Off post crimes committed by soldiers the rise

over civilian dependents and employees in overseas situations is unconstitutional.

(DA Pam 27-174, paragraph 5-2.)

QUESTION:

COULD THESE CIVILIANS HAVE BEEN PROSECUTED BY THE HOST NATION?

ANSWER:

YES.

AS WE HAVE SEEN, AN AMERICAN WHO COMMITS A CRIME IN A FOREIGN

COUNTRY IS SUBJECT TO THE LAWS OF THAT NATION. IN THE CASES NOTED ABOVE,

HOWEVER, THE FOREIGN GOVERNMENTS DECLINED PROSECUTION.

Off-post crimes committed by soldiers--the rise and fall of the "service-

connection test".

Prior to 1969, military status was a sufficient basis for the

exercise of military jurisdiction over an accused (DA Pam 27-174, paragraph 6-1b).

In 1969, however, the Supreme Court changed this.

In O'Callahan v. Parker, 395

U.S.

258, 23 LEd 2d 291, 89 SCt 1683 (1969), an Army sergeant was stationed at

Fort Shafter, Hawaii. While off post and on pass, he broke into a hotel room which

was occupied by a 14-year-old civilian girl. He attempted to rape her, but fled as

a result of her screams for help. He was subsequently apprehended by the Honolulu

police, who released him to the military. He was court-martialed for housebreaking

and attempted rape.

The Supreme Court reversed, noting that the crimes were

committed off post, off duty, and while the accused was in civilian clothing. It

concluded that in order to have court-martial jurisdiction, the soldier's offense

had to be "service connected."

QUESTION:

WHAT WOULD MAKE A CRIME "SERVICE-CONNECTED?"

ANSWER:

IN RELFORD V. COMMANDANT, 401 U.S. 355, 28 LEd 2d 102, 91 SCt 649 (1971),

CORPORAL RELFORD HAD BEEN COURT-MARTIALED FOR TWO RAPES WHICH HAD BEEN

COMMITTED ON FORT DIX, NEW JERSEY.

THE SUPREME COURT UPHELD THE

CONVICTION, HOLDING THAT WHEN A SOLDIER IS CHARGED WITH HAVING COMMITTED

AN OFFENSE ON POST WHICH VIOLATES THE SECURITY OF ON-POST PERSONS OR

PROPERTY, THE OFFENSE IS TRIABLE BY COURT-MARTIAL.

AS FOR OFF-POST

OFFENSES, THE COURT TRIED TO CLARIFY WHAT IT MEANT BY THE TERM "SERVICE

CONNECTION." IT SET FORTH TWELVE FACTORS, WHICH CAME TO BE KNOWN AS THE

"RELFORD FACTORS."

THESE INCLUDED SUCH THINGS AS WHETHER THE CRIME WAS

COMMITTED AT A PLACE UNDER MILITARY CONTROL; WHETHER THERE WAS A

CONNECTION BETWEEN THE ACCUSED'S MILITARY DUTIES AND THE CRIMES; WHETHER

THE VICTIM HAD BEEN PERFORMING ANY DUTY RELATED TO THE MILITARY; WHETHER

THERE WAS A FLOUTING OF MILITARY AUTHORITY, A VIOLATION OF MILITARY

PROPERTY, OR A THREAT TO A MILITARY POST; AND WHETHER THERE WAS A CIVILIAN

COURT IN WHICH THE CASE COULD BE PROSECUTED.

O'Callahan and Relford spawned considerable confusion (and litigation) as

to the meaning of service-connection.

The distinction between what was and what

was not "service-connected" was a blurred one indeed.

In U.S. v. Solorio, 21 MJ 512 (CGGMR, 1985), the accused was a member of

the U.S. Coast Guard on active duty in Alaska. Most Coast Guard personnel in that

district (Juneau) resided off post in the civilian community.

The accused was

court-martialed for having sexually abused the daughters of fellow

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