RICHARD SOLORIO, PETITIONER V. UNITED STATES OF AMERICA

   No. 85-1581

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Military
   Appeals

   Breif for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Introduction and summary of argument
   Argument:
      I. Petitioner can be court-martialed for the
          off-base commission of sexual assault on a
          military dependent
          A. The Alaska off-base child abuse offenses
              are service connected within the meaning of
              O'Callahan v. Parker
          B. Trying Petitioner in the military system
              does not violate due process
     II. This Court's decision in O'Callahan v.
          Parker warrants reconsideration
          A. The doctrine of stare decisis does not
              preclude reconsideration of O'Callahan
              v. Parker
          B. O'Callahan was a radical departure from
              the Court's prior decisions
          C. Developments in the military justice
              system over the past two decades have
              undercut the rationale in O'Callahan
          D. O'Callahan is inconsistent with
              subsequent decisions deferring to
              congressional and professional military
              judgments on matters of military discipline
              and readiness
          E. The service-connection requirement adopted
              in O'Callahan has proven confusing and
              burdensome in practice
          F. Congress should be free to define the
              proper scope of court-martial jurisdiction
   Conclusion

                            OPINIONS BELOW

   The opinion of the Court of Military Appeals (Pet. App. 1a-17a) is
reported at 21 M.J. 251.  The opinion of the Coast Guard Court of
Military Review (Pet. App. 18a-42a) is reported at 21 M.J. 512.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on
January 27, 1986.  The petition for a writ of certiorari was filed on
March 26, 1986, and was granted on June 16, 1986.  The jurisdiction of
this Court rests on 28 U.S.C. (Supp. II) 1259(3).

                          QUESTIONS PRESENTED

   1. Whether the offense charged against petitioner -- sexual assault
on the dependent children of fellow servicemen -- is sufficiently
"service connected" to authorize a prosecution in the military courts.

   2. Whether petitioner's court-martial violated the Due Process
Clause because petitioner was denied fair warning that he was subject
to prosecution in the military system.

                               STATEMENT

   1. From October 1980 to June 1984, petitioner, a petty officer on
active duty in the Coast Guard, served on the staff of the Commander
of the Seventeenth Coast Guard District in Juneau, Alaska (J.A.
47-50).  There is no "base" or "enclave" where Coast Guard personnel
live and work in Juneau, and virtually all Coast Guard military
personnel reside in the civilian community (Pet. App. 20a-21a n.1).
Petitioner lived in a privately owned home (id. at 20a).  His next
door neighbor until June 1983 was Larry Johnson, a Coast Guard
enlisted man with a young daughter who turned ten years old in March
1982 (J.A. 53, 102-104).  Living nearby was another Coast Guard petty
officer, Frank Grantz, who also had a young daughter the same age (id.
at 51, 120-121).  The girls' fathers were assigned to the same command
as petitioner and worked in the same building (id. at 102-104,
120-121).  The two young girls frequently visited petitioner's house
(id. at 51-55, 106).  During those visits, petitioner committed
numerous acts of sexual abuse, including fondling, indecent assault,
and several attempted rapes of one of the girls.  This pattern of
abuse continued over a two-year period, while the girls were between
ten and 12 years of age, until petitioner was reassigned to the Coast
Guard base at Governors Island, New York (Pet. App. 20a-22a).

   Following petitioner's transfer, he sexually abused the young
daughters of two other fellow Coast Guardsmen in government quarters
on the base (Pet. App. 22a).  The Alaska crimes first came to light
during the investigation of those offenses (Pet. App. 21a;  J.A. 107,
123).  The State of Alaska was contacted to determine whether it
intended to prosecute petitioner for those crimes.  The district
attorney's office in Juneau responded that the State would defer
prosecution to the Coast Guard, for several reasons:  because
petitioner and his victims were connected to the Coast Guard, because
they had been transferred from Alaska, because the crimes had been
investigated by Coast Guard personnel, and because similar military
charges were pending in New York (Br. in Opp. App. 1a-3a).

   2. The Governors Island commander thereafter convened a general
court-martial.  Petitioner was charged with 21 specifications of
sexual child abuse in Alaska and New York, in violation of Articles
80, 128, and 134 of the Uniform Code of Military Justice (UCMJ), 10
U.S.C. 880, 928, and 934.  Before trial, petitioner moved to dismiss
the 14 Alaska charges on the ground that the court lacked jurisdiction
because the offenses were not "service connected" under this Court's
decisions in O'Callahan v. Parker, 395 U.S. 258 (1969), and Relford v.
Commandant, 401 U.S. 355 (1971) (J.A. 16).

   Prior to trial, the court-martial judge conducted an evidentiary
hearing on the motion.  During the hearing, the government introduced
evidence of the damaging effect of the crimes on the young girls who
were abused (J.A. 112, 119, 123-125).  In addition, the victims'
fathers testified about the personal impact of the crimes on them.
The evidence showed that the fathers were emotionally shaken;  they
could not concentrate on their work;  and they lost their trust of
fellow Coast Guardsmen.  As a result of the crimes, the performance by
these otherwise superior servicemen deteriorated significantly (id. at
108-109, 112, 124-127).  The testimony concerning the emotional effect
of the crimes on the victims and their families was supported by
expert opinion (id. at 135-140).  The young girls and their servicemen
parents required extensive psychological counseling, the costs of
which imposed a financial burden on their families (id. at 49-50,
107-108, 112, 124-125).  Evidence was also adduced concerning the
Coast Guard's good reputation in Juneau and the resulting benefits,
including job opportunities, that Coast Guard family members enjoy in
that community (id. at 80-81, 88, 96-97).  Testimony was presented
that public awareness of petitioner's crimes would have an adverse
effect on that reputation, at least in the short run, risking the loss
of benefits presently enjoyed by Coast Guard personnel in Juneau (id.
at 82, 93, 97, 101).

   After hearing the evidence, the trial judge granted the motion to
dismiss.  He concluded that the Alaska offenses were not sufficiently
"service connected" to be triable in the military criminal justice
system (J.A. 195-200;  see also Pet. App. 62a-63a).

   3. The government appealed the dismissal of charges to the Coast
Guard Court of Military Review, which reversed the trial judge's
ruling and reinstated the Alaska charges (Pet. App. 18a-42a).  The
court found that several of the trial judge's findings were
unsupported by the evidence and were erroneous as a matter of law (id.
at 28a-35a).  /1/ The court also found that the trial judge had
"overlooked the possible unique and distinct effect" on the military
of the inability to court-martial a serviceman for the offenses
charged against petitioner (id. at 33a-34a).  The court concluded that
"as a matter of law the Coast Guard's interest in deterring these
offenses is distinct from and greater than that of the Alaskan
authorities" (id. at 33a).  Relying on the letter from the Alaska
district attorney's office, the court found that the civilian
authorities had a diminished interest in prosecuting petitioner, since
he and the victims had moved away from the state (id. at 34a-35a).

   In determining whether the crimes were service connected, the court
relied primarily on two criteria articulated in Relford v. Commandant,
supra:  the responsibility of a military commander to maintain order
in his command, and the need for court-martial jurisdiction when
civilian courts have a reduced incentive or ability to vindicate that
authority (Pet. App. 36a-38a).  See 401 U.S. at 367-368.  The court
concluded that petitioner's offenses "by their very nature contained
within them the potential for a disrupting effect on good order and
discipline" (Pet. App. 32a) and "directly impacted upon good order,
discipline, morale and welfare of servicemembers and their families"
(id. at 33a).  The court also found that, although the offenses were
not committed within the confines of a military base, they were
nonetheless "violations against persons associated with one particular
Coast Guard command" (id. at 35a).  It was appropriate, the court
held, for the military to be concerned with the security of personnel
who make up a command, even when the members of the command do not
live and work on a discrete military installation (ibid.).  The court
emphasized that the similarity between the Alaska and New York
offenses "presents a pattern of behavior which poses a real threat to
families" in the vincinity of the New York Coast Guard facility (id.
at 36a-37a), and that the commander of that facility had a
"compelling" interest in resolving all the charges against petitioner
swiftly (id. at 37a).  The "paramount interest of the Coast Guard" was
evidence by the fact that all the parties were still members of "the
Coast Guard community" (id. at 37a-38a).  Accordingly, the court held
that the Alaska child abuse charges were "service connected" under
O'Callahan and Relford.

   4. Petitioner thereafter sought review by the Court of Military
Appeals.  After granting review, that court also concluded that the
Alaska offenses were service connected (Pet. App. 1a-17a).  The Court
of Military Appeals noted that not every off-base offense against a
servicemember's dependent is necessarily service connected (id. at
12a), but it found that these crimes were sufficiently service
connected to justify prosecution by court-martial, since "sex offenses
against young children * * * have a continuing effect on the victims
and their families and ultimately on the morale of any military unit
or organization to which the family member is assigned" (ibid.).  In
so ruling, the Court of Military Appeals relied on a number of factors
(id. at 10a-16a):  the emotional and financial impact on the
servicemember fathers and the victims;  the effect on the morale and
discipline of the military unit, both where the parties were stationed
when the offenses occurred, and where the parties might thereafter
serve;  the reduced interest of civilian authorities in prosecution
due to the transfer of the victims and petitioner from Alaska;  and
the benefits to petitioner, the victims, and the Coast Guard from
trying the Alaska off-base and New York on-base offenses together.
The court therefore held that petitioner could be court-martialed on
the Alaska child abuse charges (id. at 16a).  /2/

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The Constitution empowers Congress "(t)o make Rules for the
Government and Regulation of the land and naval Forces" (Art. I,
Section 8, Cl. 14).  That authority includes the power to define
crimes and to set their punishments.  Kinsella v. United States ex
rel. Singleton, 361 U.S. 234, 246 (1960).  The Grand Jury Clause of
the Fifth Amendment also expressly excepts "cases arising in the land
or naval forces" from its terms.  More than a century ago, this Court
held that Congress may provide for the court-martial of servicemembers
for crimes, and that neither the Fifth Amendment right to indictment
by a grand jury nor the Sixth Amendment right to trial by a petit jury
is applicable when a crime arises in the land or naval forces.  Dynes
v. Hoover, 61 U.S. (20 How.) 65, 78-79, 82 (1858).  Exercising its
plenary authority, Congress has empowered courts-martial to try
servicemembers for any crime defined by the Uniform Code of Military
Justice.  Art. 2, UCMJ, 10 U.S.C. 802.  The court-martial convened
below therefore possessed statutory authority to try petitioner on the
Alaska child abuse charges.

   The question in this case is whether that tribunal may
constitutionally exercise its statutory authority.  Historically, a
serviceman could be prosecuted by a court-martial for any offense
defined by Congress.  But in 1969, this Court held in O'Callahan v.
Parker, 395 U.S. 258, that a court-martial may not exercise its
jurisdiction over a servicemember unless, on the facts of the case,
the offense has a sufficient impact on military interests that it can
be considered "service connected" (id. at 267).  As the Court has
since explained, a variety of considerations are relevant to this
question.  Relford v. Commandant, 401 U.S. 355, 365, 367-369 (1971).
The ultimate determination focuses on three related inquiries:  "(1)
the impact of an offense on military discipline and effectiveness, * *
* (2) whether the military interest in deterring the offense is
distinct from and greater than that of civilian society, and * * * (3)
whether the distinct military interest can be vindicated adequately in
civilian courts." Schlesinger v. Councilman, 420 U.S. 738, 760 (1975).
 Resolving the issue of "service connection" involves "matters of
judgment that often turn on the precise set of facts in which the
offense has occurred," and is a subject as to which "the expertise of
military courts is singularly relevant" (ibid.).

   Under these standards, we submit that the military appellate courts
properly concluded that petitioner's crimes are "service connected"
and thus can be subject to court-martial.  If the Court disagrees with
that submission, however, we urge the Court to reconsider and overrule
its decision in O'Callahan in order to return to Congress the
authority to define court-martial jurisdiction for all persons who are
members of the armed forces.

   I. The military appellate courts properly found that a variety of
factors support the exercise of court-martial jurisdiction in this
case.  The fact that the victims are military dependents is an
important factor, even if it is not dispositive.  Crimes committed by
a servicemember against a military dependent have a direct and
negative effect on military discipline and effectiveness, particularly
when the crimes are committed by a member of the same military command
as the victim's parent and in the same community where the parties
live and work.  Furthermore, petitioner was charged not only with the
off-base offenses in Alaska, but also with similar on-base crimes in
New York, as to which there was no question of court-martial
jurisdiction.  Permitting the off-base offenses to be tried together
with the on-base charges contributes to judicial economy and reduces
the burdens on the military, the civilian court system, the
servicemember defendant, and the victims.  In addition, the State in
this case had a reduced interest in prosecuting petitioner for his
offenses, since he and his victims had been transferred from Alaska at
the time the offenses were discovered.

   Trying petitioner in the military system would not violate his due
process right to fair notice that his conduct was subject to
prosecution.  As a threshold matter, petitioner failed to raise this
issue in the lower courts, and he therefore has not preserved the
issue for review in this Court.  In any event, petitioner's claim is
invalid on the merits, because his conduct was unlawful both under the
Uniform Code of Military Justice and under state law. He cannot claim
to have reasonably relied on the procedural bar of "service
connection" to ensure that he would not be prosecuted in the military
system, particularly in light of the clear indication by the Court of
Military Appeals that it regarded the question of service connection
to be an open one with respect to many off-base offenses after this
Court's decision in Relford v. Commandant, supra.

   II. If the Court concludes that the O'Callahan decision would not
permit this case to be tried by the military courts, we submit that
O'Callahan should be reconsidered.  For several reasons, the "service
connection" requirement that was adopted for the first time in
O'Callahan should be rejected.

   First, O'Callahan was a clear departure from prior decisions, which
had consistently recognized that military status alone was sufficient
to allow a serviceman to be court-martialed for any offense defined by
the Uniform Code of Military Justice.  Second, the primary reason
given in O'Callahan for the service-connection requirement -- the
failure of the military justice system to safeguard the rights of
defendants -- has been significantly undermined by recent changes in
the military justice system.  A serviceman defendant now enjoys
procedural safeguards that make the military system comparable in many
important respects to civilian criminal justice systems.  Third, since
O'Callahan this Court has emphasized that Congress has the primary
responsibility for balancing the needs of the military and the rights
of servicemen, and that professional military judgments concerning
discipline and effectiveness are entitled to great deference.  The
policy determination whether a particular serviceman and a particular
offense should be subject to court-martial is best made by Congress
and the military, not by the courts.  Fourth, the service-connection
requirement has proved confusing and burdensome in practice, because
there is no textual or historical benchmark that can be used to guide
the inquiry.  In sum, Congress ought to be entitled to exercise its
historic authority to define the scope of court-martial jurisdiction,
and the military should not be required to defend Congress's judgment
in each case.

                               ARGUMENT

 I. PETITIONER CAN BE COURT-MARTIALED FOR THE OFF-BASE COMMISSION OF
SEXUAL ASSAULT ON A MILITARY DEPENDENT

 A. The Alaska Off-Base Child Abuse Offenses Are Service Connected
Within The Meaning Of O'Callahan v. Parker

   In O'Callahan v. Parker, 395 U.S. 258 (1969), this Court held that
an off-base sexual assault on a civilian with no connection to the
military was not a "service-connected" offense.  Two years later, in
Relford v. Commandant, 401 U.S. 355 (1971), the Court held that an
on-base sexual assault was clearly service connected, and could
properly be tried by court-martial.  As this Court noted in Relford,
the O'Callahan case "marks an area, perhaps not the limit, for the
concern of the civil courts, and where the military may not enter"
(401 U.S. at 369).  The Relford case, the Court added, "marks an area,
perhaps not the limit, where the court-martial is appropriate and
permissible.  What lies between is for decision at another time"
(ibid.).  This case lies between Relford and O'Callahan.  What this
Court must decide is whether the military courts properly determined
that the special military interest in this case is of sufficient
magnitude to justify the exercise of court-martial jurisdiction.

   In seeking to provide guidance to the lower courts, this Court in
O'Callahan and Relford identified some of the considerations that bear
on the question whether a particular offense is sufficiently service
connected to be triable by court-martial.  In O'Callahan, the Court
pointed out that the only connection between the offenses and the
military was the active duty status of the defendant.  The offense
occurred at a time when the defendant was properly absent from his
military base;  the victim was a civilian unconnected to the military;
 and the crime did not involve "the flouting of military authority,
the security of a military post, or the integrity of military
property" (395 U.S. at 273-274).  In Relford, the Court focused on a
number of factors that distinguished that case from O'Callahan,
particularly the fact that the offense occurred on a military base.
See 401 U.S. at 367-369.

   It is clear from the opinions in O'Callahan and Relford that the
factors the Court relied on in those cases were not intended to be
exclusive.  As the Court observed in Relford, the special military
interest in prosecuting on-post offenses committed by servicemen leads
to the conclusion that an offense committed by a serviceman against a
person or property on a military base is per se "service connected,"
but that does not mean that an offense committed off the base is
necessarily beyond the jurisdiction of the military justice system.
401 U.S. at 369.  In the subsequent decision in Schlesinger v.
Councilman, 420 U.S. 738 (1975), the Court once again made it clear
that the factors relied upon in O'Callahan and Relford were not meant
to be exclusive.  The Court there characterized the "service
connection" inquiry as turning on "(1) the impact of an offense on
military discipline and effectiveness, * * * (2) whether the military
interest in deterring the offense is distinct from and greater than
that of civilian society, and * * * (3) whether the distinct military
interest can be vindicated adequately in civilian courts." 420 U.S. at
760.  These questions, the Court added, "are matters as to which the
expertise of military courts is singularly relevant" (ibid.).

   1. The primary factor on which the military appellate courts relied
in finding that petitioner's Alaska offenses were service connected
was that both victims were the dependents of fellow Coast Guardsmen
assigned to the same command as petitioner (Pet. App. 10a, 32a-33a).
Petitioner complains that the military courts should not have given
weight to that factor (Br. 13-17).  In fact, however, the status of
the victim as a military dependent has always been significant in
determining whether a crime is service connected.  Both the majority
and the dissent in O'Callahan v. Parker recognized that Court-martial
jurisdiction historically extended to crimes against a person
associated with a military installation.  395 U.S. at 274 n.19;  id.
at 278 (Harlan, J., dissenting) (both citing the same passage from W.
Winthrop, Military Law and Precedents (2d ed. 1896).  Relford also
called attention to the fact that the defendant's victims were
relatives of servicemen.  401 U.S. at 366.  And the factors summarized
in Schlesinger v. Councilman -- particularly the impact of the offense
on military discipline and the greater interest of the military in
deterring the offense -- are plainly implicated when the victim of the
crime is a military dependent.  Although the Court of Military Appeals
did not rely solely on the fact that petitioner's victims were
military dependents, we believe that crimes against military
dependents have such a direct, pervasive, and adverse effect on
morale, discipline, and military readiness that they could be deemed
service connected as a matter of law.

   The case for characterizing crimes against military dependents as
service connected is a compelling one.  The armed forces have a
substantial interest in the welfare of military dependents.  The
military frequently allows a servicemember's family to accompany him
on assignments either within the United States or overseas.  This
policy has a direct, positive effect on recruitment, morale, and
efficiency of the armed forces, and those benefits are the same
whether a serviceman and his family live on or off the military post.
Congress recently recognized "the importance of the military family to
the readiness and morale of our forces" (131 Cong. Rec. S10354 (daily
ed. July 30, 1985) (Sen. Kennedy)) by enacting the Military Family Act
of 1985, Pub. L. No. 99-145, 99 Stat. 678 et seq., which offers a
variety of benefits to military dependents.  /3/ Events that affect
military dependents therefore directly affected military interests.

   The sexual abuse of children, in particular, has an immediate and
potentially shattering effect on military families.  Sexual abuse not
only can cause severe and enduring harm to children (see New York v.
Ferber, 458 U.S. 747, 758 & n.9 (1982)), it can also be devastating to
the children's parents, who "also are in many ways victims of the
crime" (Pet. App. 10a).  As the record in this case illustrates,
parents of child abuse victims may require psychological counseling
(ibid.; J.A. 136-139), and their work performance can deteriorate
(J.A. 108, 124, 126-127).  /4/

   When the parent is a servicemember, the armed forces are also
injured. Here, the efficiency and readiness of the Coast Guard
suffered, because the "fathers could not function as effectively in
their Coast Guard duty assignments" (Pet. App. 11a).  /5/ And "it
obviously would (be) difficult -- if not impossible -- for the
victims' fathers" to serve with petitioner again (ibid.).  The armed
forces therefore have a strong interest in protecting the well-being
of military dependent children not only for their own benefit, but
also for the benefit of their servicemember parents and the service
itself.

   In addition to the direct impact on the performance and readiness
of the servicemembers, the Court of Military Appeals properly
concluded that crimes of the sort involved in this case "have a
continuing effect * * * on the morale of any military unit or
organization to which the (victim's) family member is assigned" (Pet.
App. 12a).  A crime such as sexual abuse of children generates
emotions that can easily result in violent retaliation against the
offender (see J.A. 139).  At the time of the offenses, the victims'
fathers worked every day in the same building with petitioner and
lived in the same local community.  It was fortuitous that
petitioner's crimes were not discovered when the parties were in such
close quarters.  Without the ability "to vindicate the outrage felt
from such a grievous breach of faith by one shipmate towards another"
(Pet. App. 34a), the parents or other members of the military
community might seek their own vengeance on a servicemember accused of
such crimes.  That result would have a disastrous effect on military
discipline.  /6/ To avoid that outcome, the military justice system
must be able to respond to the reasonable expectations of the military
community that its members will be punished for such crimes.  See
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508-509 (1984)
("Criminal acts, especially violent crimes, often provoke public
concern, even outrage and hostility;  this in turn generates a
community urge to retaliate and desire to see justice done.  * * *
When the public is aware that the law is being enforced and the
criminal justice system is functioning, an outlet is provided for
these understandable reactions and emotions");  Gregg v. Georgia, 428
U.S. 153, 183 (1976) (opinion of Stewart, Powell, & Stevens, JJ.).

   It is incorrect to say that the effects of petitioner's crimes
would have been the same if they had been committed by a civilian.
The military is "a specialized society separate from civilian society"
(Pakrer v. Levy, 417 U.S. 733, 743 (1974)), and it may demand that
servicemen respect the integrity of the military community (see
Goldman v. Weinberger, No. 84-1097 (Mar. 25, 1986), slip op. 4 ("to
accomplish its mission the military must foster instinctive obedience,
discipline unity, commitment, and esprit de corps");  Brown v. Glines,
444 U.S. 348, 356-357 n.14 (1980) ("Loyalty, morale, and discipline
are essential attributes of all military service")).  This need is
particularly important for a service like the Coast Guard, which has
crews who must be at sea, often for extended periods.  Its officers
and enlisted personnel must feel secure about the safety of their
families in order to perform their duties while away from home.
Petitioner's crimes violated the trust that the military seeks to
foster among servicemembers.  Because of the adverse effect on morale
within the unit, the impact on the military of such an offense, when
committed by another serviceman, is clearly more damaging than if the
offense is committed by a civilian.

   In addressing the effect of petitioner's crimes on the military,
the courts below focused on the effect that petitioner's conduct had
on his command, not merely on the local base or military installation.
 As the court of military review explained, a command "is more than a
physical place or property;  it is an organization of people" (Pet.
App. 35a).  A military commander is responsible for maintaining order
within his command, and that obligation "relates to people, without
regard to the physical attributes and location of the command" (Pet.
App. 35a;  see Coast Guard Reg. COMDTINST M500.2, art. 5-1-2 (1980)).

   Viewing the impact of criminal conduct on the military command,
rather than simply on the military premises, is not inconsistent with
Relford.  The criteria discussed in Relford were expressed in terms of
their effect on a base, since the crimes there occurred on a military
post.  Many military units, however, operate away from a base, either
temporarily or permanently.  The commander of a ship making a visit
away from his home port or of an army unit on maneuvers has the same
need to maintain discipline within the unit as the commanding officer
of a large military installation, where the servicemembers regularly
work and live on the post premises.

   To restrict court-martial jurisdiction to offenses committed on a
military base would render the court-martial sanction almost wholly
unavailable to military commands, such as the Coast Guard command in
Juneau, that are not based on a discrete military reservation where
the servicemembers live and work.  If the Alaska crimes had been
committed on a military post, they would have been subject to
court-martial jurisdiction by virtue of that fact alone.  Relford, 401
U.S. at 369.  In holding that on-base crimes are routinely subject to
court-martial jurisdiction, this Court in Relford focused on the
military's special concern for the security of military personnel and
property.  Crimes by servicemembers against other servicemembers or
their dependents invoke precisely the same concern, even if the
servicemembers are members of a command that does not happen to be
located on a large tract of military property.  There is therefore no
reason why the Constitution demands a different result merely because
the members of one command live on military property and the members
of another live in the local community.  Cf. United States v. Shearer,
No. 84-194 (June 27, 1985), slip op. 5-6 (for purposes of applying the
Feres doctrine, the off-base situs of particular conduct "is not
nearly as important as whether the suit requires the civilian court to
second-guess military decisions * * * and whether the suit might
impair essential military discipline").

   Indeed, in some respects, a military command that lacks a major
support installation may be especially susceptible to injury from an
offense committed outside its geographic bounds.  Few bases are
completely self-sufficient today (see United States v. Lockwood, 15
M.J. 1, 9 (C.M.A. 1983)), but small units are often totally dependent
on the local civilian community for food, housing, schools, financial
institutions, and recreation.  This was certainly true of the Coast
Guard command in Juneau.  The good reputation of the service in that
community insured that the Coast Guard command received local
cooperation and that the Coast Guard personnel and their families
enjoyed a variety of other benefits there.  Petitioner's crimes
threatened that reputation and the benefits his fellow servicemen and
women derived from it.

   In response to these considerations, petitioner argues (Br. 17, 29)
that the effect of the Alaska crimes on discipline and the military's
reputation was insubstantial, since the crimes never came to public
attention and since the fathers were transferred before any
confrontation occurred.  That argument reduces the determination of
service connection to fortuitous events.  Under petitioner's
formulation, jurisdiction would hinge on the emotional vulnerability
of the victim, /7/ her ability to conceal an assault until she finally
escaped her tormentor, or a servicemember's ability to terrorize his
victim.  Other, identical crimes would be service connected if they
were discovered while the parties were still at the same unit and
became matters of public knowledge.  The military courts properly gave
no weight to the fortuities petitioner suggests.  /8/

   2. In addition to the status of the victims and the potential
effect of the offenses on petitioner's command, the military courts
relied on other factors in upholding court-martial jurisdiction in
this case.  As the courts noted, petitioner's Alaska crimes did not
stand alone.  Petitioner was also charged with similar offenses
against other military dependents on the Coast Guard base at Governors
Island, New York (J.A. 6-8), and those on-base crimes were clearly
subject to court-martial jurisdiction.  Relford, 401 U.S. at 369.  In
these circumstances, the military has a legitimate interest in
resolving all the charges against a defendant in a single trial, for a
variety of reasons:  (1) to allow the defendant to return to his
assigned duties if he is exonerated;  (2) to enhance the possibility
of rehabilitation if he is convicted;  (3) to avert the disruptive
effect of successive prosecutions in different locations on the
victims and their families;  /9/ (4) to permit the commander to
protect the military community against the enhanced dangers posed by
recidivist criminal conduct;  and (5) to minimize the risk of conflict
between the sentencing goals of the military and civilian criminal
justice systems.  /10/ See Pet. App. 14a-16a, 36a-37a;  see generally
United States v. Lockwood, 15 M.J. at 8 (the presence of related
crimes that are clearly subject to court-martial jurisdiction may be
considered in determining whether other offenses may be tried by
court-martial).  Indeed, in many situations permitting court-martial
jurisdiction over off-base charges that are joined with on-base
charges will benefit the defendant as well, by permitting all charges
to be resolved in a single proceeding, without exposing the defendant
to the uncertainty and burden of a second trial.

   3. Both Relford (401 U.S. at 368) and Schlesinger v. Councilman
(420 U.S. at 760) note that among the factors justifying the
invocation of court-martial jurisdiction is the inability of civilian
courts in particular cases to vindicate distinct military interests.
In this case, as the military courts noted (Pet. App. 14a, 16a,
34a-35a), the State of Alaska had a reduced interest and ability to
prosecute petitioner for the crimes that he committed in Juneau.

   After a routine military reassignment, petitioner and his victims
left Alaska for distant locations.  There is no reason to believe that
petitioner or his victims will voluntarily return to Alaska, and the
State cannot force the victims to do so, even if it decides to
prosecute petitioner.  The Court of Military Appeals thus reasonably
concluded that a state prosecution was unlikely (Pet. App. 16a).
Moreover, when neither the defendant nor his victims are members of
the civilian community, the community's interest in seeing the guilty
brought to book is greatly reduced. See United States v. Trottier, 9
M.J. 337, 352 (C.M.A. 1980) (since servicemembers are transients,
civilian authorities often have a negligible interest and decline to
prosecute cases involving them).  Here, the State deferred prosecution
of petitioner to the Coast Guard, for a variety of reasons (Br. in
Opp. App. 1a-3a).  Among them was the belief that petitioner's
offenses implicated "a distinct military interest that would not be
fully considered in any state prosecution" (id. at 3a).  Accordingly,
this factor also argues strongly in favor of court-martial
jurisdiction in this case.

   4. In weighing the impact of particular offenses on the military,
this Court has noted that it must give great deference to the judgment
of the military courts on that subject.  The Court of Military Appeals
and the courts of military review sit atop Congress's "carefully
designed military justice system," which provides "both the experience
and expertise * * * to evaluate (a crime's) relevance to military
discipline, morale, and fitness." Schlesinger v. Councilman, 420 U.S.
at 761 n.34.  Congress created the Court of Military Appeals precisely
"so that disinterested civilian judges could gain over time a fully
developed understanding of the distinctive problems and legal
traditions of the Armed Forces." Noyd v. Bond, 395 U.S. 683, 694
(1969).  That court's judgment therefore reflects precisely the type
of expertise that this Court has said is not only "singularly
relevant," but also "indispensable," to the inquiry required by
O'Callahan (Councilman, 420 U.S. at 760), and is "normally entitled to
great deference" (Middendorf v. Henry, 425 U.S. 25, 43 (1976)).

   Deference to the military courts is particularly appropriate in
light of the difficult task that the O'Callahan inquiry has assigned
to those courts.  In the 17 years since O'Callahan was decided, the
military courts have gradually developed a body of caselaw defining
particular offenses as service connected and others as falling outside
court-martial jurisdiction.

   Petitioner (Br. 15-16) and amici curiae (Army Br. 10;  Navy Br.
5-6) are sharply critical of the military court decisions that have
extended court-martial jurisdiction to certain off-base offenses.
Although petitioner does not expressly seek to limit court-martial
jurisdiction to on-base offenses, that would essentially be the effect
of the narrow construction of O'Callahan and Relford that he proposes.
 While drawing a line between on-base and off-base crimes would
provide a bright line test for court-martial jurisdiction, it would
impose a tremendous cost on the armed forces.  Off-base drug offenses
provide a particularly graphic example of that cost.  /11/ Petitioner
and amici criticize the military courts' decisions holding off-base
drug offenses to be service connected, but it is well recognized that
the military has a compelling interest in preventing drug abuse by
servicemembers, regardless of where such misconduct occurs.  See
generally Williams v. Secretary of the Navy, 787 F.2d 552, 553-555 &
n.1 (Fed. Cir. 1986) (discussing congressional findings and
inquiries).  It requires little effort to appreciate the debilitating
effects of drug offenses on military discipline and readiness, whether
the offenses occur on or off post.  See Schlesinger v. Councilman, 420
U.S. at 760-761 n.34;  Committee for GI Rights v. Callaway, 518 F.2d
466, 476 (D.C. Cir. 1975);  United States v. Trottier, 9 M.J. at 345
("As military equipment has become more sophisticated, there is the
concomitant increased risk that an operator (involved with drugs) will
be unable to handle the complicated weapons system with which he is
entrusted and upon which his safety and that of others may depend");
S. Rep. 98-53, 98th Cong., 1st Sess. 11 (1983) ("Abuse of controlled
substances is one of the most significant disciplinary problems facing
the armed forces");  H.R. Rep. 92-433, 92d Cong., 1st Sess. 28 (1971)
("drug abuse is a profoundly serious national problem that is having a
grave effect on the Armed Forces").

   In 1978, a congressional committee identified as a major problem"
in dealing with drug abuse in the military the requirement of
"establishing service connection in the prosecution of military
personnel by court martial for offpost drug offenses." House Select
Comm. on Narcotics Abuse and Control, 95th Cong., 2d Sess., A Report
on Drug Abuse in the Armed Forces of the United States 19-20 (Comm.
Print 1978).  The Court of Military Appeals subsequently held that
because of the impact of drug offenses on military discipline and
effectiveness, virtually all drug offenses are service connected.  See
United States v. Trottier, 9 M.J. at 351;  see also United States v.
Harper, 22 M.J. 157, 164 (C.M.A. 1986);  Murray v. Haldeman, 16 M.J.
74, 78-80 (C.M.A. 1983).  Since that time, the military has made great
strides in ridding itself of what had formerly been a serious drug
problem, in part because the Court of Military Appeals has authorized
court-martial prosecutions for off-base drug offenses.  See, e.g.,
International Narcotic Control Study Missions:  Report of the Select
Comm. on Narcotics Abuse and Control, H.R. Rep. 98-951, 2d Sess. 197,
202-216 (1984);  R. Bray, et al., Highlights of the 1985 Worldwide
Survey of Alcohol and Nonmedical Drug Use Among Military Personnel
11-14, 17-22 (1986).  In light of these developments, it is clear that
a strict on-base/off-base jurisdictional line would have a disastrous
effect on the military's continuing efforts to prevent drug use by
servicemembers.

   Because the Court of Military Appeals is keenly aware of the needs
of the military in areas such as drug abuse control and the effect of
crimes on military families, that court's judgments on the difficult
issue of service connection should be accorded deference.  Even on de
novo review, we believe that the record below would support the
finding of service connection.  Applying a more deferential standard
of review, the judgment of the Court of Military Appeals clearly
should be sustained.

         B. Trying Petitioner In the Military System Does Not Violate
      Due Process

   Relying on Bouie v. City of Columbia, 378 U.S. 347 (1964), and
Marks v. United States, 430 U.S. 188 (1977), petitioner claims (Br.
42-46) that, even if his crimes are held to be service connected, that
holding cannot be applied to him without violating due process, since
it amounts to an unforeseeable retroactive expansion of the scope of
court-martial jurisdiction as it stood at the time he committed those
offenses.  He contends that the Due Process Clause imposes the same
restrictions on the courts that the Ex Post Facto Clause imposes on
Congress.  Accordingly, he maintains that, because Congress could not
be statute have retroactively expanded court-martial jurisdiction to
reach the Alaska charges, the military courts may not achieve the same
result through case-by-case adjudication.

   1. Petitioner did not raise this due process claim at the pre-trial
hearing, in the court of military review, or in the Court of Military
Appeals.  He therefore should not be allowed to raise the claim in
this Court for the first time.  Berkemer v. McCarty, 468 U.S. 420, 433
(1984);  United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977).
Petitioner has offered no reason for failing to assert this claim in
any of the courts below.  The decision of the court of military
review, which reinstated the charges dismissed by the trial judge,
clearly told petitioner that the military courts viewed the Alaska
charges as service connected.  Petitioner therefore could have raised
this claim in the Court of Military Appeals, because by that time,
even if not before, he was aware of the construction of court-martial
jurisdiction that the military courts were prepared to adopt.
Accordingly, there is no need to resolve petitioner's claim in the
current posture of this case.

   2. In any event, petitioner's claim is wrong on the merits.  /12/
The Court's decisions in Bouie and Marks forbid the retroactive
application of an unforseeable judicial expansion of the substantive
scope of a criminal statute to reach conduct that a person could not
reasonably have believed was criminal at the time he engaged in it.
/13/ As the Court summarized in Splawn v. California, 431 U.S. 595,
601 (1977), "Bouie * * * holds that the elements of a statutory
offense may not be so changed by judicial interpretation as to deny to
accused defendants fair warning of the crime prohibited."

   No "fair warning" concern is present here, since petitioner had
ample warning that his conduct was a crime.  That conduct has been a
crime under provisions of the UCMJ that have remained unchanged since
1950 (Arts. 80, 120, 128, 134, UCMJ, 10 U.S.C. 880, 920, 928, 934),
and nothing in the decisions below expanded or modified the definition
of those offenses.  Petitioner's conduct also violated Alaska law
(Alaska Stat. Sections 11.41.410 to 11.41.470 (1983)), which renders
untenable any claim that he could have believed that his conduct was
innocent.  See United States v. Bass, 404 U.S. 336, 348 n.15 (1971);
Knutson v. Brewer, 619 F.2d 747, 750-751 (8th Cir. 1980).  In
addition, O'Callahan did not rule that the question whether a
particular offense is service connected is an ingredient of the crime
itself or must be set forth by statute or established by case law with
the same degree of precision that is necessary for the elements of a
crime.  On the contrary, the Court's later decisions in Relford and
Councilman expressly endorsed an ad hoc approach to the question
whether a particular crime is service connected.  401 U.S. at 369;
420 U.S. at 760.  /14/

   Petitioner contends (Pet. 44-45), however, that the fair warning
concerns underlying Bouie and Marks are also applicable to the
service-connection determination required by O'Callahan, on the ground
that a serviceman is entitled to know whether he will be subject to a
court-martial at the time that he commits a crime.  But the "fair
warning" concern underlying Bouie and Marks has no parallel in this
context.  The conduct charged against petitioner was clearly a crime,
and he cannot legitimately rely on procedural barriers to his
prosecution for those offenses at the time he committed them.  See
United States v. Ross, 456 U.S. 798, 824 n.33 (1982).  Thus, because
"no legitimate reliance interest can be frustrated" (id. at 824) by a
case-by-case method of determining service connection, the rule stated
in Bouie cannot be combined with the rule created by O'Callahan in the
manner that petitioner suggests.

   In any event, the military courts' rulings were not unforeseeable.
In claiming that the decision below was unforeseeable, petitioner
relies on three opinions of the Court of Military Appeals rendered
before this Court's 1971 decision in Relford v. Commandant, supra.  In
those cases, the Court of Military Appeals had ruled that the crime of
sexual child abuse was not subject to a court-martial when that
offense occurred outside a military base, since O'Callahan required
"some connection 'between (the defendant's) military duties and the
crimes in question'" to establish service connection (United States v.
McGonigal, 19 C.M.A. 94, 95, 41 C.M.R. 94, 95 (1969)).  See also
United States v. Shockley, 18 C.M.A. 610, 611, 40 C.M.R. 322, 323
(1969);  United States v. Henderson, 18 C.M.A. 601, 602, 40 C.M.R.
313, 314 (1969).

   This Court's decision in Relford undermined the rationale applied
by the Court of Military Appeals in its prior opinions on this issue.
Relford held that the status of a victim as the dependent of a
serviceman is an important consideration in determining whether an
offense is appropriately subject to court-martial jurisdiction.  401
U.S. at 366.  Relford also rejected the argument that a crime must be
connected with a serviceman's "military duties" before it can be tried
by a court-martial.  Id. at 363-364, 366, 369.  The Court of Military
Appeals indicated in Trottier, 9 M.J. at 342-345, and Lockwood, 15
M.J. at 5-6, 10, that its pre-Relford decisions would have to be
reconsidered in light of this Court's decision in that case.  The
Court of Military Appeals also specifically pointed out that its prior
decisions regarding off-base crimes would be reexamined.  /15/ Those
decisions by the highest military court put petitioner on notice that
the military might seek to court-martial him for crimes such as these.
 Because petitioner could have reasonably foreseen the rulings in this
case, there is no merit to his claim that he lacked adequate notice of
the prospect that he might be tried before a court-martial.  See
United States v. Rodgers, 466 U.S. 475, 484 (1984);  Lockett v. Ohio,
438 U.S. 586, 597 (1978);  Welton v. Nix, 719 F.2d 969, 970 (8th Cir.
1983).  /16/

 II. THIS COURT'S DECISION IN O'CALLAHAN v. PARKER WARRANTS
RECONSIDERATION

   If petitioner's acts of sexual assault on military dependents are
not service connected under O'Callahan, then there is something
seriously wrong with that decision.  The practical effect of ruling
that petitioner's crimes are not service connected will be to divest
military courts of jurisdiction presently exercised over numerous
other offenses committed outside a military base.  That loss of
authority will have a serious detrimental impact on the military's
ability to maintain order, discipline, and readiness.  Accordingly, if
the Court disagrees with our submission in Point I, we urge the Court
to reexamine the service-connection requirement adopted in O'Callahan
and to return to Congress the authority it historically possessed to
define court-martial jurisdiction.

 A. The Doctrine Of Stare Decisis Does Not Preclude Reconsideration Of
O'Callahan v. Parker

   The doctrine of stare decisis serves important purposes in our
legal system.  It promotes the evenhanded, predictable, and consistent
development of legal principles;  it fosters reliance on judicial
rules;  and it contributes to the fact and appearance of integrity in
our judicial system.  See, e.g., Vasquez v. Hillery, No. 84-836 (Jan.
14, 1986), slip op. 11;  Thomas v. Washington Gas Light Co., 448 U.S.
261, 272 (1980) (plurality opinion).  Nonetheless, as Justice
Frankfurter explained, "stare decisis is a principle of policy and not
a mechanical formula of adherence to the latest decision, however
recent and questionable, when such adherence involves collision with a
prior doctrine more embracing in its scope, intrinsically sounder, and
verified by experience." Helvering v. Hallock, 309 U.S. 106, 119
(1940).  For that reason, "(i)t is * * * not only (the Court's)
prerogative but also (its) duty to reexamine a precedent where its
reasoning or understanding of the Constitution is fairly called into
question." Mitchell v. W.T. Grant Co., 416 U.S. 600, 627-628 (1974)
(Powell, J., concurring).  See also Continental T.V., Inc. v. GTE
Sylvania Inc., 433 U.S. 36, 58 n.30 (1977);  Garcia v. San Antonio
Metropolitan Transit Auth., No. 82-1913 (Feb. 19, 1985), slip op.
8-28;  Erie R.R. v. Tomkins, 304 U.S. 64 (1938).

   Although this Court has never adopted a "rigid formula" for
determining when to overrule a prior decision (Vasquez, slip op. 11),
it has identified several factors that bear on this inquiry.  It is
well settled that stare decisis has less force when constitutional
issues, rather than matters of statutory construction, are involved,
because "correction through legislative action is practically
impossible." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407
(1932) (Brandeis, J., dissenting).  /17/ In addition, stare decisis
has less weight when the prior ruling was itself a departure from past
precedents, /18/ when new circumstances or subsequent decisions have
eroded the rationale or the precedential value of the prior decision,
/19/ and when experience demonstrates that the earlier rule has proved
unworkable, has bred confusion, or has led to unforeseen or anomalous
results.  /20/ In sum, stare decisis "bows to the lessons of
experience and the force of better reasoning, recognizing that the
process of trial and error, so fruitful in the physical sciences, is
appropriate also in the judicial function" (285 U.S. at 407-408
(footnote omitted)).  When the decision in O'Callahan is carefully
analyzed, the foregoing considerations dictate reconsideration and
rejection of the service-connection requirement imposed by that case.
/21/

 B. O'Callahan Was A Radical Departure From The Court's Prior
Decisions

   O'Callahan was "'a clear break with the past.'" Gosa v. Mayden, 413
U.S. 665, 672 (1973) (plurality opinion) (citation omitted).  In an
unbroken line of decisions extending back to 1858, this Court had
recognized that (1) Congress had the authority to define court-martial
offenses, (2) neither the Fifth Amendment right to indictment by a
grand jury nor the Sixth Amendment right to trial by a petit jury
applied to court-martial proceedings, and (3) "military status in
itself was sufficient for the exercise of court-martial jurisdiction"
(id. at 673 (plurality opinion)).  /22/ As the Court had observed less
than a decade before O'Callahan, "(t)he test for jurisdiction * * * is
one of status, 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.' * * * Without contradiction, the materials
furnished show that military jurisdiction has always been based on the
status of the accused, rather than on the nature of the offense."
Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 240-241,
243 (1960) (emphasis in original).  /23/ In these circumstances, where
a prior decision not only "announce(d) a new constitutional
principle," but also "effected a decisional change in attitude that
had prevailed for many decades" (Gosa, 413 U.S. at 673 (plurality
opinion)), considerations of stare decisis "cut in both directions"
(Monell v. Department of Social Services, 436 U.S. 658, 708 (1978)
(Powell, J., concurring)).  /24/

 C. Developments In The Military Justice System Over The Past Two
Decades Have Undercut The Rationale Of O'Callahan

   The principal reason given in O'Callahan for limiting court-martial
jurisdiction was that the military justice system did not adequately
protect the rights of servicemembers charged with crimes.  395 U.S. at
263-266.  Because military tribunals did not provide servicemembers
with procedural safeguards comparable to those found in civilian
courts, O'Callahan explained, court-martial jurisdiction should be
limited to "'the least possible power adequate to the end proposed'"
of maintaining an adequate fighting force (id. at 265 (citation
omitted)).  That rationale lacks force today, because O'Callahan's
description of the military justice system is no longer accurate.
Current military procedure bears faint resemblance to that of 30 years
ago under which Sergeant O'Callahan was tried.  The military criminal
justice system has undergone profound changes as the result of three
major congressional amendments to the UCMJ, /25/ two major revisions
of the Manual for Courts-Martial, /26/ the promulgation of regulations
by each branch of the armed forces governing criminal procedure, and
the experience gained by military courts in criminal law and
procedure.  These developments show that the criticisms voiced in
O'Callahan no longer have merit.  /27/

   1. O'Callahan was particularly concerned with the process by which
a court-martial was convened.  At the time of Sergeant O'Callahan's
trial, the authority who convened a court-martial /28/ appointed the
presiding officer, the members of the court-martial panel, and counsel
for the prosecution and defense.  Manual for Courts-Martial para.
4g(1) (1951).  Since a convening officer "usually ha(d) direct command
authority" over court-martial participants, the Court in O'Callahan
was concerned by "the possibility of influence on the actions of the
court-martial by the officer who convenes it" (395 U.S. at 264).  In
recognition of that concern, important safeguards have been
established to eliminate the possibility of improper influence by the
convening officer over the trial judge, defense counsel, and
court-martial members.

   a. The Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat.
1335, replaced the presiding or law officer with a military judge, an
attorney specially selected by the Judge Advocate General on the basis
of his experience and expertise in military criminal law.  /29/ In
cases tried by a general court-martial, /30/ the judge is a
subordinate of the Judge Advocate General, not of the convening
authority.  The 1968 Act also prohibited the convening authority or a
member of his staff from preparing or even reviewing any report about
a judge's fitness in the performance of his judicial duties.  /31/
Art. 26(c), UCMJ, 10 U.S.C. 826(c).  The Military Justice Act of 1983,
Pub. L. No. 98-209, 97 Stat. 1393, eliminated all vestiges of command
control over military judges by divesting the convening authority of
authority to designate the trial judge in a particular case.  Art.
26(a), UCMJ, 97 Stat. 1393, 1394.  And in 1984, the President required
that judges must be detailed to a court-martial by other persons who
are assigned to judicial duties.  Manual for Courts-Martial, Rule for
Courts-Martial 503(b) (1984) (hereinafter cited as Manual, RCM).  In
sum, military trial judges are no longer subject to command influence
and now possess virtually the same degree of judicial independence as
their civilian counterparts.  /32/

   b. It is also no longer possible for a convening authority to
influence the manner in which defense counsel are selected or perform
their duties.  The Military Justice Act of 1968 forbade convening
authorities and commanding officers from criticizing defense counsel
for zealously representing their clients.  Art. 37(b), UCMJ, 10 U.S.C.
837(b);  see also Manual, RCM 104(b)(1)(B).  To "remove any hint or
possibility of impartial command influence in the selection of such
court-martial personnel" (S. Rep. 98-53, 98th Cong., 1st Sess. 13
(1983)), the Military Justice Act of 1983 required the Secretary of
each service to prescribe by regulation how defense counsel will be
appointed, rather than leaving that decision to the convening
authority.  Art. 27(a)(1), UCMJ, 97 Stat. 1394.  The Secretaries of
the Army and the Air Force have created separate corps of defense
counsel under the supervision of the Judge Advocate General of each
service, thereby removing such personnel from the command of convening
authorities.  /33/ The Navy has also created a system that separates
defense counsel from the convening authority's chain of command.  /34/
And the Coast Guard has also taken steps to ensure that defense
counsel are independent.  /35/

   c. Congress and the President have also sought to insulate
court-martial members from command influence.  A 1968 amendment to
Article 37 of the UCMJ, which already forbade the censure or reprimand
of court-martial members for the manner in which they perform their
duties, added a prohibition against adverse comments in fitness
reports.  Art. 37(b), UCMJ, 10 U.S.C. 837(b).  The President
emphasized these prohibitions when he issued the 1984 Manual by
expressly enjoining all forms of influence over court-martial members.
 Manual, RCM 104(a) and (b).  As an additional protection, the
military courts have been vigilant to ensure that commanders do not
influence court-martial members.  See, elg., United States v. Miller,
19 M.J. 159, 163-165 (C.M.A. 1985);  United States v. Grady, 15 M.J.
275, 276 (C.M.A. 1983);  United States v. Rosser, 6 M.J. 267, 271
(C.M.A. 1979).  /36/

   2. O'Callahan faulted the military criminal justice system because
it used rules of evidence, procedure, and discovery that were markedly
different from the ones applied in civilian courts.  395 U.S. at 264.
That description is no longer accurate.

   In 1980, the President amended the Manual by issuing the Military
Rules of Evidence.  Executive Order No. 12,198, 3 C.F.R. 151 (1980).
The Military Rules are identical to the Federal Rules of Evidence,
except where necessary to meet unique military concerns.  S. Saltzburg
et al., Military Rules of Evidence Manual 1, 5 (1981);  Analysis of
the 1980 Amendments, Manual A22-51;  e.g., United States v. Powell, 22
M.J. 141, 143-145 (C.M.A. 1986);  United States v. Gonzalez, 16 M.J.
58, 60 (C.M.A. 1983).  One of the principal reasons for the 1984
revision of the Manual was to "conform (court-martial procedure) to
Federal practice to the extent possible" (Analysis of the 1980
Amendments, Manual A21-1).  /37/ The remaining differences are
required by military needs and cannot be described as "substantial"
(O'Callahan, 395 U.S. at 264).  /38/

   Defense discovery was initially broadened in the 1969 revision of
the Manual "to make it clear that the defense is entitled to the equal
opportunity to prepare his case." /39/ RCM 701(a), the discovery rule
in the current Manual, "is intended to promote full discovery to the
maximum extent possible," and it "provides for broader discovery than
is required in Federal practice." Analysis, Manual A21-29;  see also
United States v. Toledo, 15 M.J. 255, 256 (C.M.A. 1983);  Moyer,
Procedural Rights of the Military Accused:  Advantages Over A Civilian
Defendant, 22 Me. L. Rev. 105, 114-117 (1970).  /40/ Additionally, in
cases tried by a general court-martial, there is a pretrial
investigation that is similar to a full preliminary hearing in the
civilian system.  Art. 32, UCMJ, 10 U.S.C. 832;  Manual, RCM 405(f)
and (g).  That hearing affords the accused the opportunity to preview
the government's case and to cross-examine its witnesses, thereby
providing an important discovery vehicle not generally available in
civilian criminal proceedings.  Manual, RCM 405(a) Discussion, at
II-37;  Gosa, 413 U.S. at 681 n.6 (plurality opinion);  United States
v. Ledbetter, 2 M.J. 37, 43 (C.M.A. 1976);  Moyer, supra, 22 Me. L.
Rev. at 114-117.

   A variety of other changes in the military justice system have
contributed to making military prosecutions much more like their
civilian counterparts than they were at the time of Sergeant
O'Callahan's trial.  For example, the Military Justice Act of 1968
gave a defendant the right to request a trial by a military judge
alone and provided for a form of release pending review that is
similar to bail pending appeal, through deferral of punishment.  Arts.
16 and 57(d), UCMJ, 10 U.S.C. 816 and 857(d).  The Military Justice
Act of 1983 provided for defense counsel to assist a defendant
throughout the post-trial direct review process.  Art. 38(c), UCMJ, 97
Stat. 1395.  The 1984 Manual established procedures for determining
whether a defendant may be confined before trial, including a hearing
at which the member is entitled to counsel (Manual, RCM 305), and it
created speedy trial requirements similar to those applicable in the
federal courts (RCM 707).  The military justice system is therefore no
longer subject to the criticism voiced in the O'Callahan opinion for
following procedures that impaired the fairness of the fact-finding
process and undermined the independence of the court, the
court-martial members, and counsel for the defendant.

   3. O'Callahan broadly declared that "courts-martial as an
institution are singularly inept in dealing with the nice subtleties
of constitutional law." 395 U.S. at 265.  To buttress that assertion,
O'Callahan pointed to Article 134 of the UCMJ, 10 U.S.C. 934, which
prohibits, inter alia, "all disorders and neglects to the prejudice of
good order and discipline in the armed forces." O'Callahan hinted that
Article 134 was unconstitutionally vague.  In Parker v. Levy, however,
the Court ruled that Article 134 and its counterpart Art. 133, UCMJ,
10 U.S.C. 933, which prohibits conduct unbecoming an officer and a
gentleman, are not unconstitutionally vague.  417 U.S. at 757.

   This Court's perception of the military justice system has also
changed. Six years after O'Callahan, this Court was willing to assume
that "the military court system will vindicate servicemen's
constitutional rights." Schlesinger v. Councilman, 420 U.S. at 758;
see also Middendorf v. Henry, 425 U.S. at 43. In the years since
O'Callahan, military trial and appellate courts have gained
considerable experience in resolving constitutional issues.  /41/ And
the Military Justice Act of 1983 gave this Court jurisdiction, for the
first time, to review the decisions of the Court of Military Appeals,
which will enable this Court more directly to supervise the
administration of justice by the military courts.  Art. 67(h), UCMJ,
10 U.S.C. (Supp. II) 867(h);  28 U.S.C. (Supp. II) 1259.

         D. O'Callahan Is Inconsistent With Subsequent Decisions
      Deferring To Congressional And Professional Military Judgments
      On Matters Of Military Discipline And Readiness

   Underlying the ruling in O'Callahan was the view that the
Constitution required the courts in each case to balance de novo
Congress's authority to govern the armed forces against a
servicemember's rights to indictment and a jury trial.  The Court
rejected Justice Harlan's view that the Court was improperly
allocating to itself the task of making a determination that "the
Constitution has placed in the hands of the Congress" (395 U.S. at 275
(dissenting opinion)).  Since O'Callahan, however, the Court has
repeatedly endorsed Justice Harlan's position that Congress has the
primary responsibility for striking the proper balance between the
military's needs and servicemembers' rights, and that professional
military judgments on matters of discipline and effectiveness are
entitled to particular deference. See Goldman, slip op. 4-5;  Chappell
v. Wallace, 462 U.S. 296, 300-305 (1983);  Rostker v. Goldberg, 453
U.S. 57, 64-66, 70-71 (1981);  Brown v. Glines, 444 U.S. at 357, 360;
Middendorf v. Henry, 425 U.S. at 43;  Greer v. Spock, 424 U.S. 828,
837-838 (1976);  Schlesinger v. Councilman, 420 U.S. at 753;  Parker
v. Levy, 417 U.S. at 756;  Gilligan v. Morgan, 413 U.S. 1, 10 (1973);
cf. Shearer, slip op. 6.  That deference is rooted in the express
constitutional commitment of the governance of the nation's armed
forces to Congress and the President (Art. I, Section 8;  Art. II,
Section 2, Cl. 1), and in the unsuitability of most military decisions
to civilian court review.  See, e.g., Goldman, slip op. 4.

   Congress is in the best position to decide what crimes and
servicemembers should be subject to court-martial jurisdiction as a
general matter.  The rationale of the service-connection doctrine is
that a crime must affect military interests before a court-martial may
exercise its jurisdiction over that offense.  Insofar as that
determination rests on policy and factual matters, Congress is clearly
the institution best suited to make that judgment.

   The President and his military subordinates are in the best
position to decide in an individual case whether a servicemember
should be court-martialed for a particular crime.  A commanding
officer bears the ultimate responsibility for maintaining discipline
within his unit (see, e.g., Coast Guard Reg. COMDTINST M5000.3, art. 4
1-12 (1980)), and he is best situated to gauge the effect of a
particular violation of military law on discipline, readiness, and
morale.  In making these determinations, a commanding officer must
rely on his training and experience, which have no parallel in the
civilian community, and his judgment often cannot be expressed in
terms of the criteria listed in Relford.  As the Court has often
stated, the "'complex, subtle, and professional decisions as to the *
* * training * * * and control of a military force are essentially
professional military judgments'" (Chappell, 462 U.S. at 302 (citation
omitted)).  By contrast, the civilian courts are "'ill-equipped to
determine the impact upon discipline that any particular intrusion
upon military authority might have'" (id. at 305, quoting Warren, The
Bill of Rights and the Military, 37 N.Y.U.L. Rev. 181, 187 (1962)).
See Goldman, slip op. 4.

 E. The Service-Connection Requirement Adopted In O'Callahan Has
Proved Confusing And Burdensome In Practice

   1. As Justice Harlan predicted in his dissent in O'Callahan, the
service-connection requirement has "creat(ed) confusion and
proliferate(d) litigation over * * * jurisdictional issue(s) (395 U.S.
at 284).  Although Relford settled the question of jurisdiction over
on-base offenses, it has exacerbated the confusion over off-base
crimes.  Perhaps the clearest example of this confusion is in the area
of off-base drug offenses.

   Shortly after O'Callahan was decided, the Court of Military Appeals
held that drug offenses were of such "singular military significance"
that their trial by court-martial was not affected by that case.
United States v. Beeker, 18 C.M.A. 563, 565, 40 C.M.R. 275, 277
(1969).  Seven years later, however, using a mechanical application of
the factors enumerated in O'Callahan and Relford, the same court
concluded that off-base drug offenses by a servicemember had an
insufficient effect on the military to support court-martial
jurisdiction.  United States v. Williams, 2 M.J. 81, 82 (C.M.A. 1976);
 United States v. McCarthy, 2 M.J. 26, 29 (C.M.A. 1976).  In fact, in
United States v. Conn, 6 M.J. 351 (C.M.A. 1979), the court held that
the off-base use of marijuana by a superior officer in the presence of
his subordinates, all of whom were military policemen, was not service
connected.  In 1980, however, the Court of Military Appeals once more
reversed its position.  Again considering factors set out in
O'Callahan and Relford, the Court of Military Appeals held that "the
gravity and immediacy of the threat to military personnel and
installations posed by the drug traffic and by drug abuse convince us
that very few drug involvements of a service person will not be
'service connected.'" Trottier, 9 M.J. at 351 (footnote omitted).  See
also United States v. Harper, 22 M.J. at 164;  Murray v. Haldeman, 16
M.J. at 78-80.  In this case, too, the Court of Military Appeals
acknowledged that it had revised its position as to whether the
off-post sexual assault of military dependents was service connected
(Pet. App. 9a).  These examples refute petitioner's claim (Br. 8) that
the service-connection doctrine has become a "well-defined principle
of law." /42/

   2. O'Callahan has also required a substantial expenditure of time
and resources in litigating jurisdictional issues.  In this case, for
example, litigation of the jurisdictional issue consumed two days in
the trial court and nine months on appeal before petitioner's guilt or
innocence of the charges could be considered.  /43/ In the military,
the diversion of resources from the determination of a defendant's
guilt or innocence is not the only cost. Evidentiary hearings are
common, and they frequently require testimony from commanders,
superior officers, and military law enforcement officials about the
impact of the charged offense on military interests.  This cost is
also significant because, as this Court has recognized, the time of
key military personnel "may be better spent than in possibly
protracted disputes over the imposition of discipline." Middendorf,
425 U.S. at 46 (footnote omitted).

 F. Congress Should Be Free To Define The Proper Scope Of
Court-Martial Jurisdiction

   Petitioner (Br. 39) and Amicus Army Defense Appellate Division
(Army Br. 14) argue that O'Callahan struck the proper balance between
the interests of the armed forces and servicemembers and that this
balance should not be disturbed.  As we have explained, however, prior
to O'Callahan this Court had long recognized that Article I and the
Fifth Amendment struck the proper balance and that it did not need to
be fine-tuned in every case.  Because the improvements in the military
justice system have largely eroded the rationale of O'Callaha, the
only remaining question is whether the benefits of indictment by a
grand jury and trial by a petit jury should trump Congress's authority
to define court-martial jurisdiction.  We submit that they should not.

   1. Indictment.  Most crimes committed off-post would be tried in
state court, and a state defendant has no constitutional right to
indictment by a grand jury.  Hurtado v. California, 110 U.S. 516
(1884).  In addition, most military offenses are tried by special
courts-martial, which cannot impose a sentence of confinement in
excess of six months.  Art. 19, UCMJ, 10 U.S.C. 819.  /44/ Even in the
federal system, a defendant has no right to an indictment for such
crimes.  Fed. R. Crim. P. 7(a);  Duke v. United States, 301 U.S. 492
(1937).  In cases tried by a general court-martial, where an
indictment would be required in federal court, the adversarial Article
32 UCMJ investigation serves the grand jury's function of determining
whether there is probable cause that a crime has been committed and
protecting citizens against unfounded criminal prosecutions.  See
Manual, RCM 405(f) and (g) (rights of a defendant at an Art. 32
investigation);  compare Branzburg v. Hayes, 408 U.S. 665, 686-687
(1972).  This investigation extends to the servicemember protections
not afforded to his civilian counterpart.  Gosa, 413 U.S. at 681 n.6
(plurality opinion);  see also Mercer v. Dillon, 19 C.M.A. 264, 266,
41 C.M.R. 264, 266 (1970);  Moyer, supra, 22 Me. L. Rev. at 109-114;
Swanson, The Article 32 Right of An Accused to Pre-Trial
Cross-Examination of the Witnesses Against Him "If They Are
Available," 24 Air Force L. Rev. 246, 249, 253 (1984).  /45/

   2. Petit jury.  As noted above, most military prosecutions cannot
result in a term of imprisonment in excess of six months.  Defendants
in those cases would not be entitled to trial by jury in state or
federal court.  Duncan v. Louisiana, 391 U.S. 145, 158 (1968);  Cheff
v. Schnackenberg, 384 U.S. 373 (1966).  In the remaining cases, a
military defendant is tried by a court-martial panel "best qualified
for the duty by reason of age, education, training, experience, length
of service and judicial temperament." Art. 25, UCMJ, 10 U.S.C. 825;
see also Manual, RCM 502(a) and 503(a).  /46/ Duncan v. Louisiana
admitted that a "criminal process which was fair and equitable but
used no juries is easy to imagine" (391 U.S. at 150 n.14), and it
noted that the Court's decision to require the states to provide jury
trials for serious crimes was not intended to "cast doubt on the
integrity of every trial conducted without a jury" (id. at 157).  /47/
The plurality in Gosa v. Mayden also recognized that the court-martial
system did not lack fundamental fairness, stating that such
"proceedings are not basically unfair" (413 U.S. at 680-681) and that
"(n)othing * * * in O'Callahan indicates that the major purpose of
that decision was to remedy a defect in the truth-determining process"
(id. at 682).  In fact, the panel chosen for a court-martial is often
"more nearly a jury of his peers than is a civilian panel in a State
where the member may be involuntarily stationed." Mercer v. Dillon, 19
C.M.A. at 266, 41 C.M.R. at 266.  In some cases, servicemembers "may
well receive a more objective hearing" from a panel of military
members than from a local jury of the civilian community.  Gosa, 413
U.S. at 681 n.6 (plurality opinion).

   History also supports the conclusion that court-martial proceedings
are not fundamentally unfair because no jury is used.  The Framers
were well acquainted with the absence of juries in the military.
Relying on British practice, Congress first established the present
size of general courts-martial for the Navy in 1782 (22 J. Continental
Cong. 325) and for the Army in 1786 (30 id. 145).  Congress had a
rational basis rooted in two centuries of experience for continuing
the structure of courts-martial when it enacted the UCMJ in 1950, and
Congress has refused to depart from that path ever since.  /48/ This
history is powerful evidence that Congress has found the court-martial
system to be a "fair and equitable" non-jury system of the kind the
Court described in Duncan.

   In sum, since the decision in O'Callahan there have been sweeping
changes in the military justice system, and during the same period
this Court has repeatedly acknowledged the appropriateness of
deferring to Congress on matters of military discipline and
effectiveness.  These developments call for O'Callahan to be
reconsidered.  No longer is there a basis for a judicial limitation on
the will of Congress that all violations of the UCMJ by servicemembers
should be tried by court-martial.  Eliminating that restriction will
also end the confusion resulting from the unstructured question of
service-connection.  For the reasons set forth above, the Court should
reject the service-connection requirement created in O'Callahan and
should return to Congress the authority to define court-martial
jurisdiction.

                              CONCLUSION

   The judgment of the Court of Military Appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   PAUL J. LARKIN, JR.

      Assistant to the Solicitor General

   JOHN F. DEPUE

      Attorney

   THOMAS J. DONLON

      Lieutenant Commander United States Coast Guard Appellate
      Government Counsel

   SEPTEMBER 1986

   /1/ Petitioner often refers to the trial judge's findings (Br. 3,
10, 14, 23-24, 26-32), but he fails to note that the court of military
review found that several were incorrect as a matter of law (Pet. App.
32a-35a).

   /2/ After the Court of Military Appeals and the Chief Justice
denied petitioner's request for a stay of the proceedings, the
court-martial reconvened on February 18, 1986.  On March 11,
petitioner was convicted on eight of the 14 Alaska specifications and
on four other specifications of sexual child abuse.  He was sentenced
to one year's confinement, to a reduction in pay-grade, and to a bad
conduct discharge.  His conviction is currently under review by the
convening authority, pursuant to Art. 60, UCMJ, 10 U.S.C. 860.

   /3/ See also 131 Cong. Rec. H9290 (daily ed. Oct. 29, 1985) (Rep.
Schroeder) (recognizing that "(w)e cannot maintain a peacetime
military" without dealing with the concerns and problems of military
dependents);  id. at H5035 (daily ed. June 26, 1985) (Rep. Panetta);
id. at S6670-S6671 (daily ed. May 21, 1985) (Sen. Nunn);  id. at S6670
(daily ed. May 21, 1985) (Sen. Kennedy);  Department of Defense
Authorization for Appropriations for Fiscal Year 1986:  Hearings on S.
674 Before the Senate Comm. on Armed Services, 99th Cong., 1st Sess.
719 (1985) (statement of General John A. Wickham, Chief of Staff, U.S.
Army) ("if we are concerned about readiness in the Army, which is our
most important business, we ultimately must deal with families and
quality family support");  Coast Guard COMDTINST 1750.3 Family
Advocacy Program (Apr. 8, 1983), reprinted at J.A. 56 ("The stress
military life imposes on families has become recognized as a
significant factor in members' performance and in the morale and
efficiency of Coast Guard units.").

   /4/ Before his daughter was molested, Chief Warrant Officer Johnson
had rapidly progressed in rank, but after petitioner's offenses were
discovered, Johnson was unwilling to take on added responsibilities
(J.A. 108).  Petty Officer Grantz, a former Marine combat veteran,
testified that learning of and dealing with the sexual abuse of his
daughter was more trying emotionally than the year he spent on the
Demilitarized Zone in Viet Nam (id. at 127).  After learning about the
offenses against his daughter, he was unable to concentrate on his
duties and was less willing to trust his fellow servicemembers (id. at
124, 126-127).

   /5/ See Pet. App. 10a-12a, 32a-33a;  Coast Guard Family Advocacy
Program, supra, reprinted at J.A. 57 (child abuse detracts from the
efficiency of Coast Guard units and impairs the reputation of the
service);  see also Hasty, Military Child Advocacy Programs:
Confronting Child Maltreatment in the Military Community, 112 Mil. L.
Rev. 67, 74-76 (1986).

   /6/ The military courts have often noted the threat to discipline
arising out of sexual assaults by one member of a unit on another
member or his dependent.  See United States v. Ruggiero, 1 M.J. 1089,
1097-1098 (C.M.R. 1977), petition denied, 3 M.J. 117 (C.M.A. 1977)
(sexual assault on female member of same unit);  United States v.
White, 1 M.J. 1048, 1051-1052 (C.M.R. 1976), petition denied, 3 M.J.
109 (C.M.A. 1977) (sexual assault on wife of member of same unit).
Cf. United States v. Herring, 20 M.J. 1002 (C.M.R. 1985)
(confrontation off base between two military members will logically
continue when they return to duty, threatening maintenance of
discipline);  United States v. Shorte, 18 M.J. 518, 520 (C.M.R. 1984)
("(a)n assault with a dangerous weapon by one servicemember on
another, regardless of where it occurs has a clear and measurable
impact on the morale, reputation and integrity" of the installation),
aff'd, 20 M.J. 414 (C.M.A. 1985).

   /7/ As amicus ACLU points out (Br. 29), predicating jurisdiction on
an individual's emotional character would "inevitably lead() to
arbitrary results."

   /8/ The fact that in a particular case the impact of a crime on the
military is reduced should not bar court-martial jurisdiction, as long
as offenses of that nature typically, or as a class, have such an
impact.  By analogy, under the Commerce Clause, it is well settled
that Congress may regulate a class of intrastate activities that has
an effect on interstate commerce even if an individual instance of
such an activity has none.  See Russell v. United States, No. 84-435
(June 3, 1985), slip op. 4-5;  Perez v. United States, 402 U.S. 146,
153-154 (1970).

   /9/ The victims in this case obviously would have to testify in a
civilian trial in Alaska, but they might well have been required also
to testify in the court-martial proceeding in New York, even if that
proceeding had been limited to the New York offenses, since
petitioner's pattern of conduct with other child abuse victims could
have been deemed relevant in that proceeding.

   /10/ Although the services cannot prevent a state prosecution from
going forward after a court-martial, a state is likely to be willing
to forgo its own prosecution once the military has court-martialed a
servicemember.  That is most likely to be the case when the crime
involves other servicemembers or military dependents, as was the case
here.

   /11/ Drug offenses constitute by far the largest class of off-base
offenses prosecuted in the military system.  The Army, Air Force, and
Coast Guard report that drug cases constituted approximately 85% of
the "off-base" cases on appeal in military courts as of June 30, 1986.

   /12/ Strictly speaking, the Ex Post Facto Clause is not applicable
here.  The Ex Post Facto Clause in terms applies to the legislature,
not to the courts.  Frank v. Mangum, 237 U.S. 309, 344 (1915).
Neither Bouie nor Marks modified that longstanding rule, and Marks
recognized that the Clause "does not of its own force apply to the
Judicial Branch of government" (430 U.S. at 191 (citing Frank v.
Mangum, supra)).  Moreover, courts and legislatures are not similarly
situated.  Courts can only "constru(e) existing law in actual
litigation," rather than "impose by legislation a penalty against
specific persons or classes of persons." James v. United States, 366
U.S. 213, 247 n.3 (1961) (opinion of Harlan, J.).  As Justice Harlan
explained, it is "obvious" that the policy of restraining arbitrary
and potentially vindictive legislation that underlies the Ex Post
Facto Clause "is inapplicable to decisions of the courts" (ibid.).
For that reason, neither Woxberg v. United States, 329 F.2d 284 (9th
Cir.), cert. denied, 379 U.S. 823 (1964), nor United States v.
Juvenile, 599 F. Supp. 1126 (D. Or. 1984), aids petitioner, because
both cases involved statutory amendments.

   /13/ Bouie held that due process barred the conviction of two black
college students for their refusal to leave an "all-white" lunch
counter where the "narrow and precise" (378 U.S. at 352) state
criminal trespass statute under which they were convicted on its face
prohibited only the entry onto the property of another in violation of
previously-given notice (id. at 349 n.1), and where, prior to the
conduct at issue, that statute had never been construed to cover the
refusal to leave the property of another (id. at 350).  Marks held
that the new standard for determining the constitutionality of obscene
materials that was adopted in Miller v. California, 413 U.S. 15
(1973), could not be retroactively applied to conduct that occurred
prior to the decision in Miller.  430 U.S. at 196-197.

   /14/ Court-martial jurisdiction is defined by statute, and the UCMJ
vests the military justice system with jurisdiction over all
servicemembers for any offense defined in the UCMJ.  Art. 2, UCMJ, 10
U.S.C. 802.  Establishing that a crime is service connected does not
vest a court-martial with jurisdiction over that offense;  rather,
that showing simply makes it "appropriate" for a military tribunal to
exercise its already-existing jurisdiction.  Gosa v. Mayden, 413 U.S.
665, 674, 677 (1983) (plurality opinion).  Contrary to petitioner's
suggestion (Br. 44), the judgment below therefore did not extend
court-martial "jurisdiction" to petitioner in the first instance.

   /15/ Although the Court of Military Appeals' decision in Trottier
involved a narcotics offense, the opinion does not suggest, as
petitioner (Br. 43-44) and the ACLU (Br. 57-59) claim, that that
court's revised approach to court-martial jurisdiction would be
limited to such crimes.  See United States v. Lockwood, supra
(off-base fraud offenses are service connected).

   /16/ Petitioner does not suggest that he relied on the Court of
Military Appeals' pre-Relford decisions when he planned or carried out
the Alaska crimes.  In any event, because those acts violated both the
UCMJ and Alaska law, any such reliance would not be entitled to any
weight.  United States v. Ross, 456 U.S. at 824 n.33;  cf. United
States v. Bass, 404 U.S. at 348 n.15.

   /17/ See also, e.g., Thomas v. Washington Gas Light Co., 448 U.S.
at 272-273 (plurality opinion);  Monell v. Department of Social
Services, 436 U.S. 658, 695 (1978);  Edelman v. Jordan, 415 U.S. 651,
671 (1974).

   /18/ E.g., Thomas, 448 U.S. at 273 (plurality opinion);  Monell,
436 U.S. at 696;  Continental T.V., Inc. v. GTE Sylvania Inc., 433
U.S. at 47;  United States v. Darby, 312 U.S. 100, 116-117 (1941).

   /19/ E.g., United States v. Leon, 468 U.S. 897, 908-913 (1984);
Limbach v. Hooven & Allison Co., 466 U.S. 353, 357-361 (1984);  United
States v. Salvucci, 448 U.S. 83, 88 (1980);  Hughes v. Oklahoma, 441
U.S. 322, 331-332 (1979);  Brown v. Board of Education, 347 U.S. 483,
492-495 (1954);  Tigner v. Texas, 310 U.S. 141, 145-147 (1940).

   /20/ E.g., Garcia v. San Antonio Metropolitan Transit Auth., slip
op. 18;  Continental T.V., Inc., 433 U.S. at 47;  see also Texas v.
McCullough, No. 84-1198 (Feb. 26, 1986), slip op. 6-8;  Wainwright v.
Witt, No. 83-1427 (Jan. 21, 1985), slip op. 8-13.

   /21/ The Court is less reluctant to reconsider a prior decision
when doing so will not disturb legitimate reliance.  E.g., Arkansas
Electric Coop. Corp. v. Arkansas Public Service Comm'n, 461 U.S. 375,
392 (1983);  Ross, 456 U.S. at 824 n.33;  Monell, 436 U.S. at 699-700.
 As we have noted above, no such interests are implicated by
O'Callahan.  Page 26, supra.

   /22/ See Dynes v. Hoover, 61 U.S. (20 How.) 65, 78-79, 82 (1858);
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866);  id. at 137-138
(opinion of Chase, C.J.);  Coleman v. Tennessee, 97 U.S. 509, 514
(1878);  Ex parte Reed, 100 U.S. 13, 21 (1879);  Ex parte Mason, 105
U.S. 696, 700-701 (1881);  Smith v. Whitney, 116 U.S. 167, 182-186
(1886);  Johnson v. Sayre, 158 U.S. 109, 114 (1895);  Grafton v.
United States, 206 U.S. 333, 348 (1907);  Kahn v. Anderson, 225 U.S.
1, 8-9 (1921);  Ex parte Quirin, 317 U.S. 1, 40-44 (1942);  Whelchel
v. McDonald, 340 U.S. 122, 126-127 (1950);  United States ex rel. Toth
v. Quarles, 350 U.S. 11, 14 & n.5 (1955);  Reid v. Covert, 354 U.S. 1,
19-20, 22, 37 n.68 (1957) (plurality opinion);  id. at 41-43
(Frankfurter, J., concurring in the result);  Kinsella v. United
States ex rel. Singleton, 361 U.S. 234, 240-241, 243, 246 (1960).

   /23/ See also, e.g., Reid, 354 U.S. at 19 (plurality opinion) (the
"natural meaning (of Art. I, Section 8, Cl. 14) * * * refers to
persons who are members of the armed services");  Ex parte Milligan,
71 U.S. (4 Wall.) at 123 ("Everyone connected with these branches of
the (military) service is amenable to the jurisdiction which Congress
has created for their government, and, while thus serving, surrenders
his right to be tried by the civil courts.").

   /24/ O'Callahan's abrupt departure from the foregoing line of
precedents might have been justified if the Court had revisited
historical materials not fully analyzed by its prior decisions.  See
Monell, 436 U.S. at 664-689.  But the O'Callahan Court did not do so.
Amicus Army Defense (Army Br. 11-14) argues that the Framers intended
to limit court-martial jurisdiction to purely military offenses, since
court-martial jurisdiction had been so limited under the Articles of
War during the American Revolution.  We submit that this argument is
flawed for the reasons given by Justice Harlan in his dissent in
O'Callahan.  395 U.S. at 277-282;  see also Comment, 15 Vill. L. Rev.
712, 719 n.38 (1970).  At worst, the relevant English and American
history is a draw.  Nelson & Westbrook, Court-Martial Jurisdiction
Over Servicemen For "Civilian" Offenses:  An Analysis of O'Callahan v.
Parker, 54 Minn. L. Rev. 1, 8-19 (1969).  Accordingly, in determining
whether O'Callahan was correctly decided, the Court should not
"'disregard the implications of an exercise of judicial authority
assumed to be proper for (100) years'" (Monell, 436 U.S. at 696
(citation omitted)).

   /25/ See Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat.
1335;  Military Justice Amendments of 1981, Pub. L. No.97-81, 95 Stat.
1085;  Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat.
1393.

   /26/ See Manual for Courts-Martial (1969);  Manual for
Courts-Martial (1984).  The Manual is now reviewed and updated yearly.
 Exec. Order No. 12,473, 3 C.F.R. 201 (1984).

   /27/ These important changes contradict petitioner's assertion (Br.
9) that "(n)o developments since then, in the military or society"
justify overruling O'Callahan.  Even Amici Army and Navy Defense
Appellate agree that the quality of military justice has improved
since O'Callahan (Army Br. 20;  Navy Br. 14).

   /28/ Arts. 22-24, UCMJ, 10 U.S.C. 822-824, list the persons who may
convene a court-martial.

   /29/ See, e.g., Art. 26(b), UCMJ, 10 U.S.C. 826(b);  Coast Guard
Military Justice Manual COMDTINST M5810.1A, Section 303-2 (Apr. 10,
1985);  Army JAGC Personnel Policies para. 8-1, Selection of Military
Judges (1985-1986).

   /30/ Compare Art. 18, UCMJ, 10 U.S.C. 818 (jurisdiction of general
courts-martial), with Art. 19, UCMJ, 10 U.S.C. 819 (jurisdiction of
special courts-martial), and Art. 20, UCMJ, 10 U.S.C. 820
(jurisdiction of summary courts-martial).  See generally Middendorf v.
Henry, 425 U.S. 25, 31-33 (1976).

   /31/ Although O'Callahan mentioned this amendment in a footnote
(395 U.S. at 264 n.3), that revision was not effective at the time of
the Court's decision.  O'Callahan's criticisms of the military justice
system therefore could not have taken into account the operation of
the new system and were premised on the fact that the presiding
officer was a subordinate of the convening authority (id. at 264),
which was true at the time Sergeant O'Callahan was tried, but is not
true today.

   /32/ To be sure, military trial judges do not enjoy the life tenure
and salary protections possessed by Article III judges.  That fact,
which was noted in O'Callahan (395 U.S. at 264), is still unchanged.
At the same time, a servicemember tried before a military judge is "no
more disadvantaged and no more entitled to an Art. III judge than any
other citizen of any of the 50 States who is tried for a strictly
local crime." Palmore v. United States, 411 U.S. 389, 410 (1973).  As
Palmore makes clear, "trial by a nontenured judge (does not) deprive
(a federal defendant) of due process of law under the Fifth Amendment
any more than the trial of the citizens of the various States for
local crimes by judges without protection as to tenure deprives them
of due process of law under the Fourteenth Amendment." Ibid.

   /33/ See Army Reg. 27-10, ch. 6 (Dec. 10, 1985);  Air Force Reg.
111-1, paras. 3-6, 13-3 (Aug. 1, 1984).

   /34/ See Navy Legal Services Office Manual, NAVLEGSVCINST 5800.1,
Sections 0100-0104, 0401(a)-(c) (Apr. 18, 1980).  Moreover, in the
Marine Corps fitness reports on defense counsel are prepared by an
independent Regional Defense Counsel.  Marine Corps Order 5800.11A
(Nov. 15, 1985).

   /35/ The Coast Guard is not large enough to warrant establishing a
separate corps of defense counsel, but the Coast Guard permits a
defendant to request an attorney who is not assigned to duty within
the geographic region of the commmander who convened the
court-martial.  Coast Guard Military Justice Manual COMDTINST
M5810.1A, Section 302-2 (Apr. 10, 1985).

   /36/ These cases are not, as some contend (Army Br. 18-19), an
argument for restricting court-martial jurisdiction, but are a vivid
demonstration that the system can ferret out and correct errors.

   /37/ Art. 36, UCMJ, 10 U.S.C. 836, authorizes the President to
prescribe procedures for courts-martial.  It provides that these rules
shall "apply the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States
district courts," unless the UCMJ or the President provides otherwise.

   /38/ For example, Mil. R. Evid. 404(a)(2) (Manual at III-19) allows
the prosecution to introduce character evidence of a victim's peaceful
behavior in assault cases, because of the military's need to deter
unlawful assaults by servicemembers living in close quarters.  Compare
Fed. R. Evid. 404(a)(2) (similar rule limited to homicide cases in
which self-defense is claimed).  S. Saltzburg et al., supra, at 185.

   /39/ Air Force Summary of Changes to the Manual for Courts-Martial,
1969, ch. XXIII, at 44 (1969).

   /40/ For example, RCM 701 not only requires the government to
disclose to the defense all items covered by Fed. R. Crim. P. 16(a),
but it also requires that, upon service of the charges, the defense
must be furnished with copies of all sworn or signed statements
relating to the charges, the names and addresses of all witnesses the
prosecution intends to call, and an opportunity to interview the
government's witnesses.  By contrast, in a federal criminal
prosecution, statements of a witness need not be furnished to the
defense until after the witness has testified at trial (18 U.S.C.
3500(a)), and there is no statutory requirement that the government
provide the defense with a list of or the opportunity to interview its
witnesses.

   O'Callahan also criticized military discovery procedure on the
ground that the process for obtaining evidence and witnesses was "to a
significant extent, dependent upon the approval of the prosecution"
(395 U.S. at 264 n.4).  Under the current system, however, the
military judge is solely responsible for controlling the discovery
process.  Manual, RCM 701(g);  see Moyer, supra, 22 Me. L. Rev. at
123-125.

   /41/ See, e.g., United States v. Sauer, 15 M.J. 113 (C.M.A. 1983)
(Self-Incrimination Privilege);  Cooke v. Orser, 12 M.J. 335 (C.M.A.
1982) (Due Process Clause);  United States v. Ezell, 6 M.J. 307
(C.M.A. 1979) (search and seizure);  United States v. Rivas, 3 M.J.
282 (C.M.A. 1977) (effective assistance of counsel);  see also S. Rep.
98-53, supra at 33 (noting that "the very success of the Court (of
Military Appeals) has called into question the basis for excluding
review by the Supreme Court").

   /42/ Petitioner argues (Br. 37-39) that the discussion accompanying
Section 203 of the Manual suggests that the service-connection
doctrine is well settled and highly predictable.  In fact, the
discussion and analysis accompanying the rule suggests nothing of the
kind.  For example, the analysis section (Pet. App. 49a) contains a
warning that "(s)ince the constitutional limits of subject matter
jurisdiction are matters of judicial interpretation, specific rules
are of limited value and may unnecessarily restrict jurisdiction more
than is constitutionally required" (emphasis added).

   Experience shows that the service-connection issue has been an
extraordinarily fertile source of appellate litigation.  The Court of
Military Appeals and the courts of military review have issued almost
400 published decisions dealing with the service-connection question,
and many more unpublished ones.

   /43/ This expenditure of time is by no means atypical.  The Air
Force reports that out of nearly 1,000 cases prosecuted between August
1, 1984, and June 30, 1986, approximately 12% involved litigation of
the issue of service connection.

   /44/ During Fiscal Year 1984, for example, there were 10,087
special courts-martial, and only 2,592 general courts-martial.  Annual
Report of the Code Committee on Military Justice 27, 38, 49, 55 (Oct.
1, 1983 to Sept. 30, 1984).

   /45/ Not only is the military accused given an adversarial hearing
before an impartial investigating officer (Art. 32, UCMJ, 10 U.S.C.
832;  Manual, RCM 405;  United States v. Collins, 6 M.J. 256, 258-259
(C.M.A. 1979)) with the rights described in the Manual, but no charges
may be sent to a general court-martial until the report of
investigation has been reviewed by a judge advocate who must make a
legal determination of probable cause (Art. 34, UCMJ, 10 U.S.C. 834;
Manual, RCM 406 and 601).

   /46/ The panels can include members of similar rank, since enlisted
defendants may at their request have enlisted members on their court.
Art. 25(c), UCMJ, 10 U.S.C. 825(c);  Manual, RCM 503(a)(2).

   /47/ This was a principal reason that the right to a jury trial was
not applied retroactively.  DeStefano v. Woods, 392 U.S. 631, 633-634
(1968).

   /48/ Since the enactment of the UCMJ in 1950, Congress has passed
23 different acts amending various sections of the UCMJ, but it has
never seen fit to alter the membership of courts-martial.  The most
recent of these statutes was the Department of Defense Authorization
Act of 1986, Pub. L. No. 99-145, 99 Stat. 678 et seq.  The citations
to the other 22 statutes are collected in our brief in opposition (at
12-13 n.10) in Garwood v. United States, cert. denied, No. 85-175
(Dec. 2, 1985).  We have provided counsel for petitioner with a copy
of that brief.