United States v. Allen

OPINION OF THE COURT

DRIBBEN, Judge:

Appellant, contrary to his pleas, was convicted by a general court-martial' of attempted rape and two specifications of forcible sodomy in violation of Articles 80 and 125, respectively. Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 925.

The facts of record are that on 6 May 1975, the victim, Private S consumed her evening meal in a Fort Lee, Virginia mess hall. Appellant took this opportunity to approach Private S and introduce himself. He discussed with her courses she was attending at the installation including one in which he was an instructor. During this conversation they were joined by appellant’s friend, one Sergeant Johnson. Appellant and Sergeant Johnson urged Private S to continue the conversation at the NCO club on post. The conversation at the NCO club, accompanied by the consumption of alcoholic beverages, continued to concern for the most part Army courses at Fort Lee and jobs for which one would be qualified upon completion of those courses. At the end of the evening Sergeant Johnson departed leaving Private S with appellant. She entered appellant’s car for a ride back to her barracks. Instead, appellant drove off post to a gas station where the victim used the bathroom. When she returned to the car, appellant, according to Private S, told her that he would return her to her barracks after he delivered instructional material to a friend’s house. Instead, appellant proceeded further off post to a secluded area where the acts of which he was convicted were committed.

United States v. Ruggiero, 54 C.M.R. 683, 1 M.J. 1089 (N.C.M.R.1977), petition denied, 3 M.J. 117 (C.M.A.1977), involved a factual situation similar to this case. The *987Navy Court of Military Review found that a court-martial had jurisdiction over the offense of rape and other similar acts of sexual misconduct where the accused met his victim, a servicewoman, on base at an NCO club and subsequently took her, voluntarily on her part, off base, where the offenses occurred. A comprehensive analysis of the cases and criteria upon which the Court found jurisdiction is set forth in Section III of that opinion beginning at page [1 M.J.] 1095. I concur with that Court’s reasoning and adopt it as my basis for finding jurisdiction in the case at bar. The case sub judice presents an equally strong factual basis for the conclusion that the offenses committed by appellant are service connected. Appellant used his rank and position as an NCO instructor to become acquainted with his victim on a military installation. He then misused his military rank and his victim’s misguided trust in him by virtue of his rank and position to take her off post so he could force his sexual attentions upon her in a secluded area. The military establishment has an interest significantly distinct from that of the civilian community in deterring its non-commissioned officers from sexually assaulting lower grade female enlisted personnel. It appears equally obvious that the paramount military interest over this offense derives from the devastating effect upon the morale and discipline of others subject to appellant’s authority and instruction.

Based upon the foregoing and our determination that the remaining allegations of error raised by appellant are without merit, the findings of guilty and the sentence are affirmed.

Judge DeFORD concurs.