(concurring in the result) :
Several aspects of the principal opinion require that I set out my views separately. First, I have always maintained that the men and women in our armed forces are entitled to all the rights granted to an accused by the Constitution of the United States, except those excluded expressly or by necessary implication. See my dissent in United States v Sutton, 3 USCMA 220, 11 CMR 220. In my opinion, therefore, a question of double jeopardy is not answered simply in terms of the provisions of Article 44, Uniform Code of Military Justice, 10 USC § 844. See United States v Bayer, 156 F2d 964 (CA2d Cir) (1946), reversed on other grounds, 331 US 532, 91 L ed 1654, 67 S Ct 1394; United States v Wells, 9 USCMA 509, 26 CMR 289. Secondly, the principal opinion relies upon two decisions to which I dissented. United States v Padilla, 1 USCMA 603, 5 CMR 31; United States v Stringer, 5 USCMA 122, 17 CMR 122. I am not persuaded that either recites a correct rule of law. In any event, the critical question here is whether, under the circumstances, the convening authority properly withdrew the charges from the court-martial.
The problem presented in the comments by the president of the court on announcing the findings of guilty was whether there was a fatal variance between the charge and the proof. That was a legal question to be decided by the law officer. Article 51(b), Uniform Code of Military Justice, 10 USC § 851; United States v Knudson, 4 USCMA 587, 16 CMR 161. It was error for the law officer, in effect, to refuse to rule on the motion to amend and to permit the convening authority to withdraw the charges on the ground of variance. However, the presence of error does not determine the disposition of the case. Still left for consideration is whether the error prejudiced the accused.
At the first trial the accused’s counsel objected to the prosecution’s motion to amend the specification to make it conform to the proof on the ground that the difference in organization was “a fatal variance.” His argument was accepted, and made the basis for withdrawal of the charges. At the second trial, defense counsel interposed a plea of double jeopardy. In support of the plea, h'e maintained, in part, that the difference in allegation and proof did not “constitute a fatal variance at all.” Since he was granted precisely the relief he asserted he was entitled to at the first trial, the accused cannot now assert he was prejudiced by the grant. Haugen v United States, 153 F2d 850 (CA9th Cir) (1946); Pratt v United States, 102 F2d 275 (CA DC Cir) (1939). As the Court of Appeals said in a similar situation in the Haugen case the accused cannot “blow hot and then cold.” I fully agree with the remarks of District Judge Murphy in rejecting an argument similar to that advanced here. In United States v Harriman, 130 F Supp 198, 204 (SD NY) (1955), he said:
“. . . Here defendant assumed the position that he would be prejudiced by a variance between indictment and proof, and that such variance was material in the course of the first trial. The same defendant now finds it expedient to characterize the variance as one that did not make discharge of the jury in the first trial a matter of evident necessity. To permit the safeguard against double jeopardy to bar a second trial whenever a defendant can successfully maintain one course in the first trial and its opposite in the second *523one would nullify those ‘ends of public justice’ that the constitutional provision was designed to serve.”
I conclude, therefore, that the motion to dismiss on the ground of double jeopardy was properly overruled by the law officer. I agree with the principal opinion in regard to the instructional error, and accordingly I concur in the result.