(dissenting):
Todd Vanderbush appears to know his way around the paperwork world of the U.S. Army. This knowledge was very handy to him, especially once he got into trouble. Vanderbush had two episodes of behavior while assigned to Korea which resulted in his being charged with various crimes including disrespect to superior officers (using the words “punk bitch” and “black bastard”); willful disobedience of lawful orders; resisting apprehension; using a provoking word; striking the chests of military policemen attempting to subdue him; choking a Korean female and soliciting sex from her; and being drunk and disorderly, in violation of Articles 89, 90, 95, 117, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 889, 890, 895, 917, 928, and 934, respectively. On May 2, 1996, charges were preferred against him. On May 14, 1996, the charges were referred to a special court-martial empowered to adjudge a discharge. After service of the charges, Vanderbush was arraigned on May 30. The defense requested a delay at that court-martial hearing which the judge granted. On June 5, 1996, another hearing was held. Again, delay was granted to the defense with the trial being set for June 26, 1996. On June U, 1996, Vanderbush, without disclosing his on-going court-martial, handcarried his clearance forms through all *62the required stops and the next day left Korea and the U.S. Army. Or so he thought.
It appears Todd Vanderbush viewed the Army as a huge bureaucracy with a gavel in one hand (his court-martial) and a discharge stamp (his freedom) in the other hand. Van-derbush (already arraigned before a court-martial) merely became the master of his fate and decided to outprocess himself with the discharge-stamp hand of the Army. This can happen because, too often, one hand of the Army does not know what the other is doing, especially in Vanderbush’s case where he was sometimes in two commands at the same time (i.e., the 2d Infantry Division and 8th Army-Korea).
There is no hint that any attorney or any part of the judicial system knowingly gave Vanderbush the breathing room he needed to make his escape from Korea and his on-going court-martial. Only administrative oversights, the confusion of two separate commands, and Vanderbush himself put the judicial system to a test of whether justice will prevail in this case. Before I recite the legal reasons why jurisdiction has put its righteous arms around Todd Vanderbush, I state that my view of this issue would be the same in a simple case of assault as it would be in a more serious case involving intentional double rape-murder.
On pure legal grounds, I disagree with the majority opinion. I would reverse the Court of Criminal Appeals and affirm the military judge. In my view, the majority’s wholesale adoption of the opinion of the Court of Criminal Appeals not only ignores our prior decisions but also creates new law in derogation of those decisions. Vanderbush’s court-martial should continue.
The service regulation at issue in this case, Army Regulation (AR) 635-200, Enlisted Personnel (17 Oct 1990), states:
1-24. When investigation is initiated with view to trial by court-martial or soldier is awaiting trial or result of trial
a. A soldier may be retained after his or her term of service has expired when—
(1) An investigation of his or her conduct has been started with a view of trial by court-martial.
(2) Charges have been preferred.
(3) The soldier has been apprehended, arrested, confined, or otherwise restricted by the appropriate military authority. However, if charges have not been preferred, the soldier will not be retained more than 30 days beyond the ETS unless the general court-martial convening authority approves. (See para. 1-33.)
b. A soldier who is awaiting trial or result of trial by court-martial when he or she would otherwise be eligible for discharge or release from AD [active duty], will not be discharged or released until final disposition of the court-martial charges. For effective date of discharge, see section VI. Soldiers under sentence to an unsuspended dishonorable or bad-conduct discharge will not be discharged before appellate review is completed, unless so directed by HQDA [Headquarters Department of the Army]. If the soldier is absent without leave at the time appellate review is completed, the punitive discharge may still be carried out. This paragraph does not apply to soldiers processed for discharge under the provisions of chapter 10.
(Emphasis added.) Paragraph 1-33 states: 1-33. When retained in service awaiting trial or result of trial
When soldiers are retained in service per paragraph l-2h, the effective date of his or her discharge or release depends upon the result of the trial or the disposition made of the case. Examples are given below.
a. A soldier who has no lost time to make good under 10 USC 972, who is confined awaiting trial will, if acquitted after ETS, be discharged or released from active duty within 5 days after date of announcement of acquittal. The soldier will be regarded as having been retained in service for the convenience of the Government.
b. If convicted and sentenced to either confinement only, or confinement and forfeiture only, a soldier who is confined awaiting trial will be discharged on the adjusted ETS. The adjusted ETS date will be computed by adding to the date of *63release from confinement or completion of the court-martial case, as applicable, all time lost before and including the original ETS date.
c. A soldier who is retained per paragraph 1-24 with a view to trial by court-martial and court-martial charges are not brought or are disposed of without trial, will be separated within 5 days after the decision is made. The soldier will be regarded as having been retained in service for the convenience of the Government.
(Emphasis added.)
The plain meaning of the language of paragraph l-24b establishes a regulatory bar to Vanderbush’s discharge until his court-martial charges have been resolved. Thus, the regulation makes any discharge like the one in this case null and void. The Judge Advocate General of the Army, as noted by the dissenting judge at the Court of Criminal Appeals, has similarly construed this regulation. See 45 MJ 590, 600 n. 6 (1996) (Russell, J., dissenting). The lower appellate court’s contrary construction of this regulation requiring a flagging action by the general court-martial convening authority before such a prohibition is effective contradicts the plain language of the regulation and is speculation at best.
Even if Vanderbush was validly discharged, our case law construing applicable statutes and regulations permits his court-martial because he was arraigned prior to this discharge. United States v. Smith, 4 MJ 265, 267 (CMA 1978) (“[I]f jurisdiction has attached prior to discharge, it continues until termination of the prosecution.”); United States v. Hutchins, 4 MJ 190, 191 (CMA 1978); United States v. Jackson, 3 MJ 153 (CMA 1977). Erroneous discharges are treated differently by military law from fraudulent discharges and knowing and informed discharges. The majority and the court below blur this distinction and exalt administrative miscues over and above the lawful pursuit of justice. See generally United States v. Jette, 25 MJ 16, 19 (CMA 1987). Form (technical violation of administrative “flagging” regulations) should not prevail over the substance of justice (holding Van-derbush accountable in a court of law for criminal charges).
The bottom line is that the majority defers to the “careful and persuasive opinion” of the Court of Criminal Appeals. I disagree and instead would defer to the considered opinions of this Court on erroneous or mistaken discharges and attachment of court-martial jurisdiction. I also find the language of paragraph l-24b of AR 635-200 more persuasive than the speculative construction of that regulation by the lower court. My view is that the Constitution does not require and Congress did not intend that an erroneously discharged servicemember be immune from court-martial for his military crimes. See United States v. Batchelder, 41 MJ 337 (1994) (early delivery of valid but not yet effective discharge does not terminate court-martial jurisdiction); see also United States v. King, 42 MJ 79 (1995).
Accordingly, I would answer the certified question in the affirmative. In my view, the alleged discharge of Vanderbush did not deprive his on-going court-martial of jurisdiction to finish his case. Military justice should be allowed to follow its normal course. Sergeant Vanderbush was and is still subject to the jurisdiction of the court-martial convened in Korea.