United States v. Prather

18 C.M.A. 560, 18 USCMA 560, 40 C.M.R. 272, 1969 CMA LEXIS 735, 1969 WL 6062

• Court: United States Court of Military Appeals
• Decided: September 5, 1969
• Docket: No. 21,603
• Status: Published

Opinions

Opinion of the Court

Darden, Judge:

A general court-martial sentenced Prather to a dishonorable discharge, total forfeitures, and confinement at hard labor for ten years after finding him guilty of wrongful appropriation of an automobile, robbing a gasoline station, and resisting arrest, in violation of Articles 121, 122, and 134, Uniform Code of Military Justice, 10 USC §§ 921, 922, and 934, respectively. As a result of a pretrial agreement, the convening authority reduced the confinement at hard labor from ten years to three years and six months, leaving unchanged the dishonorable discharge and total forfeitures. The board of review affirmed.

The facts pertinent to the decision are these: On the morning of August 10, 1967, the accused appropriated a 1964 civilian-owned Volkswagen sedan parked behind an office building in Marietta, Georgia. After purchasing a .22 caliber revolver and a box of cartridges, he held up the attendant of a service station-in Mableton, Georgia, obtaining $148.00. Later, while driving the misappropriated vehicle, he exchanged gunshots with pursuing police. Eventually Prather drove into a block wall, escaped from the ear, and ran to the home of his parents where he hid in the basement. There he was taken into police custody.

Three of the four issues granted by this Court center on the procedure that should follow a plea of guilty under a pretrial agreement when there is a substantial question about the mental ability of the accused to adhere to the right at the time of the offenses. The remaining issue, however, controls the disposition of this case. It questions the court-martial’s jurisdiction of the offenses charged against this accused under O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969). Under the standard there set out, where the crimes involve civilians unconnected with the military, if the offenses are not committed on a military post, do not occur at “an armed camp under military control, as are some of our far-flung outposts,” do not breach military security, flout military authority, or affect military property, and if civil courts are open, the offenses are not “service connected,” and the military is without jurisdiction to try the crimes. Id., at page 273. Tested by this standard, the crimes committed by Prather are not service-connected within the meaning of O’Callahan. We are, therefore, required to set aside the findings of guilty and sentence and order the charges dismissed, relegating the accused’s case to such action as the State of Georgia may wish to take in light of his alleged transgressions. United States v Borys, 18 USCMA 547, 40 CMR 259. The decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Army. The charges are ordered dismissed.

Judge Ferguson concurs.