
    UNITED STATES, Appellee, v. Alton KIMBROUGH, Sergeant, U. S. Air Force, Appellant.
    No. 34,225. ACM 22150.
    U. S. Court of Military Appeals.
    Oct. 16, 1978.
    For Appellant — Lieutenant Colonel Anthony G. Vance (argued); Colonel Robert W. Norris (on brief); Lieutenant Colonel Larry G. Stephens (on brief).
    For Appellee — Major Gilbert J. Regan (argued); Colonel Julius C. Ullerich, Jr. (on brief).
   OPINION OF THE COURT

FLETCHER, Chief Judge:

Sergeant Alton Kimbrough was tried by a General Court-Martial. We have set forth below the charges and specifications on which he was arraigned, his pleas and the trial’s findings in order to clarify our disposition of this matter.

Art Chg UCMJ Spec Summary of Offenses Pleas Findings

92 1 Possess heroin o/a 7 Jun 76 NG G

2 Sell heroin o/a 7 Jun 76 NG G

3 Possess marijuana o/a 10 Jun 76 NG G

Add 81 1 Conspiracy to import con-NG Of Specs 1 and 2

Chi trolled substance from of Add Chg I

Aug 75 to Jan 76 and Add Chg I:

dismissed on mo-

2 Conspiracy to wrongfully NG tion of defense

introduce heroin into a for lack of

military aircraft from jurisdiction

Aug 75 to Jan 76

134 Import heroin between NG G Add

2 Feb 76 and May 76 Ch II

Art Chg UCMJ Spec Summary of Offenses Pleas Findings

Add 92 1 Chill Use of heroin in Jul 75 NG Spec 1 dismissed on defense motion

2 Transfer heroin from 2 Feb 76 to Apr 76 NG NG

3 Transfer heroin from 2 Feb 76 to Apr 76 NG Motion for finding of NG granted

The appellant was sentenced to a dishonorable discharge, confinement at hard labor for 4 years, forfeiture of $240.00 per month for 48 months and reduction to the grade of airman basic.

We granted the following issue which concerns itself only with Additional Charge II, the importation of heroin between February and May 1976:

Whether the court below erred in finding it possessed jurisdiction to try appellant for importing heroin in violation of 21 United States Code § 952 [importation of a controlled substance into the United States from a place outside the United States].

We believe the trial judge erred in overruling the trial defense counsel’s motion to dismiss Additional Charge II due to lack of jurisdiction and, furthermore, that the Court of Military Review erred in concluding that military jurisdiction obtains over this offense under 21 U.S.C. § 952.

In United States v. Beeker, 18 U.S.C.M.A. 563, 565, 40 C.M.R. 275, 277 (1969), this Court stated — referring to offenses chargeable under 21 U.S.C. § 176(a), the legal antecedent to 21 U.S.C. § 952 — “the prohibition against importation and transportation involves different considerations from the act of possession and entails the exercise of governmental powers different from regulation of the armed forces.” In a Per Curiam opinion one year later, the Court referred to the language we have just cited and continued with the additional phrase, “. . . and [the prohibition against the importation of marihuana] is not specially related to the military services as to make the act triable by court-martial within the limitation on court-martial jurisdiction propounded by the Supreme Court of the United States in O’Callahan v. Parker, 395 U.S. 258 [89 S.Ct. 1683, 23 L.Ed.2d 291] (1969).” United States v. LeBlanc, 19 U.S.C.M.A. 381, 382, 41 C.M.R. 381, 382 (1970).

We are not persuaded by the government’s argument that the present case can be distinguished from the well-settled law. We, therefore, find that the military did not have jurisdiction over the offense alleged in Additional Charge II. We order dismissal of this charge.

Our disposition of this issue eliminates the need for our consideration of the other granted issue.

The decision of the United States Air Force Court of Military Review is reversed. The findings of guilty as to Additional Charge II are set aside. Additional Charge II is dismissed. The record of trial is returned to the Judge Advocate General of the Air Force for submission to the Court of Military Review for reassessment of the sentence on the remaining findings of guilty.

Judge PERRY concurs.

COOK, Judge

(dissenting):

The principal opinion quotes from United States v. LeBlanc, 19 U.S.C.M.A. 381, 382, 41 C.M.R. 381, 382 (1970), to the effect that the offense is “not specifically related to the military services.” That comment was also made in United States v. Black, 1 M.J. 340, 345 (C.M.A.1976), which, like LeBlanc, involved the question of whether the facts established a sufficient military connection with the offense to allow the exercise of court-martial jurisdiction. Black observed that the jurisdictional question before the court was a factual one, specifically whether, notwithstanding the offense was cognizable in a federal civilian court, there existed sufficient “service connection” to vest jurisdiction in the military. Id. at 345. Black also observed that importation was of interest to the Federal Government and that circumstance was of “particular importance” in assessing the justification for the exercise of court-martial jurisdiction, but it did not say, directly or indirectly, that the civilian interest alone foreclosed the military from even considering factors demonstrating a military interest in prosecution.

On the facts, my dissent in Black would impel me to dissent here. However, there are additional factors which led the Court of Military Review below to conclude that this case is different from Black. Among those are that where, in Black, there was no “threat to the security” of a military installation, here, the accused used the military telephone system to make arrangements for the transfer of heroin; packaged a part of the substance on the base, and used the military mail system to ship the package from Thailand; and, that some of the accused’s inventory of the drug was found on base in his quarters. I agree with the Court of Military Review that a sufficient military nexus for the offense exists to justify prosecution by court-martial. As I also perceive no merit in the remaining assignment of error, I would affirm the decision of the Court of Military Review.  