Opinion
DARDEN, Chief Judge:Having been convicted of desertion by a general court-martial consisting of a military judge alone, the appellant now contends that his sentence should be set aside and the charge dismissed because a previous general court-martial had placed him in jeopardy for the same offense. The question to be decided therefore is whether these trial proceedings violate either Article 44, Uniform Code of Military Justice, 10 USC § 844, or the constitutional guarantee of the Fifth Amendment that no person “be twice put in jeopardy of life or limb” for the same offense.
On December 11, 1969, a general court-martial consisting of a military judge alone convened to consider a charge and specification alleging the appellant’s desertion from his unit at Fort Lewis, Washington, for the period beginning June 15, 1968, and ending with his apprehension on August 27, 1969. Richardson entered a plea of not guilty.
The Government’s case consisted of morning report extracts showing the inception and termination of the unauthorized absence and an extract record of previous convictions offered as evidence bearing upon Richardson’s intent. Judicial notice was taken of the distance between Fort Lewis and Chicago and also of the various service installations in the Chicago area.
Richardson testified in reply that he had returned to his home in Chicago, that he was married and had three small children, that he was the sole support of his family and his grandmother, and that family financial problems caused him to secure a civilian job. According to Richardson, before he could return to military control as he intended, he was taken into custody *56by Federal authorities. Nonetheless, the accused was found guilty as charged.
After findings, prosecution placed in evidence Prosecution Exhibit 6, the appellant’s enlisted qualification record (DA Form 20) ,1 Subsequently, the military judge interrupted defense counsel’s argument on sentence and pointed out to him that the qualification record showed Richardson as having been single without dependents at the time of his enlistment. This information contradicted Richardson’s earlier testimony that at the time of enlistment he had a wife and two children, with a third expected. A further discrepancy between Richardson’s testimony and the above record concerning the various installations at which the appellant served also became apparent.
Following a recess, opposing counsel entered a stipulation to the effect that appellant had started a Class Q allotment in 1967, that the allotment had been verified by the finance office at Fort Knox, Kentucky, and that appellant did have a wife and two children at that time. In addition, Defense Exhibit B is a letter from the appellant’s wife indicating the marriage was still in effect. Defense counsel also explained away the apparent inconsistency about the military installations where appellant had served.
Questions by the military judge then disclosed that while defense counsel had looked at the appellant’s enlisted qualification record before trial he had not discussed the document with his client. Richardson had not been told that this instrument could be used to impeach his credibility if he testified. In light of this acknowledgment, the military judge decided that the appellant was inadequately represented and had been placed in a position “where perjury could be shown against him.” Feeling that perjury would play a part in his sentence considerations, “consciously or otherwise,” the military judge withdrew the finding of guilty and declared a mistrial.
On January 16, 1970, a second general court-martial, again without a jury, convened to try the appellant on the same charge of desertion. Defense immediately moved for dismissal, with double jeopardy as one ground. Portions of the prior trial outlined above were offered in support. Further, the original military judge was called as a court witness. In the following colloquy he explained his decision:
“A. Well, in my case I felt that since counsel had admitted that he had not prepared the accused with regard to something that I considered vital that although I could have declared a mistrial on sentence alone, in my discretion I thought the ends of justice would be better served by a total mistrial. I will admit I could have, and I think it would have been legal for me to have done so, to have declared a mistrial on sentence, for sentence purposes alone, and if I had reached findings of guilty only of a lesser included offense, for example, I probably would have done so.
“Q. And was one of the reasons why you declared said mistrial and removed the findings of the court because of any misgivings on your part as to your decision on the findings?
“A. None whatsoever. As a matter of fact, the material which came out subsequently would have definitely reinforced my decision. But I had no misgivings whatsoever on my findings. I granted a mistrial in findings as well as sentence out of a feeling that since I did not think that defense counsel had prepared the case as fully and as properly as he should have, the accused was entitled to a total new day in court.”
When called as a witness, trial counsel advised the court that he had met the military judge on leaving the court building on the afternoon of December 11, 1969.' The judge then stated that *57“he could not in his own mind try the case because he would have been sentencing the man for perjury.”
At the end of this inquiry the judge at the second proceeding ruled against the motion to dismiss. He found that the mistrial was not declared to save the Government’s case and that the original military judge was not improperly motivated, since he thought himself unable to sentence with an open mind. After the trial on the merits the Government prevailed as it had before.
Before reaching the application of the double jeopardy clause of the Fifth Amendment we note the existence of comparable statutory protection to a member of the armed forces under Article 44, Code, supra, 10 USC § 844. After providing that an accused may not be tried a second time for an offense without his permission, this Article continues with this definition:
“(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.”
The reason for such a limitation is obvious. In the military justice system an accused is entitled to an automatic review procedure without his initiating an appeal or a petition. Since successful appeal of a conviction is a waiver of the double jeopardy provision of the Fifth Amendment, Congress provided that regardless of any post-trial action by the accused, the setting aside of a conviction does not bar retrial. See House Report No. 491, 81st Congress, 1st Session, page 23; Senate Report No. 486, 81st Congress, 1st Session, pages 19-20.
Since Richardson’s finding of guilty in the first trial never became final, Article 44(b) disposes of the. contention that a second trial subjected him to double jeopardy, unless the double jeopardy provision of the Fifth Amendment extends to members of the armed forces broader protection than that con - tained in Article 44. Another way of stating this is that Article 44(b) is dispositive unless it constitutes an unconstitutional limitation on the protections against former jeopardy that a member of the armed forces would have by direct application of the Fifth Amendment.
In civilian jurisdictions, jeopardy under the Fifth Amendment normally attaches in a trial by judge alone when the judge be-gins to hear evidence. Newman v United States, 410 F2d 259 (CA DC Cir) (1969), certiorari denied, 396 US 868, 24 L Ed 2d 121, 90 S Ct 132 (1969). That the double jeopardy provision of the Fifth Amendment may be invoked at a court-martial proceeding apparently was settled by Wade v Hunter, 336 US 684, 93 L Ed 974, 69 S Ct 834 (1949), rehearing denied, 337 US 921, 93 L Ed 1730, 69 S Ct 1152 (1949). Earlier the United States Court of Appeals for the Fifth Circuit had expressly so held. Sanford v Robbins, 115 F2d 435 (CA 5th Cir) (1940), certiorari denied, 312 US 697, 85 L Ed 1132, 61 S Ct 737 (1941).
Neither this Court nor a court established under Article III of the Constitution has held that Article 44(b) is an unconstitutional limitation on the protections against former jeopardy that a member of the armed forces would have by direct application of the Fifth Amendment. Individual judges of this Court have separately expressed the view that the Fifth Amendment is somewhat broader than Article 44(b). United States v Ivory, 9 USCMA 516, 522, 523, 26 CMR 296 (1958), separate opinions.
Assuming arguendo that the Fifth Amendment double jeopardy provision is broader than Article 44(b), we turn to the most recent Supreme Court holding on the subject. In United States v Jorn, 400 US 470, 27 L Ed 2d 543, 91 S Ct 547 (1971), the trial judge without a request by defense counsel declared a mistrial because he was unsure if prosecution witnesses knew their testimony might subject them to prosecution. A plurality of the Supreme Court held *58that the judge abused his discretion. The Court phrased the basic question as being “in what circumstances retrial is to be precluded when the initial proceedings are aborted prior to verdict without the defendant’s consent.” Id., at page 480. (Emphasis supplied.)
The court rejected a suggestion that under Gori v United States, 367 US 364, 6 L Ed 2d 901, 81 S Ct 1523 (1961), a retrial was permissible because in declaring a mistrial the judge had acted in the sole interest of the defendant. The plurality opinion in Jorn mentioned the embarrassment of a second trial and the inconvenience of the unnecessary delay it entailed. But these excerpts from the opinion seem to emphasize that an improperly declared mistrial denied the accused the opportunity of ending the first trial with an acquittal.
“. . . For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal.
“. . . [T]he trial judge must still take care to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.
“. . . Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” [United States v Jorn, supra, at pages 484, 486.]
In the case before us a finding of guilty had been entered. Thus no question exists about denying the appellant the opportunity of a favorable determination by the first tribunal. If the Fifth Amendment provisions on double jeopardy are broader than those of Article 44, the result in Jorn does not dictate a reversal in the case before us. In declaring a mistrial, the military judge appears to have been motivated at least in part by the desirable objective of assuring effective assistance of counsel. Despite our recognition of such a motive we believe the judge acted precipitately in declaring a mistrial as to the findings, particularly when the inconsistencies between the exhibits and the testimony that caused the military judge to suspect defense counsel’s competence were explainable and were explained on the record before the judge declared a mistrial. Since Article 44 (b) provides that what occurred here is not a bar to retrial and since the finding of guilty that was overturned negates any contention the appellant lost an opportunity to be acquitted by the first court to try him, we are unable to find any sound basis for declaring that the error of judgment was prejudicial.
The decision of the Court of Military Review is affirmed.
As the Court of Military Review noted, use of personnel records in the sentencing stage of trial of offenses committed prior to August 1, 1969, is improper. United States v Montgomery, 20 USCMA 35, 42 CMR 227 (1970). That court reassessed the sentence because of the error.