United States v. White

1 M.J. 1048, 1976 CMR LEXIS 669
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedNovember 24, 1976
DocketNCM 76 2061
StatusPublished
Cited by2 cases

This text of 1 M.J. 1048 (United States v. White) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. White, 1 M.J. 1048, 1976 CMR LEXIS 669 (usnmcmilrev 1976).

Opinion

GLADIS, Judge:

Tried at a general court-martial bench trial appellant was convicted in accordance with his plea of an indecent assault in violation of Article 134, UCMJ, 10 U.S.C. § 934.1 The sentence approved by the convening authority consists of a bad conduct discharge, confinement at hard labor for 15 months, forfeiture of $268.00 per month for 15 months and reduction to pay grade E-2, with the discharge, confinement in excess of 4 months and forfeitures in excess of 6 months suspended.

Appellant assigns the following error:

SINCE THE OFFENSE HAPPENED OFF-BASE AND HAD NO CONNECTION WITH APPELLANT’S MILITARY DUTIES, THE COURT LACKED JURISDICTION TO TRY THIS OFFENSE. UNITED STATES V. HEDLUND, 2 M.J. 11 (1976).

We find jurisdiction and affirm.

These facts may be gleaned from the record of trial. Appellant, a petty officer, was assigned to the Aircraft Intermediate Maintenance Division (AIMD) at Naval Air Station, Pensacola, Florida. He met and became acquainted with the victim, a female seaman apprentice, who worked in the Aircraft Operational Maintenance tool room at the Naval Air Station while she was performing her duties there. The husband of the victim was a member of the Naval service, a nonrated airman who was also assigned to appellant’s duty section. In January 1976 the victim encountered appellant while she was waiting for her husband in the AIMD parking lot on base. He “bothered” her, talking to her and “putting his hands all over” her. He would not stop although she told him to do so. In early February 1976 the victim encountered appellant at a market off base near her home. He came up to her and told her that he wished to follow her home and see where she lived. She refused, but he followed her home and asked to use the bathroom. She did not admit him to her home and he departed.

On the afternoon of 23 February 1976 appellant approached the victim’s husband while they were mustering for duty and asked him to trade watches. The husband who had been assigned a watch from midnight to 0800 did not trade. The husband departed from his off base trailer home about eleven o’clock in the evening, leaving his wife behind. Shortly after midnight appellant came to the trailer, knocked on the door, waking the victim, and identified himself. He asked to talk to her and, after initially telling him that he had no business there because he knew her husband was on watch, the victim admitted him. They talked for a short time and then appellant committed an indecent assault upon the victim.

In order to determine whether an offense committed off base by a service member is service-connected within the meaning of O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), and consequently whether it is triable by court-martial, the jurisdictional criteria enunciated in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), must be carefully weighed. United States v. Moore, 1 M.J. 448 (1976). The issue turns on gauging the impact of an offense on military discipline and effectiveness, on determining whether the military interest in deterring the offense is distinct from and [1050]*1050greater than that of civilian society, and on whether the distinct military interest can be vindicated adequately in civilian courts. Schlesinger v. Councilman, 420 U.S. 738, at 760, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). Jurisdiction may not be predicated solely upon the military status of both the wrongdoer and the victim. United States v. Hedlund, supra. An ad hoc approach must be taken in each case, balancing the significant jurisdictional criteria. Relford v. Commandant, supra.

In Relford, the Supreme Court extracted from O’Callahan, 12 criteria by which service connection may be measured.

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.
9. 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.

In Relford the Court stressed the following:

“(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. The term ‘Regulation’ itself implies, for those appropriate cases, the power to try and to punish, (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, arising from its emphasis on the absence of service-connected elements there, 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 the person of one associated with the post was subject even to the General Article. The comment from Winthrop, . . . Military Law and Precedents 724 (2d ed. 1896, 1920 Reprint):

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