dissenting:
I dissent.
Appellant was convicted, contrary to his pleas, of one specification of unlawful entry and of one specification of attempted larceny.1 These crimes are violative of Articles 108 and 80, Uniform Code of Military Justice (10 U.S.C. §§ 908 and 880) respectively.
The principal thrust by appellant in his appeal is that the Government, because of its failure to comply with its own regulation, is estopped from asserting jurisdiction over him. I agree.
Appellant was confined on the same day as the commission of the acts for which he was convicted, i. e,, 18 November 1975, and he continued in that status until trial. Charges were preferred on 28 November 1975. The appellant’s ETS was 27 December 1975.2 The Article 32 investigation was completed on 29 December 1975. The case was referred to a general court-martial on 7 January 1976 and trial commenced on the 16th of that same month.
Article 2, UCMJ, reads in applicable part: “The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces including those awaiting discharge after expiration of their terms of enlistment; . . . .”
While a regular soldier is, by the terms of this article, subject to the Uniform Code while awaiting accomplishment of his discharge, we must look elsewhere for the authority to retain him beyond the expira*668tion of his term of service (ETS).3 In this case the Government relies upon paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition), for such power. That provision reads as follows:
“d. Effect of termination of term of service. Jurisdiction having attached by commencement of action with a view to trial — as by apprehension, arrest, confinement, or filing of charges — continues for all purposes of trial, sentence, and punishment. If action is initiated with a view to trial4 because of an offense committed by an individual before his official discharge — even though the term of enlistment may have expired — he may be retained in the service for trial to be held after his period of service would otherwise have expired. Similarly, if jurisdiction has attached by the commencement of action before the effective terminal date of self-executing orders, a person may be held for trial by court-martial beyond that terminal date. See also Article 2(1).” (Emphasis supplied and footnote added).5
Were the problem involved in this case for resolution solely controlled by this paragraph, I think there would be near unanimity of opinion that the Government acted lawfully.
The crux of the problem in this case, however, is to be found in Army Regulation 635 — 200 which regulates the separation of enlisted personnel. Paragraph 2-2d, of that regulation reads:
“Subject to the provisions of section V of this chapter, an individual enlisted, inducted, or ordered to active duty normally6 will be discharged or released from active duty on the date upon which he completes the period for which enlisted, inducted or ordered to active duty.” (Footnote added).
Section V, referred to in the last quoted paragraph, contains paragraph 2-15 which is applicable to our problem. It reads:
“When retained in service awaiting trial or results of trial. When an individual is retained in service as prescribed in paragraph 2 — 4, the effective date of his discharge or release from active duty depends upon the result of his trial or the disposition made of his case.”
Looking at paragraph 2-4, as we are instructed to do by paragraph 2-15, in order to learn how to avoid the mandate of paragraph 2-2d that an individual be discharged on the anniversary of his ETS, we find paragraph 2-4a, which reads:
“A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has *669been apprehended, arrested, confined, or otherwise restricted by appropriate authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his term of service without the personal approval of the general court-martial convening authority concerned.”
It is obvious from the similarity of language that this regulatory provision was intended to implement the Manual provision found at paragraph lid, supra. Where the Manual language is general and indefinite, the regulatory terminology is specific. The regulation not only clearly describes and limits the circumstances under which a member may be retained beyond his ETS for the purpose of trial,7 but it is also explicit as to who can authorize such a retention.8 I will concur, however, with those who observe that this provision is not as precise as it could have been in denominating when the general court-martial convening authority or his designee must make the decision to retain an individual. It appears to me that a fair and unstrained interpretation of the plain language of the regulation leads to the single conclusion that that decision must occur prior to the individual’s ETS. Any interpretation that would permit the general court-martial authority or his designee to make a post-retehtion decision (a ratification) to retain an individual flies in the face of the wording of the regulation. Such an interpretation of necessity would permit the retention of art individual, for whatever period, beyond his ETS on someone elses authority, i. e., someone other than the two individuals selected by the Secretary of the Army. I cannot subscribe to such an explication that would sanction so flagrant a contravention of the regulation.
Opponents of my literal interpretation counter by conjuring up the hypothetical situation in which a soldier, moments before his ETS, commits an offense in violation of the UCMJ and the gerteral court-martial convening authority or his designee is not readily available to authorize the culprit’s retention beyond his ETS for trial. Thus, presumably the individual goes unpunished for his delict. My response to that is, if the hypothetical depicts a realistic problem of some proportion, the Government can simply remove the regulatory fetter and return the law to the state where a soldier’s retention beyond his ETS was permissible without the prior approval of the general court-martial authority or his designee.9 This solution I believe is preferable to distending the plain words of the regulation to mean that approval to retain a member beyond his ETS may be obtained after the retention has already occurred.10
*670Having decided that the Government had a regulatory requirement to take certain steps in order to retain appellant beyond his ETS for trial11 and further having found that the Government failed to comply with that requirement,12 what is the appropriate remedy?
To say that no remedy is required because there has been no prejudice to this appellant is unacceptable. That is especially so when the determination of no prejudice is premised upon a speculative guess that the convening authority would have referred this case to trial even if he had been requested to do so prior to appellant’s ETS and had known that the appellant was about to reach his ETS. I do not believe I have that power of divination.13 Convening authorities are not poured from the same mold. Each one can be depended upon to be unpredictable on occasion. I simply do not believe we can or should predicate a decision of this magnitude on so tenuous an assumption.14
To permit the Government to go to trial in this case in spite of the fact that it ignored its own regulation is to bring the rule that the Government must abide by its own regulations15 to nought. Such a result would permit the Government to do with impunity that which it forbids its own soldiers to do under Article 92(1), UCMJ, i. e., disobey a regulation. Such a result is, under our legal system concept, intolerable. In my view the Government is estopped, by its failure to comply with this salient regulatory provision, “. . . to contend that the appellant remained subject to court-martial jurisdiction.”16
*671I would set aside the findings and the sentence and dismiss the charges.
Judges DRIBBEN and DeFORD concur.. As appellant was acquitted of stealing the property alleged in the original specification, and found guilty of other property not originally charged, under the ratio decidendi of United States v. Nedeau, 7 U.S.C.M.A. 718, 23 C.M.R. 182 (1957), and United States v. Guy, 8 U.S.C.M.A. 66, 23 C.M.R. 290 (1957), I believe that the findings, as they relate to the Article 80, UCMJ, offense, should be set aside. A reassessment of the sentence would then be in order. I would accomplish this were I not for disposing of the entire case in a more comprehensive manner.
. Although there is some confusion as to the accuracy of this date, the acceptance of any of the other suggested dates would not alter my conclusion.
. “Military jurisdiction has two aspects. First, the accused must be subject to military law at the time of the commission of the offense and at the time of trial. Secondly, the offense must be committed at a time when the accused is amenable to the Uniform Code.” United States v. Schuering, 16 U.S.C.M.A. 324, 327, 36 C.M.R. 480, 483 (1966). (Emphasis supplied).
. Some cases interpreting what is an action with a view to trial are United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970); United States v. Schuering, supra; United States v. Rubenstein, 7 U.S.C.M.A. 523, 22 C.M.R. 313 (1957); United States v. Sippel, 4 U.S.C.M.A. 50, 15 C.M.R. 50 (1954); United States v. Calley, 46 C.M.R. 1131 (A.C.M.R.1973); United States v. Entrekin, 42 C.M.R. 530 (A.C.M.R. 1970); United States v. Maurer, 23 C.M.R. 503 (1957); United States v. Mansberger, 20 C.M.R. 449 (A.B.R.1955).
. Whether this paragraph is a proper exercise of the President’s powers under Article 36, UCMJ (see United States v. Heard, 3 M.J. 14, n. 12 (1977); United States v. Ware, 24 U.S.C.M.A. 102, 51 C.M.R. 275, 1 M.J. 282, n. 10 (1976), does not detain me as I am of the opinion that the regulation in question, to be discussed anon, is within the Secretary of the Army’s statutory power to promulgate. See footnote 7, infra.
. While I am aware of the presence of the qualifier “normally” I view it as an example of normal legalistic precaution, and not as an additional condition in the regulation permitting non-compliance with the other specific provisions of the regulation. Consequently, I construe this paragraph to say that a soldier will be separated on his ETS date unless his retention is permitted by Section V.
. To those who say that the Secretary of the Army is without authority to issue such a regulation, I suggest they consult 10 U.S.C. § 3012(g) and 5 U.S.C. § 301. Because I find the regulation to be complementary of and not in conflict with the statute, I find it is legal. United States v. Seay, 24 U.S.C.M.A. 7, 51 C.M.R. 57, 1 M.J. 201 (1975). Query: If regulations which have the effect of constructing statutorily bestowed jurisdiction are of no force and effect, what was the point in the United States v. Dunks, 24 U.S.C.M.A. 71, 51 C.M.R. 200, 1 M.J. 254 (1975), decision? Also see Taylor v. Resor, 19 U.S.C.M.A. 405, 42 C.M.R. 7 (1970); United States v. Walker, 47 C.M.R. 288 (A.C.M.R.1973).
. If it were not intended that the cited individuals actually undertake such authorizations, it would have been simple enough for the sentence to have been written without enumerating them. See the change to the regulation referred to in the next footnote.
. I note that the Secretary of the Army has recently done precisely this. The first sentence of paragraph 2-4a, AR 635-200, has been rewritten to read similar to paragraph lid, MCM, 1969 (Rev.). See, Criminal Law Section, The Army Lawyer (Feb. 1977).
. In all events the depicted hypothetical bears no resemblance to what occurred in this case. Forty days elapsed from the date appellant was placed in pretrial confinement until his ETS. This was ample time to obtain the requisite approval for retention, but no one did. Almost two weeks passed, after appellant’s ETS before the general court-martial convening authority referred this case to trial. Appellant was in pretrial confinement during this entire period. Assuming, arguendo, that a post-ETS act by the GCM authority or his designee complies with the terms of the regulation if done within a reasonable time, I don’t consider the act by the GCM authority in this case to have been within such a reasonable time. In this connec*670tion, we note that on page 26-27, record of trial, during the defense counsel’s motion on this issue, the following colloquy:
“IC: Let the record reflect that the defense counsel is offering to the judge, Appellate Exhibit IV Your Honor, that is a xerox copy of the paragraph of the Army Regulation in question. Your Honor, that regulation points out that a member may be retained beyond the expiration of term of service, by a general court-martial convening authority or his designee when certain conditions exist. We’ve discussed the matter with trial counsel. We believe the trial counsel’s willing to stipulate that the accused’s ETS date has passed; It was subsequent to his ETS date before charges were referred for trial; Charges had been preferred before the ETS date; and that no action was taken by either the general court-martial convening authority or his designee regarding the accused’s retention beyond his ETS date.
TC: Government so stipulates, your Honor.”
Additionally, I cannot concur with the conclusion that, because the first page of the charge sheet attached to the advice contained the date of the appellant’s enlistment and the length of that enlistment, the convening authority must have known the date of appellant’s ETS. Computation of an ETS by merely adding the period of enlistment to the entry date is notoriously risky, principally because of the operation of 10 U.S.C. § 972. The case sub judice is one in point. See footnote 2, Senior Judge Jones’ opinion. Thus, I find it highly dubious that the convening authority was even vaguely aware of appellant’s ETS when he referred the case to trial — assuming such knowledge at that point in time is relevant to the resolution of the instant case.
. I am aware that the decisions in United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970), and in United States v. Downs, 3 U.S.C.M.A. 90, 11 C.M.R. 90 (1953), appear to create a waiver theory in cases in which personnel are held beyond their ETS without compliance with paragraph lid, MCM, 1969 (Rev.), when such personnel fail to object to their retention. However, I refuse to convert a failure of an incarcerated serviceman to demand his separation into a consensual or voluntary acquiescence in his retention, and therefore find that theory inapplicable in this case.
. That the Government must comply with its own regulations is beyond cavil at this point. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); United States v. Dunks, supra; United States v. Burden, 23 U.S.C.M.A. 510, 50 C.M.R. 649, 1 M.J. 89 (1975); United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975).
. United States v. Greenwalt, 6 U.S.C.M.A. 569, 20 C.M.R. 285 (1955).
. In any event such doubts are to be resolved in favor of the appellant, United States v. Boatner, 20 U.S.C.M.A. 376, 43 C.M.R. 216 (1971).
. See footnote 12, supra.
. United States v. Simpson, 51 C.M.R. 218, 221, 1 M.J. 608, 612 (A.C.M.R.1975).