Gregory Cole, Plaintiff-appellant, v. Melvin Laird, As Secretary of Defense, et al., Etc.,defendants-appellees, 468 F.2d 829 (5th Cir. 1972)

Petitioner Cole was convicted by an Air Force court-martial for the unlawful use of marijuana-a violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C.A. Sec. 934-and sentenced to perform hard labor for three months, to forfeit $50 of his pay per month for six months, to be reduced to the military grade of Airman E-2, and to be restricted to the confines of Bergstrom Air Force Base for sixty days.¹  Cole immediately filed a petition in the Federal District Court for the Western District of Texas seeking a writ of habeas corpus and appropriate declaratory and injunctive relief on the ground that the court-martial which tried him was without jurisdiction over the offense. That court dismissed the case without a hearing. We reverse.

The apparent reason for the dismissal is Cole's alleged failure to exhaust his existing military remedies. Because his sentence did not include either a punitive discharge from the service or confinement for a period of at least one year, Cole was not entitled to appeal his conviction to any judicial appellate tribunal established to hear appeals in court-martial cases. Uniform Code of Military Justice, Arts. 66, 67, 10 U.S.C.A. Secs. 866, 867.

The Government contends, however, that Cole has viable forums to present his claim of constitutional law in the person of the Judge Advocate General of the Air Force, Uniform Code of Military Justice, Art. 69, 10 U.S.C.A. Sec. 869, or before the Board for Correction of Military Records, 10 U.S.C.A. Secs. 1551-1554. Whatever may have been the efficacy of the Government's exhaustion argument regarding Article 69 is rendered academic by the action taken by Major General James S. Cheney on December 27, 1971, denying Cole's request for relief.

A careful reading of the statute creating the Board for Correction of Military Records and the cases which have been resolved through that Board convinces us that its function is one of administrative review, its expertise is inapposite for the task at hand, and its powers too limited to grant appropriate relief. Cf. Pitcher v. Laird, 5 Cir., 1970, 421 F.2d 1272, 1276.

Although it is clear that some degree of exhaustion is required before federal courts will review courts-martial convictions, it is clear that Cole's only opportunity for judicial scrutinization of his conviction lies with the federal courts. Cf. Parisi v. Davidson, 1972, 405 U.S. 34, 92 S. Ct. 815, 31 L. Ed. 2d 17.

The determination of whether or not a court-martial has jurisdiction to try a specific person for a specific crime requires a two-step inquiry: first, to determine whether or not the person is subject to the Uniform Code of Military Justice, and, second, to ascertain whether or not the offense itself was sufficiently "service connected" to be cognizable by court-martial. O'Callahan v. Parker, 1969, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291.

The first touchstone of military jurisdiction is military status,²  "namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces'." Kinsella v. United States ex rel. Singleton, 1960, 361 U.S. 234, 241, 80 S. Ct. 297, 301, 4 L. Ed. 2d 268, 273. Status as a member of the Armed Forces must be established not only at the time of the offense, but also at the time of trial. United States ex rel. Toth v. Quarles, 1955, 350 U.S. 11, 76 S. Ct. 1, 100 L. Ed. 8. There is no contention that Cole was not subject to the dictates of the Uniform Code at both the time of the alleged use of marijuana and his trial.

Given appropriate military status, the court must still inquire into the nature of the offense. Only those offenses which have a peculiar "service connection" are within the constitutional bounds of military jurisdiction. O'Callahan, supra. In formulating this test for military jurisdiction Justice Douglas declined to propound decisive guidelines for the determination of what is and what is not "service connected". However, in Relford v. Commandant, 1971, 401 U.S. 355, 91 S. Ct. 649, 28 L. Ed. 2d 102, the Court quantified the O'Callahan holding into twelve identifiable factors which demonstrate a lack of "service connection".³  These factors broadly define the negative parameters of courtmartial jurisdiction.

Just what affirmative elements are necessary and sufficient to establish the requisite nexus between military and offense is not yet clear.⁴  The United States Court of Military Appeals has, however, suggested that military jurisdiction extends over the possession and use of marijuana or habit forming narcotics on the theory that the use of these items undermines the readiness of the fighting force. The theory was first expressed by dicta in United States v. Beeker, 1969, 18 U.S.C.M.A. 563, 40 C. M.R. 275. It was later accepted without analysis in United States v. Adams, 1969, 19 U.S.C.M.A. 75, 41 C.M.R. 75.

The rationale which the Court of Military Appeals used to bolster this theory was enunciated in United States v. Williams, 1957, 8 U.S.C.M.A. 325, 24 C.M.R. 135. There the Court of Military Appeals held that, notwithstanding its judicial notice of the "possible, disastrous effects . . . on the health, morale, and fitness for duty of persons in the armed forces," of the use of habit-forming narcotics, the panel members must be specifically charged to acquit unless they found the defendant's possession and use of drugs to be prejudicial to the good order and discipline of the service. Thus, the Beeker court's reliance on Williams was misplaced.

It is clear that the on-post possession of marijuana is an offense cognizable by court-martial. Diorio v. McBride, 5 Cir., 1970, 431 F.2d 730. But any offense which occurs on a military reservation has an intimate service connection. Relford v. Commandant, supra; United States v. Bonavita, 1972, 21 U.S.C.M.A. 407, 45 C.M.R. 181. Cf. Cafeteria and Restaurant Workers v. McElroy, 1961, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230.

Our research discloses only one reported opinion which analyzes the question of whether or not a court-martial has jurisdiction to try a case involving the off-post possession or use of marijuana. Moylan v. Laird, D.R.I., 1969, 305 F. Supp. 551. There the Court held that in spite of the fact that the defendant was apprehended with large quantities of marijuana while he was absent without leave from the military, that the mere possession of marijuana by a serviceman off-post and out-of-uniform did not have the requisite service connection.

The Government recognizes the authority of Moylan but seeks to distinguish the case at bar on the basis that Cole was charged with the use of marijuana. The only basis for making this distinction is the Court of Military Appeals' opinion in Beeker. But as we have already pointed out, Beeker rested on dicta in Williams to the effect that habitual narcotics use impairs the readiness of troops for action. It is clear that marijuana does not rise to the level of heroin or other physically addictive, "hard" drugs and the dangers associated with its use-whatever they may be-are not as great as those associated with heroin and the like. See United States v. Watson, 1970, 3 S.S.L.R. 3985 (Military Judge, Ft. Bliss, Texas).⁵  Hence, the purported distinction is without merit. We see no more substantial service connection in the off-duty, off-post use of marijuana than in its possession.

In several respects Cole's case against military jurisdiction is stronger than Moylan's. Although both were in civilian attire, Cole was properly absent from his post, whereas Moylan was AWOL. Thus, Cole fits completely and purely within the twelve O'Callahan criteria outlined by the Supreme Court in Relford (Footnote 3, supra). Cole's use and possession of 5.9 grams of marijuana indicate only casual connection with the drug. Moylan's apprehension with 42.5 ounces of marijuana arose in circumstances which could lead one to surmise that he might be pushing drugs. Obviously there is greater danger to military operations from a pusher than from a user. See United States v. Rose, 1969, 19 U.S.C.M.A. 3, 41 C.M.R. 3.

Given the totality of circumstances, it is clear that the alleged use by Cole of marijuana when he was off-post, off-duty, and in civilian clothes did not satisfy the constitutional requirement for "service connection". Accordingly, we must conclude that the court-martial which tried Cole was without jurisdiction. O'Callahan, supra; Relford, supra; Moylan, supra. The case will be remanded to the district court for proceedings consistent with this opinion.

Reversed and remanded.