(dissenting):
I dissent.
The issue before the Supreme Court of the United States in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), was whether courts-martial had jurisdiction to try persons belonging to the armed services for criminal acts because of their status alone. Having reversed O’Callahap’s conviction on thg ground *269that status aloné did not invest jurisdiction in a court-martial, did the Supreme Court intend that its ruling would only be applied after the date of its opinion, June 2, 1969, or some other date? O’Callahan was convicted by a court-martial in 1956. His conviction was affirmed by this Court on March 1, 1957 (7 USCMA 800). See also United States v O’Callahan, 16 USCMA 568, 37 CMR 188 (1967). The Supreme Court in O’Callahan did not directly speak of the question of retroactivity. We held cases in this Court pending the O’Callahan decision. Our subsequent decisions in those cases granted a measure of retroactive application. The Supreme Court on February 27, 1970, agreed to hear arguments on whether its O’Callahan holding should be applied retroactively or prospectively only. My brothers have decided to publish their opinion on this question rather than await the action of the Supreme Court. I am therefore compelled to set forth my views. However, in my opinion, this Court should not act until we have a Supreme Court holding. It makes no difference what we decide relative to this constitutional jurisdictional question. It is what the Supreme Court of the United States decides that will control the future cases of this Court, unless we expect to not follow their ruling and therefore create chaos and deny those same constitutional protections to those who have served their country in war and peace to protect the Constitution from its enemies. This cannot be allowed to happen. To not decide this case now is not to shirk our responsibility; it is to follow a proper course and have stability in the law.
In the four short years since the Supreme Court embraced the idea that constitutional decisions in criminal cases need not be retroactively applied,1 the Supreme Court has created an extraordinary collection of rules governing the application of the principle of retroactivity:
1. To be applied to all cases then subject to direct review;2
2. To be applied to all those cases in which trials have not yet commenced;3
3. To be applied to all cases in which the tainted evidence has not yet been introduced;.4
4. To be applied only to the petitioner involved in the ease in which the new rule is announced and all future cases in which the proscribed official conduct has not yet occurred.5
None of these decisions are on the question involved in O’Callahan v Parker, supra, i.e., the jurisdiction of a court over the subject matter involved.
In general, I am opposed to the doctrine enunciated and applied by the Supreme Court in recent years that decisions regarding the application of constitutional protections may be applied prospectively, thereby denying to those convicted in the past the shield of an instrument that has been in existence for almost two hundred years as a limitation on the awesome power of our Government when arrayed against one of its citizens. First, and most importantly, I believe that an appellate court should not apply constitutional protections only to cases decided or tried after a certain date and not to those tried before such date; to do so is to deny equal justice under the law to the defendants involved. As Mr. Justice Douglas pointed out in Desist v United States, 394 US 244, 22 L Ed 2d 248, 89 S Ct 1030 (1969), speaking of Johnson v New Jersey, 384 US 719, 16 L Ed 2d *270882, 86 S Ct 1772 (1966), it was by the merest happenstance that the Supreme Court chose to apply a new interpretation of the Fifth and Sixth Amendments — enunciated in Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966)—to certain criminal cases then pending and not to others, even though some were actually tried after Miranda was tried. The result is that some men went free or won new trials while others continued to languish in prison — and this, despite the fact that each and every such trial was infected with the same error of identical constitutional proportions. For a court much given to pronouncements about reasonable classifications and high standards of criminal justice to deem such either “equal,” “justice,” or “under the law” is, in my view, a violation of due process and unequal protection under the law.
Moreover, the assumption of such a power by judicial officers clothes the court with the mantle of the legislature, giving to it the powers delegated, by the very Constitution which it purports to apply, to a different and coordinate branch of the Government. It should not act as the legislature. Federal judges are appointed, not elected by the people, for the very reason that our Founding Fathers deemed it wise to insulate the judiciary from the clamor of the public in deciding particular cases.
It is obvious that, under the standards laid down in Linkletter v Walker, 381 US 618, 14 L Ed 2d 601, 85 S Ct 1731 (1965), and Stovall v Denno, 388 US 293, 18 L Ed 2d 1199, 87 S Ct 1967 (1967), the Supreme Court has, as stated by Mr. Justice Black in his dissent in Stovall, at page 304:
“. . . legislate [d] a timetable by which the Constitution’s provisions shall become effective. For reasons stated in my dissent in Linkletter v Walker, 381 US 618, 640, 14 L Ed 2d 601, 85 S Ct 1731, 1743, I would hold that the petitioner here and every other person in jail under convictions based on unconstitutional evidence should be given the advantage of today’s newly announced constitutional rules.”
Even the majority in Linkletter acknowledged that it was, therein, establishing a new rule:
“. . . It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. [Footnote citations omitted.] Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, ‘We think the federal constitution has no voice upon the subject.’ [Great Northern R. Co. v Sunburst Oil & Ref. Co., 287 US 358, 364, 77 L Ed 360, 53 S Ct 145 (1932) (referring to State court’s prospective overruling of prior decision).]
“Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” [Ibid., 381 US 628, 629.] [Emphasis supplied.]
I believe that the Supreme Court’s reliance on the out-of-context statement by Justice Cardozo in Great Northern, as quoted above, is seriously misplaced. It was alleged in Great Northern, a suit to recover overcharges on an intrastate shipment of freight, that the refusal of the Supreme Court of Montana to apply its decision retroactively was a denial of due process under the Fourteenth Amendment to the United States Constitution. The Supreme Court of the United States rejected this allegation and said, at 287 US, page 364:
*271“We have no occasion to consider whether this division in time of the effects of a decision is a sound or unsound application of the doctrine of stare decisis as known to the common law. Sound or unsound, there is involved in it no denial of a right protected by the Federal constitution.” [Emphasis supplied.]
Since the decision in Great Northern did not rise to the level of a constitutional rule, it is hardly precedent for the basic premise in Linkletter that the Supreme Court is “neither required to apply, nor prohibited from applying, a decision retrospectively.” Absent the statement in Great Northern, the Supreme Court’s refusal, for the first time, to give a previously convicted defendant the benefit of a new and more expansive Bill of Rights interpretation is, in my view, inexplicable. Cf. Fay v Noia, 372 US 391, 9 L Ed 2d 837, 83 S Ct 822 (1963), and Reck v Pate, 367 US 433, 6 L Ed 2d 948, 81 S Ct 1541 (1961), wherein, on petition of habeas corpus, convictions obtained twenty-one and twenty-five years before, were reversed because each accused had been convicted through the use of coerced confessions. See also Justice Harlan’s discussion of “Retroactivity on Habeas Corpus,” in his separate opinion in Desist v United States, supra.
But even were I to accept the Court’s basic premise in Linkletter, I believe that this case involves more than just a new and more expansive interpretation of the Bill of Rights. Rather, it goes to the very heart of the court-martial process — jurisdiction over the particular offense. Where jurisdiction is lacking, there can be no question of prospective or retrospective application, for when a court-martial proceeds without jurisdiction, its action is null and void. McClaughry v Deming, 186 US 49, 46 L Ed 1049, 22 S Ct 786 (1902). See also Ex parte Siebold, 100 US 371, 25 L Ed 717 (1880).
The accused, in this case, petitioned for relief on the ground that the court-martial was without jurisdiction to try him for the alleged offense under the principles enunciated by the Supreme Court in O’Callahan v Parker, supra, and by this Court in United States v Borys, 18 USCMA 547, 40 CMR 259 (1969). The question before the Supreme Court in O’Callahan was:
“ ‘Does a court-martial, held under the Articles of War, Tit. 10, USC § 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?’ ”
After analyzing the growth of the court-martial procedure in the United States and its own decision that “court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times of both the offense and the trial,”6 the Court stated:
“We have concluded that the crime to be under military jurisdiction must be service connected, lest ‘cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,’ as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers.” [395 US, at page 272.]
Since O’Callahan’s offenses were found not to be “service-connected,” *272the Supreme Court held that the court-martial was without jurisdiction to proceed. See also United States v Borys, supra.
My brothers, in this case, take the position that, “The effect of the O’Callahan decision may be viewed as extending1 to members of the armed forces in some circumstances constitutional rights of grand jury indictment and trial by petit jury.” From this they proceed to demonstrate that the Federal right to indictment or presentment by grand jury does not apply to the States (Hurtado v People of California, 110 US 516, 28 L Ed 232, 4 S Ct 111 (1884); Beck v Washington, 369 US 541, 8 L Ed 2d 98, 82 S Ct 955 (1962)), and that in DeStefano v Woods, 392 US 631, 20 L Ed 2d 1308, 88 S Ct 2093 (1968), the Supreme Court held, in accord with its Linkletter and Stovall opinions, that it would “not reverse state convictions for failure to grant jury trials where trials began prior to May 20, 1968, the date of this Court’s decisions in Duncan v Louisiana [391 US 145, 20 L Ed 2d 491, 88 S Ct 1444 (1968)] and Bloom v Illinois [391 US 194, 20 L Ed 2d 522, 88 S Ct 1477 (1968)].” (Ibid., 392 US, at page 635.)
Rather than being helpful to the majority’s opinion in this case, I believe that DeStefano, and its companion case of Carcerano v Gladden (same citation), serve to disprove their case. DeStefano was convieted of criminal contempt, without a jury, in an Illinois Court and sentenced to serve three concurrent one-year sentences. Carcerano was convicted of armed robbery and sentenced to life imprisonment by a less than unanimous verdict.7' Since both were tried prior to May 20, 1968, their convictions were affirmed by the Supreme Court. O’Callahan, on the other hand, was tried by court-martial (no jury) in 1956. His conviction was reversed by the Supreme Court on June 2, 1969, more than one year after the decision in DeStefano and Carcerano. Had the Supreme Court’s decision in O’Callahan rested exclusively on the denial of his right to indictment -and trial by jury, it would have affirmed, because his trial began some twelve years prior to May 20, 1968. Since it did not, it is obvious that the decision in O’Callahan rested exclusively on the lack of court-martial jurisdiction to try non-service-connected offenses. Even the dissent in O’Callahan speaks excessively of the jurisdictional question involved and makes no reference to the failure to accord servicemen, accused of nonservice-connected offenses, trial by a jury.
Simply stated, I believe that O’Callahan holds that the Congress, in granting court-martial jurisdiction over offenses that are not service-connected and which are committed in areas where the civil courts of the United States are open and functioning, exceeded the power given to it “To make Rules for the Government and Regulation of the land and naval Forces,” as contained in Article I section 8, clause 14, of the Constitution. Since the Congress was without power to grant jurisdiction in these circumstances, trial by court-martial was null and void. O’Callahan v Parker; United States v Borys; McClaughry v Deming, all supra.
Military jurisdiction is purely statutory. It depends for its existence upon an enactment of the Congress. O’Callahan v Parker, supra, is a construction of the current enactment in the Uniform Code of Military Justice and is designed so to view the Act as to make it conform with th'1 Constitution of the United States b? interpreting it to apply only to service connected crimes. It is the duty of an appellate court so to construe an enactment of the Legislature if such may be done. United States v Jacoby 11 USCMA 428, 29 CMR 244 (1960): Crowell v Benson, 285 US 22, 76 L Ed 598, 52 S Ct 285 (1932).
*273As'such, how is it possible for this Court rationally to state that the Code should be so construed as to the future bur not as to its past? When we deal with an Act of Congress, it must be applied and construed in the same manner from the date of its enactment. Surely, it should not be said that it is to be construed in one manner to a certain date but, following that date, it is to be accorded a different and more limited application. Yet, that is the precise result which obtains here and for the reason, I believe, that my brothers do not fully and correctly interpret the O’Callahan decision.
Thus, the cases which they cite refer to applications of new rules of procedure and evidence which obtain as the result of a different interpretation of constitutional limitations. The Supreme Court freely admits that, in such instances, it is applying these rules prospectively, but in not one such ease was interpretation of an Act of Congress in order to accord with the Constitution involved. Cf. United States v Jacoby, supra. For this reason, even if I were to believe that the matter was not jurisdictional and to accept the doctrine of prospective application wholeheartedly, I cannot agree that O’Callahan, supra, enunciates a proposition which should be so applied.
Moreover, I differ with my brothers on their contention that this is an instance in which a wholly new concept of jurisdiction has been introduced. As O’Callahan itself indicates, the practice which its rationale requires is one which obtained in Great Britain prior to the Revolution and in this country until 1916. Indeed, the idea of a broad military jurisdiction was not conceived until the Uniform Code was enacted. Moreover, as the Supreme Court itself has heretofore pointed out, military jurisdiction should be narrowly delimited. As long ago as Toth v Quarles, 350 US 11, 100 L Ed 8, 76 S Ct 1 (1955), the Court remarked, at page 22:
“. . . Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. . . .
“Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to ‘the least possible poiver adequate to the end proposed.’ ”
And, in Lee v Madigan, 358 US 228, 3 L Ed 2d 260, 79 S Ct 276 (1959), the Supreme Court granted certiorari on the same constitutional issue as was eventually decided in O’Callahan, supra. While it resolved the issue by determining that Lee was tried in time of peace for murder when the Articles of War authorized trial. of such a charge only in time of war, the coming of O’Callahan was clearly prophesied, if one had the ears to hear and the eyes to read. Indeed, at least one young officer foresaw precisely the situation with which we are now faced, and authored a scholarly law review article in which he predicted the return of military jurisdiction over offenses to its former limits. See Duke and Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vanderbilt Law Review 435 (1960).
Finally, I believe any comparison between the benefits and detriments of the military and civilian systems to which an accused may or may not be subjected as a result of our application of the O’Callahan construction of the Code is irrelevant to our decision here. We are concerned; not with an individual’s particular rights in a trial, but with the power of the court-martial to judge him. O’Callahan, supra, teaches clearly that such power is lacking and that the purported application of the Uniform Code to the contrary is erroneous. Accordingly, it is clear that we should grant relief to any accused who was convicted of an “offense” over which the armed services had no jurisdictio.n,.
*274As the principal opinion reaches a contrary result, I record my disagreement therewith. I would grant the petition, set aside the findings and sentence, and order the charge dismissed.
Linkletter v Walker, 381 US 618, 14 L Ed 2d 601, 85 S Ct 1731 (1965).
Tehan v Shott, 382 US 406, 15 L Ed 2d 453, 86 S Ct 459 (1966).
Johnson v New Jersey, 384 US 719, 16 L Ed 2d 882, 86 S Ct 1772 (1966).
Fuller v Alaska, 393 US 80, 21 L Ed 2d 212, 89 S Ct 61 (1968).
DeStefano v Woods, 392 US 631, 20 L Ed 2d 1308, 88 S Ct 2093 (1968).
"Toth v Quarles, 350 US 11, 100 L Ed 8, 76 S Ct 1 (1955). . . . McElroy v Guagliardo, 361 US 281, 4 L Ed 2d 282, 80 S Ct 305 (1960); Grisham v Hagan, 361 US 278, 4 L Ed 2d 279, 80 S Ct 310 (1960); . . . Kinsella v Singleton, 361 US 234, 4 L Ed 2d 268, 80 S Ct 297 (1960); Reid v Covert, 354 US 1, 1 L Ed 2d 1148, 77 S Ct 1222 (1957)." [395 US, at page 267]
The Oregon Constitution, Article I, section 11, permits a jury to convict in noncapital cases if ten of twelve jurors support conviction.