

12

See, e. g., O’Callahan, 395 U. S., at 277 (Harlan, J., dissenting); 1 W. Crosskey, Politics and the Constitution 413-414, 424-426 (1953) (hereinafter Crosskey); Comment 718; but cf. Horbaly 45-56.

The only other basis for saying that the Framers intended the words of Art. I, § 8, cl. 14, to be narrowly construed is the suggestion that the Framers “could hardly have been unaware of Blaekstone’s strong con demnation of criminal justice administered under military procedures.” Duke & Vogel 449. In his Commentaries, Blaekstone wrote:

“When the nation was engaged in war . . . more rigorous methods were put in use for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built on no settled principles, but is entirely arbitrary in it’s [sic] decisions, is . . . something indulged in rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open to all persons to receive justice according to the laws of the land.” 1 W. Blackstone, Commentaries *413.

Although we do not doubt that Blackstone’s views on military law were known to the Framers, see Crosskey 411-412, 424-425, we are not persuaded that their relevance is sufficiently compelling to overcome the unqualified language of Art. I, § 8, cl. 14.

13

See Cooper, O’Callahan Revisited: Severing the Service Connection, 76 Mil. L. Rev. 165, 186-187 (1977) (hereinafter Cooper); Tomes, The Imagination of the Prosecutor: The Only Limitation to Off-Post Jurisdiction Now, Fifteen Years After O’Callahan v. Parker, 25 Air Force L. Rev. 1, 9-35 (1985) (hereinafter Tomes); cf. United States v. Alef, 3 M. J. 414, 416, n. 4. (Ct. Mil. App. 1977); United States v. McCarthy, 2 M. J. 26, 29, n. 1 (Ct. Mil. App. 1976).

14

See, e. g., United States v. Garries, 19 M. J. 845 (A. F. C. M. R. 1985) (serviceman’s on-post murder of wife held service connected), aff’d, 22 M. J. 288 (Ct. Mil. App.), cert. denied, 479 U. S. 985 (1986); United States v. Williamson, 19 M. J. 617 (A. C. M. R. 1984) (serviceman’s off-post sexual offense involving young girl held service connected); United States v. Mauck, 17 M. J. 1033 (A. C. M. R.) (variety of offenses committed 15 feet from arsenal boundary held service connected), review denied, 19 M. J. 106 (Ct. Mil. App. 1984); United States v. Scott, 15 M. J. 589 (A. C. M. R. 1983) (serviceman’s off-post murder of another serviceman held service connected where crime had its basis in on-post conduct of participants).

15

Compare United States v. Wilson, 2 M. J. 24 (Ct. Mil. App. 1976) (off-post robbery and assault of a fellow serviceman held not service connected), and United States v. Tucker, 1 M. J. 463 (Ct. Mil. App. 1976) (off-post concealment of property stolen from fellow serviceman on-post held not service connected), with United States v. Lockwood, 15 M. J. 1 (Ct. Mil. App. 1983) (on-post larceny of fellow serviceman’s wallet and use of identification cards in it to obtain loan from an off-post business establishment held service connected), and United States v. Shorte, 18 M. J. 518 (A. F. C. M. R. 1984) (off-post felonious assault committed against fellow serviceman held not service connected).

16

See Cooper 172-182; Tomes 13-31.

17

Seven years after United States v. Beeker, the Court of Military Appeals expressly renounced that decision, holding that O’Callahan and Relford mandated the conclusion that off-base drug offenses by a serviceman could not be tried by court-martial. See United States v. McCarthy, supra; United States v. Williams, 2 M. J. 81, 82 (Ct. Mil. App. 1976); see also United States v. Conn, 6 M. J. 351, 353 (Ct. Mil. App. 1979); United States v. Alef supra, at 415-418. Reversing its position again in 1980, the Court of Military Appeals decided that such a restrictive approach was not required under this Court’s decisions. United States v. Trottier, 9 M. J. 337, 340-351 (1980). The court therefore held that “the gravity and immediacy of the threat to military personnel and installations posed by the drug traffic and . . . abuse convince us that very few drug involvements of a service person will not be ‘service connected.’” Id., at 351.

United States v. Trottier, however, has not settled the confusion in this area. In Trottier, the court identified the following exception to its general rule: “[I]t would not appear that use of marijuana by a serviceperson on a lengthy period of leave away from the military community would have such an effect on the military as to warrant the invocation of a claim of special military interest and significance adequate to support court-martial jurisdiction under O’Callahan.” Id., at 350, n. 28. Since Trottier, at least two lower military court decisions have found court-martial jurisdiction over offenses arguably falling within this exception. See United States v. Lange, 11 M. J. 884 (A. P. C. M. R. 1981), review denied, 12 M. J. 318 (Ct. Mil. App. 1981) (off-post use of marijuana during 6-day leave held sufficient to establish service connection); United States v. Brace, 11 M. J. 794 (A. F. C. M. R.), review denied, 12 M. J. 109 (Ct. Mil. App. 1981) (off-post use of marijuana during 6-day leave 275 miles from post held sufficient to establish service connection); see also Horbaly 534-535.

18

Petitioner argues that the Court of Military Appeals’ decision should be reversed because it applies a more expansive subject-matter jurisdiction test to him than had previously been announced. According to petitioner, the exercise of court-martial jurisdiction over him violates his rights under the Due Process Clause of the Fifth Amendment. Our review of the record in this case, however, reveals that petitioner did not raise his due process claim in the Court of Military Appeals. The Court of Military Review, which reinstated the Alaska charges against petitioner, held that military courts had jurisdiction over petitioner’s Alaska offenses. Petitioner therefore had an opportunity to raise his due process challenge in the proceedings before the Court of Military Appeals. He has not offered any explanation for his failure to do so. In fact, petitioner, in his reply brief and at oral argument, did not contest the Government’s suggestion that he inexcusably failed to raise his due process claim earlier in the proceedings. See Reply Brief for Petitioner 16-19; Tr. of Oral Arg. 36-39. We therefore decline to consider the claim. See, e. g., Berkemer v. McCarty, 468 U. S. 420, 443 (1984); Delta Air Lines, Inc. v. August, 450 U. S. 346, 362 (1981); United States v. Lovasco, 431 U. S. 783, 788, n. 7 (1977).