United States v. Bolser

22 M.J. 564, 1986 CMR LEXIS 2610
U S Air Force Court of Military Review·Decided April 18, 1986·No. ACM 25031·Published·Cited by 8 cases

Opinion

DECISION

SESSOMS, Senior Judge:

The accused was charged with adultery, taking indecent liberties with a female un[565] der the age of 16 years, taking indecent liberties with a male under the age of 16 years, and sodomy with a male under the age of 16 years. He pled guilty to adultery, but not guilty to the other offenses. He was convicted in a general court-martial bench trial of adultery and taking indecent liberties with the female, his stepdaughter. His sentence included a bad conduct discharge, confinement for a year and a day, and reduction to grade E-4.

Appellate defense counsel made three assignments of error in addition to the Article 38(c), 10 U.S.C. § 838(c) brief filed by trial defense counsel.1 The only issue we will discuss is that of subject matter jurisdiction.

The adultery offense grew out of a relationship between the appellant and a 16 year old girl who worked for him in a private commercial venture in the city of Albuquerque, New Mexico. From July 1983 until January 1984 this girl lived with the appellant and his family in their quarters Qn Kirtland Air Force Base, and it was there that the adultery was committed. He was also convicted of having fondled the breast of his step-daughter, who was 15 years old at the time of the trial. The fondling was alleged to have occurred twice between June 1984 and October 1984; once in Albuquerque, and once in Lebanon, Ohio, a town some 30 miles from Wright-Patterson Air Force Base. The chief prosecution witness was able to provide the court with specifics as to the time and place of the incident which is alleged to have occurred in Ohio. However, her memory regarding the alleged New Mexico incident was quite sketchy, and she was able to tell the court only that it occurred in the city of Albuquerque.

The government offered an affidavit from the Lebanon, Ohio, Prosecuting Attorney and a letter from the District Attorney of Albuquerque, New Mexico, purporting to relinquish jurisdiction over any offenses committed in their respective jurisdictions.

Relying principally on O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) and Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), the appellant contends that the trial court was without jurisdiction to try him for the indecent liberties offense because the prosecution could not establish the necessary “service-connection.” We agree.

In denying the defense motion to dismiss for lack of subject matter jurisdiction, the military judge made the following findings:

With reference to defense’s motion to dismiss Specification 2 for lack of jurisdiction, after reviewing of the preferring and all case material provided by trial and defense counsels, I have come to a conclusion that there is not a single traditional source of jurisdiction which in and of itself standing alone could create jurisdiction for this court. But, notwithstanding that, I find that the military has a distinct interest in the prosecution of this case.
The offense occurred between an off duty military member of the United States Air Force and a dependent. It occurred near a military installation to which the accused had been stationed; that the offense would distinctly effect the morale, reputation, and integrity of the United States Air Force and the general reputation of the United States Air Force, the Department of Defense at Wright-Patterson Air Force Base in Ohio. The general reputation would be known to the entire general population. It would reflect detrimentally to our concept of a citizen soldier engaged in a morally mandated protection of democracy-
Further, I find the issue of pendant jurisdiction, that is the consolidation of matters into a singular case, to be a factor. Further, I find no civilian court is available for prosecution, whether leading to conviction or acquittal. Although I note that there are civilian courts present in the jurisdiction of Ohio and of New Mexico, I note that they relinquished their [566] jurisdiction and waived their jurisdiction in favor of a military court-martial. This again, standing alone, does not create jurisdiction. I must assume that both prosecutors for both civilian jurisdictions have thoroughly researched, weighed the law and all facts prior to making their decisions and there can be no showing that they have waived jurisdiction arbitrarily or with capriciousness.
Further, there exists a flouting of authority in that the accused is a senior noncommissioned officer of the United States Air Force. He is subject to Air Force standards twenty-four hours a day, subject to Air Force duties and all war related military duties on a twenty-four hour basis. It is the avowed intent of the United States Air Force to instill in its senior NCOs the highest standards of the Air Force subculture and of our society and for those members of the senior NCO ranks who act as the backbone of the United States Air Force to act as role models.
There was a flouting of the standard in that the standards required of all non-commissioned officers are also enforced through the use of nonjudicial punishment and judicial punishment under the Uniform Code of Military Justice in accordance with all applicable regulations. Therefore, I find that notwithstanding there is not a single jurisdictional basis which in and of itself would create jurisdiction, I find that in weighing all factors presented to me, including those I have just enounciated, there is a totality of factors which taken as a whole and not divisible into a single part in and of itself creates jurisdiction. Therefore, defense motion to dismiss Specification 2 of Charge I is denied.2

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United States v. Bolser, 22 M.J. 564, 1986 CMR LEXIS 2610 (usafctmilrev 1986).

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