(dissenting):
I dissent.
I cannot agree with the subtle reasoning of my brothers, for I believe it disregards the statutory enactment in Uniform Code of Military Justice, Article 3, 10 USC § 803, of a limited version of the rule laid down by the Supreme Court in Hirshberg v Cooke, 336 US 210, 93 L ed 621, 69 S Ct 530 (1949). In my opinion, when a member of the service ends one period of obligation and begins to serve under another — regardless of how the change is effectuated — the provisions of Code, supra, Article 3, come into play and govern the exercise of jurisdiction over offenses committed during the prior period.
Master Sergeant Noble enlisted in the Air Force on December 14, 1954, for a term of six years. He arrived overseas in October 1958, and, in order *417to qualify for transportation of his dependents to his station, voluntarily executed an extension of his enlistment for a period of eleven months. He subsequently again extended his enlistment for a similar period, thereby deferring his enlistment to discharge until October 13, 1962.
On December 8, 1960, he applied for cancellation of the extension and restoration of the original date of discharge — December 13, 1960 — in order that he might re-enlist for another term and avail himself of certain administrative advantages. His request was granted, conditioned upon his actual re-enlistment. Orders to that effect were prepared and issued on December 8.
On December 14,1960, accused complied with the condition by re-enlisting in the Air Force for the term specified. The extensions were accordingly can-celled and his discharge thereby effected. Several days later, his discharge certificate and related papers— all of which had actually been prepared prior to December 14 — were delivered to him. The certificate relates his honorable separation from the Air Force on December 13, 1960.
The offenses with which we are concerned involve three specifications of larceny and two specifications of wrongful appropriation of funds belonging to the Air Force Aid Society, all in violation of Code, supra, Article 121,10 USC § 921. Each occurred prior to cancellation of accused’s extensions and his re-enlistment. Charges were not preferred until September 5, 1961, many months after delivery of his discharge certificate. The question before us, therefore, is whether such change in his obligation to serve terminated jurisdiction to try him for these crimes.
Any consideration of this issue necessarily begins with an examination of the decision of the Supreme Court in Hirshberg v Cooke, supra. There, a Navy enlisted man was discharged on March 26, 1946, and re-enlisted, effective March 27, 1946. Subsequently brought to trial and convicted of offenses occurring during his prior enlistment, he sought his release on the ground that jurisdiction over the crimes expired upon the ending of his obligation to service and was not revived by his re-enlistment. In holding that his discharge and re-enlistment should be accorded that effect, the Supreme Court pointed out the armed forces had long so construed applicable statutes. It held, therefore, that discharge ended jurisdiction over offenses committed during an enlistment thus terminated and that it was not restored by contemporaneous re-enlistment.
The so-called Hirshberg rule was brought to the attention of Congress and extensively discussed during the Committee hearings on the Uniform Code. At first, it was suggested that the Supreme Court’s construction of then extant statutes be legislatively eliminated. Subsequently, however, Congress determined that it should be overturned only as to major offenses. Thus, the following extracts from the Code’s legislative history are 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 [Code, supra, Article 3, 10 USC § 803] further to provide that court martial could try only those cases involving major offenses which were not triable in the civil courts.
“Mr. SMART. [Reading Article 3(a)] . . . Now, that will get the Hirshberg ease 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, 1262.]
“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 jurisdic-*418bion 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.]
The mentioned statute, Code, supra, Article 3(a), upon enactment, contains precisely those limitations envisioned by the Committee. Thus, it provides:
“. . . [N]o person charged with having committed, while in a status in which he was subject to this chapter, an offense against this chapter, punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States or of a State, a Territory, or the District of Columbia, may be relieved from amenability to trial by court-martial by reason of the termination of that status.” [Emphasis supplied.]
From the foregoing, I would conclude that Congress has carefully set down the rule which must govern jurisdiction over offenses in situations like that before us. If the offense is punishable by five years or more and not triable in an American civil court, jurisdiction continues in the military judicial system. Otherwise, the termination of one enlistment and the beginning of another — regardless of the attendant circumstances — ends power to try the accused for what he did before the end of his earlier period of service. Hirshberg v Cooke, supra; my opinion, United States v Martin, 10 USCMA 636, 28 CMR 202. In short, as the Chief Judge declared in his dissenting opinion in United States v Solinsky, 2 USCMA 153, 7 CMR 29, at page 161:
“. . . I read Hirshberg to say that once an enlisted man has been discharged from the armed forces, that discharge operates as a bar to subsequent trial for offenses occurring prior to discharge, except in those situations expressly saved by applicable statute. I find no statutory provision — and the majority cites none — that is applicable here.”
Turning to the facts of the case before us, it is at once apparent that three of the specifications involved meet the conditions laid down by Congress in Code, supra, Article 3. Each alleges larceny of funds belonging to the Air Force Aid Society at Misawa Air Force Base, Japan, in amounts exceeding $50.00. Each of these crimes is punishable, in addition to accessorial penalties, by confinement at hard labor for five years. Manual for Courts-Martial, United States, 1951, paragraph 127c. The owner of the funds was a private eleemosynary organization incorporated under the laws of the District of Columbia. Air Force Manual 166-5, The Air Force Aid Society, paragraphs 112, 301, 417. The alleged thefts accordingly involved property of a private corporation overseas and would not be cognizable in the civil courts in this country. Cf. United States v Bowman, 260 US 94, 67 L ed 149, 43 S Ct 39. Hence, each prerequisite for continuation of jurisdiction has been met, and accused was properly brought to trial for these offenses.
With regard to the remaining counts, charging wrongful appropriation of funds in excess of $50.00 belonging to the same Society, I would reach the opposite conclusion. Here, Code, supra, Article 3, does not come into play, foi the alleged offenses are not punishable by confinement for five years or more. Hence, there is lacking the essential statutory ingredient for trying accused after his discharge and re-enlistment, and I would set aside the findings oí guilty with respect to these specifications.
My brothers nevertheless find jurisdiction over all the crimes involved. *419They do so on the basis that the accused in actuality did not re-enlist in the Air Force but merely once more extended his original enlistment. In light of the facts set out above, I respectfully suggest that the argument is quite without foundation.
In the first place, accused’s request was not for another extension but for cancellation of existing extensions and execution of another, regular enlistment. The extensions were expressly so cancelled on December 8, pursuant to that request, and such action was made “contingent upon his reenlistment in the RegAF on 14 Dec 60,” a condition which he fully satisfied. (Emphasis supplied.) Moreover, the orders published on December 8 expressly directed his honorable discharge “effective 13 Dec 60, contingent upon his reenlistment in the RegAF on 14 Dec 60.” And, after such re-enlistment was accomplished, a regularly executed and valid discharge certificate was delivered to him months prior to the preference of the charges. Finally, in accordance with current service directives, accused was paid for his accrued leave and received travel pay to his home of record, none of which could have been given him upon an extension of his original obligation to serve.
If the foregoing circumstances are not enough to demonstrate the invalidty of my brothers’ argument, I call attention also to the fact that the personnel specialist who processed accused’s request for separation and reentry testified that Noble was discharged at the expiration of his term of service and re-enlisted the following day, although, in accordance with normal practice, delivery of the discharge was withheld until the re-enlistment had been completed.
The truth of the matter is that this ease involves no more than the normal discharge and re-enlistment procedure. While accused might have been held to his earlier extensions by the Air Force, the fact is that he was not. In my opinion, therefore, they became irrelevant, and we should simply apply the terms of Code, supra, Article 3(a). United States v Frayer, 11 USCMA 600, 29 CMR 416. When we do not, we further confuse those whom we should guide in the area of jurisdiction, and leave this important question to be decided ad hoc. As the Chief Judge noted in Solinsky, supra, at page 161:
“It is immaterial, I think, that there may be persuasive policy arguments in support of the result reached by the majority. We are here concerned with courts-martial, special tribunals whose jurisdiction must be found solely within the confines of the statutes creating them. If jurisdiction is not conferred by statute, then it matters not that it should be conferred.”
I would reverse the decision of the board of review and order the two specifications of wrongful appropriation dismissed, returning the record of trial for reassessment of the sentence in light of such action.