(concurring):
A discharge from the military service is not an adjudication that the person discharged has not committed an offense dur ing the period of his service. Nor does it operate as a pardon for any offense that has in fact been committed. United States v Landers, 92 US 77, 23 L ed 603. The simple question then is whether, in the circumstances of this case, the military can try the accused for an offense allegedly committed by him during the period of a prior enlistment.
In Hirshberg v Cooke, 73 F Supp 990 (1947) (sub nomine Hirshberg v Malanaphy), 168 F2d 503, (CA2d Cir) (1948), 336 US 210, 93 L ed 621, 69 S Ct 530 (1949), the same question was considered by the Federal courts. The opinion by the District Court, the two opinions by the Court of Appeals for the Second Circuit, and finally that of the United States Supreme Court, indicate clearly that the only question for determination was the scope of the then existing “statutory jurisdiction” of the Navy to try a person after a discharge. That also was the import of my dissent in United States v Solinsky, 2 USCMA 153, 7 CMR 29, as it affected the right of the Army to try an enlisted man after his discharge.
Neither the Federal courts in the Hirshberg case, nor I in the Solinsky case, passed upon the power of Congress, under the Constitution, to continue court-martial jurisdiction over persons who, after discharge, re-enter the military service. As the principal opinion points out, Congress enacted Article 3(a) to cover the re-enlistment situation. Certain other situations were also covered by the Article. See Article of War 94, 10 USC § 1566 (1946 ed); Article 14, Articles for the Government of the Navy, 34 USC § 1200. In Toth v Quarles, 350 US 11, 100 L ed 8, 76 S Ct 1 (1955), the United States Supreme Court held that Article 3(a) was unconstitutional as applied to discharged persons who returned to civilian life and had no further connection with the military. However, the majority of the court was very careful to emphasize that its ruling was limited to the attempted application of the Article to “ex-servicemen” or “civilians like Toth.” Ibid, pages 13, 14, 23.
One who re-enlists in the service after a discharge is not “like Toth.” On the contrary, his position is like that of a person who leaves the country after committing a crime. During the time he is outside the jurisdiction he cannot be tried. But if he returns, he can, subject to the Statute of Limitations, be tried and convicted for an offense committed by him before his departure. From that point of view, the time hiatus between discharge and re-enlistment is completely immaterial. See Judge Frank’s opinion in the Hirsh-berg case, 168 F2d 503, 508, Footnote 6. Accordingly, I agree with the conclusion that Article 3(a) grants to the military the authority which was lacking at the time of the Hirshberg and Solinsky cases, and that this grant of authority is constitutional. Paragraph 11a of the 1951 Manual which purports to establish a different rule is, therefore, incorrect.