(concurring):
The majority affirm dismissal of the charges by the Court of Military Review on the basis of this Court’s decision in United States v. Russo, 1 M.J. 134 (C.M.A.1975). I agree that the circumstances of the present case require dismissal under the doctrine of Russo; however, as I am now convinced that the public policy considerations inherent in Russo have not been served by its doctrine, I would not apply it in future cases.
In Russo, the accused alleged that the court-martial which tried him lacked jurisdiction because a recruiter had improperly assisted him in answering the questions to an Armed Forces Qualifications Test to assure his eligibility for enlistment. The Government argued that In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890), required rejection of the accused’s argument. In Grimley, the Supreme Court held that an accused who exceeded the statutory maximum age for enlistment could not assert such disqualification as a bar to trial by court-martial. We rejected the government’s argument with the following comment:
Because fraudulent enlistments are not in the public interest, we believe that common law contract principles appropriately dictate that where recruiter misconduct amounts to a violation of the fraudulent enlistment statute, as was the situation here, the resulting enlistment is void as contrary to public policy. Hence the change of status alluded to in Grimley never occurred in this case.
United States v. Russo, supra at 137 (footnotes omitted). Accord, United States v. Little, 1 M.J. 476 (C.M.A.1976); United States v. Muniz, 1 M.J. 151 (C.M.A.1975); United States v. Burden, 1 M.J. 89 (C.M.A.1975).
The Court has likewise refused to apply the Grimley doctrine in cases where the accused was given an alternative of enlisting in the military in lieu of civilian criminal proceedings contrary to service regulations, and the recruiter participated in the process. United States v. Catlow, 23 U.S.C.M.A. 142, 48 C.M.R. 758 (1974); accord, United States v. Barrett, 1 M.J. 74 (C.M.A.1975). In Catlow, the Court distinguished Grimley on the basis that the accused was coerced into the enlistment. 23 U.S.C.M.A. at 145, 48 C.M.R. at 761.
In Grimley, the Supreme Court observed that the age limitation was for the benefit of the Government and it has been submitted that the doctrine should not be applied where the criterion is for the benefit of both the accused and the Government. Initially, I note that the Supreme Court observed the following as to the matter:
On the other hand, suppose for any reason it could be contended that the proviso as to age was for the benefit of the party enlisting, is Grimley in any better position? The matter of age is merely incidental, and not of the substance of the contract. And can a party by false repre*106sentations as to such incidental matter obtain a contract, and thereafter disown and repudiate its obligations on the simple ground that the fact in reference to this incidental matter was contrary to his representations? May he utter a falsehood to acquire a contract, and plead the truth to avoid it, when the matter in respect to which the falsehood is stated is for his benefit? It must be noted here that in the present contract is involved no matter of duress, imposition, ignorance or intoxication. Grimley was sober, and of his own volition went to the recruiting office and enlisted. There was no compulsion, no solicitation, no misrepresentation. A man of mature years, he entered freely into the contract.
Id., 137 U.S. at 151, 11 S.Ct. at 54. This comment suggests to me that the question as to whose benefit the qualification was imposed was not a determinative factor in Grimley. This conclusion is reenforced by the Court’s further comment regarding the concept of status, as follows:
But in this transaction something more is involved than the making of a contract, whose breach exposes to an action for damages. Enlistment is a contract, but it is one of those contracts which changes the status, and where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence imposes.
Id. at 151, 11 S.Ct. at 55. Thus, it is apparent that while the Supreme Court discussed contract concepts in Grimley, it did not limit the question of court-martial jurisdiction to the validity of an enlistment contract. Rather, commenting on the nature of military status, the High Court observed:
These are matters which do not inhere in the substance of the contract, do not prevent a change of status, do not render the new relations assumed absolutely void; and in the case of a soldier, these considerations become of vast public importance.
Id. at 153, 11 S.Ct. at 55.
Accordingly, as I interpret Grimley, the question of whether a court-martial properly exercised jurisdiction over an accused is not dependent upon a strict application of contract law, but whether the enlistment process was sufficient to change his status from civilian to military. Grimley clearly holds that a disqualification for enlistment does not necessarily preclude a change in status.
Thus, the Court in United States v. Lightfoot, 4 M.J. 262 (C.M.A.1978), rejected an argument that the alternative between military service or civilian criminal proceedings was, by itself, sufficient to defeat military service. Rather, the Court noted that a failure to comply with statutes and regulations did not, as a matter of public policy, preclude the exercise of court-martial jurisdiction. Id. at 263 n. 3, citing Grimley. As the recruiter in this case was unaware that civilian charges had been dismissed contingent on the accused’s enlistment, the Court upheld the exercise of military jurisdiction.1 Thus, the decisive factor was recruiter misconduct, rather than statutory or regulatory disqualifications.
A majority of the Court in United States v. Wagner, 5 M.J. 461 (C.M.A.1978), upheld the exercise of court-martial jurisdiction where the accused was disqualified for enlistment under a nonwaivable regulatory requirement.2 The majority observed the following in affirming the conviction:
Moreover, public policy considerations inherent in the maintenance of a disciplined and effective military to protect society at large dictate against construing such a regulatory disqualification as inherent in the substance of the contract and requiring automatic voiding of the enlistment contract without some action of the appellant prior to the commission of the offense. In re Morrissey, 137 U.S. 157, 11 *107S.Ct. 57, 34 L.Ed. 644 (1890). Finally, since no matter of duress, imposition, ignorance or intoxication is involved in this enlistment, we find it extremely unreasonable to allow the appellant, like Grimley, to conceal his incidental disqualification at the time of the enlistment, and then assert it at a later date in bar of court-martial. In re Grimley, supra. We are of course aware that the services are required to strictly comply with their regulations, and the unknown violation of a regulation, if asserted in a timely manner, may require them to void the contract and release the recruit so disabled. See United States v. Russo, supra.
Id. at 468. Accord, United States v. Valadez, 5 M.J. 470 (C.M.A.1978). See United States v. Harrison, 5 M.J. 476 (C.M.A.1978).
Accordingly, the doctrine of Russo is not required by the principles of law discussed in Grimiey, but is a doctrine imposed by this Court to enforce the public policy against fraudulent enlistments where a recruiter participates in the deception. I concurred in Russo as I was convinced that this public policy could be adequately enforced by the limitation imposed on court-martial jurisdiction. However, experience with the court-imposed sanction of Russo against recruiter misconduct convinces me that public policy has not been served by the doctrine. As Russo, itself, recognizes, there are other means available to enforce this public policy. Id. at 137 n. 8, citing Article 84, Uniform Code of Military Justice, 10 U.S.C. § 884. Additionally, Russo imposes no sanction upon the recruiter himself. Rather, it permits an accused to escape criminal responsibility for acts committed within the military when he also participates in the deception of the military authorities as to his ineligibility for enlistment. As this case demonstrates, the Russo sanction is not dependent upon the mental incapacity of the accused or factors constituting coercion.
Article 67(g), UCMJ, 10 U.S.C. § 867(g), obligates the Judges of this Court, in conjunction with the Judge Advocates General, to report annually to Congress on “the operation” of the Code. To discharge that responsibility, the Judges, from time to time, visit military installations to learn at first hand the operation of the law in the field. My own observations have led me to conclude that some of the services are experiencing great difficulty in complying with this Court’s pronouncement of policy in Russo. There is difficulty in locating the recruiter when an accused raises an issue of recruiter misconduct during a court-martial proceeding because the issue is raised several years after the enlistment of the accused. Often, the accused is unable to remember the name of the recruiter and even if he is located, the recruiter’s memory of the enlistment is limited. Consequently, an accused can avoid a court-martial by simply raising an issue of recruiter misconduct under circumstances where the Government cannot rebut the claim with positive evidence. See United States v. Washington, 7 M.J. 78 (C.M.A.1979), which demonstrates other complications created by the Russo sanction. My observations have recently been confirmed by testimony by the Army Chief of Staff and other senior officials before the Subcommittee on Manpower and Personnel, Senate Armed Services Committee. Plainly, the Russo doctrine has been used to destroy the public policy it was designed to promote. As the public policy considerations perceived in Russo have been perverted, not promoted, by its sanction, I believe the rule it imposed must be abandoned.
. I concurred in the result in United States v. Lightfoot, 4 M.J. 262, 263 (C.M.A.1978), on the basis that the appellant was not disqualified from enlistment.
. I concurred on the basis that there was no violation of the regulation in question. United States v. Wagner, 5 M.J. 461, 469 (C.M.A.1978).