concurring:
I concur with the majority opinion with respect to the issues concerning search and seizure and sufficiency of the evidence. However, I concur only in the result as to the jurisdictional issue.
Senior Judge Jones concludes that we may properly find that the murder was perpetrated on the Fort Bragg military reservation and that we may sustain jurisdiction on that basis. I agree. However, I believe it is appropriate to develop the rationale for that conclusion in more detail.
This Court has independent fact-finding power, but the power is not unbridled. For example, we may not, by virtue of this power, sustain a conviction in the face of findings by the court members which in effect amount to an acquittal. Thus, if the findings of the court-martial in this case with respect to situs amounted to a finding of not guilty, we may not go behind those findings. Accordingly, before we may properly find that the instant offense was committed on post, in the face of the ambiguous findings of the jury below, we must first examine the role played by judge and jury in the area of jurisdiction.
Once an issue is raised as to jurisdiction, the Government has the burden of showing that jurisdiction exists. United States v. McCarthy, 2 M.J. 26 (24 Sept. 1976); United States v. Barrett, 23 U.S.C.M.A. 474, 50 C.M.R. 493, 1 M.J. 74 (1975). The question of jurisdiction is generally an interlocutory one to be decided by the military judge, even when the facts are in dispute. See Article 51(b), Uniform Code of Military Justice. However, as the Court of Military Appeals noted in United States v. Ornelas, 2 U.S.C.M.A. 96, 101, 6 C.M.R. 96, 101 (1952):
“[WJhere an accused raises a defense or objection which should properly be considered by the court in its determination of guilt or innocence, and which resolves itself into a question of fact, that issue must be presented to and decided by the court pursuant to appropriate instruction. *1028But where the issue is purely interlocutory or raises solely a question of law, it is within the sole cognizance of the law officer.”
In Ornelas, the Court held that the law officer erred in not submitting the factual issue of the accused’s induction to the members since the accused was charged with desertion, a purely military offense. In other words, as only a member of the armed forces may commit desertion, the factual issue of the accused’s military status reached the issue of guilt or innocence and should have been decided by the court members as part of their findings. Ornelas, however, must be limited to its facts. If the offense in question is not purely military in nature, the factual issue of the accused’s status goes only to his amenability to stand trial and is decided by the judge as a purely interlocutory matter. Paragraph 57b, Manual for Courts-Martial, United States, 1969 (Revised edition). See United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); United States v. H. E. Koontz Creamery, Inc., 232 F.Supp. 312 (D.Md. 1964). In deciding these issues the military judge applies a preponderance of the evidence standard, while the court members use the normal reasonable doubt standard.
As the offense in the case sub judice is not purely military, the jurisdictional issue was not required to go to the court members and in fact was not submitted to them. All that the members- were required to do was decide whether an offense had been committed by the appellant, to include the place where it occurred. We are not reviewing that determination, as far as the jurisdictional issue is concerned, but rather the validity of the judge’s ruling on the post-findings motion to dismiss. In so doing, we are not bound by his factual determination.* I am satisfied in reviewing the evidence of record that the murder was committed on the Fort Bragg military reservation. That determination is sufficient to sustain jurisdiction. Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).
However, I am unable to agree that jurisdiction may be sustained on the other two bases set forth in the majority opinion. A finding that the offense was committed “at or near” Fort Bragg is not a finding that it occurred “at” Fort Bragg and is not sufficient to sustain jurisdiction in the absence of other factors showing a service connection. See United States v. McCarthy, supra. See also United States v. Williams, 41 C.M.R. 640 (A.C.M.R.1969).
The third basis for jurisdiction relied on by the majority is that assuming the offense was committed off post, a sufficient service connection is established by three of the Relford factors, viz: the unavailability of the civilian courts, a violation of the security of the post by disposal of the body and other evidence of the crime on post, and a violation of the integrity of the post for the same reason. Under the facts, I am unable to discern any threat to the military post or a violation of military property, at least of sufficient magnitude to constitute a service connection within the meaning of O’Callahan and Relford.
I am therefore left with the unavailability of the civilian courts as a possible factor. This argument, while superficially attractive, does not bear up under scrutiny. (It must be remembered that this factor is significant only if it is assumed that the offense was committed off post. If it were committed on post, jurisdiction is present and there is no need to consider other factors.) The North Carolina courts were unavailable because the state authorities concluded that the offense was committed on the military reservation, a place over which they had no jurisdiction. The military authorities also accepted that proposition and prosecuted on that theory. The Government cannot now say that the unavailability of the civilian courts, based on a belief that the crime was committed on post, supplies the jurisdictional predicate for trying the appellant on the after-acquired theory that the offense was actually committed *1029off-post, in which case the civilian courts would presumably have been available. The only other possible service connection was the relationship between the appellant and the victim. That, of course, must be considered, but I do not find it decisive.
The judge apparently accepted the ambiguous findings of the court members as to the situs of the offense but found a service connection on the basis of other factors.