DECISION
ARROWOOD, Senior Judge:
In trial by general court-martial the accused was convicted, contrary to his pleas, of conduct unbecoming an officer and a gentleman by performing acts of sodomy on an enlisted man, a violation of Article 133, Uniform Code of Military Justice, 10 U.S.C. § 933. He was sentenced to dismissal from the service.
The accused asserts that the military lacked subject matter jurisdiction over the offense since it occurred off the military installation. After careful analysis of all the facts, we weigh the military interest against that of the civilian community and conclude that jurisdiction was properly exercised.
Specialist Fourth Class Heaton, a nineteen year old cook and paratrooper stationed with the 82nd Airborn Division at Fort Bragg, North Carolina, was hitchhiking from his girl friend’s home to his barracks. He was picked up by the accused at approximately 2100 hours. The accused told him he was going to Pope Air Force Base and would drop him off at Fort Bragg on the way. He then asked Heaton if he would mind going by the accused’s apartment to feed his dog. Heaton agreed. They reached the apartment around 2200 hours, fed the dog and had a few drinks.
Because of the “nice things” in the apartment, Heaton questioned the accused as to his rank. When the accused told Heaton he was a Captain in the Air Force, Heaton began to call him “sir”, but accused requested that he call him Bob. Before midnight they left the apartment and returned with more dog food. After several more drinks and a dice game, they again left the apartment and went to a “gay” bar. The bar was suggested by the accused, and Heaton did not know it was “gay” until he went inside and saw men dancing together. After dancing, Heaton became ill, so he and the accused left the club and returned to the apartment. In an effort to overcome his illness and sober up, Heaton took a shower.
Heaton claims that accused then forced him to commit homosexual acts. He was unable to ward off the accused’s advances because he was drunk.
The local district attorney testified that he had intended to prosecute the accused for forcible sodomy under North Carolina law, but when Heaton did not appear to testify on several occasions, he discussed the case with the investigating officers and finding they had doubts as to the validity of Heaton’s story, he dismissed the charges. [524]*524It was his policy to prosecute forcible sodomy in that jurisdiction, but even though consensual sodomy was in violation of statute, he normally did not prosecute that offense due to the heavy work load.
The accused’s written statement in support of his earlier request for administrative discharge was admitted into evidence. It set out examples of the lack of respect that had been shown him and detailed his ineffectiveness as an officer which had resulted when fellow members of the military learned of his misconduct.
In O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), the Supreme Court required there be a “service connection” established before the military was permitted to exercise court-martial jurisdiction over its members. Later in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), the Court emphasized that an ad hoc approach to each case was necessary when court-martial jurisdiction was challenged and listed twelve factors (Relford factors) which would be considered in resolving the issue. In Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 1314, 43 L.Ed.2d 591 (1975), the Court stated that:
[The issue of service connection] turns in a major part on gauging the impact of an offense on military discipline, and effectiveness, on determining whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and on whether the distinct military interest can be vindicated adequately in civilian courts. These are matters of judgment that often will turn on the precise set of facts in which the offenses have occurred.
The Court of Military Appeals made it clear in United States v. Moore, 1 M.J. 448 (C.M.A.1976), that a “detailed, thorough analysis” of all the jurisdictional criteria and the weighing of the military’s interest against that of the civilian society as enunciated in Relford and Councilman is necessary to resolve the service connection issue in all cases tried by court-martial. United States v. Trottier, 9 M.J. 337 (C.M.A.1980); United States v. Alef, 3 M.J. 414 (C.M.A. 1977); United States v. Hedlund, 3 M.J. 162 (C.M.A.1976); United States v. McCarthy, 2 M.J. 26 (C.M.A.1976).
Applying the twelve Relford factors in analysis of the facts in this case we find:
1. The accused was properly absent from the base. In this instance he took his rank, prestige and authority with him when he departed the installation. This was especially true in his relationship with other service members.
2. The crime was committed away from the base, but at the accused’s quarters.
3. The crime was committed at a place not under military control.
4. The crime was not committed in an occupied zone or foreign country.
5. Drawing a line between hostilities and peacetime is not meaningful in defining the permissible extent of the war powers. See United States v. Trottier, supra. The offense in question has a definite effect on the unit’s moral, efficiency and readiness to perform its military mission. The offense has resulted in the reputation and integrity of one of its officers being questioned and his ability to lead being impaired.
6. The commission of the offense adversely affected the accused’s ability to perform his assigned duties as an officer. It resulted in total ineffectiveness and then removal from his assigned duties. His continuous obligation and duty to uphold the responsibilities as an officer were also breached. That breach occurred in the presence of an enlisted man who was in awe of the accused’s rank and the possessions that the rank provided him. In both instances the act had an enormous impact on his personal standing as an officer and his ability to carry out his duties.
7. The victim’s duty performance was also affected. The accused was aware that the victim was scheduled for duty the following morning. As a result of the offense, the victim was rendered unable to perform his scheduled duty, thus rendering him nonproductive to the United States Army.
[525]*5258. Civilian courts were available to try the offense of sodomy.
Free access — add to your briefcase to read the full text and ask questions with AI
DECISION
ARROWOOD, Senior Judge:
In trial by general court-martial the accused was convicted, contrary to his pleas, of conduct unbecoming an officer and a gentleman by performing acts of sodomy on an enlisted man, a violation of Article 133, Uniform Code of Military Justice, 10 U.S.C. § 933. He was sentenced to dismissal from the service.
The accused asserts that the military lacked subject matter jurisdiction over the offense since it occurred off the military installation. After careful analysis of all the facts, we weigh the military interest against that of the civilian community and conclude that jurisdiction was properly exercised.
Specialist Fourth Class Heaton, a nineteen year old cook and paratrooper stationed with the 82nd Airborn Division at Fort Bragg, North Carolina, was hitchhiking from his girl friend’s home to his barracks. He was picked up by the accused at approximately 2100 hours. The accused told him he was going to Pope Air Force Base and would drop him off at Fort Bragg on the way. He then asked Heaton if he would mind going by the accused’s apartment to feed his dog. Heaton agreed. They reached the apartment around 2200 hours, fed the dog and had a few drinks.
Because of the “nice things” in the apartment, Heaton questioned the accused as to his rank. When the accused told Heaton he was a Captain in the Air Force, Heaton began to call him “sir”, but accused requested that he call him Bob. Before midnight they left the apartment and returned with more dog food. After several more drinks and a dice game, they again left the apartment and went to a “gay” bar. The bar was suggested by the accused, and Heaton did not know it was “gay” until he went inside and saw men dancing together. After dancing, Heaton became ill, so he and the accused left the club and returned to the apartment. In an effort to overcome his illness and sober up, Heaton took a shower.
Heaton claims that accused then forced him to commit homosexual acts. He was unable to ward off the accused’s advances because he was drunk.
The local district attorney testified that he had intended to prosecute the accused for forcible sodomy under North Carolina law, but when Heaton did not appear to testify on several occasions, he discussed the case with the investigating officers and finding they had doubts as to the validity of Heaton’s story, he dismissed the charges. [524]*524It was his policy to prosecute forcible sodomy in that jurisdiction, but even though consensual sodomy was in violation of statute, he normally did not prosecute that offense due to the heavy work load.
The accused’s written statement in support of his earlier request for administrative discharge was admitted into evidence. It set out examples of the lack of respect that had been shown him and detailed his ineffectiveness as an officer which had resulted when fellow members of the military learned of his misconduct.
In O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), the Supreme Court required there be a “service connection” established before the military was permitted to exercise court-martial jurisdiction over its members. Later in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), the Court emphasized that an ad hoc approach to each case was necessary when court-martial jurisdiction was challenged and listed twelve factors (Relford factors) which would be considered in resolving the issue. In Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 1314, 43 L.Ed.2d 591 (1975), the Court stated that:
[The issue of service connection] turns in a major part on gauging the impact of an offense on military discipline, and effectiveness, on determining whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and on whether the distinct military interest can be vindicated adequately in civilian courts. These are matters of judgment that often will turn on the precise set of facts in which the offenses have occurred.
The Court of Military Appeals made it clear in United States v. Moore, 1 M.J. 448 (C.M.A.1976), that a “detailed, thorough analysis” of all the jurisdictional criteria and the weighing of the military’s interest against that of the civilian society as enunciated in Relford and Councilman is necessary to resolve the service connection issue in all cases tried by court-martial. United States v. Trottier, 9 M.J. 337 (C.M.A.1980); United States v. Alef, 3 M.J. 414 (C.M.A. 1977); United States v. Hedlund, 3 M.J. 162 (C.M.A.1976); United States v. McCarthy, 2 M.J. 26 (C.M.A.1976).
Applying the twelve Relford factors in analysis of the facts in this case we find:
1. The accused was properly absent from the base. In this instance he took his rank, prestige and authority with him when he departed the installation. This was especially true in his relationship with other service members.
2. The crime was committed away from the base, but at the accused’s quarters.
3. The crime was committed at a place not under military control.
4. The crime was not committed in an occupied zone or foreign country.
5. Drawing a line between hostilities and peacetime is not meaningful in defining the permissible extent of the war powers. See United States v. Trottier, supra. The offense in question has a definite effect on the unit’s moral, efficiency and readiness to perform its military mission. The offense has resulted in the reputation and integrity of one of its officers being questioned and his ability to lead being impaired.
6. The commission of the offense adversely affected the accused’s ability to perform his assigned duties as an officer. It resulted in total ineffectiveness and then removal from his assigned duties. His continuous obligation and duty to uphold the responsibilities as an officer were also breached. That breach occurred in the presence of an enlisted man who was in awe of the accused’s rank and the possessions that the rank provided him. In both instances the act had an enormous impact on his personal standing as an officer and his ability to carry out his duties.
7. The victim’s duty performance was also affected. The accused was aware that the victim was scheduled for duty the following morning. As a result of the offense, the victim was rendered unable to perform his scheduled duty, thus rendering him nonproductive to the United States Army.
[525]*5258. Civilian courts were available to try the offense of sodomy. However, the accused is charged with disgracing his position as an officer by committing sodomy, and that offense is not cognizable in civilian courts. Here the civilian prosecutor’s office demonstrated little concern for what it believed to be consensual sodomy. Viewed in its civilian setting the offense may not appear serious, but when military significance is considered and charged, the service's interest in its prosecution is clearly paramount and can only be vindicated in trial by court-martial.
9. The crime constitutes a direct flouting of military authority. Both the accused and the victim were aware of and clearly understood each other’s status as a service member and their respective ranks. The accused’s conduct in openly condoning and encouraging an unlawful act with an enlisted man was in total disregard of his position of authority as an officer.
10. The offense poses a threat to both Pope Air Force Base and Fort Bragg. The ability of both the accused and his victim to perform duties on their respective installations was affected by the offense. The accused’s entire unit was affected as his acts adversely compromised the morale and discipline of his co-workers and required that he be removed from his normal nursing duties.
11. There is no violation of military property.
12. While forcible sodomy, the underlying offense, was traditionally prosecuted in the available civilian court, consensual sodomy is not usually prosecuted because of work load. Here, however, the accused is charged with more than sodomy, he is charged with a violation of Article 133, Code, supra, conduct unbecoming an officer and a gentleman. In civilian life there is no legal sanction — civil or criminal — for failure to behave as an officer and a gentleman. Such sanction may be enforced against a commissioned officer only by court-martial. In discussing Article 133, Code, supra in Parker v. Levy, 417 U.S. 733, 753, 94 S.Ct. 2547, 2560, 41 L.Ed.2d 439 (1974), the Court defined the crime the Article creates as follows:
To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect. Though it need not amount to a crime, it must offend so seriously against law, justice, morality, or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.
The crime committed by the accused in this case has that double significance. Accordingly, the military interest could not be adequately vindicated in the civilian court.
Weighing all the factors discussed above, we find that with the exception of 2, 3, 4 and 11, they weigh heavily in favor of trial by court-martial, especially in relation to the deleterious effect of this offense upon military discipline and effectiveness. We conclude from this analysis that the military interest is distinct from and far greater than that of the civilian society. Accordingly, we find the military properly exercised jurisdiction over the accused for this offense.
The five remaining assignments of error address issues which were previously asserted and litigated at trial. The military judge correctly decided each issue adversely to the accused.
The findings of guilty and the sentence are
AFFIRMED.
In a voluntary pretrial statement the accused admitted the acts of sodomy, but claimed they were consensual. By appropriate exceptions and substitutions, the court convicted the accused of consensual sodomy.