dissenting:
I conclude that the petitioner has met the requirements of Section 2513, Title 28, United States Code, and therefore that the Certificate of Innocence should be issued to him.
The primary reason for the diverse conclusions in this case is the fundamental disagreement as to the underlying basis for the decision of this Court in setting aside the petitioner’s conviction. As I read the opinion of the Court, the ratio decidendi was not a failure of the Government to establish the guilt of the petitioner beyond a reasonable doubt, but rather a finding of the Court as a matter of law that the order in question was illegal. The Court found that “there was no basis in fact for the Commanding General’s conclusion that the second application was substantially the same as the initial application. . . .” United States v. Forrest, 44 C.M.R. 692, 694 *874(A.C.M.R.1971). It follows from that conclusion, although not articulated by the Court, that the order given to the petitioner to board the vehicle was illegal as contrary to pertinent Army Regulations.* This conclusion, to me, is inescapable as the Court held that the military judge at the trial should have granted the petitioner’s motion to dismiss. United States v. Forrest, supra. The petitioner at trial moved to dismiss the charges on the ground of an illegal order.
With this factual background, I will examine the three criteria of the statute. The first criterion is that the conviction must have been reversed or set aside on the ground that the petitioner was not guilty. I agree with the majority, but obviously for different reasons, that the conviction was set aside because of a finding that the petitioner was not guilty. An accused is not guilty of violating an order if the order is illegal.
The second criterion is that the petitioner either did not commit any of the acts charged or his acts or omissions in connection with the charge did not amount to an offense. This prerequisite is complementary to the first. That is to say, the petitioner has to establish that he is not guilty of the offense charged either because he did not commit the acts or because the acts that he committed or omitted did not constitute an offense. The reversal of the petitioner’s conviction must be based on innocence and not on a procedural deficiency such as the running of the statute of limitations (Cratty v. United States, 83 F.Supp. 897 (S.D. Ohio 1949)), improper use of privileged testimony (United States v. Brunner, 200 F.2d 276 (6th Cir. 1952)), or lack of jurisdiction (Osborn v. United States, 322 F.2d 835 (5th Cir. 1963)). I agree with the majority that the reversal may not be based on a failure of proof. See Osborn v. United States, supra. However, as already noted, I con-elude that the petitioner’s conviction was set aside not for a failure of proof or for a procedural deficiency but because of an illegal order.
I am convinced that the petitioner has met the second criterion. Admittedly he failed to perform certain acts. But these omissions did not amount to an offense. Failure to board a vehicle is not criminal if the person so ordered had no duty to do so. The petitioner had no such duty in this case because, as found by this Court, the order was illegal. The petitioner’s conduct, therefore, did not amount to an offense within the meaning of Section 2513, Title 28.
The third criterion is that the petitioner must not have brought about his prosecution by his own misconduct. Again, I do not concur with the conclusion of the majority that the petitioner has not met this standard. I agree that the actions which provoked the prosecution need not amount to a crime. Weiss v. United States, 95 F.Supp. 176 (S.D.N.Y.1951). But they certainly must amount to misconduct. The petitioner’s actions or omissions directly related to the offense charged did not constitute misconduct, in view of the illegal order. Nor did the petitioner commit any other acts which could be considered misconduct leading to prosecution such as suppression of evidence or subornation of perjury. See United States v. Keegan, 71 F.Supp. 623, 638 (S.D.N.Y.1947). Accordingly, I would hold that the petitioner has met this criterion.
As the petitioner has met all of the requirements of the statute, he should be issued the Certificate of Innocence.
If the second application was not substantially the same as the first, it would have to be acted on at the installation level and forwarded to Headquarters, Department of the Army, for final consideration. Pending these actions, the petitioner would have to be retained in his unit and assigned only those duties providing the minimum conflict with his beliefs. See paragraphs 4, 5 and 6, Army Regulation 635-20, 21 January 1970. The order for the petitioner to board a vehicle to transport him to the Overseas Replacement Station (and, one may presume, for further transportation to Vietnam) was patently illegal as it would move him from his unit and was in conflict with his beliefs. See United States v. Stewart, 20 U.S.C.M.A. 272, 276, 43 C.M.R. 112, 116 (1971), at footnote 1.