(concurring in part and dissenting in part).
I concur in part and dissent in part.
The accused was convicted by general court-martial of one specification each of absence without leave (one day) and larceny of an automobile, in violation of Articles 86 and 121, Uniform Code of Military Justice, 10 USC §§ 886 and 921, respectively. His sentence as presently approved consists of a dishonorable discharge, total forfeitures, and confinement at hard labor for two years. We granted review to determine the validity of the accused’s conviction for larceny in light of the Supreme Court’s decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).
Concerning this offense the record of trial reflects that a witness testified seeing a man, whom he later identified as the accused, attempt to open the locked door of his son’s automobile which was then parked in front of the witness’ auto body shop in Waynesville, Missouri. The man was dressed in a tan, knee-length coat and a pair of army green britches. When the witness told him to leave the ear alone, the man went across the road, entered a 1955 Chevrolet, drove it from the driveway and toward Dixon, Missouri. The witness then crossed the road and told the occupant of the trailer house, in front of which the car had been parked, what had happened. Together they returned to the body shop and called the Missouri State police.
The car was found, some ten minutes later by a State patrolman, undamaged, in a ditch about a mile from the site of the theft. While the patrolman .was examining the car, which tallied with a description of the stolen car report he had received by radio, he observed a car about to enter the highway. Since a passenger in the car fitted the description of the suspect, also received by radio, he stopped the car and questioned the occupants. The driver related that the passenger had come to his house and requested a ride. He was complying with that request. Based on the information he had received and his observation of the accused, the patrolman arrested him and took him to the body shop where he was identified by the witness to the theft. The accused was then lodged in the Waynesville, Missouri, jail.
The owner of the car, a soldier stationed at Fort Leonard Wood, Missouri, as was the accused, resided off base in a trailer court. He did not witness the theft and was not acquainted with the accused.
In O’Callahan v Parker, supra, the Supreme Court held that an accused may not be tried by court-martial for crimes committed in the United States against the civilian community, where the courts are open and functioning, unless the crime is “service connected.” While in this case the victim of the theft was a serviceman, I do not believe that under these circumstances this is a sufficient nexus to deny the accused his right to indictment and trial by jury. O’Callahan v Parker, supra. I find it difficult to believe that there is an identifiable military interest in the off-base property of a serviceman when this Court has already held that such interest is nonexistent where an offense has been committed off base against a serviceman’s dependents. United States v Borys, 18 USCMA 547, 40 CMR 259; United States v Henderson, 18 USCMA 601, 40 CMR 313. See also my dissent in United States v Rego, 19 USCMA 9, 41 CMR 9.
Since the offense was cognizable in the State court of Missouri and “did not involve any question of the flouting of military authority, the security of a military post, or the integrity of *15military property,” it was not triable by military court-martial. O’Callahan v Parker, supra, 395 US, at page 274. In order for a crime to be cognizable by a court-martial, it “must have been committed under such circumstances as to have directly offended against the government and discipline of the military state.” (Emphasis supplied.) Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, pages 723-724. (See footnote 19, O’Callahan v Parker, supra.) Such is not the case here.
I would set aside the findings of guilty of larceny, order the charge and its specification dismissed, and direct that a rehearing on sentence on the basis of the remaining finding of guilty of absence without leave may be ordered.