(dissenting):
I dissent.
In my opinion, United States ex rel. Hirshberg v. Cooke, 336 US 210, 93 L ed 621, 69 S Ct 630, is controlling here. I read Hirshberg to say that once an enlisted man has been discharged from the armed forces, that discharge operates as a bar to subsequent trial for offenses occurring prior to discharge, except in those situations expressly saved by applicable statute. I find no statutory provision — and the majority cites none — that is applicable here.
It is immaterial, I think, that there may be persuasive policy arguments in support of the result reached by the majority. We are here concerned with courts-martial, special tribunals whose jurisdiction must be found solely within the confines of the statutes creating them. If jurisdiction is not conferred by statute, then it matters not that it should be conferred.
I should add that I find in this record no intimation that the accused procured his discharge by fraud.
I would dismiss the charges for lack of jurisdiction in the court-martial which tried them.