United States v. Herring

DECISION

The appellant was convicted of multiple larcenies and wrongfully communicating a threat. He was sentenced to a bad conduct discharge, confinement for four months, forfeiture of $310.00 per month for four months and reduction to airman basic. Appellate defense counsel invite our attention to the Article 38(c) * brief submitted by the trial defense counsel in which he asserts seven assignments of error. The one warranting extended discussion is discussed below.

I

Citing O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), the appellant argues that the military lacks jurisdiction to try him for communicating a threat in Alamogordo, New Mexico. (Specification of Charge I). An offense occurring off a military installation is “service-connected” if it has a significant impact on the installation. United States v. Lockwood, 15 M.J. 1 (C.M.A. 1983); United States v. Benedict, 20 M.J. 939 (A.F.C. M.R. 1985); United States v. Roa, 20 M.J. 867 (A.F.C.M.R. 1985); United States v. Shorte, 18 M.J. 518 (A.F.C.M.R. 1984), aff'd 20 M.J. 414 (C.M.A. 1985). An additional factor to be weighed is whether the military has a greater interest in the prosecution of the offense than the civilian community. Here both parties were service members assigned to the same unit. They apparently saw each other on a daily basis. A confrontation off-base between two military members has a clear service-connection because of the logical likelihood that the dispute will continue when the individuals return to the base. While the State of New Mexico has an interest in seeing that *1003public order is upheld within its borders, the overriding concern in this situation is maintaining discipline within a military organization. A civilian trial for this offense would not be a step forward in preserving discipline within that unit. A commander cannot effectively lead if he or she must look to someone else to maintain order. A military courtroom is the proper forum to resolve the appellant’s guilt or innocence as to this offense. United States v. Benedict, supra; United States v. Roa, supra.

II

The remaining assigned errors are decided against the appellant. Article 66(c), U.C.M.J., 10 U.S.C. § 866(c); see Green v. Widdecke, 19 U.S.C.M.A. 576, 42 C.M.R. 178 (1970); United States v. Davis, 18 M.J. 820 (A.F.C.M.R. 1984); see also United States v. Blanchette, 17 M.J. 512 (A.F.C.M. R. 1983); United States v. Dennis, 16 M.J. 957 (A.F.C.M.R. 1983); United States v. Seale, 27 C.M.R. 951 (A.F.B.R. 1958); United States v. Arnold, 6 M.J. 520 (A.C.M.R. 1978). The findings of guilty and the sentence are

AFFIRMED.