United States v. Cartagena

2 M.J. 303, 1976 CMR LEXIS 708

• Court: U S Air Force Court of Military Review
• Decided: October 26, 1976
• Docket: ACM 21890 (f rev)
• Status: Published

Opinion

DECISION UPON FURTHER REVIEW

PER CURIAM:

In our original, unpublished decision in this case, dated 23 October 1975, we affirmed the findings of guilty and the sentence. Thereafter, the United States Court of Military Appeals vacated our decision and remanded the record of trial to us with instructions to hold further proceedings in abeyance pending its resolution of the issues granted in United States v. McCarthy, 2 M.J. 26 (24 September 1976); United States v. Jackson [order] (2 July 1976); United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976); and United States v. Graves, [order] (6 August 1976).

The accused was convicted of two specifications alleging wrongful sales of marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The record reveals that both sales were made to an agent of the Office of Special Investigations who had identified himself to the accused as a civilian. Both sales occurred at the accused’s off-base residence and involved small amounts of marijuana. Further, the accused was off-duty at the time and was not dressed in a military uniform.

Having examined these facts in light of the criteria for measuring service connection, as outlined in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), we find that the military service did not have an “overriding” interest in prosecuting the offenses in issue. United States v. McCarthy, supra; see United States v. Morley, 20 U.S.C.M.A. 179, 43 C.M.R. 19 (1970). Accordingly, the findings of guilty of the Charge and its specifications are hereby set aside and the charges are dismissed.

EARLY, Senior Judge, and FORAY, Judge, concur.