(dissenting):
I dissent.
In this petition, as in Mercer v Dillon, 19 USCMA 264, 41 CMR 264 (1970), the question now before us revolves about the prospective or retrospective application of the Supreme Court’s decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), that a court-martial is without jurisdiction to proceed unless the charged offense is “service-connected.” The majority of this Court have denied the accused’s petition for extraordinary relief, in accordance with their holding in Mercer that the principle of the O’Callahan opinion applies only to those cases still subject to review by this Court on the date of the O’Callahan opinion.
I have no alternative but to record my disagreement with their holding in this case for the same reasons as set forth in my dissent in Mercer v Dillon, supra.
Since I believe that the court-martial lacked jurisdiction over the charged offenses (O’Callahan v Parker, supra; United States v Borys, 18 USCMA 547, 40 CMR 259 (1969)), I would grant the petition, set aside the findings and sentence, and order the charges dismissed.