O'Callahan 8. Parker: Court-Martial Jurisdiction, 'Service Connection,' Confusion, and the Serviceman

• Author: By Paul Jackson Rice
• Pages: 02

The controversial O'Callahan case turns on the tension between the constitutional rights to grand and petit jun'es and the congressionnl power "to make rules for the regulation" of the armed forces. The result of the case is simple in theory but in practice is hard to justtfu and apply. This article cvalvntes the majority and minority opinions of the Supreme Court, criticizing the majority opinion for disturbing precedent, historical inaccuracies, %wueness, and failure to consider the needs of military discipline and other practical effects of the decision. The problems of applying O'Calhhan haze evoked a number of interpretations and approach@ from the Judges of the Court of .Wilitary Appeals. These approaches are analyzed as they apply to the factors of "semiee ccnneetion" and other problems: place of the crime, estraterritorial applioation, drugs, petty offensea, crimes against other service members, crimes inwolxing abuse of military status, officer status, the role of the miform, retroactizitg, and jurisdiction. over civilians in time of war.

1. INTRODUCTION

   In 1962, Chief Justice Earl Warren presented the third James lladison Ledure at New York University Law Center, entitled "The Bill of Rights and the Military."' He considered the topic

   * Submitted in partial fulfiliment far the requirements of the LL.11. degree af Sorthaertern Cnirerriry School of JAY..

   Chicago, Mlay 1970. Is!igirtip different vermn of this ai:icie appeared under the zirle Cowt-.linr. fial Junsdrctioa--The Scr?,icc Con~ietmi Sloddard iii Coi~iil~ioain 61 J.

   CRIX L.C. 8 P.S. 339 (19;O). The apmonr ard c~nduilon~presented here.

   in are those of tie author znd do not neceirarilg repreren'. The ~ie\vi of The Judee .kdiocate Ge?alaPr School or any other goveinmenrai agency.

   .-,; :- 11 c 1 ?.\ !31

   I1

   one of increasing importance due to changing domestic and world conditions, resulting in a hrge standing army. His purpose was to examine the troublesome problem of the "role to be as-signed the military in a democratic society. . . .'" He noted that our Government has been one of "traditional subordination of military to civil power," and that "isnth minm exceiitions, military men throughout our history haw not only recognized and accepted this relationship in the suirit of the Constitution, but that ther hare also cheerfully cooperated in pursuing It."'

   The Chief Justice discussed the role of the Court In determining conflicts between the Bill of Rights and military necessity, dividing the areas of conflict into three broad categories. Only the first category is appropriate for comment here. That is that the role of t!w Conit IS most lmited !\hen the militwy 1s dealing with Its O P - ~ personnel. The Court has never waii-ered from its holding that It lacked jurisdiction ta rerieh, by certiorari, the Court has released uris-has based its action upon lack person, applying the term e. The reason for the "handsoff" attitude 1 g, icdisputable historical siipiiort. ry, from the time of the Revolution until n o y has auiiported the militar) esrablishment's broad power to deal with Its own peisonnel ''I

   The comments of rhe Chief Justice were almost indisputaLle at the time ther irere made' And, a!though the period since the lecture has been termed b? some as the "criminal law re~olu-tion," nothing has oecu~ied in the fie:cl of military la,$- topare the court-martial system foi the shock of O'Ciillnhi Park& Therein, the ietiiing Chief Justice would be partthe Court, vhich n-odd place a firm grip bon the !i~.ev~ousIytermed "hands-off" categorrnt occaiied appioximatels- thiiteen years grim to the decision On the night of 20 Julr 1956, Aim>- Sergeant James FO'Callahan and his roommate and frimd, Charles Redden, left

   ' Id. at 182.

   Id. at 186.' Er parti Ya:land.gram. 68 E.S (1 IVaY..) 243 11863).

   26s (1369)

   I O'Callahan V. Parker, 335 U.S.

   OCALLAHAN

   their duty station at Fort Shafter, Oahu, Terntory of Havaii, with w evening pass. The tyo, dressed in civilian clothes, had a few beers in a Honolulu hotel bar. Later that night, they made their way to a balcony on the fourth floor of the residential part of the hotel. From the balcony, they could see a girl sleeping in an adjacent bedroom. O'Callahan suggested that they enter the room and one of them could hold the girl, while the other had intercourse with her. Redden refused to participate and departed. O'Caliahan then forced his way into the room and seized the fourteen year-old girl. His sexual attack upon the girl was unsuccessful, in that she atruggled free from his restraint8 and screamed for assistance. Immediately after the screaming of the victim, O'Callahan va8 observed jumping from one balcony ledge to another, until he reached ground level. He %vu apprehended on the grounds by a hotel security guard, who observed him wearing a tee shirt, with his belt loose and his trousers open. O'Cailahan's shirt %-as found in the rictim's room. Later, he !vas returned to military authanty, and after interrogation, made a confession.

   He was charged by the military with attempted rape: house-breaking,' and assault with intent to commlt rape." A general court-martial tried O'Callahan and found him guilty as charged. He !%-a3 sentenced to be dishanorabl>- discharged from the Army, to forfeit all pay and ailow.nces, and to be confined at hard labor for ten years His conviction was affirmed by an Army board of review, and the United State8 Court of Military Appeals denied his petition for review:'

   In April 1966," O'Callahan petitioned the United States District Court for the Xiddle District of Pennsylvania for a writ of,habeas corpus alleging, inter din, that the court-martial had no jurisdiction to try him for a non-military offense commted off-post while on leave '' The District Court refused to consider thar

   Vn red States \- O'Callahan. 7 V B.C \I 4, SOD (19s:)

   O'Callahan *ai sentenced ~n 1956, paroled :n 1960, and retnrned ro calf nemeni in 1962, a9 B parole r,olator. See O'Callahan \.. Attome) Gen-eral, 230 F. Supp. ?66 ID \lass. 1961).

   The other allegations unaueceisful!s raised .n the w i r were: (1) thar his eonfemon, which had been admtted :n ebeen obtahed by me a i caerc~on, (2) that tterroga!ur.er had been admitted info endenee,right to eonfrontaf.on of wtnesses: IS) fhaVote rather than bg unanimity vla!ated h.s eonir.tur:onal righi to rndl byiury.

   I'

   issue, because O'Callahan had obtained an unfavorable ruling that Same year from the Federal District Court af Massachusetts where he previously had been confined." The United States Court of Appeals far the Third Circuit affirmed the decision of the lower court without discussion of the question:' On certiorari, the United States Supreme Court reversed the lower courts, holding that the crimes of which O'Callahan WBS charged were not "service connected" and, therefore, not triable by court-martial."

   The grant of certiorari had been limited to the one question upon which the Court reversed:

   Does B cour:-martml, held under the Articler of War, Til. 10

   Justice Douglas, delivering the opinion of the majority," cancluded that O'Callahan eauld not be tried by court-mariial hecause his crimes were not "service connected." Douglas stated e?!" connection existed in O'Callahan." e O'Callahan was off-duty, off-post, in civilian clothing, committing a ''c~viliaii" offense of no military significance, against a civilian rictm In establishing no seirice connection, the majority further noted that these were peacetime offenses "committed within our territorial limits, not an occupied zone of a foreign country."'

   . .

   a cap tal offeme :n [.me of peace.

   '* O'Ci!lahan Y. Parker, 395 L S 2E3 (1969).

   11 395 U.S. at 261. Ths Code replaced the hr;ic!ei of War in 1851. l e t

   5 ?.lay 1950, ch. 169. 61 S:a:. 10.

   with Douplar in the f.w to three decision.

   '* 396V.S.at 273

   " Id. at 273-74.

   of Chlef Juitlce Warren and Jcsr:eer Brennan. Yzishall and Black joined

   jS

   O'CALLAHAK

   The majority brushed aside the Government's contention that status as a member of the Armed Forces grants militan jurisdiction, stating:

   [Tlhilr IF mr:ily the th? mqury, not its end. ''StatYI"

   and phce of the offense.

   Before going further, it is necessary to aet forch those provirions of the Constitution which have established and developed the system of militar3- iustice. Article 1, section 8, clause 14, grants to Congress the pai~er "[tlo make Rules far the Gavernment and Regulation of the land and naval Forces, . , ." and clause 18, the power "[tlo make all Lam which shall be neces-sary and proper for carrying into Execution the foregoing Pox-ers . , . ." The fifth amendment acknowledges that a system establishing military discipline requires elimination of certain procedural protections:

   So perron shall be ie'd to Z ~ S W ~ T

   for a cap-tal, or otieriwse injentmenr or mdiculien: of a Grand n the land or naval forces. or in ce in fme of FVa or public danger

   Other provisions of the Constitution necessary for an examination of this case are article 111, section 2," and the sixth amendment." The majority noted that constitutional civil rights were at stake in O'Callohon, and that in order to protect those civil rights, the power of Congress to make rules for the government and regrilation of the land and naval forces must be "exercised in harmony with express guarantees of the Bill of Rights.""

   The majority begins Its decision by comparing military tribunals vith cirdlian courts, more specifically federal courts; and concludes that milltar? courts are not entitled "to rank along with

   e a no iiehr t o a :rial by j x y in a ~~urtmarrlai

   " 385 C.S. ar 273.

   Article 111 courts as adjudicatoia of the guilt or innocence of people charged mth offenses far which they can be dewired of their life, hberty, or property."'m The Court quotes from Toth 7j.

   Qzmvlrs: in which reference 1s made to the fact that federal judges are appointed for life, and that their salaries mar not be diminished: while their military...