(dissenting):
I dissent.
The decision in this ease is a classic example of elevating form over substance. The findings on two perfectly good specifications are set aside merely because the pleader, when faced with the necessity of amending another specification, elected to make the addition by preparing a new charge sheet instead of making interlineations on the first.
On November 8, 1954, a charge sheet was prepared against the accused, in which he was charged with five offenses pleaded under separate specifications. These alleged the following crimes: Absence without leave from December 3, 1952, until December 8, 1952; desertion arising out of an absence without authority from December 13, 1952, until January 23,1953; desertion for a period commencing on or about January 26, 1953; failure to obey a lawful order on December 13, 1952; and a failure to obey another order on January 26,1953. All charges and specifications were alleged under the appropriate punitive Articles of the Code.
It should be noted from my recitation of offenses alleged that the second charge of desertion pleaded the commencement date but was silent as to the date of termination. The reason for that omission was that at the time the specifications were drafted and sworn to, the accused was absent in desertion, and obviously the date of his return could not have been alleged. It is conceded by all that the charge sheet was *232filed with an officer exercising summary court-martial jurisdiction in ample time to toll the statute of limitations on all offenses.
On June 2, 1956, some three and one-half years after his original absence, the accused was apprehended and returned to military control. In order to complete the charge sheet and allege all the necessary facts, the pleader found it necessary to amend the second specification on desertion to show the date the accused was returned to military control. There are two methods by which this could be accomplished. The first would be by interlineations and the second by executing a new charge sheet. Here the second method was chosen, and the time of return is the only addition to any specification. In any event, the first charge sheet initiates the proceeding and regardless of the manner in which the amendment is made the original charge and the amended charge are part of the record of the proceedings below. Therefore, the sole question posed by this appeal is whether recharging the same offense on a new charge sheet opens the way for an accused to defend successfully on a statute of limitations, the running of which has been tolled.
Article 43 (c) of the Uniform Code of Military Justice, 10 USC § 843, provides :
“Except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial or punished under section 815 of this title (article 15) if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 815 of this title (article 15).”
That Article is amplified by paragraph 68c of the Manual for Courts-Martial, United States, 1951, which provides:
“The period of limitation begins to run on the date of the commission of the offense. With respect to liability to trial by court-martial, it ends when sworn charges and specifications are received by any officer exercising summary court-martial jurisdiction over the command which includes the accused.”
It matters not which of the above-quoted provisions are relied on, for they are substantially the same. Under the codal provision, the accused is liable to be tried for his offenses because sworn charges were filed within the time. Under the Manual rule, the statute started running when the offenses were committed and ended when the charges were filed. Under both provisions, the Government’s right to prosecute has been preserved. Now, applying the rule to the facts of this ease, the offenses were committed on December 13, 1952, and January 26,1953, respectively. The statute of limitations, therefore, commenced running on those two dates. The charge sheet was received by the summary court officer on November 10, 1954, and on that date the statute ceased to run. So far as I can ascertain, nothing has happened which would cause the statute to again start running. At the time the first charge sheet was filed — and it is still in the record — the statute was tolled. Thus, if the second charge sheet is considered as being foreign to the first, the latter still effectively protects the right to proceed. Therefore, I am unable to find any good reason why the prosecution of the offense is barred.
Stated in somewhat different language, it appears to me that the substance of the issue which concerns us is not upon which piece of paper the specification is written, but rather whether the nature of the offense has been changed so that the Government is prosecuting a crime which has been outlawed. In the case at bar, no one contends that a new offense has been alleged, and well they could not, for there has not been a change in any word in either of the two specifications, except to change the unit to which accused was assigned. The place, nature, and date of the offenses and all facts alleged in each specification are identical. Therefore, to say that, merely because two specifications are realleged in *233substantially the same language on a new charge sheet and sworn to before a different officer, the legal effect of the filing of the first charge sheet is destroyed, does not make sense to me. Either the filing of the original charges with the officer exercising summary court-martial jurisdiction tolled the statute on the particular offenses pleaded, or it did not. The Code states that it does, and I am content to say that, so long as a new offense is not pleaded, the Government is free to substitute one charge sheet for another.
One other argument found in the Court’s opinion bears answering. Of course, the accused is tried on the second charge sheet, but what has that to do with the tolling of the statute of limitations? On its face, the second charge sheet shows the offenses were committed over two years before the accused was tried. As previously indicated, the original charge sheet instituted this proceeding, and it is not stricken from the record because of an amended pleading. Moreover, it was specifically considered by the investigating officer who used it to support his recommendation for trial. Therefore, on the face of the entire record, the statute is shown to have been tolled. By analogy, I might turn to absence from the United States. Specifications might be set out in language on a charge sheet which would indicate the offenses were outlawed. But if the record otherwise establishes an absence which would toll the statute, the Government could prosecute. In this case, the Government prosecuted on the second charge sheet, but the first furnished the evidence which tolled the statute.
For the foregoing reasons I would affirm the board of review.