(concurring in the result):
To me, the essence of United States v. Catlow, 23 U.S.C.M.A. 142, 48 C.M.R. 758 *264(1974), is whether statutory and regulatory provisions prohibited the accused’s enlistment, not whether the accused himself desired to be enlisted. Here, as in Catiow, the accused contends that his enlistment is void because he was, under the laws pertaining to enlistment, ineligible to join the Navy. A Navy regulation precludes enlistment of a person “who has been placed on probation or given a suspended sentence, contingent on his enlistment”; a waiver of that disability was not authorized.
The record indicates that before his enlistment, the accused had been charged with burglary in a state court in Idaho. On March 24, the court issued an order dismissing “all proceedings.” The order of dismissal, however, contained a provision that it was to be null and void if the accused failed to enter the armed services by May 1. The accused entered the Navy on April 28. In my opinion, the effect of the order was to free the accused from any charge, and he was not on probation or under a suspended sentence within the meaning of the Navy regulation. True, the charge of burglary could be reinstated, but that circumstance did not alter his status as a person not subject to any criminal charge. His situation was analogous to that of one against whom an indictment had been obtained, and later the indictment was dismissed without prejudice; as long as no new indictment is returned, the individual is indeed not an accused. I am satisfied, therefore, that the accused here was qualified for enlistment.
Even if the allegation that the recruiter violated the enlistment regulation by processing accused’s application during the time he was in a probationary status on the state burglary charge were true, the Court of Military Review found, and the record indicates, that the directive “was neither received by the recruiter nor even effective when the appellant was enlisted.” Accordingly, I join in affirmance of the decision of the Court of Military Review.