(concurring in the result):
I concur with Senior Judge Murray that the government has not met its burden in this instance to establish court-martial jurisdiction over this appellant; however, I disagree with his view that this burden requires proof beyond a reasonable doubt. Rather, I concur with the rationale expressed by Chief Judge Cedarburg in United States v. Barefield, 1 M.J. 962 (N.C.M.R. 1976), and by Judge Glasgow in United States v. Bobkoskie, 1 M.J. 1083 (N.C.M. *1161R.1977), that the jurisdictional question in this type of situation is an interlocutory one and that such question is to be determined by a preponderance of the evidence. See paragraphs 57b and 57g(l), M.C.M., 1969 (Rev.).
Although I believe the military judge applied the correct standard in this case, I cannot agree with his conclusion. The testimony of appellant concerning the circumstances surrounding his enlistment, buttressed as it is by that of MM3 Waltz and Mr. Nielson, militates against our finding the government evidence sufficient to rebut the allegation of recruiter misconduct. I have no doubt that the motives of Chief Olson with respect to appellant were altruistic; however, that does not help us in finding court-martial jurisdiction over appellant.
Like Senior Judge Murray, I am “reluctant to permit a miscreant an escape from answering for his crimes,” but I see no other lawful alternative.