Coast Guardsmen, who were assigned to the same command.
The crimes occurred off
post in his private home. The lower court first upheld the conviction, finding the
offenses were service-connected: "The offenses by their very nature contained
within them a disrupting effect on good order and discipline on that staff."
It
was, said the court, "a grievous breach of faith by one shipmate against another."
Although the crimes occurred off post, "a command is more than a physical place or
property; is it an organization of people."
The conviction was affirmed, since
"sex offenses against children...
have a continuing effect on the victims and
their families and ultimately on the morale of any military unit or organization to
which the family member is assigned." U.S. v. Solorio, 21 MJ 251 (CMA, 1986). The
stage was set for review by the U.S. Supreme Court, which had originally created
the service-connection test back in 1969.
In Solorio v. U.S., 483 US 435 97 LEd.2d 364, 107 SCt 2924 (1987), the
Supreme Court noted the "confusion" that had been created by the service-connection
test.
It then ruled that the jurisdiction of a court-martial "depends solely on
the accused's status as a member of the armed forces, and not on the 'service
connection' of the offense charged. Thus, O'Callahan is overruled." The test for
jurisdiction, then, is solely "one of status--namely, whether the accused in the
court-martial proceeding is a person who can be regarded as falling with the term
'land and naval forces'... the requirements of the Constitution are not violated
where, as here, a court-martial is convened to try a servicemember."
In other
words, the soldier may be court-martialed, whether the crimes occurred on or off
post.
Military jurisdiction is unique, then, in that it always follows the
soldier, on or off-post.
Remember, that the Army has investigative authority over matters where
there is "an Army interest."
This includes that situation where "there is a
reasonable basis to believe that a suspect may be subject to the UCMJ." (AR 195-2,
paragraph 3-lb.)
Where the crime takes place off post, there will be a need to
coordinate with the civilian authorities. TJAG policy Memo 87-5 (28 Jul 87) states
that SJAs should review any MOUs that they have with local civilian prosecutors, as
the Solorio case will make such coordination necessary:
"When federal, state, or local civil enforcement authorities have
concurrent jurisdiction, investigative responsibility will be determined in
coordination with that authority.
When concurrent jurisdiction or
authority to investigate exists and neither the Army nor the civil
authorities accede to the other's primary responsibility to investigate,
both may pursue the investigation in fulfillment of their respective
interests, with neither impeding the other." (AR 195-2, paragraph 3-2a.)
5.
The termination of court-martial jurisdiction.
AR 635-200, paragraph 1-
31(a), states the general rule that a discharge "is effective at 2400 hours on the
date of notice of discharge."
If the soldier is given a discharge certificate
earlier, however, and allowed to leave, court-martial jurisdiction may be lost. A
good example of what can happen is U.S. v. Howard, 20 MJ 353
MP1018
1-36
Previous Page
