United States v. Rego

19 C.M.A. 9, 19 USCMA 9, 41 C.M.R. 9, 1969 CMA LEXIS 678, 1969 WL 6260

• Court: United States Court of Military Appeals
• Decided: October 10, 1969
• Docket: No. 21,661
• Status: Published

Opinions

Opinion of the Court

Darden, Judge:

On his plea of guilty, the accused was convicted by a special court-martial of housebreaking and larceny, in violation of Articles 130 and 121, Uniform Code of Military Justice, 10 USC §§ 930 and 921, respectively.

The unlawful breaking involved the residence of a fellow airman located in Midwest City, Oklahoma, near Tinker Air Force Base, and the larceny was of various articles of property, including a 12-gauge shotgun and two rifles, belonging to the same airman. The accused and the victim worked in the same section and the same building at Tinker Air Force Base. Through this association as members of the armed forces, the accused learned that the victim would be away for the weekend and he broke into his home during his absence. After preliminary investigation by Midwest City police, the matter was referred to the Air Force’s Office of Special Investigations, which conducted the investigation that resulted in the accused’s trial and conviction on the charges indicated.

The accused now contends that, under O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), the court-martial did not have jurisdiction over the offenses of which he stands convicted. In United States v Borys, 18 USCMA 547, 40 CMR 259, we considered the meaning and application of the constitutional limitation on court-martial jurisdiction promulgated by the Supreme Court in the O’Callahan case. Upon consideration of the Supreme Court’s indication that “thefts from other soliders” are “peculiarly military crimes” (O’Callahan, supra, footnotes 14 and 19), and for the reasons set out in Borys, the exercise of court-martial jurisdiction in this case was proper.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.