2 M.J. 704 | U S Air Force Court of Military Review | 1976
DECISION UPON FURTHER REVIEW
In our original, unpublished decision in this case, dated 3 March 1976, we affirmed the findings of guilty and the sentence after reducing the sentence to bad conduct discharge, forfeiture of $240.00 per month for 12 months and confinement at hard labor for 12 months. Thereafter, the United States Court of Military Appeals vacated our decision and remanded the record of trial to us with instructions to hold further proceedings in abeyance pending the Court’s disposition of the issue granted in United States v. McCarthy, 2 M.J. 26 (24 September 1976).
In McCarthy, the Court found that the offense of “wrongfully transferring 3 pounds of marihuana to a fellow soldier ‘just outside’ gate 3 of Fort Campbell, Kentucky,” was “service connected as that term was explained in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).” In arriving at this finding, the Court considered the criteria set forth in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), for measuring service connection, and concluded that the military interest in the offense was “pervasive.” Significantly, however, the Court iterated that in each case involving service connection issues, the Relford factors must be carefully balanced to determine “whether the military interest in de
The accused was convicted of two specifications each of wrongful possession and sale of lysergic acid diethylamide (LSD) and single specifications of wrongfully possessing marihuana and transferring heroin. The pertinent facts reveal that on 17 June 1975, the accused sold “two small squares” of LSD to Special Agent Roscoe, an undercover agent assigned to the Office of Special Investigations (OSI). The sale occurred not far from Andrews Air Force Base, Maryland.
On 28 June, the accused and Agent Roscoe met on base where the accused agreed to obtain LSD for Roscoe. Later, while at Agent Roscoe’s off base residence, the accused sold Roscoe 200 “dosage units” of LSD for $230.00.
On 30 June, the accused and Agent Roscoe entered the accused’s barracks where Roscoe was introduced to an Airman Curtis who agreed to obtain heroin for Roscoe. Subsequently, at Roscoe’s off base residence, the accused transferred two packets of heroin to Roscoe for which Roscoe paid Curtis $250.00.
Having considered these facts in light of the Relford criteria, we are satisfied that the military properly exercised its jurisdiction over the offenses. We have previously expressed our opinion that drug abuse offenses, whether committed on or off base, are of such singular military significance as to inherently satisfy the Rel-ford criteria for determining service connected crimes. United States v. Smith, 2 M.J. 1235 (A.F.C.M.R. 22 October 1976); United States v. Smith (A.F.C.M.R. 21 July 1976). This is especially apparent when, as here, the crimes involve an accused’s illegal disposition of extremely deleterious drugs, a hallucinogen and habit forming narcotic.
Moreover, despite the fact that the accused apparently believed the “victim” was a civilian, the service connection aspect of the wrongful sale of LSD and transfer of heroin is evident since in each instance the crime was conceived, and agreed upon, within the limits of the military installation. See United States v. McCarthy, supra; Cf. United States v. Crapo, 18 U.S.C.M.A. 594, 40 C.M.R. 306 (1969) (off base robbery found service connected where certain elements of the offense took place within the confines of a military base). Only the physical exchange of the drugs and the purchase price took place off base. See United States v. Sexton, 23 U.S.C.M.A. 101, 48 C.M.R. 662 (1974).
With respect to the possession of LSD offenses, we are equally convinced that a service connection exists. Initially, we note that these offenses were so closely related to the LSD sales that the military judge ruled they were multiplicious for sentencing purposes. See United States v. Rock, 49 C.M.R. 235 (A.F.C.M.R.1974), pet. denied (23 December 1974), citing Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973).
We are cognizant that the rationale expressed in the Court’s decisions prior to
We believe that the result reached in Rainville is entirely consistent with the Supreme Court’s opinions in O’Callahan v. Parker and Relford v. Commandant.
The decisions in O’Callahan and its progeny were intended to provide servicemen with certain constitutional guarantees for those offenses that are unrelated to the offender’s, or his victim’s military duties, do not otherwise pose a threat to military personnel, military property or the military community and are traditionally prosecuted in civilian courts. Admittedly, the simplest method of distinguishing between offenses that are or are not service connected would be to decide the issue on the sole basis of the crime’s principal situs, that is, only those crimes committed at a place under military control would be considered service connected. However, the courts have recognized that certain offenses, though committed in a civilian community, are of such distinct military interest that the service’s prerogative to prosecute the offender outweighs the assumed deprivation of constitutional safeguards.
Without citing fiscal authority for our opinion, we believe it is not unreasonable to state that a significant part of the military budget is presently directed toward the investigation of those military personnel who are trafficking in drugs. Prosecution of these individuals in military courts is essential simply because of the military’s unique function. In sum, if the military drug problem is to be eliminated, prompt and efficient disposition of those military personnel who traffic in drugs, whether on or off base, must be pursued. This can only be accomplished with any shred of uniformity, by military investigators and in military courts.
The findings of guilty and the sentence are
AFFIRMED.
. In our original decision in this case, we indicated, citing United States v. Rock, supra, at 238, that if a serviceman is properly before a court-martial on charges that are clearly service connected, he might also be tried at the same time for closely related offenses wherein service connection is not so apparent.
. But see Cole v. Laird, 468 F.2d 829 (5th Cir. 1972) (off base possession and use of a small amount of marihuana held not service connected); Councilman v. Laird, 481 F.2d 613 (10th Cir. 1973) (off base possession and transfer of marihuana to a serviceman acting for Army Criminal Investigation Division held not service connected), reversed on other grounds, Schlesinger v. Councilman, supra.
. See Air Force Regulation 30-2, Social Actions Program, 1 August 1974, paragraphs 4-32 and 4-39.
. The United States Supreme Court has not yet decided a factual issue involving the exercise of military jurisdiction over off base drug offenses. However, in Schlesinger v. Councilman, supra, footnote 34, The Court noted the Solicitor General’s statement that “ ‘drug abuse is a far more serious problem in the military context than in civilian life’,” and opined: It is not surprising, in view of the nature and magnitude of the problem, that in United States v. Beeker, 18 U.S.C.M.A. 563, 565, 40 C.M.R. 275, 277 (1969), the Court of Military Appeals found that “use of marihuana and narcotics by military persons on or off a military base has special military significance” in light of the “disastrous effects” of these substances “ ‘on the health, morale and fitness for duty of persons in the armed forces.’ ”
We express no opinion whether the offense with which the respondent in this case was charged is in fact service connected. But we have no doubt that military tribunals do have both experience and expertise that qualify them to determine the facts and to evaluate their relevance to military discipline, morale, and fitness.
