O'Callahan Revisited: Severing the Service Connection

• Author: Major Xorman G. Cooper
• Pages: 03

I. O'CALLAHA,Y AND THE SUPREME COURT!+'e recognize that any ad hoc approach leaves outer boundaries undetermined. O'Callehan marks an area, perhaps not the limit, for the concern af thecivil courts and where the military ma) not enter. The case radar marks an area, perhaps not the limit, where the court-martial IS appropriate and permissible. TVhat lies betireen 1s far decision at another time.'

In O'Callohan v. Parker,2 the Supreme Court held that courts-martial possess no jurisdiction to t n offenses which are not "service connected." Considerable comment and criticism followed that decision and the Supreme Court sought to. and to a limited extent, did provide an exegesis of its O'Callahan decision in R+rd II. There the Court specificallr. rejected the argument that court-martial jurisdiction be restncred to purely militan offenses, confined its decision to the scape of O'Cnllahan and left the issue of O'Callahen's retroacti\itv 10 "other litigation where. perhaps, It !

dlo~dm.'' rhr Supreme (:r,urt held that 0 Cnllnhot, had no reiroaiti\r application: n interpreted its earlirr drcisim *\ hating fashioned a rule limiting the exeicire of c~urt-martial lurisdiction. not a i having held that milltar! tribunalr \\me and alua\s had been uithout authorit) to exercise jurisdiction mer offenses which mere not senice connected.

In 1975, the Supiemc Court uas again afforded an oppmtunit! to interpret the scope of O'Cnllahnn in Srhlriingrr i'

Counrzlrnn,i,' a case ImolLing the off-post possession of mart-huana. Rather than direitl, addressing the O'Callohon issue. hoi\e\er. the Supreme Court based 11s decision an the question of whether fedeial couris possess equitablelurisdirtion to merlene m court-martial proceed~ngs.~

Thus, the high \iater mark of O'Cnllahnn in the Supreme Court iiai O'Caliahan itself since the dare of its initial decision the Supreme Court has been content to appl: O'Callahm onh on an nd hoc. pros-pectne basis. e\entualh all but closing the door on further federal court Inlerpretdtlon.' Indeed, the Couris final h o d s ~n Schlriinger I' Counrdman rlearh in\ited mhtan courts to define the limits of O'Cnllahan s requn-ement: "[But] ne haie no doubt that militai~ tribunals do hate both experience and expertise that qualify them to determine the facti and to etaluate their relevance to milirarv disiiplme, morale, and fitness." '" 11.

A

O'CALLAHAS ASD THE COURT OF

THE COVRT OF .MILITARY APPEALS

SIILIT'ARY APPEALS

CO.\-FRO.VTS O'CALLAH.4SThe diligenr effurts of COMA. hare resulted in a cr:stalization of guidelines [Glenerall, speak-'ng. all matters relating to O'Collahan can now be put to rest."

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19171 O'CALLAHAN REVISITED

Thus it appeared to one author that jmeral rears after the O'Callahan decision the Court of >Ihtan Appeals had IULCCSI- full, established definite and vorkahlr guidelines i s h ~ h anruered all the pisd~rtional questions raised bx O'Callnha,z It

is true that a fex months after the O'Callahan decision the Court of \Iilitar\ Appeals aent to uork on the 0 Callahmi problem and had. OICT the next rmeral wars. caned out \an. ous circumstances iihich uould or iioold not render an offense sen~ceconnected A brief re\ien of these caregories is necessan for an understanding of the O'Ciillahan problem ai it existi in militari iuiuts tuda,

2. THE OVERSEAS EXCEPTIO.\-The Court of hlilitarr i\ppeali first addressed O'CalIahnn In terms of an exception to its application, that LS, I t found that O'Collnhan had no application to afienies committed merIn Cnitrd States i' Krat0,z.l' the Court of Militari Appeals elaborated on this "overseas exception '' In Kroton the accused ii'as rried b\ general court-martial for assault nith ill-tent to commit murder in the Republic of the Philippines. The Court of hlilitan Appeals reasoned that essential to the O'Cd lahan holdins $,as "the fact that the crime must be cornliable in the civil c&ts of the United Stares. either State or federal, and that wch courts be open and functioning." li Such nas not the case 111 Km/ort. thcretoir the (.r,urt ot \Iilirarx Appeals determined that O'Cnllohon was "inapplicable to courts-martial held outside the territorial limits ok the Cnited States." Ifi

   iupa

   ' l i d a t 6 5 , 4 1 C \ l R nlfij

   '"I4 dl 68, 41 C \I R at 68

   L Y C \I i

   G4, 41 C \1 R 64 11969)

   peals decided that the o\ilian Courts 111 Okinaaa had no in

   personam jumd~tionmer the accused. therefore. the militan

   courts nere not direired of j u ~ ~ s d ~ r i o n and t

   ception applied I d Indeed. in Criifed Siolrs i

   Cmerieas ex~epti~iito O'Callahun was applied bi the Court of

   Militan .\ppealr to an offense of unpremeditated rnurdei committed b\ an accused in ' a foreign ~uiintn tu tiliicli he had joui-ne\td for pribate reasons." The rationale for this merseai exceprmn is smpk that the constitutional benefirs of indicrrnrnt and trial b\ j u n auaranteed bi the fifth and six[li amendments ai srcured br O'Cnllahntr I' Parker foi offenses nirhriut senice conneition are unaiailahle to an accused uhrn rhe offenses are not cognizable in an .%rnerican &illan muit 22

   Hmmer. courts-martial do nor retain jurisdiction oscr a11 crimes committed werseai. LVhen a seiLicemember \lohies an American inil penal statute i\hich has exnaterritorial effect and IS triable in a United States ci~ilian forum, the "OICLSCPP

   exception" is ~napplicable.'~ In brief the Court of Milltar)

   Appeals has conriitentl~ recognized and applied an oierseas exception to O'Cnllahnn 24

3. THE 0.Y-POST EXCEPTI0.V

   Follo~ing O'Callohon 1' Porker, the Court of \lilirar\ .Ap-peals held that an-post offenses affected "the sccurir\ of a

   ~~

   led Stares I Orrii. 20 i. \I 4 21 12 I

   \I X 213 ,l9inl

   militan past. ' z 5 men under ~ ~ r ~ u m s t a n ~ e s

   \,here onl! civilian persons and propel-tr ~ e t e imolred 26 Thus, once an offense iias determined to hale been committed on post (a determination not reached \\ithour difficult, in those situations where part of the offense occurs off post) 21 the Court of llihtar) Appeals routinely found the requisite service connection. undertook a reexamination of the senice connection issue. The Court of Slilxari Appeals construed the Supreme Court's decision in Schlmngu i. Cotinczimnn as foreclosing a "more simplistic for-mula" 2o than the cawbycase approach dictated in RFiford I.

   Conmnndant. It recognized, hoiie\er. that the Supreme Court had fashioned "a more workable standard for a limited number of cases."30 namel,. "that vhen a seniceman is charged uith an offense committed iiithin or at the geographic boundar) ai a militar) past and \iolative of the recur q of a perron or propert! there. that offense may be tried by court-martial " .After S~hlrirngrr

   ii. Couniriman, the Court of blhtar) Appeals, in effect, first focuses on whether the affens? occurred on or off post, deeming the situs of the offense more significant than the status af an\ \imm of the crime.32 The service connection inquirr continues if the offense 1s determined to ha>e occurred off post: houe\er, SCTVLCC con-

   In 1976, the Court of Slilitar) Appeals

   "'395 L S 81 274

   **United Slates > Paxlao 18 C \1 A 608 40 C il R 320 11969) (On post xrong.

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