United States v. Moore

1 M.J. 448, 1976 CMA LEXIS 7410
United States Court of Military Appeals·Decided July 16, 1976·No. No. 31,176·Published·Cited by 60 cases

Opinions

[449] OPINION OF THE COURT

FLETCHER, Chief Judge:

Failing to return to the correctional custody 1 facility following an unescorted visit to “sick call,” Airman Moore devised a scheme at his off-base residence to fake his own drowning to avoid further military service. Assisted by his wife and a fellow airman named White, the accused additionally conspired to collect $20,000 under the accidental death provisions of the Serviceman’s Group Life Insurance program2 by falsely reporting the drowning incident. As a result of the false report, the accused’s wife also received a “death-gratuity” out of Air Force appropriated funds. See 10 U.S.C. §§ 1475-80 (1975); AFM 300-4, Data Automation, Volume X — Comptroller, Appendix O (Apr. 1, 1974).

Convicted of attempted larceny and conspiracy to steal $20,000, larceny of the death gratuity in the amount of $2,266.20, as well as breach of restraint and desertion, Airman Moore now challenges the jurisdiction of the court-martial which tried him contending that the attempted larceny, conspiracy, and larceny offenses were not service connected. O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969); see Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). See also Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973).

Appellant’s jurisdictional attack focuses principally upon the off-base situs of the conspirators when their scheme was devised and implemented. More importantly, appellant suggests that this Court’s prior decisions interpreting O’Callahan have placed undue influence on the status of the victim in resolving the “service-connection” issue. See, e. g., United States v. Everson, 19 U.S.C.M.A. 70, 41 C.M.R. 70 (1969); United States v. Huff, 19 U.S.C.M.A. 56, 41 C.M.R. 56 (1969); United States v. Nichols, 19 U.S.C.M.A. 43, 41 C.M.R. 43 (1969); United States v. Plamondon, 19 U.S.C.M.A. 22, 41 C.M.R. 22 (1969); United States v. Comacho, 19 U.S.C.M.A. 11, 41 C.M.R. 11 (1969); United States v. Rego, 19 U.S.C.M.A. 9, 41 C.M.R. 9 (1969). The thrust of these decisions was summarized by Judge Ferguson in United States v. Everson, supra at 71, 41 C.M.R. at 71:

[WJhere an offense cognizable under the Code is perpetrated against the person or property of another serviceman, regardless of the circumstances, the offense is cognizable by court-martial.

With the exception of Rainville v. Lee, 22 U.S.C.M.A. 464, 47 C.M.R. 554 (1973),3 the decisions of this Court, which elevated the victim’s status to the level of all-determinative on the question of service connection, predated the Supreme Court’s opinion in Relford v. Commandant, supra, which enumerated the following criteria for resolving the military jurisdiction issue:4

1. The serviceman’s proper absence from the base.
2. The crime’s commission away from the base.
3. Its commission at a place not under military control.
4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
6. The absence of any connection between the defendant’s military duties and the crime.
7. The victim’s not being engaged in the performance of any duty relating to the military.
8. The presence and availability of a civilian court in which the case can be prosecuted.
[450]*4509. The absence of any flouting of military authority.
10. The absence of any threat to a military post.
11. The absence of any violation of military property.
12. The offense’s being among those traditionally prosecuted in civilian courts.

The Supreme Court in Relford also stressed:5

(a) The essential and obvious interest of the military in the security of persons and of property on the military enclave. . (b) The responsibility of the military commander for maintenance of order in his command and his authority to maintain that order. . (c) The impact and adverse effect that a crime committed against a person or property on a military base, thus violating the base’s very security, has upon morale, discipline, reputation and integrity of the base itself, upon its personnel and upon the military operation and the military mission, (d) The conviction that Art. I, § 8, cl. 14, vesting in the Congress the power “To make Rules for the Government and Regulation of the land and naval Forces,” means, in appropriate areas beyond the purely military offense, more than the mere power to arrest a serviceman-offender and turn him over to the civil authorities. . (e) The distinct possibility that civil courts, particularly nonfederal courts, will have less than complete interest, concern, and capacity for all the cases that vindicate the military’s disciplinary authority within its own community. (f) The very positive implication in O’Callahan itself . . . that the presence of factors such as geographical and military relationships have important contrary significance, (g) The recognition in O’Callahan that, historically, a crime against a person of one associated with the post was subject even to the General Article. . (h) The misreading and undue restriction of 0’Callahan if it were interpreted as confining the court-martial to the purely military offenses that have no counterpart in nonmilitary criminal law. (i) [An] . . . inability appropriately and meaningfully to draw any line between a post’s strictly military areas and its nonmilitary areas, or between a serviceman-defendant’s on-duty and off-duty activities and hours on the post.

What Relford makes clear is the need for a detailed, thorough analysis of the jurisdictional criteria enunciated to resolve the service-connection issue in all cases tried by court-martial. A more simplistic formula, while perhaps desirable, was not deemed constitutionally appropriate by the Supreme Court. It no longer is within our province to formulate such a test.

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United States v. Moore, 1 M.J. 448, 1976 CMA LEXIS 7410 (cma 1976).

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