Air University Review, May-June 1971
On the night of 20 July 1956, James F. O’Callahan, a sergeant in the United States Army stationed at Fort Shafter, Territory of Hawaii, entered a civilian hotel in Honolulu, broke into a room occupied by a fourteen-year-old girl, and assaulted and attempted to rape her. Following the girl’s resistance and screams, he fled and was shortly apprehended by a hotel security officer. He was first turned over to the civilian police and then, when it was deter-mined that he was a member of the armed forces, to the military authorities.
Sergeant O’Callahan was subsequently tried by an Army general court-martial for the offenses of attempted rape, housebreaking, and assault with intent to commit rape, in violation of Articles 80, 130, and 134 of the Uniform Code of Military Justice. He was convicted on all charges and sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for ten years. Following review and approval of his case by military review authorities,1 O’Callahan was transferred to the United States penitentiary at Lewisburg, Pennsylvania, to serve his sentence.
In 1960 O’Callahan was paroled. While on parole he was convicted of rape in Massachusetts and sentenced to prison in that state.2 In 1966 he was released from the Massachusetts State Prison and, as a result of this conviction, was returned to the federal penitentiary as a parole violator to serve out the original sentence imposed by the Army court-martial.
Following recommitment to the federal penitentiary, O’Callahan filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, alleging, inter alia, the Army court-martial did not have jurisdiction to try him for his civilian-type offenses committed off post and while in an off-duty status.3 Instead, it was contended that he should have been tried in the territorial courts of Hawaii, where he would have been afforded the rights of indictment by grand jury and trial by jury as guaranteed by Article III, Section 2, and the Fifth and Sixth Amendments of the United States Constitution. The District Court denied relief, and, on appeal, the United States Court of Appeals for the Third Circuit affirmed.4 The United States Supreme Court subsequently granted certiorari on the question of whether a court-martial had jurisdiction to try a member of the armed forces for a civilian-type criminal offense cognizable in the civilian courts and committed off post while in an off-duty status.5
In deciding that the court-martial was without jurisdiction to try O’Callahan for his offenses, the Supreme Court observed that Congress’s power to “make rules for the Government and Regulation of the land and naval forces”6 and the Fifth Amendment exception from the requirement of indictment and jury trial of “cases arising in the land and naval forces” must be considered in historical context with Article III, Section 2, and the Sixth Amendment of the Constitution, which provide for indictment by grand jury and trial by jury.7 Through a process of historical review, the Supreme Court concluded that it was never intended that military personnel would be deprived of the constitutional right to indictment and jury trial except in those cases where one could say the crime was ‘‘service-connected.’’ Stated another way, that portion of the Fifth Amendment which provides that indictment by grand jury and trial by jury are not applicable to “cases arising in the land and naval forces” was intended to apply only to crimes committed by military personnel that are service-connected. The court observed that if the restriction of “service-connection” were not imposed, the Fifth Amendment exception of “cases arising in the land and naval forces” could “be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers.”8 If the crime was not service-connected, then the constitutional protection of indictment by grand jury and trial by jury must be met and, in order that this be done, the serviceman tried in the civil courts.
In reviewing the O’Callahan case and rendering its decision, the Supreme Court was obviously concerned with the constitutional justification for treating a person in the military differently from a civilian, when both have committed the same criminal act. Based upon its historical review, the court determined that the “military status” of the offender is not alone sufficient to justify a different form of prosecution from that of the civilian for the same misconduct. If no reasonable difference appears between the civilian and the military person in the commission of the same wrongful act, the court concluded that the two cannot be prosecuted differently. On the other hand, if the offense committed by the serviceman is service-connected, then he can be tried by court-martial.
In concluding that the military could not exercise jurisdiction over a military offender unless his crime was service-connected, the court failed to define the term “service-connected.” Instead, it simply observed that O’Callahan
. . . was properly absent from his military base when he committed the crimes with which he is charged. There was no connection —not even the remotest one—between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an armed camp under military control as are some of our far-flung outposts.
Finally, we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open. The offenses were committed within our territorial limits, not in the occupied zone of a foreign country. The offenses did not involve any question of the flouting of military authority, the security of a military post, or the integrity of military property.9
By enumerating these various factors, the court implied that they would be significant in establishing the service-connection required for military jurisdiction. However, there was no indication as to whether any one or less than all of the enumerated factors, standing alone, would be significant.
Since this is all the guidance the Supreme Court set out in its O’Callahan decision, the United States Court of Military Appeals has been using these implied guidelines in deciding questions of military jurisdiction in the cases that have been tried and reviewed by that court. Since the O’Callahan decision in June 1969, the Court of Military Appeals has decided 49 cases concerning the question of whether the military courts had jurisdiction to try the offenses involved.
The purpose of this article is to examine the Court of Military Appeals’ decisions with a view toward explaining how this court has interpreted and applied the O’Callahan decision. In this review I do not question the merits of the O’Callahan decision, nor do I attempt to furnish a comprehensive coverage of the innumerable problems, questions, and ramifications that have arisen and will continue to arise in the application of that decision to court-martial jurisdiction.
Generally, the cases thus far decided by the Court of Military Appeals can be broken down into these categories: foreign offenses; on-base offenses; military offenses committed on or off base; off-base offenses involving military victims; offenses involving reliance on the military status of the offender; petty offenses; and other off-base offenses.
foreign offenses
To date, a number of cases have been decided by the Court of Military Appeals involving military trials held outside the United States, its territories and possessions, for offenses committed outside this area. These cases have involved such offenses as counterfeiting, use of marihuana, housebreaking, murder, assault with intent to murder, negligent homicide, and robbery. 10 In one case the offense was not listed. 11
Without exception, the Court of Military Appeals has held that the constitutional limitation on court-martial jurisdiction laid down in the O’Callahan case is not applicable to military trials held outside the United States, its territories and possessions, for offenses committed by servicemen outside this area. In the leading case in this category the court observed that, except for service-connected offenses, the purpose of the O’Callahan decision was to provide servicemen the rights of indictment by grand jury and trial by jury and that, essential to this holding, was the fact that the offense must be triable in the state or federal courts.12 Clearly, a serviceman could not be tried in any state court for an offense not committed within the state’s boundaries.
By the same token, the vast majority of offenses committed by servicemen in foreign countries in violation of the Uniform Code of Military Justice are now triable in the federal courts, for they are not, at the same time, violations of the federal penal statutes. Thus, the serviceman would have to be tried by the military or a foreign court, neither of which would afford him the constitutional benefits of indictment by grand jury and trial by jury.
Since the Court of Military Appeals has quite clearly held that the O’Callahan decision is not applicable to offenses committed by servicemen in foreign countries, the question of whether an offense committed in a foreign country by a serviceman is service-connected need not to be considered.
In this area of jurisdiction, the Court of Military Appeals is clearly on solid ground for the simple reason that in most cases there are no means available to provide offenders the benefits of indictment by grand jury and trial by jury. Additionally, in most instances, the alternative to military trial would be trial in the courts of the country in which the offense was committed. If the Supreme Court were presented this alternative, surely it would hold that trial before an American court-martial in which the fundamentals of due process are observed would be preferable to leaving American servicemen to the widely varying standards of justice in foreign courts throughout the world.
on-base offenses
Without exception, the Court of Military Appeals has upheld court-martial jurisdiction in all cases involving offenses committed on a military reservation within the territorial limits of the United States. These cases have included bad-check offenses, robbery, murder, larceny, sodomy, carnal knowledge of a female under the age of sixteen, and wrongful appropriation of a motor vehicle.13
In these cases the appeals court has referenced the O’Callahan decision, wherein it was noted that O’Callahan’s offenses had not been committed on a military post, and has stated that the Supreme Court thereby implied that had the offenses been committed on post the military would have had jurisdiction. The Court of Military Appeals has adopted this line of reasoning and has held that the military has jurisdiction to try servicemen for offenses committed on base without regard to the nature of the offense or the status of the victim. In a murder case committed on base at a naval air station, the court went beyond this basic reasoning and stated:
Since it is the military duty of a serviceman to obey the laws of the military community when he is physically located within the confines of that community, the “service connection” of the offense charged in this case is apparent.14
In another case the court added that”. . . the need to maintain ‘the security of a military post’ is sufficient to vest in the court-martial jurisdiction to try” the offense of carnal knowledge of a female under the age of sixteen.15 In yet another case, involving sodomy, the court stated that with respect to on-base offenses “the military are charged with maintaining the security of that area, and “This factor is sufficient to vest in the court-martial jurisdiction . . .” to try the offense.16
In short, the Court of Military Appeals has held that any offense committed on base is service-connected, and thus, without exception, the military has jurisdiction. Admittedly, it is a position of immaculate precision that makes for a simple, uniform, and easy-to-apply rule. However, the logic of such an all-encompassing rule is not unassailable.
In the O’Callahan case, the Supreme Court did in fact observe that O’Callahan’s offenses were not committed on a “military post or enclave.” However, this was only one of numerous factors that were noted as being absent in that case. Had the court intended that any one of these factors, standing alone, would be absolutely controlling, it could easily have said so. Moreover, the purpose of the O’Callahan decision was to preserve for the serviceman, insofar as possible, the constitutional rights of indictment by grand jury and trial by jury. This being the case, one might ask whether there is really a materially significant difference between a serviceman’s murdering his wife in a parking lot on base and a parking lot off base? Or, is there a significant difference between an offense in an off-base apartment and in housing on base?
If the Supreme Court in the O’Callahan case was concerned, as indeed it must have been, with the constitutional justification for treating a serviceman differently from a civilian when both commit the same criminal act, it is questionable whether a carte blanche rule, calling for a different form of prosecution in any and all cases for the serviceman merely because he commits the particular offense on base, is justifiable.
In a case involving the military trial of an ex-serviceman for murder allegedly committed prior to his discharge, the Supreme Court, in setting aside his conviction, stated:
There are dangers lurking in military trial which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. . . .
Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to the least possible power adequate to the end proposed.17 (Italics supplied.)
This very same language was again quoted by the Supreme Court in the O’Callahan decision.18
If the Supreme Court continues the philosophy of the “least possible power adequate to the end proposed,” it is doubtful that it would uphold, across the board, the rule of the Court of Military Appeals in this area of jurisdiction. An indication that this undeviating rule may not be accepted is evidenced by the fact that the Supreme Court has now granted certiorari on the question of whether a court-martial had jurisdiction to try a serviceman for the offenses of rape and kidnapping committed on a military base.19
military offenses committed on or off base
This category involves military offenses such as absence without leave and escape from confinement.20 The Court of Military Appeals has upheld jurisdiction by the simple observation that these types of offenses are obviously service-connected. While the court has not articulated its reasons for holding that these offenses are service-connected, it seems compellingly obvious that military jurisdiction is legitimately exercised in these cases for the simple reason that they have no civilian counterpart, and the Congress and the military are, of necessity, authorized to proscribe and punish such offenses. Since these “military” offenses are unknown to the civilian sphere and could not therefore be tried in the civilian courts, a serviceman could never be entitled to indictment and jury trial. The obvious alternative to military trial would be no trial at all.
Included within this general category are offenses that could be tried in the state or federal courts. These involve the use of heroin and cocaine, the use or possession of marihuana, and the unlawful delivery of prohibited drugs to another serviceman.21 In these cases the court has held that the use or possession, on or off base, of marihuana and narcotics has a special military significance since their use has “disastrous effects on the health, morale and fitness for duty of persons in the armed forces,” and their wrongful possession on or off base is a “matter of immediate and direct concern to the military as an act intimately concerned with prejudice to good order and discipline or to the discredit of the armed forces.” 22 The court held that the unlawful delivery of prohibited drugs to another serviceman is as service-connected as possession. It reasoned that the accused served as a conduit for unlawful possession by another serviceman and that his possession, in turn, has a deleterious effect on his health, morale, and fitness for duty which the military is authorized to protect.23
Unquestionably, the court is on solid ground in holding that the use of marihuana and narcotics on or off base is service-connected and that the military therefore has jurisdiction to try these types of offenses. Surely Congress, through its constitutional grant of power to govern and regulate the armed forces, can proscribe and punish any misconduct that would reasonably and directly affect the military man’s ability to carry out his duties.
Even though the Court of Military Appeals has done so, the same argument should not be advanced with respect to the possession or delivery of marihuana and narcotics. Since possession is not tantamount to use, it seems farfetched to argue that “possession” or “delivery” alone has a deleterious effect on the health, morale, and fitness for duty of persons in the armed forces. Possession or delivery of these prohibited items does not have the same direct impact upon the military as does their use. Admittedly, the serviceman’s possession or delivery to another is service-discrediting, but no more so than his breaking into a hotel room and attempting to rape a young girl.
At any rate, the Court of Military Appeals’ position with respect to possession has not been accepted by one federal court, as evidenced by a recent decision of the United States District Court for the District of Rhode Island. In that case the District Court, in granting an injunction prohibiting military authorities from court-martialing a serviceman for possession of 42.5 ounces of marihuana, observed, without elaboration, that the off-base possession of marihuana was not a crime of special military significance so as to support military jurisdiction.24
Until these diametrically opposing views are resolved, the rule with respect to possession and delivery of marihuana and narcotics will remain doubtful. If it is ultimately determined that possession is not service-connected, the same rule would logically apply to delivery.
off-base offenses involving military victims
Numerous off-base crimes committed against service personnel have been decided by the Court of Military Appeals. These cases have involved the offenses of housebreaking and larceny or intent to commit larceny therefrom, auto theft, robbery, forgery, and various types of assault.25 All these cases have involved two-to-one decisions upholding military jurisdiction.
In these cases the majority went back to the O’Callahan decision and noted that the Supreme Court had cited, with apparent approval, an excerpt from an 1880 treatise by Colonel Winthrop to the effect that certain crimes committed upon a military person (e.g., theft from or robbery of an officer, soldier, post trader, or camp follower; forgery of the name of an officer; and manslaughter, assault with intent to kill, mayhem, or battery, committed upon a military person) directly affect military relations and prejudice military discipline. The court concluded that such effect on military relations and discipline furnishes the required service-connection. On this reasoning, the court has upheld jurisdiction in alt off-base cases involving military victims, even where the accused did not know his victim was military.26 Moreover, the court has stated that any offense under the Uniform Code of Military Justice “perpetrated against the person or property of another serviceman, regardless of the circumstances, is cognizable by court-martial.’’ 27
The dissent in these cases has generally taken the position that since O’Callahan’s military status, standing alone, was not sufficient to confer jurisdiction on the military courts, neither is the military status of the victim. In the crimes involving the property of military personnel, the dissent has contended that the military has no identifiable military interest in the off-base property of a serviceman sufficient to warrant jurisdiction, particularly in view of the court’s previous holding that the military had no jurisdiction over an off-base carnal-knowledge offense committed against a serviceman’s dependent.28 In cases involving the person of the victim (robbery, assault, etc.), the dissent has contended that these types of offenses have no direct deleterious effect on military matters or discipline and that their effect, if any, is too remote to justify incursion of military jurisdiction into an area that is essentially a concern of the state.
In this area of military jurisdiction, I submit that the minority position is the better reasoned and more logical. In the first place, the majority’s reliance on a footnote in the O’Callahan case, citing an excerpt from Winthrop’s 1850 treatise (to the effect that thefts from and assaults on other soldiers are peculiarly military crimes), seems to be a pretty thin reed on which to lean in deciding court-martial jurisdiction. The Supreme Court’s notice of this excerpt does not rise even to the level of being dictum, much less a specific holding. Moreover, for all that is known, Winthrop could have had in mind assaults committed against a serviceman on base or while in the performance of military duties and thefts committed in the military camps. In the second place, with respect to offenses against property, it is difficult to reconcile the court’s position that sexual intercourse with another serviceman’s child is not service-connected but that unlawfully entering his off-base dwelling or stealing his personal property off base is service-connected. As the court’s rule now stands, a serviceman can be militarily prosecuted for offending against a fellow serviceman’s off-base property but not against his minor dependents. Finally, if the purpose of the O’Callahan decision was to preserve, insofar as possible, the serviceman’s right to indictment and jury trial and to restrict military jurisdiction to the narrowest possible point deemed absolutely essential to maintaining discipline, there does not appear to be any compelling justification for military jurisdiction over these types of offenses. To the contrary, it appears that this is yet another area in which the Court of Military Appeals has carved out a questionable case for the exercise of court-martial jurisdiction.
reliance on military status
Cases decided in this category have involved the off-base offenses of forgery, wrongful appropriation, and dishonorable failure to pay debts. In one case the serviceman identified himself as such, was permitted to take a used car out for a trial run, and did not return it.29 In another case the serviceman donned an officer’s uniform, checked into a hotel, ran up a large bill, and was then unable to pay.30 In one forgery case the victim stated he cashed a forged check only after the accused identified himself as being in the service.31 In another, the forged checks negotiated to an airline bore indorsements with a military address.32
In the wrongful appropriation and forgery cases, the court, in two-to-one decisions, upheld jurisdiction on the grounds that the improper use of military status is likely to adversely affect the confidence of the public in the members of the armed forces and that such abuse or improper use must be punished lest innocent members suffer. This, the court contended, established the necessary service-connection required for the exercise of court-martial jurisdiction.
The dissent took the position that since status alone is insufficient to vest jurisdiction in a court-martial, reliance on that same status by the victims of these offenses is likewise insufficient to justify the incursion of military jurisdiction into areas that are primarily the concern of the state. In the case of dishonorable failure to pay, a unanimous court held that while status of the offender is not enough to confer jurisdiction, positive misuse of the status to secure privileges or recognition not ordinarily accorded others is enough to make the offense service-connected. The dissenting judge in the first-mentioned cases joined in this latter decision, presumably on the grounds that the offender’s disguise as an officer was prejudicial to good order and discipline and that this factor furnished the required service-connection.
Basically, these cases stand for the proposition that where an accused’s military standing or rank facilitates commission of the offense, the offense is then service-connected. This position is admirable and indeed an appealing one, particularly to the military community, which would be the first to take offense at a fellow serviceman’s “use” of his military status. However, with O’Callahan as the guideline, the position may be more emotional than legal.
In the O’Callahan case, the thrust of the court’s decision seemed to be that there must be some connection between an offender’s military duties and the crimes in question or the offenses must involve the “flouting of military authority, the security of a military post, or the integrity of military property.” 33 Additionally, the court observed that military jurisdiction should be restricted to the narrowest point deemed absolutely essential to maintaining discipline among troops in active service lest “cases arising in the land and naval forces . . . as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by grand jury and a trial by jury of his peers.” 34
In these civilian-type offenses, it cannot be logically argued that there is a connection between the offender’s military duties and the crimes committed or that the offenses involve the flouting of military authority, the security of a military base, or the integrity of military property. Furthermore, it cannot be seriously contended that court-martial jurisdiction over such offenses is “absolutely essential to maintaining discipline in the armed forces.” Viewed objectively, the offenses are common varieties of fraud, deceit, and misrepresentation that are prosecuted almost daily in the civil courts. Moreover, if a serviceman’s status, standing alone, is insufficient to vest a court-martial with jurisdiction, then reliance on that same status is insufficient to justify incursion of military jurisdiction into an area that is primarily the concern of the state. Finally, an argument that offenses of this nature adversely affect the reputation of the armed forces is as irrelevant as the same argument involving housebreaking and attempted rape.
In short, it appears that this is yet another area in which the Court of Military Appeals has labored mightily to carve out additional exceptions to the O’Callahan decision and thus permit the exercise of court-martial jurisdiction.
petty offenses
Only one case, involving the off-base offenses of drunk and disorderly conduct, has been decided in the category of petty offenses.35 The Court of Military Appeals upheld jurisdiction on the grounds that an offense punishable by penalties not exceeding six months’ confinement, as was the case here, did not require jury trial, and since the right did not exist, the O’Callahan decision did not apply as a limitation to court-martial jurisdiction. Here the court’s decision, which is applicable irrespective of whether the offense is service-connected, is based upon numerous Supreme Court decisions which hold that there is no right to indictment and jury trial for petty offenses.36
Whether an offense is a petty offense is determined by the maximum punishment that can be imposed. For violations of federal law, the Supreme Court has ruled that an offense is not petty if it is punishable by confinement for more than six months.37 The same question with respect to violations of state law has not been answered. In one case, the Supreme Court held that an offense punishable by two years’ imprisonment was not petty but noted that all states except Louisiana, New York, and New Jersey provide for jury trials for offenses punishable by confinement for more than six months.38 If the precise question were presented, it seems likely that the Supreme Court would require jury trial in these three states for offenses punishable by more than six months’ confinement. Thus, it would appear that military jurisdiction can be properly invoked for any offense punishable by not more than six months’ confinement.
Except for service-connected offenses, the purpose of the O’Callahan decision was to preserve the constitutional rights of the serviceman to indictment and jury trial. Since the right does not exist with respect to petty offenses, the question of military versus civil trial does not become an issue.
off-base civilian offenses
The remaining cases thus far decided have involved the offenses of housebreaking, larceny, burglary, murder, sodomy and indecent acts, carnal knowledge, wrongful appropriation, resisting arrest, worthless checks, attempted robbery, and rape and robbery.39 All these offenses were committed off base, within the territorial limits of the United States, and involved civilian victims. The convictions have been set aside by the Court of Military Appeals on the grounds that the military was without jurisdiction to try the offenses. The court’s reasoning has been that the civil courts were open and functioning, that these civilian offenses involved civilians not associated with the military, that there was no connection between the accused’s military duties and the crime or crimes in question, and that the offense or offenses did not involve the flouting of military authority, the security of a military post, or the integrity of military property.
Since there was no discernible or significant difference between these offenses and O’Callahan’s, the court held that the offenders should have been tried in the civil courts where they would have been afforded their constitutional rights to indictment by grand jury and trial by jury.
This review of decisions of the Court of Military Appeals reveals that the court has severely limited the effect of the O’Callahan decision on the exercise of court-martial jurisdiction. In its attempt to establish precise guidelines and its obvious effort to uphold the exercise of court-martial jurisdiction, the court has rendered decisions in certain areas that simply do not square with the language and Intent of the O’Callahan case.
If the Supreme Court’s philosophy prevails —that court-martial jurisdiction should be restricted to the narrowest point deemed absolutely essential to maintaining discipline within the armed forces, it is extremely doubtful that the federal courts will uphold the exercise of military jurisdiction in all the areas carved out by the Court of Military Appeals.
In any event, this area of the law is far from settled, and in the days to come it will probably be the subject of much litigation.
Air War College
This article has been adapted from a professional study submitted by Colonel Mashburn as part of his academic work at Air War College.
Notes
1. CM 393590, unpublished, and No. 9602, 7 USCMA 800.
2. Time, 13 June 1969, p.66.
3. O’Callahan v. Parker, 256 F. Supp. 679 (D.C.M.D. Pa. 1966).
4. 390 F. 2d 360 (3d Cir. 1968).
5. 393 U.S. 822, 21 L. Ed. 2d 93, 89 S. Ct. 177 (1969).
6. U.S. Const., Art. I, Sec. 8, cl. 14.
7. O’Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683 (1969).
8. Ibid., pp. 272-73.
9. Ibid., pp. 273-74.
10. United States v. Goldman, 18 USCMA 516,40 CMR 228 (1969); United States v. Weinstein, 19 USCMA 29, 41 CMR 29 (1969); United States v. Easter, 19 USCMA 68, 41 CMR 68 (1969) United States v. Stevenson, 19 USCMA 69, 41 CMR 69 (1969); United States v. Higginbotham, 19 USCMA 73, 41 CMR 73 (1969); United States v. Keaton, 19 USCMA 64, 41 CMR 64 (1969); United States v. Bryan, 19 USCMA 184, 41 CMR 184 (1970); United States v. Gill, 19 USCMA 93, 41 CMR 93 (1969).
11. United States v. Blackwell 19 USCMA 196, 41 CMR 196 (1970).
12. Keaton, supra., p. 65.
13. United States v. Williams, 28 USCMA 605, 40 CMR 317 (1969); United States v. Crapo, 18 USCMA 594, 40 CMR 306 (1969); United States v. Fields, 19 USCMA 119, 41 CMR 119 (1969); United States v. Allen, 19 USCMA 31, 41 CMR 31 (1969) United States v. Morisseau, 19 USCMA 17, 41 CMR 17 (322); United States v. Shockley, 18 USCMA 610, 40 CMR 322 (1969); United States v. Smith, 18 USCMA 609, 40 CMR 321 (1969) United States v. Paxiao, 18 USCMA 608, 40 CMR 320 (1969).
14. Allen, supra., p.32.
15. Smith, supra., p. 610,
16. Shockley, supra., p.611.
17. United States V. Quarles, 350 U.S, 11, 22, 23 (1955), 100 L. Ed. 8, 27, 76 5. Ct. 1.
18. O’Callahan, supra.. p. 265.
19. Redford v. Commandant, United States Disciplinary Barracks, No, 1250, 38 LW 3334.
20. United States v. Chandler, 18 USCMA 593, 40 CMR 302 (1969); United States, Castro, 18 USCMA 598, 40 CMR 310 (1969); Chandler, supra.
21. United States v. Boyd, 18 USCMA 581, 40 CMR 293 (1969); United States v. Wysingle, 19 USCMA 81, 41 CMR 81 (1969); United States v. Adams, 19 USCMA 75, 41 CMR 75 (1969); United States v. DeRonde, l8 USCMA 575, 40 CMR 287 (1969): United States v. Beeker, 18 USCMA 563, 40 CMR 275 (1969); Boyd, supra., Fn 34; United States v. Rose, 19 USCMA 3, 41 CMR 3 (1969).
22. Becker, supra., p. 565.
23. Rose, supra., p.4.
24. Lance Corporal (E.3) Daniel E. Maylon v. Melvin R. Laird, Secretary of Defense, John H. Chafee, Secretary of the Navy, and Brigadier General J. C Fegan, the convening authority, Civ. A. No. 4179, U.S.D.C. D. Rhode Island (1969). 205 F. Supp. 551.
25. United States v. Camacho, 19 USCMA 11, 41 CMR 11,(1969); United States v. Reko, 19 USCMA 9, 41 CMR 9 (1969); United States v. Cook, 19 USCMA 13, 41 CMR 22 (1969); United States v. Plamondon, 19 USCMA 22, 41 CMR 22 (1969); United States v. Nichols, 19 USCMA 43, 41 CMR 43 (1969); United States v. Frazier, 19 USCMA 40, 41 CMR 40 (1969); United States v. Huff, 19 USCMA 56, 41 CMR 56 (1969); United States v. Everson, 19 USCMA 70, 41 CMR 70 (1969).
26. Camacho, Cook, and Plamondon, supra.
27. Everson, supra., p. 71.
28. United States v. Henderson, 18 USCMA 601, 40 CMR 313 (1969).
29. United States v. Peak, 19 USCMA 19, 41 CMR 19 (1969).
30. United States v. Fryman, 19 USCMA 71, 41 CMR 71 (1969).
31. Morisseau, supra.
32. United States v. Hallahan, 19 USCMA 46, 41 CMR 46 (1969).
33. O’Callahan, supra., p. 274.
34. Ibid., p, 272.
35. United States v. Sharkey, 19 USCMA 26, 41 CMR 26 (1969).
36. Bloom v. United States, 391 U.S, 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477 (1968).
37. Frank v. United States, 395 U.S. 147, 23 L. Ed. 2d 162, 89 S. Ct. 1503 (1969).
38. Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed, 2d 491, 88 S. Ct. 1444, Fn 33 (1968).
39. Camacho, supra.; Chandler, supra.; United States v. Riehle, 18 USCMA 603, 40 CMR 315 (1969); United States v. Cochran, 18 USCMA 588, 40 CMR 300 (1969); United States v. Armes, 19 USCMA 15, 41 CMR 15 (1969); Chandler, supra.; Camacho, supra.; United States v. Armstrong, 19 USCMA 5,41 CMR 5 (1969); Shockley, supra.: United States v. McGonigal, 19 USCMA 94, 41 CMR 94 (1969); United States v. Borys, 18 USCMA 545, 40 CMR 257 (1969): Henderson, supra.; United States, v. Prather, 18 USCMA 560, 40 CMR 272 (1969); Prather, supra.; Williams, supra.; Crapo, supra.; Borys, supra.
Colonel Mayo L. Mashburn (J. D., Emory University; M. P. S., Auburn University) is Chief, Litigation Division, Office of The Judge Advocate General, Hq USAF. He served as an Army Air Corps flight engineer in Europe during World War II. Since recall to active duty I 1951, he has held legal positions in the U. S., Japan, and Europe and has taught law at the Air Force Academy. Colonel Mashburn is a graduate of Air Command and Staff College and Air War College.
Disclaimer
The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.
Home Page | Feedback? Email the Editor