dissenting:
There is no evidence in the record that the appellant used either his rank as staff sergeant or his position as supply sergeant to foster the distribution of contraband to a fellow soldier. The only factor supportive of service connection in this case is the military status of the participants and that alone is insufficient to sanction court-martial jurisdiction. United States v. McCarthy, 25 U.S.C.M.A. 30, 33, 54 C.M.R. 30, 33, 2 M.J. 26 (1976); United States v. Hedlund, 25 U.S.C.M.A. 1, 6, 54 C.M.R. 1, 6, 2 M.J. 11 (1976).
The offenses occurred in Christian County, Kentucky, and there is no evidence of on-base dealings between the parties. Although jurisdiction exists over off-post offenses where military interests far outweigh those of the civilian community (United States v. Moore, 24 U.S.C.M.A. 293, 52 C.M.R. 4, 1 M.J. 448 (1976)), the conclusion by the majority that military concern is paramount solely because the appellant’s military status was higher than the informant’s is contrary to law. In resolving the question of military jurisdiction over an offense, the situs of the offense is far more significant than the status of the parties involved. United States v. Tucker, 24 U.S. C.M.A. 311,* 52 C.M.R. 22, 1 M.J. 463 (1976).
The jurisdictional issue was not litigated at the trial and there is insufficient evidence in the record to decide that question. Therefore, I would return the case for a limited rehearing to determine service connection. See United States v. DuBay, Yl U.S.C.M.A. 147, 37 C.M.R. 411 (1967).