Perspective: Military Justice in the Wake of Parker I. Levy

• Author: Robinson O. Ererett
• Pages: 01

June is an important month not only for weddiner but also for pronouncements by the Supreme Court on imparrsnt mmers of milirarv criminal la\\ administration. On June 2 , 1969, the Court held I; O'Caiiahaii :'. PaikeiZ that. ar least xithin the Unired Scares and in peace~ime.~

a court-mutial may nor try a serviceman for conduct which is not service-connected. On June 25, 19-1. the Court decided Goin :I. ltA?deii' which concerned the retroacnvitaf OCiillub,m Then. on June 19. 19.4 the Court ruled mLevy,tutianally vague.

approach ro military justice that hasis striking. In O'Chhii, Justice DoCourt. recovnized the need for speciterated the' admonition from Totb"dangers lurking m military trials . . . free countries haie tried to

LVhen these rhree cmi are read together, the change of the Court's

restrict military tribunals ro rhe narmt est iuriidicrion deemed ab-

islate borh vnh ereater breadth and nith prearer tlc prescribing the rules b! which rhe former ihall be eo,

is \i

hen prescribing rules for the laxer ' -' Thoi. ;he C that "rhe proper standard of rei ~ e i i for 2 I dnucness challArticles of rhc VC\IJ 1s rhe standard h?ch apphei sratutes regulmne CCOnOnllC affairs." 24

In discussing the rights of senice personnel. the Court ~:nde rhe follon ins abseri ation5

MILITARY LEGLL EDUCATIOZ

punitii e articles affecting important personal rlghrr and liberties of servicemen rhe same standard of review which applies ro criminal statutes regularing economic affairs seems unnecessary. But, the Court chose to do rhis very thing. Second, the Court chose to rely on seYeraI precedents from the last century which had been little cited in recent vears. Those cases arose at a time when the civilian courts would iirerfere mirh a court-martial only if the court-martial lacked prirdiction, a term that was narrowly construed and did nor include loss of "jurisdiction" in the sense of ~ o h l r O 7 I D. Zerbrt.zg Thud. the majority opinion did not reflect distrust of military justice manifest in OCallahm

Finah, although not referring to the all-volunteer Armr, the reasamng df the majority appears to rake cognizance of the kovement away from the use of the draft. Possibly the Court felt that there may be more compelling constitutional reasons for protecting the riehts of an inductee serving because of a "call" to duty than those oian enlistee, who freely chooses ro enter rnilitarl- service and rub-lect himself to military prisdicnon. In this regard, I am reminded of Justice Clark's suggestion in IlcEboy c. Guagiilemi of military prisdicrion over civilian emploUnited Starer could be solved by having the emploexercise of such jurisdiction as a condirion of theu employment.

In view of its majarir)- opinion, what does Leu) portend: In recent years there has been exensile commenr on the cirilianization of military p s t m Indeed, two years ago Professor Delmar Karlen de. livered the Young lecture on this tery topic and obviously did not feel that the trend >vas entlrely healthy.31 I have written elmi here about the exent to which military justice provider procedural safeguards rhat assure the same fairness of trial repred m the ci~d courts.3' Clearly the majority opinionrhat CIvilianization of military j~isticeCnforrunarely. at the same rime the Le

l1lLlTARY LEGAL EDDCATIOS

that frequently are dealt with by lrticle 15 nonjudicial punishment. a fact whxh is adverted to in Jufnce Rehnquist's opinion in Lec)

What about cases involving marijuana and drug offenses, \i here the Court of Military Appeals has disagreed with some other federal courts on the existence of a "serYice-c0nnection": The Court of Alditarv Appeals has taken the position that, because milltar!- efficiency might be adverselv affecred ahen a serviceman uses drugs, whether on or off a mliitarv base. service-connecrion existsi4 Several federal courts have conclided otherwise. They ha\e held that off-base use-and perhaps even sale-of marijuana and drugs is nor sufficiently service-cannecred IO invest a court-martial with lmisdic- t10n.45

The Supreme Court has granted certiorari in Schlesrnger li.

Cozm

c~liiiaii,'~a case which preienrs some of these issues. Caprain Councilman was court-marnaled far the sale off-base of mariluana to an enlisted man, The coun of appeals ruled that service-connection mas lacking." However, the case may be decided...