Military Law–Military Jurisdiction over Crimes Committed by Military Personnel Outside the United States: The Effect of O’Callahan v. Parker

Until recently, it had generally been considered that the minimum condition necessary to justify the invocation of military jurisdiction was the offender’s “status” as “a person who can be regarded as falling within the term ‘land and naval forces.’ ” In O’ Callahan v. Parker, however, the United States Supreme Court determined that while military status is still requisite to the attachment of military jurisdiction, it is not a sufficient basis in and of itself to warrant trial by a military tribunal. In a five to three decision authored by Justice Douglas, the Court held that in order for military jurisdiction to attach, the crimes for which prosecution is sought must have been “service-connected.” Thus, there has emerged a two-pronged test for ascertaining the proper attachment of court-martial jurisdiction: (1) the offender must have the status of being a member of the armed forces, and (2) the offense must be service-connected.

The ramifications of this dramatic development in military law are extensive. Because the Court in O’Callahan established new standards to be met at the initial jurisdictional stages of the judicial process, the effect of the decision may be expected to pervade almost all aspects of military justice. A particularly significant issue is raised by the application of the decision in foreign locations, ·where the denial of military jurisdiction presents intricate practical problems which do not result from a similar denial in domestic situations. The purpose of this Note, then, is to examine the O’Callahan holding with regard to its applicability to situations involving crimes of a nonmilitary nature committed by servicemen while serving under peacetime conditions in foreign countries.