(dissenting) :
I dissent.
I disagree with my brothers’ negative reply to the certified question which asked whether the Court of Military Review was correct in its conclusion that under the facts and circumstances in this case the bad check offenses, in violation of Article 123a, Uniform Code of Military Justice, 10 USC § 923a, were not in any way service-connected.1
Despite the fact that all of the checks were cashed in the civilian community, the majority in this case find a “service-connection” in the commission of these offenses, by inferring from the evidence that the payees of the checks relied on the accused’s status as a serviceman when they accepted them. They base this inference on the fact that each of the checks bore the imprinted name of the accused, together with his Air Force service number and post office box number at Mather Air Force Base, California, and the subsequent complaint of nonpayment by each of the payees to the Commander of the accused’s squadron. They also believe the offenses were “service-connected” since the checks were all drawn on a branch of the Bank of America located on base at Mather, were presented to that facility for payment, and were thus committed on base.
The same issue was before us in United States v Hallahan, 19 USCMA 46, 41 CMR 46 (1969), where I expressed my dissent to that view. What I said in Hallahan is equally applicable here:
*323“While it is true that the checks in specifications 5, 7, and 8 contained military identification data on the reverse side, it is simply pure speculation to assume that this data aided the accused in victimizing the various payees. There is no evidence of this fact in the record and, in my opinion, such a presumption is wholly unwarranted. But even were it so, reliance on one’s status as a serviceman is not an element of the offense of uttering a false instrument. The matter is simply irrelevant to the charge. It cannot be the vehicle for conferring jurisdiction in a court-martial anymore than the status of the accused in O’Callahan and Williams, both supra, conferred jurisdiction in those cases. See also United States v Borys, 18 USCMA 547, 40 CMR 259.
“The apparent rationale behind the use of this factor for affirmance is that it reflects discredit upon the armed forces. But discredit upon the armed forces is properly chargeable only under Article 134, Code, supra, 10 USC § 934. Offenses chargeable under that Article are exclusive of those specified in other sections of the Code. Uttering of a false instrument is defined in Article 123, Code, supra, 10 USC § 923. A violation of that Article is not at the same time a violation of Article 134. United States v Norris, 2 USCMA 236, 8 CMR 36. Cf. United States v Johnson, 3 USCMA 174, 11 CMR 174; United States v Rowe, 13 USCMA 302, 32 CMR 302. The fact of discredit upon the armed forces plays no part in any criminal conduct, no matter how heinous, except where the offense lies under Article 134. It cannot, therefore, be used as a vehicle to grant military jurisdiction over an offense which is not otherwise ‘service connected.’ O’Callahan v Parker, supra. See also my dissents in United States v Morisseau, 19 USCMA 17, 41 CMR 17; United States v Peak, 19 USCMA 19, 41 CMR 19.
“The uttering of a false instrument in the civilian community is essentially a concern of the State. Congressional power to proscribe criminal conduct in this area is limited. United States v Fox, 95 US 670, 672, 24 L Ed 538 (1878) ; cf. Screws v United States, 325 US 91, 109, 144, 145, 89 L Ed 1495, 1506, 1525, 1526, 65 S Ct 1031 (1945). Since the status of a serviceman, standing alone, is insufficient to vest a court-martial with jurisdiction over a particular offense (O’Callahan v Parker, supra, 395 US, at page 267), I do not believe that reliance on that same status is sufficient to justify the incursion of Federal authority into a matter which is primarily the concern of the State. See my separate opinion in United States v Nichols, 19 USCMA 43, 41 CMR 43.” [Ibid., at pages 48, 49.]
The fact that the bank on which the checks were drawn had a branch located on base, through which the checks were processed, does not change the situation. The offenses were complete at the time the checks were uttered. The on-base location of the bank was irrelevant to the commission of the offense. In my opinion, this circumstance is no different from that which we found in United States v Riehle, 18 USCMA 603, 40 CMR 315 (1969), where we held that the fact that a car stolen in the civilian community was brought on base, where it was ultimately located, was insufficient to vest in the court-martial jurisdiction over the offense.
I would answer the certified question in the affirmative.
The Court of Military Review, sitting en banc, decided by a 5-2 vote, that the offenses were not service-connected under the jurisdictional standards set forth in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).