concurring:
I concur with and join in Judge Davis’s opinion. I would like to say, however, that there was not at any time any need to await a decision whether O'Callahan v. Parker, 395 U.S. 258 (1969) was retroactive, because it was almost from the first apparent that Commander Augenblick’s case was not one of those excluded from the jurisdiction of military tribunals by that authority. Moreover, the cloud over the constitutionality of Art. 134, dissipated in Parker v. Levy, 417 U.S. 733 (1974); and Secretary of the Navy v. Avrech, 418 U.S. 676 (1974), had not increased to the dimensions of a man’s hand during the earlier part of the long delay *84period. In plaintiff’s able brief of September 27, 1971, the vagueness and possible unconstitutionality of Art. 184 was urged, but without the support of the lower Federal court decisions, which later accreted to it. We could have disposed of the O'Callahan, problem on the grounds presently to be submitted, and of Art. 134 on the cogent reasoning of Judge Davis’s opinion.
I
Commander Augenblick was not booked on a felony charge under D.C. law. In Sharkey v. United States, 19 U.S.C.M.A. 26, 41 C.M.R. 26 (1969), it is held that the O'Callahan doctrine does not deprive the military courts of jurisdiction to try offenses that would be dealt with as petty offenses in the civilian world, not requiring jury trial. I note that on their arrest, Commander Augenblick and his companion were booked for “disorderly conduct”. This would dispose of the “service connection” issue at the threshhold, if one were certain how the Sharkey doctrine would be applied to the instant case.
By the D.C. Code, § 22-1112, lewd, indecent or obscene acts are misdemeanors punishable, where a minor is not involved, by a fine of not over $300, or not over ninety days imprisonment, or both. They come under the ambit of “disorderly conduct” along with duelling, § 22-1102, and keeping a fierce dog, § 22-1111. This appears to be the nearest counterpart to the Art. 134 specification under which Commander Augen-blick was convicted. For sodomy, by D.C. Code §22-3502, the penalty is $1,000 fine or ten years imprisonment. This corresponds to the Art. 125 charge upon which Commander Augenblick was acquitted. I would guess that if left to civilian prosecution, Commander Augenblick would have been in slight or no jeopardy of ever being charged under § 22-3502. The booked offense, and the one that could have been proved, put him in jeopardy of moderate punishment for which the Constitution does not require indictment or jury trial. See cases cited in Sharkey, supra. I would, therefore, on authority of Sharkey, hold the O'Callahan exclusion of military courts from trying felonies committed in the civilian world, inapplicable here.
*85II
Whether or not the above is accepted as valid, a concerned and principled application of the “service connection” concept requires the finding that such connection existed in this case. An article by an able and knowledgeable member of our bar, Colonel Charles M. Munnecke, O'Callahan Revisited and Buttoned Up, Bulletin No. 46, The Judge Advocate Journal, p. 11 (October, 1974), summarizes the decisions of the Court of Military Appeals, the lower Article III courts, and the Supreme Court, on the scope of “service connection”. There is, he says, little relevant conflict among them, and the difficulty of determining “service connection” vel non has not been nearly as great as anticipated, save in the area of narcotics violations, which is now before the Supreme Court and may be resolved before our decision appears.
How do you determine “service connection?” The preferred technique since O'Callahan has been to look at the facts of O^G aliaban and those of the case then at bar, to see if significant differences, favoring military jurisdiction, appeared. The military apparently lacked before O'Callahan a strong or any conviction that O'Callahan's type of crime had “service connection.” The order allowing certiorari assumed it had none and the Government briefed and argued on that basis, 393 U.S. 822 (1968). Mr. Justice Harlan, dissenting at 395 U.S. 274 (1969), urged that the military had a strong interest in deterring rape, assault, mayhem and murder by its members upon the local civilian population. This has impressed many persons as true, but it might be answered that interest in deterring an offense and interest in trying it are two different things. The certainty of being consigned to the tender mercies of an enraged civilian population and tried before a jury of the victim’s peers, might be a more effective deterrent to commission of crimes of O’Callahan’s type, than trial by court-martial and military punishment following. Certainly O'Callahan, prospectively applied, does not protect servicemen against possibly harsher treatment than the military would afford, and cannot be so construed. I gather that a military accused cannot even waive a civilian jury and elect a court-martial if he so desires for his own pro*86tection. It is no wonder tbe military leaders are now as complacent as Colonel Munnecke indicates tbey are, about tbe situation. I should expect that even now, if needed, there could be a forceful announcement delimiting the scope of “service connection”, as seen by the Service heads, and it would if reasonable be entitled to much respect. It would not have to be ignored because of prior contrary court decisons, made by civilian judges on the basis of their own unaided perceptions as to the scope of military necessity. The prevailing silence on the subject may well reflect satisfaction with “service connection” as judicially determined.
Thus “service connection” has been determined up to now by the happenstance circumstances of O’Callahan’s particular case, and the absence of any other guide as to the scope of “service connection”, plus the failure of the service to define the extent to which denial of the right to try particular offenses will hamper them in performing their missions. Nevertheless, when we have a crime to deal with wholly unlike O’Callahan’s, it appears to me that instead of a wooden use of the O’Callahan circumstances as tests, we should endeavor to ascertain from Service sources a conception of what the denial of their right to try—as distinguished from the desire to deter—may mean. I do not find anything in Relford v. Commandant, 401 U.S. 355 (1971), that prohibits this.
Statutes and regulations sometimes announce special service interest in offenses of certain types. These must be regarded as stating a “service connection” by implication. In this category I would put the regulations on homosexuals that all three Services now have in force, and have had for many years, back to a time long prior to Commander Augenblick’s arrest in 1961. These regulations divide homosexuals into classes I, II and III. (See our decision in Glidden v. United States, 185 Ct. Cl. 515 (1968)). Class I involves offenses where the other party was an unwilling participant, or a minor. The regulations call for these offenses to be tried by court-martial. Class II are other homosexual offenses currently punishable. They may be dealt with by court-martial but more usually by administrative discharge, which may or may not be under honorable conditions. Class *87III are homosexual offenses committed prior to the current enlistment, and instances of persons with homosexual tendencies but no active involvement. These persons must be got out of the service, though of necessity with honorable discharges.
We may note the stress on just getting rid of the homosexual. Nothing that corresponds to this occurs in civilian justice. The military would unload their undesirables on the civilian world, but the reverse cannot occur. The time when the offender can be required to purge himself by enlisting in the military, has long passed.
I suppose that in civilian society the sovereign people formerly considered they had a right to prohibit and punish by law, behavior they considered infamous, without being-required to show the offense had a victim, or in any way injured the fabric of society. This attitude was the basis of laws against sodomy, bestiality, acts against nature, etc., and continues to be the motive behind their enforcement so far as they are still enforced. The old attitude, however, is eroding, and we now are told that society has no right to punish a victimless crime. Exemptions of “consenting adults” from laws against sodomy, etc.., are frequently urged and sometimes enacted. I suppose a person who urged such exemptions might still, if heterosexual, think twice about making a long journey in company with a person he suspected to be homosexual. There is no real conflict between these two attitudes. Where the laws remain on paper unchanged, lack of zeal and enthusiasm by the civilian police in their enforcement may afford a practical shield to the homosexual in his way of life.
Civilians can choose their companions, but when you join the military you embark on an extended voyage with persons not of your choice. 'In the Navy, Commander Augenblick’s branch, it may be six months under water in a submarine. If persons you regard as undesirables are in the crew, their companionship is foisted upon you. As concerns officers, the Services have the additional problem that those who, by their own acts, cause themselves to be popularly regarded as pariahs, can hardly provide effective leadership. The reasonableness of the popular assignment of pariahship hardly matters.
*88According to Navy Regulation, 82 C.F.R. § 719.107(e) (2) (iii), 38 Fed. Reg. 5997, March 6,1973; 719.107(c), 39 Fed. Reg. 18436, May 28, 1974, cases of homosexuality in which mild penalties have been imposed by civilian authorities upon conviction, may still be tried by court-martial. It continues:
* * * Homosexuality is a more serious problem in the military society because of the close-contact living and working conditions of its members.
According to Everhard, Problems Involving The Disposition of Homosexuals in the Service, 2 Air Force Judge Advocate General’s Bulletin 20 (Nov. ’60) another basic concern of the Services about homosexuals is infection of others: “* * * they must have partners and often prey on the youthful, naive, or greedy.” “Cures”, psychiatric or otherwise, are not considered because “it is not primarily a Service responsibility”, and “the prognosis is almost uniformly poor.” This attitude is in contrast with civilian judges, who frequently demand psychiatric treatment for convicted homosexuals. The Service’s first, second and third priority in dealing with homosexuals are, as stated, to get rid of them. I take it Commander Augenblick had his court-martial because, as a regular officer, he was immune to stigma type administrative discharge. See, Carter v. United States, ante at 61. All the court-martial did to him, however, was the stigma type discharge, which might have been inflicted administratively on a reservist.
I think the foregoing demonstrates that the Services have and have expressed a special and peculiar interest in setting their own course of dealing with their homosexuals, whether an offense is committed on or off the base, in or out of uniform, during working or leave time. Effectuating their policy is seen as a military necessity. Civilian judges could not possibly achieve the results demanded by the military. On the other hand, the Services do not desire either to reform the offender, or to inflict retribution for breach of the Mosaic law upon him. Except in the aggravated Class I cases, they are content to get rid of him albeit with a stigma type discharge in some instances, as here.
*89Conceding, however, that “service connection” would be a problem if one of the partners in the unnatural act had been a civilian (United States v. Shockley, 18 U.S.C.M.A. 610, 40 C.M.R. 322 (1969)) here they were both military, and one, Commander Augenblick, greatly outranked the other. As I conceive it — and we do not, I note again, have the help we should have from the military — the guilt of partners in crime or accomplices is never equal if one is an officer and the other an enlisted man. The former owes a duty to the latter to guide him into courses of right conduct. A breach of this duty would be an offense unknown to the civilian law. The latter is conceived to be without capacity to act on his own volition when in company of an officer and under his direction. That Commander Augenblick wore civilian clothes I do not think exonerated him from these duties, at least as long as the accomplice was uniformed. He could not shed his obligations as an officer by putting on civilian clothes and going off the base for his contact. I do not think a civilian judge or jury could handle this situation in a satisfactory manner. I note that Colonel Munnecke enumerates this very case as one where the victim (his word) was a serviceman. (His fn. 5, p. 12). This is an appropriate classification of the case from a military point of view. The word “victim” is also used in the plaintiff’s September 27, 1971, brief, albeit in quotation marks. The Commander would be regarded as having “preyed” on the enlisted man, in the word used in the Everhard article, supra. Counsel for Commander Augenblick have complained about the honorable discharge given the enlisted man, but the apparent disparity is fully explained by the considerations stated. He was a “victim”.
Moreover, I would assign at least presumptive correctness to the decision by the Metropolitan police to turn the arrested offenders over to military custody. It was, by implication, a decision that the offense had “service connection”, by the persons having to deal with the problem practically, at the working level.
In short, the application of the O'Callahan doctrine to this case is not a logical application of it but its reductio ad absurdum.
*90LaRamoeg, Senior Judge, concurs in the opinion of Judge Davis and also concurs in the opinion of Judge Nichols regarding “service connection.”