(dissenting):
I dissent.
By the simple expedient of avoiding a decision on the effect of the Government’s action in failing to follow its own regulation and placing upon the shoulders of an untutored accused the responsibility of demanding his rights thereunder, my brothers affirm the conviction in this case. I cannot agree with their decision. Rules of law and rules of procedure are too important to the administration of criminal law.
The Government is indicted by its own chronology of events, a copy of which the majority have appended to their opinion. The most pertinent entry appears on January 14th, the date on which the accused was normally to be released from active duty. However, three days previously, an administrative hold was placed on the accused (later renewed to extend to June 30, September 30, and December 30) following discontinuance of an interview of the accused by agents of the Office of Special Investigations when Hout requested counsel.
On January 14, 1968, the accused was “absolutely entitled to separation from active duty” (Air Force Manual 39-10, August 22, 1966, chapter 3, section A, paragraph 3-1, amended by change 4, May 21, 1969), since none of the conditions for involuntary retention of a serviceman beyond the date of the expiration of his term of service (Air Force Manual, supra, paragraph 3-3) applied in his case. He was not released because of the administrative hold. While he may have been suspected of an offense, he had not been arrested, confined, or restricted to the base, nor had court-martial charges been preferred against him. Paragraph lid, Manuals for Courts-Martial, United States, 1951, and 1969 (Revised edition). He was not absent without leave on the date of the expiration of his enlistment (United States v Klunk, 3 USCMA 92, 11 CMR 92 (1953)), nor had his enlistment been extended by law so as to reschedule his date of expiration (United States v Downs, 3 USCMA 90, 11 CMR 90 (1953)). Cf. United States v Hamm, 36 CMR 656 (1966). Only an administrative hold, to insure that he would not be discharged, had been placed in his file. At trial, the Government contended “that was action with a view to trial” and, as such, was sufficient to retain military jurisdiction over the accused. The defense argued to the contrary. *3041 agree that this was simply not enough. As the Chief Judge stated in his dissent in United States v Rubenstein, 7 USCMA 523, 22 CMR 313 (1957), at page 534:
“. . . In my view, the interrogation of the accused and the direction given to him by an investigating agent to report did not constitute such formal proceedings as contemplated either by the civilian rule or the military enlargement of that rule. What the investigating agent could do is one thing. What he actually did is another.”
I thoroughly agree with the majority’s holding in this case that “When no good cause exists to retain him beyond expiration of the enlistment, the serviceman may demand his release, and the Government is bound to grant it.”
We deal here with the question of military jurisdiction over the person of the accuséd, which, as we said in United States v Overton, 9 USCMA 684, 688, 26 CMR 464 (1958), quoting from United States v Garcia, 5 USCMA 88, 17 CMR 88 (1954), “is ‘not a matter lightly to be presumed, and must be shown clearly.’ ”
As my brothers read the record in this case, they decide that “there is no evidence that the accused desired discharge immediately after the expiration of his enlistment.” His purported failure to specifically notify the convening authority that he was being detained against his will, until September 30th when charges were preferred, is viewed as being contrary to the evidence and not supported by the chronology of events. The filing of charges on that date, they contend, changed the accused’s status since it vested in the Government a lawful right to retain the accused in service.
I must demur from their concept of what the record reflects. It is obvious that the accused was under investigation and that the administrative action taken to retain him in the service related to that investigation. Rather than placidly accepting, without question, his unwarranted retention in the service, the accused, early in July, requested the appointment of military counsel to advise him. According to a stipulation entered by trial counsel, the staff judge advocate, on July 10th, informed the accused that “Ms request was premature but that he would be given an opportunity to resubmit the request at the time charges were preferred.” (Emphasis supplied.) As for the leave granted the accused from February 20th to March 21st, it was not without its limitation. Contrary to regular procedure, the request for leave had to be approved by the base legal officer. The latter granted the leave but instructed the accused that he was to leave word at the orderly room where he could be contacted. The orderly room sergeant testified that, in view of the investigation then underway and since the accused had no telephone, he instructed him to call in every two or three days to learn whether he was needed on the base. This was one of the conditions on which the leave was granted. Considering the accused’s duty, the sergeant agreed that this condition was unusual. The sergeant in charge of the base legal office testified that on four or five occasions the accused called him to check on his status with reference to trial. Insofar as the accused’s acceptance of pay and allowance for quarters during this period having any significance, I am impelled to ask what else he could have done? The only apparent alternative would seem to have been to refuse these emoluments and to deprive himself and his family of food and shelter. He could not secure a civilian position as he was required to report daily for duty at the base. Even there, he was removed from his military position in the finance office and required to perform with work details, some of which, on occasion, included sentenced prisoners.
As I read the record, it reflects graphically that the accused, unaware that he could have demanded his discharge, reluctantly obeyed the orders of his superiors within the military establishment and accepted their word that he was not entitled to his discharge or to legal military assistance until charges were preferred. The action of the Gov*305ernment in retaining the accused on duty, by the simple act of not handing him his discharge papers, was without lawful authority and contrary to regulations. By the Government’s inaction, the accused was deprived of that freedom of movement and choice, constitutionally guaranteed to one in civilian status, to which he was fully and legitimately entitled at the time his enlistment expired. It matters little, in the context of this ease, that he was not confined or restricted to the base. The realities of military life are such that had he not reported for duty the day after his termination date, he could undoubtedly have been considered as in violation of the appropriate provision of the Code. His return to civilian life was as conclusively barred as it would have been had he been placed in jail.
The point that should not be lost sight of in this case is that the accused was unlawfully retained in the service and deprived of his right to return to his role of private citizen by the action of the Government. The Government may not act illegally, and if it does so, it may not profit from its illegal action. Silverthorne Lumber Co. v United States, 251 US 385, 64 L Ed 319, 40 S Ct 182 (1920). As Mr. Justice Bran-déis stated in his separate opinion in Olmstead v United States, 277 US 438, 484, 72 L Ed 944, 959, 48 S Ct 564 (1928) :
“. . . The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. [Extensive citations omitted.]”
In my opinion, this accused was effectively deprived of his liberty to again become a civilian without due process of law, as guaranteed by the Fifth Amendment to the Constitution, by the Government’s failure to discharge him and by its ordering him to duty following his date of separation. Constitutional protections are designed so that governmental action, though in good faith, does not infringe upon the constitutional rights of the individual. When we free the Government from that restraint by taking the position, as do my brothers, that the accused did not demand his release until too late, we, in my opinion, unconstitutionally broaden invasions of the military accused’s freedom. With this, I cannot agree.
Since I believe that the Government acted illegally in retaining the accused in service, I would hold that it thereby lost its right to subsequently exercise court-martial jurisdiction over him. I would reverse the decision of the board of review and order the charges dismissed.
APPENDIX
CHRONOLOGY
Date
10 January 1968
Comparison of Military Pay Records (AF Forms 470) against Military Payroll Money List (DD Form 115) in McCoy AFB Finance Office reveals erroneous payments of 31 August 1967 (Hazlett), 29 September 1967 (Burroughs), 31 October 1967 (Wilson), 31 October 1967 (Hazlett), and 30 November 1967 (Fulton).
10 January 1968
Investigation begins; Hazlett confesses; Wilson confesses orally; Burroughs confesses; Fulton confesses; Young confesses.
11 January 1968
Cole interviewed by OSI.
11 January 1968
Hout interviewed by OSI; Hout requests counsel and arranges to be re-interviewed 12 January 1968 when accompanied by his civilian lawyer.
*306Date
11 January 1968
BJA requests that Hout be placed on administrative hold. BPMRS extends Hout beyond normal DOS, Code E, DOA 14 April 1968. Later extended to 30 June, 30 September, and 30 December 1968, consecutively.
12 January 1968
Hout interviewed by OSI; Hout’s civilian attorney advises OSI Hout will answer no questions until he consults a lawyer familiar with military procedures.
12 January 1968
Comparison of Military Pay Record (AF Form 470) against Military Payroll Money List (DD Form 115) in McCoy AFB Finance Office reveals erroneous payment of 15 December 1967 to Cassels.
14 January 1968
Sgt Hout’s normal date to be released from active duty.
15 January 1968
Cassels confesses.
25 January 1968
OSI issues report re Hazlett.
26 January 1968
OSI telephones Hout, requesting interview; Hout advises OSI he has not had opportunity to consult counsel ; and would notify them.
7-8 February 1968
Audit conducted on all active Military Pay Records at McCoy AFB.
8 February 1968
OSI issues pending report re Cole.
9 February 1968
OSI telephones Hout, requesting interview; Hout informs OSI at that time that upon advice of counsel he will answer no questions.
14 February 1968
OSI issues pending Report of Investigation re Hout.
23 February 1968
OSI issues pending Report of Investigation re Hout.
20 February 1968— 21 March 1968
Hout on leave.
1 March 1968
OSI issues closed report re Cole, Burroughs, and Wilson.
5 March 1968
OSI issues pending report re Hazlett.
8 March 1968
Charges preferred against Young.
15 March 1968
Article 32 investigation re Young forwarded to convening authority.
15 March 1968
OSI issues pending Report of Investigation re Hout.
22 March 1968
OSI issues pending Report of Investigation re Hout.
25 March 1968
Charges against Young referred to trial.
1 April 1968
Charges preferred against Cassels.
3 April 1968
Cassels Article 32 investigation forwarded to convening authority.
5 April 1968
OSI issues pending Report of Investigation re Bout,
8 April 1968
OSI issues closed report re Hazlett.
*307Date
8 April 1968
Hout interviewed by OSI; while inquiring about procedures used to grant immunity, Hout implies that at least $12,000 had been misappropriated; that an officer assigned to Base Finance shared in the erroneous payments, and that a Lt. Colonel was receiving erroneous payments.
9 April 1968
Hout re-interviewed by OSI. Hout informs OSI that his lawyer has advised him to make no statement at this time concerning irregularities at McCoy AFB Finance Office.
9 April 1968
Young trial.
12 April 1968
Charges against Cassels referred to trial.
12 April 1968
Hout and his civilian lawyer meet with McCoy AFB Staff Judge Advocate; civilian lawyer will advise SJA if Hout will make a statement.
16-17 April 1968
Audit conducted on Military Pay Beeords of all Lt. Colonels assigned to McCoy AFB, Orlando AFB, and Homestead AFB.
17 April 1968
Charges preferred against Burroughs.
17 April 1968
OSI issues pending Report of Investigation re Hout.
19 April 1968
Charges preferred against Fulton.
22 April 1968
Article 32 Investigation re Burroughs forwarded to convening authority.
25 April 1968
Hout’s civilian attorney advises McCoy AFB Staff Judge Advocate that he will consider advising Hout to make a statement after the Article 32 investigation.
30 April 1968
Cassels’ trial.
2 May 1968
OSI issues pending Report of Investigation re Hout.
2 May 1968
Article 32 investigating officer appointed to investigate charges against Fulton.
3 May 1968
Charges preferred against Wilson.
9 May 1968
Article 32 investigation re Wilson convenes.
9 May 1968
Article 32 investigating officer’s report re Fulton completed and typed.
10 May 1968
Charges against Burroughs referred to trial.
15 May 1968
OSI issues pending Report of Investigation re Hout.
24 May 1968
Burroughs’ trial.
24 May 1968
Article 32 investigating officer’s report re Fulton signed and forwarded to convening authority.
27 May 1968
Article 32 investigation re Wilson forwarded to convening authority.
31 May 1968
Charges against Wilson referred to trial.
31 May 1968
Charges against Fulton referred to trial.
10 June 1968
The Judge Advocate General determines not to forward Young case to Board of Review pursuant to Article 69, UCMJ.
*308Date
20 June 1968
Wilson trial.
21 June 1968
Fulton trial.
21 June 1968
OSI issues pending Report of Investigation re Hout.
10 July 1968
Hout requests one of four named military lawyers be made available as his counsel.
11 July 1968
The Judge Advocate General determines not to forward Cassels case to Board of Review pursuant to Article 69, UCMJ.
16 July 1968
Charges preferred against Cole.
17 July 1968
Article 32 investigation into charges against Cole convened; Fulton refuses to testify.
18 July 1968
Charges preferred against Hazlett.
19 July 1968
Article 32 investigation re Hazlett convenes.
31 July 1968
OSI issues pending Report of Investigation re Hout.
2 August 1968
Article 32 investigation re Hazlett forwarded to convening authority.
6 August 1968
The Judge Advocate General determines not to forward Fulton case to Board of Review pursuant to Article 69, UCMJ.
5-12 August 1968
Fulton on emergency leave.
7 August 1968
Charges against Hazlett referred to trial.
■9 August 1968
The Judge Advocate General determines not to forward Burroughs ease to Board of Review pursuant to Article 69, UCMJ.
13 August 1968
Article 32 investigation re Cole reopens to take Fulton’s testimony.
14 August 1968
Article 32 investigation re Cole forwarded to convening authority.
20 August 1968
The Judge Advocate General determines not to forward Wilson case to Board of Review pursuant to Article 69, UCMJ.
20 August 1968
Hazlett trial.
20 August 1968
Charges against Cole referred to trial.
19 September 1968
Cole trial.
30 September 1968
Charges preferred against Sgt Jack R. Hout.
30 September 1968
Article 32 investigation re Hout convened and recessed. Sgt Hout wrote to convening authority requesting one of four named individual defense counsel be made available. In this letter, he alleged he had been “detained in the USAF . . . against . . . [his] will since 13 January 1968.”
3 October 1968
Article 32 investigation re Hout reconvenes; Sgt Hout appeals determination that four counsel requested on 30 September 1968 are not available; investigation recesses.
11 October 1968
Article 32 investigation re Hout reconvenes.
*309Date
14 October 1968
Article 32 investigation re Hout reconvenes.
24 October 1968
OSI issues closed report re Hout.
29 October 1968
Article 32 investigation re Sgt Hout forwarded to convening authority.
13 November 1968
Charges against Sgt Hout referred to trial.
22 November 1968
Defense Counsel requests delay of Hout trial until approximately 10 December 1968.
2 December 1968
Sgt Hout requests Major James Smith be made available as individual defense counsel.
5 December 1968
Charges served on Sgt Hout.
11 December 1968
Hout trial.