(dissenting):
I disagree with the majority from two points of view.
First, if we consider the matter from the standpoint of the area where the offense occurred, the limitation imposed by O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), is not applicable. An .offense committed on a military installation is not subject to the O’Callahan rule. United States v. Paxiao, 18 U.S.C.M.A. 608, 40 C.M.R. 320 (1969). Nor is an offense committed by a serviceman in a foreign country subject to the O’Callahan limitation. United States v. Easter, 19 U.S.C.M.A. 68, 41 C.M.R. 68 (1969). Here, as in United States v. Crapo, 18 U.S.C.M.A. 594, 40 C.M.R. 306 (1969), a part of the offense was committed in an area as to which O’Callahan does not apply and Crapo should control. I regard the offense as having occurred in South Vietnam because the illegal agreement was entered into in that country. For the purpose of determining constitutional venue jurisdiction, it “is now settled that ‘prosecutions for conspiracy may be maintained either in the district in which the conspiracy was entered into, or in any district in which an act was done to effectuate the object of the conspiracy.’ ” Sandroff v. United States, 174 F.2d 1014, 1019 (6th Cir. 1949). In my opinion, the same rationale is applicable to determine whether constitutional military jurisdiction exists under the O’Callahan rule.
Secondly, even if I assume that the jurisdictional effect of the commission of the offense in a foreign country is negated by the extraterritoriality accorded by the majority to the Federal controlled substances statutes so as to bring the offense within the reach of the Federal civilian criminal courts, there is still court-martial jurisdiction. An offense cognizable in a civilian court can be tried in a military court if it is service connected. United States v. Harris, 18 U.S.C.M.A. 596, 40 C.M.R. 308 (1969). In my opinion, that connection exists in this case. The overt act that effectuated the illegal agreement affected the integrity of the military postal system.
I would affirm the decision of the Court of Military Review.