(dissenting):
I dissent. I would treat the petition here as a petition for a writ of habeas corpus and would remand the ease to the appropriate authorities for a determination and finding of the relevant facts, after which I would reach a decision with respect to the justiciability of the petitioner’s claim that the court-martial was without jurisdiction to convict him. In my view, we have authority under 28 U.S.C. § 2255 to entertain the petition. Moreover, I believe we have a duty to remove the consequences of conviction entered by a court-martial shown to have been without jurisdiction over the accused. Noyd v. Bond, 395 U.S. 683, 89 S.Ct. *4301876, 23 L.Ed.2d 631 (1969); Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).
Indeed, this Court has jurisdiction to accord relief to an accused who demonstrates that he has been denied constitutional rights by a court-martial. United States v. Bevilaqua, 18 U.S.C.M.A. 10, 39 C.M.R. 10 (1968). See United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1968); McPhail v. United States, 1 M.J. 457 (C.M.A.1976).
Judge Matthew J. Perry took final action in this case prior to his resignation as a judge of this Court pursuant to his appointment and confirmation as a United States District Judge for the District of South Carolina.