Pandering and solicitation charges under the UCMJ can be based on conduct that occurred entirely off the installation and involved only civilians, but the government must establish that the offense had a sufficient connection to military service to justify UCMJ jurisdiction. This service connection requirement has been the subject of significant litigation, and courts have not always drawn the line in the same place.
When the person involved is a civilian, the civilian location and the absence of any on-duty nexus are factors the defense can use to argue that the conduct falls outside the reach of military law. Prosecutors counter that argument by pointing to the service member’s status, the potential for the conduct to become known in the military community, and the broader impact on discipline and reputation. The strength of those arguments depends heavily on the specific facts, including how the conduct came to light and what actual effect, if any, it had on military operations or relationships.
UCMJ Jurisdiction Over Off-Base Conduct Involving Civilians
The UCMJ’s reach over off-base conduct involving civilians is not unlimited. Congress granted military courts jurisdiction over service members for offenses against the law of war and for specific offenses enumerated in the UCMJ, but the reach of that jurisdiction over purely civilian conduct in civilian spaces has been circumscribed by the Supreme Court and subsequent military court decisions. The service connection test, derived from a series of cases that examined the constitutional limits of military jurisdiction, requires that off-base conduct have a sufficient nexus to military service to justify prosecution under military law.
For pandering and solicitation offenses, the service connection analysis considers whether the conduct, if known, would directly and palpably harm military discipline or unit effectiveness, rather than whether it merely reflects poorly on the service member’s character. Conduct that occurred at a location with no military connection, involved only private civilians, and came to light only through an unrelated investigation presents a genuine service connection challenge. Prosecutors pursuing such cases must articulate a theory of military harm that goes beyond the general proposition that service members should behave well at all times.
The Service Connection Requirement and How Courts Apply It
Courts applying the service connection test ask whether the charged offense was closely enough connected to the accused’s military service to justify the exercise of military jurisdiction. For off-base conduct, the test developed in O’Callahan v. Parker and refined in subsequent decisions examines the totality of the circumstances rather than any single factor. The presence of a civilian victim, the off-base location, the off-duty status of the accused, and the absence of any military property or personnel creates a factual pattern that historically raised service connection concerns.
More recent decisions have moved away from the strict multi-factor approach toward a broader inquiry into whether the conduct, if left unpunished, would directly harm military discipline. For pandering and solicitation specifically, courts have found service connection where the accused used their military position to access or exploit civilian victims, where the conduct occurred in areas frequented by military personnel and affected the military community’s relationship with the local population, or where the conduct became known within the unit and caused measurable disruption.
How Prosecutors Establish That Off-Base Conduct Affected the Military
Prosecutors building a service connection argument in off-base pandering or solicitation cases rely on evidence of how and why the conduct came to military attention, what impact its disclosure had on the unit, and whether any aspect of the accused’s military status facilitated the offense. A service member who used a military housing allowance to fund activities that contributed to the offense, who met the other party through military channels, or whose conduct became a subject of discussion within the unit has created a factual basis for a stronger service connection argument.
The absence of any of these connecting factors weakens the argument significantly. Defense counsel who can demonstrate that the conduct was entirely private, that it was discovered only through a civilian investigation that happened to reveal the accused’s military status, and that it had no measurable effect on any military relationship or operation have the foundation for a service connection challenge. That challenge, if successful, can result in dismissal of the charges for lack of jurisdiction.
Scenarios Where Off-Base Conduct Has and Has Not Been Prosecuted
Military courts have approved prosecutions for off-base conduct involving civilians in cases where the service connection was clearly present: a senior NCO who exploited a subordinate in a civilian context, a service member whose conduct became public and damaged the unit’s relationship with the surrounding community, and cases where the accused used military authority or resources to facilitate the offense. Courts have dismissed charges in cases where the connection to military service was attenuated, particularly where the accused was essentially a private citizen engaging in private conduct that came to light through coincidence rather than any military nexus.
The distinction between prosecutable and non-prosecutable off-base conduct is not always obvious from the facts alone. Defense counsel who research the specific charge, the specific factual pattern, and the current state of service connection case law can assess whether a jurisdictional challenge has merit and how aggressively to pursue it. A successful challenge at the pretrial stage ends the case entirely, making it one of the highest-return defense arguments available when the facts support it.
Defense Arguments for Lack of Military Nexus
A motion to dismiss for lack of service connection is filed as a pretrial motion before the military judge and must identify the specific facts that undermine the government’s jurisdictional claim. The motion should address the location of the conduct, the civilian status of all parties involved, the off-duty status of the accused, the absence of any use of military resources or authority, and the manner in which the conduct came to military attention. Each of these factors bears on whether the nexus to military service is sufficient to sustain jurisdiction.
The government’s response will typically assert that the conduct, if unpunished, would harm discipline or bring discredit upon the armed forces. The defense must be prepared to challenge both the factual basis for that assertion and the legal sufficiency of the government’s theory. Courts have required more than a general assertion of harm, and the defense that can show a specific factual record of no military impact has a credible argument against jurisdiction.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.