(dissenting):
I dissent.
Article 44(a), Uniform Code of Military Justice, 10 USC § 844, provides:
“. . . No person may, without his consent, be tried a second time for the same offense.”
See also Fifth Amendment, Constitution of the United States, and my separate opinion and that of Chief Judge Quinn in United States v Ivory, 9 USCMA 516, 522, 523, 26 CMR 296 (1958). Since that is what occurred in this case, the accused’s conviction was constitutionally and statutorily impermissible, must be reversed, and the charge and its specification dismissed. United States v Stringer, 5 USCMA 122, 17 CMR 122 (1954); United States v Jorn, 400 US 470, 27 L Ed 2d 543, 91 S Ct 547 (1971). Cf. 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). As this Court stated in United States v Waldron, 15 USCMA 628, 630, 36 CMR 126 (1966):
“Under the Fifth Amendment to the Constitution of the United States and the Uniform Code of Military Justice, no person may be twice put in jeopardy for the same offense. Consequently, if an accused is brought to trial before a court-martial and the proceedings are terminated after jeopardy attaches, but without legal justification, the accused is protected against another trial for the same offenses. Downum v United States, 372 US 734, 742, 10 L Ed 2d 100, 83 S Ct 1033 (1963); United States v Schilling, 7 USCMA 482, 22 CMR 272 [1957]. ... A second trial does not violate the constitutional protection, if the first trial ended by reason of the proper grant of a mistrial; conversely, if the mistrial was improperly granted, a motion to dismiss is appropriate if the accused is again brought to trial on the same charges. United States v Stringer, 5 USCMA 122, 17 CMR 122 [1954]; United States v Richard, 7 USCMA 46, 21 CMR 172 [1956].”
Subsection (b) of Article 44, Code, supra,1 does not delimit the intendment of subsection (a), for the former only “expresses a qualification of the rule of jeopardy in the case of an appeal *60from a conviction.’’ (Emphasis supplied.) United States v Wells, 9 USCMA 509, 512, 26 CMR 289 (1958). This was the intention of the Congress as is apparent from the discussion of this Article by the drafters of the Code. See Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 1047-1052; Hearings before Senate Armed Services Committee on S. 857 and H. R. 4080, 81st Congress, 1st Session, pages 321-325. Compare House Report No. 491, 81st Congress, 1st Session, page 23, with Senate Report No. 486, 81st Congress, 1st Session, pages 19-20.
We deal in this case with a second trial, over the objection of counsel, occasioned by the fact that following findings of guilty in a trial by judge alone, and prior to the imposition of sentence, the military judge declared a mistrial based on his belief that the accused had been inadequately represented by counsel. In his defense to a charge of desertion (Article 85, Code, supra, 10 USC § 885), the accused related that he was married. However, a DA Form 20 (Enlisted Qualification Record), introduced by the Government, reflected his marital status as single. When the military judge called this to counsel’s attention, a recess was granted. Thereafter, trial and defense counsel entered into a stipulation that the accused was in fact married and the father of two children; that he had started a Class Q allotment in 1967; and that the marriage had been verified by the finance office at Fort Knox. In addition, defense counsel produced a letter from the accused’s wife indicating that the marriage was still in effect. In short, the entry in the DA Form prepared and maintained by the Government was erroneous. Despite this evidence, the military judge took the position that defense counsel had placed his client in a position “where perjury could be shown against him,” by allowing him to testify in contravention of the entry in the DA Form without first informing the accused that the instrument could be used to impeach his credibility.2 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. The case was returned to the convening authority and a new court was appointed to try the accused.
Trial by court-martial, unlike the civilian procedure, includes the imposition of sentence by the tribunal appointed to hear the case. See generally Articles 18-20, Code, supra, 10 USC §§ 818-820. In United States v Jorn, supra, the Supreme Court stated:
“. . . [W] here the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his ‘valued right to have his trial completed by a particular tribunal.’ See Wade v Hunter, 336 US 684, 689, 93 L Ed 974, 978, 69 S Ct 834 (1949).” [400 US, at page 484.]
Jorn was charged with helping to prepare fraudulent income tax returns. The allegedly fraudulent returns were introduced into evidence by an Internal Revenue Service agent. When the first of the witnesses-taxpayers, whom the defendant allegedly aided in the preparation of their returns, was called, defense counsel suggested these witnesses be warned of their constitutional right not to say anything that might be used in a subsequent criminal prosecution against them. The judge gave the warning as requested. The first witness expressed a willingness to testify and stated that he had been warned of his constitutional rights when the Internal Revenue Service first contacted him. The trial judge indicated, however, that he did not believe the witness had been given any warning at the time he was first contacted and refused to permit him to testify until he had consulted an attorney. He then asked the prosecuting attorney if his remaining witnesses were similarly situated and received an affirmative *61reply. The judge, expressing the view that any warnings that might have been given were probably inadequate, proceeded to discharge the jury. He then called all the taxpayers into court and informed them of their constitutional rights and of the considerable danger of unwittingly making damaging admissions in these factual circumstances. Finally, he aborted the trial so the witnesses could consult with attorneys. The ease was set for retrial before another jury, but on a pretrial motion by the defendant, the judge dismissed the information on the ground of former jeopardy.
On direct appeal by the Government, the Supreme Court affirmed the action of the trial judge. In so doing, it said:
“• • • [W]e must conclude that the trial judge here abused his discretion in discharging the jury. Despite assurances by both the first witness and the prosecuting attorney that the five taxpayers involved in the litigation had all been warned of their constitutional rights, the judge refused to permit them to testify, first expressing his disbelief that they were warned at all, and then expressing his views that any warnings that might have been given would be inadequate. Appendix 41-42. In probing the assumed inadequacy of the warnings that might have been given, the prosecutor was asked if he really intended to try a case for willfully aiding in the preparation of fraudulent returns on a theory that would not incriminate the taxpayers. When the prosecutor started to answer that he intended to do just that, the judge cut him off in midstream and immediately discharged the jury. Appendix 42-43. It is apparent from the record that no consideration was given to the possibility of a trial continuance; indeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so. When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial. United States v Perez, 22 US (9 Wheat) 579, 580, 6 L Ed 165, 166 (1824). Therefore, we must conclude that in the circumstances of this case, appellee’s reprosecution would violate the double jeopardy provision of the Fifth Amendment.”
In my opinion, the precipitate action of the military judge in declaring a mistrial in this case precluded the retrial of this accused. United States v Jorn, supra. The accused obviously had not committed perjury by testifying as to his marriage and there was no evidence of inadequate representation by defense counsel. The military judge simply refused to accept the stipulation of counsel and the letter from the accused’s wife as evidence that the official record was in error. Ironically, the official record, DA Form 20, was not even admissible in evidence (United States v Montgomery, 20 USCMA 35, 42 CMR 227 (1970)), a fact recognized by the Court of Military Review. Since a mistrial was improperly declared, the defense counsel’s motion to dismiss on the ground of double jeopardy should have been granted. United States v Waldron, supra.
I would reverse the decision of the Court of Military Review and order the Charge and its specification dismissed.
“ (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.”
Defense counsel, upon questioning by the judge, admitted that he had not noticed the error in the Form.