(concurring in the result) :
I concur in the result.
While I have reservations with respect to the hypothesis by which the Chief Judge reaches his holding — principally because of the provisions of Article 3 (a), Uniform Code of Military Justice, 10 USC § 803, as developed by Judge Ferguson in his dissenting opinion — nevertheless I am sure the Chief Judge is correct in concluding the court-martial had jurisdiction to try accused for the offense in question. Accordingly, I concur in affirming the findings and sentence. I deem it appropriate, however, to elucidate my theory briefly in this separate opinion.
After having served more than six years of his then current indefinite enlistment, accused requested that he be discharged under the provisions of Army Regulations and immediately reenlisted for a period of six years to fill his own vacancy. This “Request for Short Discharge and Immediate Reenlistment” was processed by the appropriate authority “for discharge and reenlistment.” Thereafter, his request was honored and he received an honorable discharge certificate dated January 9, 1957. His enlistment record indicates he was immediately re-enlisted in grade to fill his own vacancy on January 10, 1957. As quoted in the principal opinion, the certified question requires us to determine, under these circumstances, whether accused remained amenable to trial by court-martial for a fraud against the Government allegedly committed during his indefinite enlistment.
It is well settled that a court-martial loses jurisdiction to try a person who is discharged and severs all connection with the military. Toth v Quarles, 350 US 11, 76 S Ct 1, 100 L ed 8 (1955). Moreover, the Supreme Court, in Hirshberg v Cooke, 336 US 210, 93 L ed 621, 69 S Ct 530 (1949), held that jurisdiction to try an accused by court-martial for an offense committed prior to his separation from the service was lost *640by reason of his discharge and was not re-invested by reason of his re-enlistment. That is not to say, however, that every present-day discharge defeats jurisdiction, for as we noted in United States v Solinsky, 2 USCMA 153, 7 CMR 29, although we are bound by the principles of Hirshberg, it must be construed in light of its facts and subsequent Congressional legislation.
In United States v Solinsky, supra, the accused was discharged prior to the expiration of his term of service for the convenience of the Government in order to accomplish his immediate reenlistment. It was not intended that he be returned to a civilian status and as a result of that arrangement there was no hiatus of any kind in accused’s service, his entitlements, or his obligations and responsibilities; his discharge was not delivered until his re-enlistment had been accomplished; he was not entitled to an absolute discharge, and in fact it was conditioned upon his immediate reenlistment without a break in service. We noted that under these circumstances, long-standing and well-recognized regulations provided court-martial jurisdiction would not be lost, and that Congress had not seen fit to modify them. Hence we held the doctrine of Hirshberg to be inapplicable, and that under that type discharge military courts retained jurisdiction to try an accused for prior offenses.
While the issue in Solinsky was governed by the law applicable immediately prior to the effective date of the Uniform Code of Military Justice, the rule to which we adverted in that instance was not then new, and has been continued. Substantially unmodified for more than thirty years, it is stated as follows in paragraph 11 b, Manual for Courts-Martial, United States, 1951:
“In those cases when the person’s discharge or other separation does not interrupt his status as a person belonging to the general category of persons subject to the code, court-martial jurisdiction does not terminate. Thus when an officer holding a commission in a Reserve component of an armed force is discharged from that commission, while on active duty, by reason of his acceptance of a commission in a Regular component of that armed force, there being no interval between the periods of service under the respective commissions, there is no termination of the officer’s military status — merely the accomplishment of a change in his status from that of a temporary to that of a permanent officer — and court-martial jurisdiction to try him for an offense committed prior to such discharge is not terminated by the discharge. Similarly, when an enlisted person is discharged for the convenience of the Government in order to re-enlist before the expiration of his prior period of service, military jurisdiction continues provided there is no hiatus between the two enlistments.” [Emphasis supplied.]
As we further said in the last-mentioned case, at page 157, quoting from an earlier board of review decision:
“ ‘. . . the mere discharge from the service does not operate to sever jurisdiction provided there is no interruption in the service and that no moment exists during which the accused is not subject to military jurisdiction and control. Where the discharge operates to terminate the service of the soldier and remand him to civilian life, then and in that case only does the discharge from the service operate to terminate jurisdiction over accused. The criterion is not the mere fact of discharge but the termination of military service.’ ” [Emphasis supplied.]
It remains, then, to be determined whether accused’s discharge interrupted his military status.
While both parties mention Hirsh-berg, supra, in their briefs they concede it is not on all fours with the instant case. Obviously that is so for there the accused was discharged after the expiration of his term of enlistment. He had no right to remain in the service and likewise the Navy was bound to discharge him. Neither party had any choice as to when or for what purpose the discharge would be given. Thus it is clear that Hirshberg’s sepa*641ration interrupted his military status even though he re-enlisted. His subsequent term of service was an entirely new one as opposed to a negotiated extension of his military status.
In the case at bar, accused was serving under an indefinite enlistment on a career basis and his term of service had not expired. The Army was not obligated to release him, as in the case of a soldier whose term of enlistment had expired, but, to the contrary, it would appear that accused was entitled to remain in the service until he reached the age of retirement. Of course, it must be conceded that accused was entitled to submit his unconditional resignation and, in that sense, at least, he could have made his term of service certain, terminated it, and returned to civilian life, for the Army would then be bound, with exceptions not here pertinent, to discharge him within three months. 10 USC §3815. The short answer to this argument is that, while such right existed, accused never exercised it. To the contrary, it is clear that he submitted a conditional resignation for the express purpose of continuing his military status, in his same grade, and, to use the language of his request, to fill his own vacancy. He had served more than six years of an unspecified period of enlistment, and there can be no doubt but that the action accused requested fell within the purview of AR. 635-220, June 4, 1956, paragraph 3d. As the Chief Judge points out, his purposes may have included securing a more favorable bonus payment but, in any event, it is beyond cavil that he did not intend to sever his military status. Rather, his action was calculated to continue his service, without interruption, and in his same grade and identical assignment. In fact, accused having conditioned his request upon remaining in the Service, I do not believe the Army could validly have terminated his indefinite career enlistment on the basis of his request and over his objection without complying with the conditions he specified. Moreover, I call attention to the fact that the last-cited regulation provides that in actions of the type accused requested, “The discharge certificate will not be delivered to the individual until after reenlistment is effected.” In addition, I point out that the statute gives designated authorities three months within which they must accept unconditional resignations. Common sense and experience dictate that resignation by an indefinite enlistee — unlike the expiration of term enlistments, where the services can plan ahead for personnel reassignments thereby occasioned — may require allowance of a reasonable period of time before it must be accepted, not only to permit normal processing or to determine whether there are reasons the discharge should not be given, but in order that the unit in question may not have its operational efficiency impaired while awaiting a replacement, particularly in the instance of a critical position or job specialty. Those considerations do not exist, however, when one continues in his same assignment without a break in service and, significantly enough, the applicable regulation referred to earlier permits acceptance of conditional resignations like that submitted by accused, by “the commanding officer of any unit, activity, or station having the facilities to effect discharge” — a much broader class than that authorized to accept other resignations, and one which need only be equipped to accomplish the necessary personnel action.
Taking account of all the above considerations, it is clear to me that accused’s discharge did not interrupt his military status. It was not intended by either party that accused become a civilian and thereafter once more a soldier. Quite to the contrary, it was the desire and purpose of both parties that his military status be uninterrupted, and the following language from Solinsky, supra, is equally applicable here:
“. . . The whole complexion of the proceedings argue against an interrupted status. The discharge was not delivered until the re-enlistment had been accomplished; there was no break in service or pay; the accused could have been ordered to perform a special mission covering that period; he was entitled to every benefit incidental to membership in the armed forces; there was not a fraction of a *642second that he was not subject to military orders or military control; and every fact and all circumstances point to a situation where the discharge and re-enlistment were to he simultaneous events for the sole purpose of preventing a hiatus or break in the service. Under the regulations and under the procedure outlined, one term could not end until the other commenced. If, by analogy, we compare the arrangement with a commercial contract, it was an extension before the end of the term. The only change was an extension of the term.”
The views I express are not contrary to the principles announced by the Supreme Court in Hirshberg, for here, in order to protect his status and position in the Army, accused took purposeful action to continue his military status, without any hiatus and for a term certain. This is a far different situation from that presented in Hirshberg, where the discharge was not executed in order to perpetuate the existing status. The situation in this instance more nearly comports to that presented in Solinshy. Here the accused’s discharge operated only to facilitate an exchange of some of his rights, duties, and obligations under his indefinite enlistment for different privileges and responsibilities. Instead of an action which returned accused to civilian life, it was but a consensual arrangement whereby his military status was continued without termination.
Accordingly, since accused’s discharge did not interrupt his status as a soldier, court-martial jurisdiction to try him for an offense committed during his indefinite enlistment did not lapse. I, therefore, join with the Chief Judge in answering the certified question in the affirmative and affirming the decision of the board of review.