(concurring in the result):
I concur in the result reached by Judge Murray but for a different reason. Contrary to his conclusion, I consider that the military judge, in denying appellant’s motion to dismiss for lack of personal jurisdiction, applied the correct standard as to the government’s burden of proof.
Appellant challenged the jurisdiction of the court-martial over his person. The government and the appellant presented ev*964idence which is not in dispute as to the fact that there was a fraudulent enlistment of appellant. Disputed, however, by diametrically opposite testimony of the appellant and the recruiting gunnery sergeant, is whether there was complicity in the unauthorized recruitment by an agent of the government, the recruiter. The disposition of the motion thus hinged on a resolution by the military judge of the disputed testimony of appellant and the recruiter on the question of whether the recruiter engaged in prohibited activities in recruiting appellant.
In the principal opinion, Judge Murray, citing his prior opinion in United States v. Nichols, No. 75 2021 (N.C.M.R. 20 January 1975), a ease in which Judge Glasgow wrote a separate concurring opinion and in which I concurred only in the result, opined that the military judge applied an improper standard in resolving the factual' issue. The military judge in ruling on the motion stated, “I find that the government has carried its burden of the preponderance of the evidence which is the standard I have to apply on the issue. . . . ” (R. 64). Judge Murray would elevate the standard used by the military judge to proof beyond a reasonable doubt. My reading of Paragraph 57b, Manual for Courts-Martial 1969 (Revised edition) convinces me that such is not required and that the military judge applied the correct standard. “A question is interlocutory unless the ruling on it would finally decide the case on its merits.” Id. The example in the Manual is instructive in the case at bar. There it was said, “For example, if during a trial for desertion the accused makes a motion to dismiss for lack of jurisdiction and presents evidence . . .his status as a military person reaches the ultimate question of guilt or innocence . . . . If, on the other hand, the accused was charged with larceny and presented the same evidence as to his military status, the evidence would bear only upon his amenability to trial and the issue would be disposed of solely as an interlocutory question.” Id. Such describes the situation with which we are here faced. Paragraph 57g(l), MCM 1969 (Rev.) provides that the motion ruling, after inquiry into the pertinent facts on an interlocutory question, is “. . . determined by a preponderance of the evidence.” Since amenability to trial in the instant case presented an interlocutory question, the standard used by the military judge was correct.
Despite my belief that the military judge used the correct standard in ruling on the motion, I conclude that his ruling on the motion to dismiss is patently and irreconcilably incompatible with his finding of not guilty to the charge of a fraudulent enlistment. The case on the merits of the fraudulent enlistment charge included by stipulation the testimony previously given on the motion to dismiss, documents originally marked as appellate exhibits during the motion inquiry and remarked as prosecution exhibits and an additional stipulation of fact that appellant had received pay and allowances from the United States Marine Corps. Even allowing for the different standards of proof applicable to the interlocutory motion as distinguished from the case on the merits, it is inescapable that the evidence establishes a fraudulent enlistment. Appellant, both on the motion and on the merits, admitted his enlistment was effected fraudulently. His motion for dismissal for lack of personal jurisdiction, which was denied, was predicated solely on recruiter participation in the fraud which would have rendered his enlistment void. United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975).
To find personal jurisdiction, collusion by the recruiter in the admitted fraudulent enlistment was necessarily excluded by the military judge. On the merits, however, a conclusion by the military judge that the recruiter participated in the fraudulent enlistment furnished the only basis for a finding of not guilty where the fraudulent enlistment was likewise conceded. A finding of not guilty as to the fraudulent enlistment charge is inconsistent with the military judge’s ruling denying appellant’s motion to dismiss for lack of personal jurisdiction. Under these circumstances, I concur *965with Judge Murray’s conclusion that there was a failure of jurisdiction, requiring the setting aside of the findings and sentence and dismissal of the Charge.