United States v. Coker

2 M.J. 304, 1976 CMR LEXIS 703
CourtU S Air Force Court of Military Review
DecidedOctober 29, 1976
DocketACM 22019
StatusPublished
Cited by11 cases

This text of 2 M.J. 304 (United States v. Coker) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Coker, 2 M.J. 304, 1976 CMR LEXIS 703 (usafctmilrev 1976).

Opinion

DECISION

ORSER, Judge:

Tried by a general court-martial composed of a military judge sitting alone, the accused stands convicted, after mixed pleas, of one specification each of using marihuana, possessing marihuana, possessing lysergic acid diethylamide (LSD), and selling phencyclidine (PCD), all in violation of paragraph 4-46, Air Force Regulation 30-2, 1 August 1974 and Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. The approved sentence provides for a bad conduct discharge, confinement at hard labor for 18 months, forfeiture of $240.00 per month for 12 months, and reduction to the grade of airman basic.

Though appellate defense counsel have briefed and orally argued several asserted errors, only three warrant discussion in this decision. The first we consider is counsel’s contention that all charges should be dismissed for lack of service connection. Having carefully considered this contention in light of the United States Court of Military Appeals’ recent case in United States v. McCarthy, 2 M.J. 26 (24 September 1976), we disagree.

In this case, the locus of all offenses was the accused’s residence, a trailer, which was located over two miles from the Air Force installation to which he was assigned. The sale of PCD was made to a fellow serviceman who was acting under the aegis of agents of the Air Force Office of Special Investigations (OSI), one of whom accompanied the airman to the accused’s trailer and participated with him in the sale.

In United States v. McCarthy, supra, the Court of Military Appeals decided that the offense involved, the wrongful transfer of three pounds of marihuana to a fellow serviceman “just outside” the gate of the army installation, was service connected within the meaning of O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). The Court iterated its view that resolution of such issues involves a careful balancing of the 12 criteria for measuring service connection outlined in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L. Ed.2d 102 (1971), “to determine ‘whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and whether the distinct military interest can be vindicated adequately in civilian courts.’ Schlesinger v. Councilman, 430 [420] U.S. 738, 760 [95 S.Ct. 1300, 43 L.Ed.2d 591] (1975);” United States v. Hedlund, 2 M.J. 11 (17 September 1976); United States v. Moore, 24 U.S.C.M.A. 293, 52 C.M.R. 4, 1 M.J. 448 (1976); United States v. Tucker, 24 U.S.C. M. A. 311, 52 C.M.R. 22, 1 M.J. 463 (1976). To emphasize its judgment that a detailed, thorough analysis is required, and that a more simplistic test is not sanctioned by the United States Supreme Court, the Court observed that the mere fact a contraband recipient is a serviceman is insufficient, standing alone, to establish service connection. And for the same purpose, the Court further stressed that the mere fact a particular civilian community takes no prosecutorial interest in marihuana, is an insufficient circumstance, again standing alone, upon which to predicate service connection.

In the McCarthy case, the Court upheld the exercise of military jurisdiction on the [306]*306basis of a demonstrable conclusion that the “entire criminal venture was developed by soldiers who had associated in the military unit and both of whom knew that the next most likely recipient of the contraband would be fellow soldiers on post.” Such circumstances convinced the Court that the military interest in the offense was pervasive in the sense that “the military community certainly had the overriding, if not exclusive, interest in prosecuting the offense.” Careful examination of the offenses in this case in light of the Relford criteria convinces us that the military interest as to each offense is as pervasive as found by the Court in McCarthy.

The record reveals that at the time of the offenses, the accused was assigned as a member of a missile maintenance team responsible for performing important and highly sensitive duties in a 150 missile complex spanning an area of 16,000 square miles. According to his duty description, the team on which the accused was a member (designated as a quick react maintenance team) was charged with the support of the Strategic Air Command’s Emergency War Order. In light of his designated military duties, it is not hyperbole to suggest that the accused occupied a position of extreme importance to the mission goals of his organization and the Air Force. It stands to reason that members of the accused’s team were and are required to be alert and available for duty on extremely short notice, day or night. They presumably must be prepared to immediately respond to and promptly effect necessary repair of highly complex offensive missile apparatuses, thus insuring the constant readiness and vigilance of that portion of the strategic military forces of the United States.

In such circumstances, the military inherently has a far greater stake in determining drug abuse among its missile men, and other servicemen performing duties of equal importance to the defense of our nation, than does the local civilian community where the military organization happens to be located. In terms of the Relford criteria, we are satisfied there is at least one factor that demonstrates the military community had the primary, if not singular, interest in prosecuting the marihuana use offense here involved: the obvious threat to a military post; more specifically, the direct threat posed by the prohibited drugs to the critical mission of the organization to which the accused was assigned. Manifestly, the military interest in deterring drug offenses, particularly the marihuana use offense and to a similar extent the marihuana and LSD possession offenses, is in this context “distinct from and [far] greater than that of [the] civilian community.” Schlesinger v. Councilman, supra. The unique military concern here encountered could hardly be adequately vindicated in the civilian courts. Id.

When applied to the marihuana use offense, the words of Mr. Justice Powell in Schlesinger v. Councilman, supra, 420 U.S. at 760, footnote 34, 95 S.Ct. at 1314, are especially pertinent:

It is not surprising, in view of the nature and magnitude of [the military drug abuse] problem, that in United States v. Beeker, 18 U.S.C.M.A. 563, 565, 40 C.M.R. 275, 277 (1969), the Court of Military Appeals found that the “use of marihuana and narcotics by military personnel] on or off a military base has special military significance” in light of the “disastrous effects” of these substances “ ‘on the health, morale and fitness for duty of persons in the armed forces.’ ”

We readily conclude that the accused’s off-base use of marihuana is a service-connected crime within the meaning of O’Callahan v. Parker and Relford v. Commandant, both supra.

With reference to the marihuana and LSD possession offenses, as stated by Chief Judge LeTarte in our recent decision of United States v. Smith (f. rev.), 2 M.J. 1235 (A.F.C.M.R. 22 October 1976), “admittedly, examination of the Relford

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Cite This Page — Counsel Stack

Bluebook (online)
2 M.J. 304, 1976 CMR LEXIS 703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-coker-usafctmilrev-1976.