Opinion of the Court
Ferguson, Judge:
In this case, we are confronted with the question of the validity of accused’s conviction by general court-martial in Georgia, in light of the Supreme Court’s recent decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).
The offenses with which we are here concerned all occurred off-post in the civilian homes of the victims, located variously in Augusta, Georgia; North Augusta, South Carolina; and Aiken, South Carolina. They occurred during accused’s off-duty hours or when he was on leave, involved purely civilian female victims, and constituted rape, robbery, sodomy, and attempts to commit such acts, all such crimes being civil in nature. The accused was described as wearing civilian clothing, and the vehicle which he used — and [548]*548which eventually led to his apprehension — was his own private automobile. The sole mention of any military matter in the case was a bumper sticker which served to help in his identification and apprehension. Indeed, he was initially arrested by civilian authorities, removed to South Carolina and tried in Aiken for some of his atrocious crimes. He was acquitted, and it was apparently only after this civilian judicial action that the Army saw fit to hale him before a general court-martial.
The question presented by these facts is simply whether an accused may be tried by court-martial for civil crimes committed in the United States against the civilian community when the local courts are open and functioning. O’Callahan v Parker, supra, would seem to provide the answer — an emphatic “No,” unless such crimes are military-connected, a test which we all agree cannot be met in this case.
O’Callahan was a soldier stationed in Hawaii. While on pass in Honolulu and while dressed in civilian clothing, he broke into a hotel room and attempted to rape a young girl. Apprehended by a hotel security officer and turned over to city police, he was subsequently released to military authorities. Thereafter, he was brought to trial before a general court-martial upon charges of attempted rape, housebreaking, and assault with intent to commit rape, in violation of Uniform Code of Military Justice, Articles 80, 130 and 134, 10 USC §§ 880, 930, 934. He was ultimately convicted, sentenced, and exhausted his appellate remedies. Thereafter, he sought release by habeas corpus upon the contention the court-martial had no jurisdiction to try him upon the charges before it. The'District Court denied relief; the Circuit Court of Appeals affirmed; and the Supreme Court granted certiorari upon the issue whether a court-martial had jurisdiction to try an accused charged with “ ‘commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by grand jui*y and trial by a petit jury in a civilian court.’ ” O’Callahan, supra, at page 261. The Court determined that such offenses were not triable by court-martial unless military-connected, rejecting the argument of the Government that one’s military status was a sufficient predicate to establish jurisdiction to try misconduct of a civil nature. Its clear language is worthy of note. Thus it declared, at page 265:
“That a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants is necessary to an effective national defense establishment, few would deny. But the justification for such a system rests on the special needs of the military, and history teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty.”
The Court quoted with approval Toth v Quarles, 350 US 11, 22, 100 L Ed 8, 76 S Ct 1 (1955), wherein it noted that “Free countries . . . have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service .... the ‘least possible power adequate to the end proposed.’ ”
It then reviewed the history of Anglo-Saxon military jurisdiction, pointing out the traditional limitation to purely military offenses, denying at all times any general jurisdiction over ordinary crimes, until at last, in 1916, Congress extended the military trial power to cover certain specified civil crimes, even in peacetime, and, finally, in 1950, to cover all crimes. The Court’s language in O’Callahan, supra, indelibly returned military law to its earlier limited scope, when it summed up by stating, at page 272:
' “We have concluded that the crime to be under military jurisdiction must be service connected, lest' ‘cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public [549]*549danger,’ as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers.”
In finding no service-connection to O’Callahan’s sexual assault and attendant housebreaking, the Court pointed out they were not committed on a military post; nor did his victim have any military duties; nor was the situs of the crime “an armed camp under military control, as are some of our far-flung outposts.” Finally, it adverted to the fact Hawaii’s courts were open, the crimes committed in our territorial limits, and that there was no flouting of military authority, breach of military security, or violation of the integrity of military property. Id., at page 273. In short, the offenses were not “service connected.”
How, then, do the accused’s delicts compare with those of O’Callahan? They, too, involved civilian victims, unconnected with the military. Neither Georgia nor South Carolina were armed camps or far-flung military outposts under Army control. Accused’s horrible acts, like those of O’Callahan, did not flout military authority, breach military security, or affect military property. In fact, he himself did not even reside on post, but lived among the civilian community on which he preyed. Finally, the courts of South Carolina and Georgia were not only open and functioning, but resort to the former’s facilities led only to accused’s acquittal.
In sum, accused’s military status was only a happenstance of chosen livelihood, having nothing to do with his vicious and depraved conduct, and none of his acts were “service connected” under any test or standard set out by the Supreme Court. In short, they, like O’Callahan’s, were the very sort remanded to the appropriate civil jurisdiction In which indictment by grand jury and trial by petit jury could be afforded the defendant.
The dissenting opinion, however, declares O’Callahan lays down a bifurcated test. In addition to service-connection, it finds the offense must be triable in a Federal court to escape the application of the limitations set forth by the Supreme Court. Not a single statement in O’Callahan, supra, supports that conclusion. The grant of certiorari itself refers to crimes cognizable “ ‘in a civilian court’ ” and accused’s right to “ ‘trial by a petit jury in a civilian court,’ ” id., page 261; the opinion adverts to the practices “obtaining in the regular courts,” id., page 265; to a “civilian trial,” id., page 266; to “the ‘Ordinary Process of Law,’ ” id., page 269; to “civil,
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Opinion of the Court
Ferguson, Judge:
In this case, we are confronted with the question of the validity of accused’s conviction by general court-martial in Georgia, in light of the Supreme Court’s recent decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).
The offenses with which we are here concerned all occurred off-post in the civilian homes of the victims, located variously in Augusta, Georgia; North Augusta, South Carolina; and Aiken, South Carolina. They occurred during accused’s off-duty hours or when he was on leave, involved purely civilian female victims, and constituted rape, robbery, sodomy, and attempts to commit such acts, all such crimes being civil in nature. The accused was described as wearing civilian clothing, and the vehicle which he used — and [548]*548which eventually led to his apprehension — was his own private automobile. The sole mention of any military matter in the case was a bumper sticker which served to help in his identification and apprehension. Indeed, he was initially arrested by civilian authorities, removed to South Carolina and tried in Aiken for some of his atrocious crimes. He was acquitted, and it was apparently only after this civilian judicial action that the Army saw fit to hale him before a general court-martial.
The question presented by these facts is simply whether an accused may be tried by court-martial for civil crimes committed in the United States against the civilian community when the local courts are open and functioning. O’Callahan v Parker, supra, would seem to provide the answer — an emphatic “No,” unless such crimes are military-connected, a test which we all agree cannot be met in this case.
O’Callahan was a soldier stationed in Hawaii. While on pass in Honolulu and while dressed in civilian clothing, he broke into a hotel room and attempted to rape a young girl. Apprehended by a hotel security officer and turned over to city police, he was subsequently released to military authorities. Thereafter, he was brought to trial before a general court-martial upon charges of attempted rape, housebreaking, and assault with intent to commit rape, in violation of Uniform Code of Military Justice, Articles 80, 130 and 134, 10 USC §§ 880, 930, 934. He was ultimately convicted, sentenced, and exhausted his appellate remedies. Thereafter, he sought release by habeas corpus upon the contention the court-martial had no jurisdiction to try him upon the charges before it. The'District Court denied relief; the Circuit Court of Appeals affirmed; and the Supreme Court granted certiorari upon the issue whether a court-martial had jurisdiction to try an accused charged with “ ‘commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by grand jui*y and trial by a petit jury in a civilian court.’ ” O’Callahan, supra, at page 261. The Court determined that such offenses were not triable by court-martial unless military-connected, rejecting the argument of the Government that one’s military status was a sufficient predicate to establish jurisdiction to try misconduct of a civil nature. Its clear language is worthy of note. Thus it declared, at page 265:
“That a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants is necessary to an effective national defense establishment, few would deny. But the justification for such a system rests on the special needs of the military, and history teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty.”
The Court quoted with approval Toth v Quarles, 350 US 11, 22, 100 L Ed 8, 76 S Ct 1 (1955), wherein it noted that “Free countries . . . have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service .... the ‘least possible power adequate to the end proposed.’ ”
It then reviewed the history of Anglo-Saxon military jurisdiction, pointing out the traditional limitation to purely military offenses, denying at all times any general jurisdiction over ordinary crimes, until at last, in 1916, Congress extended the military trial power to cover certain specified civil crimes, even in peacetime, and, finally, in 1950, to cover all crimes. The Court’s language in O’Callahan, supra, indelibly returned military law to its earlier limited scope, when it summed up by stating, at page 272:
' “We have concluded that the crime to be under military jurisdiction must be service connected, lest' ‘cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public [549]*549danger,’ as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers.”
In finding no service-connection to O’Callahan’s sexual assault and attendant housebreaking, the Court pointed out they were not committed on a military post; nor did his victim have any military duties; nor was the situs of the crime “an armed camp under military control, as are some of our far-flung outposts.” Finally, it adverted to the fact Hawaii’s courts were open, the crimes committed in our territorial limits, and that there was no flouting of military authority, breach of military security, or violation of the integrity of military property. Id., at page 273. In short, the offenses were not “service connected.”
How, then, do the accused’s delicts compare with those of O’Callahan? They, too, involved civilian victims, unconnected with the military. Neither Georgia nor South Carolina were armed camps or far-flung military outposts under Army control. Accused’s horrible acts, like those of O’Callahan, did not flout military authority, breach military security, or affect military property. In fact, he himself did not even reside on post, but lived among the civilian community on which he preyed. Finally, the courts of South Carolina and Georgia were not only open and functioning, but resort to the former’s facilities led only to accused’s acquittal.
In sum, accused’s military status was only a happenstance of chosen livelihood, having nothing to do with his vicious and depraved conduct, and none of his acts were “service connected” under any test or standard set out by the Supreme Court. In short, they, like O’Callahan’s, were the very sort remanded to the appropriate civil jurisdiction In which indictment by grand jury and trial by petit jury could be afforded the defendant.
The dissenting opinion, however, declares O’Callahan lays down a bifurcated test. In addition to service-connection, it finds the offense must be triable in a Federal court to escape the application of the limitations set forth by the Supreme Court. Not a single statement in O’Callahan, supra, supports that conclusion. The grant of certiorari itself refers to crimes cognizable “ ‘in a civilian court’ ” and accused’s right to “ ‘trial by a petit jury in a civilian court,’ ” id., page 261; the opinion adverts to the practices “obtaining in the regular courts,” id., page 265; to a “civilian trial,” id., page 266; to “the ‘Ordinary Process of Law,’ ” id., page 269; to “civil, not military, courts,” id., page 270; to “trials . . . in civil courts,” id., page 271; and to the “[c]ivil courts” as being open, id., at page 273 (emphasis supplied). Finally, the Court decided that, “since petitioner’s crimes were not service connected, he could not be tried by court-martial but rather was entitled to trial by the civilian courts.” Id., at page 274. (Emphasis supplied.)
Moreover, the authorities on which the Court relied to reach its decision, speak only in terms of civilian vis-a-vis military trials. See Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, pages 723-725, and Duke and Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vanderbilt Law Review 435 (1960). In short, as Winthrop notes, “A crime, therefore, to be cognizable by a court-martial under this Article, must have been committed under such circumstances as to have directly offended against the government, and discipline of the military state.” The test is, in every ease, whether the accused’s offense is service-connected. Otherwise he is to be relegated to the civil authorities, then to be indicted and tried in accordance with the law of the land rather than to be subjected to military disciplinary procedures.
We conclude, therefore, that O’Callahan v Parker, supra, requires us to set aside the findings of guilty and sentence and order the charges dismissed, relegating accused’s case to such action [550]*550as the State of Georgia may wish to take in light of his alleged transgressions.
The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. The charges are ordered dismissed.
Judge Darden concurs.