United States v. Holman

19 M.J. 784, 1984 CMR LEXIS 3167
CourtU.S. Army Court of Military Review
DecidedDecember 27, 1984
DocketCM 444649
StatusPublished
Cited by2 cases

This text of 19 M.J. 784 (United States v. Holman) is published on Counsel Stack Legal Research, covering U.S. Army 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. Holman, 19 M.J. 784, 1984 CMR LEXIS 3167 (usarmymilrev 1984).

Opinion

OPINION OF THE COURT

SU-BROWN, Senior Judge:

Contrary to his pleas appellant was convicted of three specifications of larceny by false pretenses in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921 (1982). The military judge, sitting as a general court-martial, sentenced appellant to a bad-conduct discharge, confinement at hard labor for six months, forfeiture of all pay and allowances, and reduction to the grade of Private E-l. The convening authority approved the sentence.

The offenses in this case arose when appellant, on three separate dates, sold substances he represented to be illegal drugs to an undercover military police investigator at a Korean bar. Since the substances were not the promised drugs, appellant was charged with three specifications of larceny of the government funds given to him in exchange for the substances. These specifications, which vary only as to the date of the offenses and the amounts stolen, allege, in pertinent part, that appellant “did, at Tong-du-Chon, Korea, ... steal ... US currency, the property of the US Government, said offense occurring outside the territorial limits of the United States.” At trial appellant argued that the specifications did not contain sufficient information to demonstrate court-martial jurisdiction over the offenses as required by United States v. Alef, 3 M.J. 414 (C.M.A.1977). Appellant also argued that, even though his offenses were committed overseas, the military, as a substantive matter, lacked jurisdiction to court-martial him since his offenses were triable in a United States civilian forum under 18 U.S.C. § 641 (1982)1 and the Government did not prove his offenses were service-connected. See O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) (a crime must be service-connected to be under military jurisdiction). See also Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). Appellant renews these arguments before this Court. We find them to be without merit.

The Supreme Court in O’Callahan restricted military court-martial jurisdiction to offenses that were “service connected.” The decision in O’Callahan did not purport to limit, and has not been interpreted as limiting, military jurisdiction over offenses committed by a servicemember in a foreign country. See United States v. Weinstein, 19 U.S.C.M.A. 29, 41 C.M.R. 29 (1969); United States v. Keaton, 19 U.S.C.M.A. 64, 41 C.M.R. 64 (1969); Hemphill v. Moseley, 443 F.2d 322 (10th Cir.1971); Gallagher v. United States, 423 F.2d 1371, 191 Ct.Cl. 546 (1970). Instead, a well known exception to O’Callahan, known as the “overseas exception,” has developed. The overseas exception was most recently discussed by the Court of Military Appeals in United States v. Black, 1 M.J. 340 (C.M.A.1976). In Black the Court stated this exception is triggered only if an offense is committed overseas and is not a violation of an American penal statute so as to be cognizable in a civilian court in the United States.

Under a literal application of Black this case does not fall within the “overseas exception” since appellant’s offenses were punishable under a federal statute with extraterritorial effect.2 The inapplicability [786]*786of this exception does not establish the military lacked jurisdiction. Instead, the case is then analyzed under the criteria of O’Callahan and Relford to determine whether the offense is service-connected.

The overseas exception, as discussed in Black, was not based upon the military having a per se interest in an offense committed overseas. The exception developed in recognition that, if an offense occurs overseas, trial by court-martial was preferrable to trial by a foreign court. The service-connection test of O’Callahan was developed to ensure that the rights to indictment and trial by jury, which are guaranteed in an American civilian court, are preserved for a servicemember unless the military has a particular interest in asserting jurisdiction. Since those rights are not available in a foreign court, trial by court-martial comes as close as possible to ensuring those rights when the offense is not cognizable in a United States civilian court. Accordingly, military jurisdiction is found without any inquiry into service-connection. We believe a more appropriate “overseas exception” is one based upon the service-connection inherent in an offense committed by a servicemember overseas.

In Relford v. Commandant, supra, the Supreme Court established an “on-post” exception to O’Callahan. This exception, which establishes military jurisdiction over all offenses committed on-post by servicemembers, was premised on the determination that when an offense is committed on-post the service-connection of the offense is per se established. Similarly, we find the overseas situs of an offense, committed by a servicemember who is overseas pursuant to military orders, necessarily establishes the “service-connection” of the offense and thus the court-martial jurisdiction over such misconduct.

In Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), the Supreme Court stated:

[Service-connection] turns in major part on gauging the impact of an offense on military discipline and effectiveness, on determining whether 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.

Id. at 760, 95 S.Ct. at 1314. See also Relford, 401 U.S. at 367-68, 91 S.Ct. at 656-57. Applying these considerations to an offense committed overseas by a servicemember, we find such an offense has an obvious and unquestionably adverse impact upon military operations and the military mission.

To ensure good order and discipline, the military must be able to control and direct its servicemembers overseas. One of the more practicable methods for main-[787]*787tabling order in a command is the ability to try and punish misconduct. The need for this power is primary overseas. Unless the military retains control over the servicemember, he will be unavailable to perform his duties. The sensitivity of our overseas missions, coupled with the economic cost of sending an individual overseas and then replacing him if he commits a crime and is not subject to military control, compels the conclusion that the military’s ability to efficiently and effectively execute its mission is compromised whenever a servicemember commits a crime overseas.

Additionally, with respect to the military’s presence overseas, the relationship between the military and foreign community tends to be injured when an offense is committed.

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