United States v. Peak

19 C.M.A. 19, 19 USCMA 19, 41 C.M.R. 19, 1969 CMA LEXIS 675, 1969 WL 6265

• Court: United States Court of Military Appeals
• Decided: October 10, 1969
• Docket: No. 21,880
• Status: Published

Opinions

Opinion

DARDEN, Judge:

A general court-martial tried the accused on September 4, 1968, on two specifications of absence without leave, escape from confinement, and wrongful appropriation of a motor vehicle, in violation of Articles 86, 95, and 121, Uniform Code of Military Justice, 10 USC §§ 886, 895, and 921, respectively. The accused pleaded guilty and the court found him guilty as charged of all charges and specifications. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for four years. The convening authority approved only so much of the sentence as provides for dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years. The then Army board of review affirmed the findings and sentence.

On the basis of the Supreme Court’s decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), the accused challenges the jurisdiction of the court-martial to try him for the offense of wrongful appropriation of a motor vehicle, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. This Court granted review on that issue.

The record shows that the accused committed the offense of wrongfully appropriating a vehicle only a short time after he escaped from the post stockade at Fort Leonard Wood, Missouri, where, in addition to serving post-trial confinement from a previous conviction, he was awaiting trial on two charges of absence without leave. After going through a hole in the stockade fence with another prisoner, the accused proceeded to a used-car lot near Fort Leonard Wood, in Waynes-ville, Missouri. He was dressed in a fatigue uniform. When questioned by the salesman with whom he discussed the purchase of a car, the accused identified himself and his military unit. The salesman permitted the accused to take the car for a test drive. The accused never returned the car and was apprehended several hours later by the Missouri State Highway Patrol. Still later that day, he was turned over to military authorities as an “escapee, Fort Leonard Wood, Missouri.”

It appears that the accused’s military standing facilitated his deception of the automobile salesman and permitted him to misappropriate the vehicle. It seems reasonable to assume that when the used-car salesman gave permission for the accused to test drive the car, he attributed some reliability to the accused as a result of the latter’s identification by his military fatigues as a member of the armed forces. Such an abuse of a military status is likely to influence the extent of confidence by the public in members of the armed forces. We believe the impact of such an abuse is direct and substantial enough to provide the requisite service-connection for the armed forces to exercise jurisdiction over this offense. Cf. United States v Morisseau, 19 USCMA 17, 41 CMR 17.

Accordingly, the decision of the board of review is affirmed.