concurring in the judgments.
I do not believe that decisions of this. Court would support a holding that the rule announced in O’Callahan v. Parker, 395 U. S. 258 (1969), should not be applied retroactively to court-martial convictions entered before the decision in that case. In O’Callahan, the Court clearly held that courts-martial did not have jurisdiction to try servicemen for “non-service connected” crimes. For substantially the reasons stated by my Brother Marshall, I believe that Robinson v. Neil, 409 U. S. 505 (1973), and prior decisions mandate that O’Callahan be applied retroactively.
In No. 71-6314, since I believe that the O’Callahan rule could not. in any event be given only prospective application, the question arises whether the analytical inquiry sanctioned by that decision should even be undertaken. O’Callahan, was, in my opinion, wrongly decided, and I would overrule it for the reasons set forth by Mr. Justice Harlan in his dissenting opinion. 395 U. S., at 274-284.
In No. 71-1398, even if O’Callahan were followed, I agree with the views of my Brother Stewart. The offense was committed during a period of declared war, and furthermore while respondent was absent without official leave from his military duties. For purposes of the “service connected” — “non-service connected” dichotomy announced by O’Callahan, I would hold that any crime committed by a member of the Armed Forces during time of war is “service connected,” and that he can validly be tried by a court-martial for that offense. Cf. Relford v. Commandant, 401 U. S. 355 (1971).
I therefore concur in the judgments of the Court, and would affirm the judgment of the Court of Appeals in No. 71-6314 and reverse that in No. 71-1398.