In the 1974 case Schlesinger, Secretary of Defense, et al. v. Councilman, the U.S. Supreme Court ruled that military courts have jurisdiction over active-duty military personnel for crimes committed while in service and civilian courts should abstain from interfering with court-martial proceedings until they are completed within the military justice system. The case arose when Army Lieutenant Robert B. Councilman was charged with selling marijuana to other soldiers while on active duty in Vietnam and sought an injunction against his court-martial trial in a federal district court arguing that he should be tried by a civilian rather than a military tribunal because drug offenses were not "service connected." However, the Supreme Court upheld his pending court martial ruling that it is up to Congress to define what constitutes service-related offenses under its constitutional authority over armed forces matters.

In the dissenting opinion for Schlesinger v. Councilman, Justice William O. Douglas argued that military courts should not have jurisdiction over non-service related crimes committed by service members, especially when those crimes are already punishable under civilian law. He believed that allowing such jurisdiction undermines the constitutional rights of servicemen and women to a fair trial in a civilian court with all its attendant protections. Furthermore, he contended that this practice could potentially lead to abuses of power within the military justice system as it essentially allows for double jeopardy - being tried twice for the same crime - which is prohibited in civilian courts by the Fifth Amendment. Douglas also expressed concern about potential conflicts of interest within military tribunals due to their hierarchical nature and lack of independence from command influence.