#### UNITED STATES, Appellee v JAMES M. CHANDLER, Private, U. S. Army, Appellant

18 USCMA 593, 40 CMR 305

No. 21,685

September 26, 1969

*Colonel Daniel T. Ghent, Captain Eugene W. Murphy, Jr., Captain Thomas R. Maher,*and *Captain Stephen Arinson*were on the pleadings for Appellant, Accused.

*Lieutenant Colonel David Rarick, Major Edwin P. Wasinger, Major R. Kevin McHugh,*and *Captain Larry S. Seuferer*were on the pleadings for Appellee, United States.

Opinion of the Court

Ferguson, Judge:

While in an absent-without-leave status, the accused allegedly committed the offenses of burglary and larceny (Additional Charges IV and V) for which he was convicted by general court-martial, along with charges of absence without leave and escape from lawful confinement. We granted review to determine the validity of his conviction for burglary and larceny in light of the Supreme Court’s decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).

A stipulation of fact, entered at trial (Prosecution Exhibit 1) in addition to relating data relative to the “service connected” offenses of absence without leave and escape from lawful military confinement (O’Callahan v Parker, supra) discloses the following information concerning Additional Charges IV and V:

> “During the period of 2 April 1968 through 26 April 1968, Private Chandler and Private Brant traveled to Nashville, Tennessee, and from there to Belleville, Michigan where, on 13 April 1968, they broke into the dwelling house of John Vojtkofsky at night, intending to commit larceny.

> “While in Vojtkofsky’s home, Private Chandler, in conjunction with Private Brant, stole property belonging to Mr Vojtkofsky worth more than $50.00. The stolen property includes an electric guitar and a Sound Products Company amplifier, a Nor-elco electric razor, a man’s class ring, a Weathertite game coat; a small gold colored cigarette lighter, and two wallets, one brown and the other black.

> “Two days later, on 15 April 1968, Private Chandler, again in conjune*594tion with Private Brant, stole from George W. Chapman a 1960 red and white Nash Metropolitan automobile worth about $100. This theft took place in Ypsilanti, Michigan. In conjunction with Private Brant, Private Chandler, later on IS April 1968, stole the following property from John Burke: a brown leather saddle and a saddle blanket, a bridle, a breast band, sometimes known as a martingale, of a total value of about $250.00.”

According to a police report contained in the record of the Article 32 investigation, the accused and his companion were arrested by an officer of the Saline Police Department, Saline, Michigan, while riding in the aforementioned automobile. The saddle and accessory equipment were found in the car at that time. Inquiry of the accused by the arresting officer resulted in a disclosure of his complicity in the burglary and larceny charges.

Since the offenses designated Additional Charges IV and V were cognizable in the courts of the State of Michigan and the circumstances surrounding the commission of these offenses were in no way specifically related to the military, these offenses were not triable by court-martial. O’Callahan v Parker, supra; United States v Borys, 18 USCMA 547, 40 CMR 259.

The findings of guilty of Additional Charges IV and V are set aside and the charges and their specifications are ordered dismissed. The record of trial is returned to the Judge Advocate General of the Army. The Court of Military Review may reassess the sentence on the basis of the remaining findings of guilty or a rehearing may be ordered.

Judge DARDEN concurs.

Quinn, Chief Judge

(dissenting):

For the reasons set out in my dissent in United States v Borys, 18 USCMA 547, 40 CMR 259, I would affirm the decision of the board of review.