(dissenting):
I dissent.
My disagreement with the ultimate conclusion of my brothers involves both the legal propositions presented as the basis for their decision and their construction of the circumstances surrounding accused’s entry upon a new period of military service. In order properly to analyze the situation presented, the facts upon which this judicial power is founded must be examined in detail.
The accused enlisted in the Regular Army for an indefinite period on December 27, 1950. On June 13, 1955, he presented a claim to a disbiu-sing officer in Korea for travel expenses allegedly incurred by his dependents incident to a permanent change of station. This claim formed the basis for the charge involved in the present appeal, as it appears to have been false and fraudulent. On January 4, 1957, the accused, then stationed at Fort Jackson, South Carolina, submitted a request that he “be discharged UP AR635-205 and immediately reenlisted in the Regular Army for a period of 6 years . . . to fill own vacancy.” The request, forwarded through channels, was ultimately approved by the Commanding General, United States Army Training Center, Infantry, Fort Jackson, South Carolina, on January 7, 1957. The accused received an honorable discharge certificate, dated January 9, 1957, and pertinent records disclose that it was predicated upon the provisions of Army Regulations 635-220. The accused’s re-enlistment papers bear the date of January 10, 1957, and corroborate his unrebutted assertion, made in an affidavit filed with this Court, that he re-entered the service on that day.
Accused's 1950 enlistment was initiated under the provisions of Section 27, National Defense Act, as amended, 10 USC § 628, now 10 USC § 3256, which authorizes persons serving in the three highest enlisted grades to renew their military status for unspecified periods of time on a career basis. The statute also provides that they may unconditionally resign from the Army upon the completion of three years’ service. The submission of a resignation entitles the service member to be discharged within a period of three months unless it appears that he is under investigation or in default with respect to public property or funds. 10 USC § 628, supra.
In implementation of this statute, *643the Secretary of the Army promulgated Army Regulations 635-220, June 4, 1956, in effect at the time of accused’s separation and re-enlistment. Paragraph 3 of that directive is entitled “Unconditional resignation,” and, among other things, authorizes the commanding officer “of any unit, activity, or station having the facilities to effect discharge ... to accept the resignation of an individual who has served a minimum of 6 full years in an unspecified period of enlistment for the purpose of immediate reenlistment for a specified period to fill his own vacancy.”
Construed in the light of the foregoing regulatory provision, I am of the opinion that accused’s request for discharge and immediate re-enlistment must fairly be deemed to ■ have been a submission of his unconditional resignation after the completion of a period of service in excess of six years, albeit for the purpose of re-énlisting for a specified term. That the Army so regarded it is evidenced' by their entry of Army Regulations 635-220, supra, as the authority for accused’s separation, and this despite the fact that he purported to seek separation and reentry “UP AR635-205,” a directive concerning itself with discharge and release for the convenience of the Government.1 Thus, it follows that the accused's discharge from the service was in nowise conditioned upon the execution of his re-enlistment papers and that he, at the moment of his release, stood in the same position as one who had completed his obligation to serve for a term certain. While he intended to re-enlist in the service, and in fact did so, these factors cannot serve to distinguish his case from that of an individual who, having served for a term of years, chooses to continue his military career by re-enlisting contemporaneously with his discharge. In this connection, I am quite unable to accept the contention that accused was required to serve three months beyond the date on which he submitted his resignation and that, in consequence, he received a discharge prior to the expiration of his enlistment. It is clear beyond cavil that the purpose of this provision of the indefinite enlistment statute, 10 USC § 628, supra, is to require expeditious action on the part of the service concerned to separate the individual and that it was not intended to extend his obligation to serve. United States v Lucas, 19 CMR 613.
Thus, in my opinion, the issue presented by the certified question is narrowed to the single inquiry whether one who has completed his obligated term of service is discharged; and contemporaneously re-enlists, remains amenable to trial by court-martial for an offense committed during his prior enlistment.
J udge Latimer’s separate opinion indicates that he is led to a different conclusion by the circumstances outlined above. He believes the accused sought and was granted a “short” discharge for the purpose of re-enlisting in the Army. Hence, he finds the rationale of United States v Solinsky, 2 USCMA 153, 7 CMR 29, applicable to retain jurisdiction over accused’s offense. Thus, he adopts the position of the board of review below that, while the accused may have had a right to submit an unconditional resignation, he did not do so. This construction, however, fails to give attention to the fact that accused had completed the service required under both the statute and regulations, requested his discharge, and received it, all under the provisions of the directive governing resignations.
The construction which I accord to the accused’s situation is not novel. Indeed, United States v Lucas, supra, involved facts identical to those presented here. There, an Air ■ Force board of review stated, at page 620:
*644“The accused herein, having served more than four years of his enlistment for an unspecified term, clearly fell within the foregoing provisions of the statute and regulation. Barring the presence of factors apart from the period of time he had served, he was entitled as a matter of law to have his resignation accepted. While it is true that Paragraph 4a of Air Force Regulation 39-15, . . . required that the resignation contain a complete statement of the reasons for the resignation, his right to discharge was in no way dependent upon the validity of the reasons given. It is also true that the statute and regulation required his discharge ‘within three months’ of the submission of his resignation. We do not view that requirement as extending this accused’s term of service for such period of time. That requirement is, in effect, a limitation upon the Secretary of the Air Force as to the period of time during which he must act. We think it clear that the intendment of the statute was to give to the ‘indefinite enlistee’ the option of tendering his resignation, obtaining discharge, and returning to civilian life if he so chose. Thus, the accused herein was, upon his discharge, in a status analogous to that of one who has been discharged upon completion of his term of service. No conditions had been attached to his discharge. He was a free agent insofar as re-enlisting was concerned.”
As it is my view that the accused occupies the same position as one who has completed an enlistment for a term certain, has been discharged, and has re-enlisted, I believe that we are faced with a situation identical to that confronting the United States Supreme Court in Hirshberg v Cooke, 336 US 210, 69 S Ct 530, 93 L ed 621 (1949). There, a Navy enlisted man was discharged from the service on March 26, 1946. His re-enlistment became effective on March 27, 1946. The Navy subsequently brought him to trial before a general court-martial for offenses committed during his prior enlistment. He was convicted and, by writ of habeas corpus, contested the court-martial’s jurisdiction. The Government urged the Supreme Court to sustain the validity of the proceedings on the basis that the accused was in the Navy at the time he committed the offense and also at the time of his trial. In determining that accused’s discharge ended jurisdiction to try him for his offense, the Supreme Court pointed out that, until 1932, the services had uniformly been of the opinion that authority to try an individual by court-martial expired upon his separation from the service and was not revived by his entry upon another enlistment. The Court also adverted to the fact that the Navy, in 1932, adopted an administrative interpretation of the Articles for the Government of the Navy which resulted in its unilateral conclusion that discharge did not terminate jurisdiction to try an offender for crimes of the nature of which Hirshberg was convicted. The Court nevertheless concluded that, in the absence of contrary statutory authority, the longer-existing uniform service interpretation should be given controlling weight. Thus, it was held that a service member’s discharge at the end of his period of obligated service ended jurisdiction to try him during a subsequent enlistment for any offense committed during the prior enlistment. As this accused occupies precisely the same position as Hirsh-berg, I believe that the cited Supreme Court decision is dispositive here.
The Chief Judge, in his separate opinion, however, argues that Hirsh-berg v Cooke, supra, no longer represents the law. He believes that the principle enunciated therein was voided by the enactment of Uniform Code of Military Justice, Article 3, 10 USC § 803, and that, in any event, the so-called Hirshberg rule was never applicable to charges involving fraudulent claims. See Article of War 94, 10 USC (1946 ed) § 1566, and Hirshberg v Cooke, supra, page 215.
I am unable to agree with the Chief Judge’s view, for I am certain that Code, supra, Article 3 (a), was not intended entirely to eliminate the rule enunciated in the Hirshberg case. Congress was specifically informed of the *645situation involved and undoubtedly enacted Code, supra, Article 3 (a), in order to insure continuance of jurisdiction in some circumstances. However, it also provided limits upon the exercise of military judicial power. The Article in question thus specifically excepts from the military’s continuing jurisdiction those cases involving offenses punishable in the civil courts by imprisonment for five or more years. Pertinent legislative history makes it clear that Congress intended to continue the Hirshberg rule in effect with regard to the exempted class of offenses. In this respect, the following statements are indeed illuminating:
“Mr. BROOKS. Perhaps a limitation would be in order.
“Mr. SMART. Yes. I think it might be well for the committee to consider the possibilities of amending this article further to provide that court-martial could try only those eases involving major offenses which were not triable in the civil courts.
“Mr. SMART. [Reading Article 3 (a)] . . . Now, that will get the Hirshberg case where he reenlisted. It would get Hirshberg even though he had not reenlisted.” [Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 883 and 1262.] [Emphasis supplied.]
“We felt that there was a solution to this [Hirshberg] problem and our proposed solution is offered in article 3(a) which is a committee amendment to H. R. 2498. It provides for a continuing jurisdiction provided the offense against this code is punishable by confinement of 5 years or more and provided further that the offense is not triable in a State or Federal court of the United States. We feel that this will provide ample protection against any capricious action on the part of military authorities, will limit military jurisdiction to serious offenses that could not otherwise be tried by military or Federal courts and will likewise correct the absurd situation of permitting an honorable discharge to operate as a bar to a prosecution for murder or other serious offenses.” [House Report No. 491, 81st Congress, 1st Session, page 5.] [Emphasis supplied.]
Indeed, while it may be conceded that the Congressional purpose under the Code was to extend military jurisdiction beyond the limits existing under the Articles of War, it is also obvious that, in providing for that extension, they carefully and expressly restricted the area in which military courts might operate without regard to an accused’s discharge. House Hearings, supra, page 1262; House Repoi't, supra, pages 5, 11.
There can be no doubt that the accused’s making of a fraudulent claim for travel allowances, although presented and paid in Korea, is an offense triable in a United States District Court and is punishable by confinement for five years. 18 USC § 287; United States v Bowman, 260 US 94, 43 S Ct 39, 67 L ed 149. Thus, it is apparent that his crime falls outside Code, supra, Article 3 (a), and no other basis can be found to continue military jurisdiction over it.
I deem equally fallacious the argument that the doctrine of Hirshberg v Cooke, supra, is inapplicable to fraud cases under the Code. Concededly, the Army never construed the Articles of War to require that a discharge terminate jurisdiction over a member of the service charged with committing a fraud- upon the Government. The Chief Judge’s contention, however, overlooks the fact that the Army’s denial of that result in fraud cases was predicated on Article of War 94, supra, which expressly provided that court-martial jurisdiction was not ended in such cases by separation from the service. Not only was Article of War 94, supra, repealed upon the enactment of the Uniform Code of Military Justice, see section 14, Act of May 5, 1950, 64 Stat 108, et seq, 50 USC (1952 ed) § 551, et seq, but it is equally clear that its jurisdictional provision was swept within the ambit of Code, supra, Arti*646cle 3 (a). And, as noted before, crimes committed under the circumstances here involved do not fall within the class over which jurisdiction is now retained beyond discharge from the service.
Briefly then, it is my conclusion that the doctrine set forth in Hirshberg v Cooke, supra, requires us to decide that no jurisdiction existed over the offense committed by this accused in his prior enlistment. Fundamentally, Judge Latimer and I differ in whether the accused exercised his unconditional right to a discharge from his indefinite enlistment or whether he merely sought to substitute a different term in his obligation to remain in the Army. As indicated by the majority’s result, that difference is material. I am also unable to subscribe to the Chief Judge’s view that we may breathe new life into Article of War 94 or disregard the boundaries carefully drawn by Congress around the authority conferred upon the armed services under Code, supra, Article 3 (a). I particularly desire to disassociate myself from any construction of our decision in United States v Gallagher, 7 USCMA 506, 22 CMR 296, which sustains continuing jurisdiction over a member of the armed forces unless all of the prerequisites set forth in Code, supra, Article 3 (a) are met. See United States v Wheeler, 10 USCMA 646, 28 CMR 212.
As I am of the opinion that the court-martial which tried the accused had no jurisdiction over the offense alleged in specification 1 of Charge I, I would answer the certified question in the negative, reverse the decision of the board of review, and order the specification dismissed.
Some explanation for the apparent inconsistency in the authority on which accused based his request and that on which the discharge was premised may be gleaned from the fact that the request was filed on a mimeographed form entitled “Request for Short Discharge and Immediate Reenlistment,” a personnel action patently inapplicable to the circumstances under which he was serving.