(concurring in the result):
I concur in the result reached by Senior Judge Gregory in this case. When the charge sheet on which an accused is tried shows on its face that the statute of limitations has run against the offense charged there and there is no indication that the accused is aware of his right to plead the statute of limitations in bar of trial, the military judge must advise the accused of his right to plead the statute. United States v. Rodgers, 8 U.S.C.M.A. 226, 24 C.M.R. 36 (1957). This is true even though there is another charge sheet showing that the statute was tolled by the receipt of sworn charges before it had run.1 Id.; United States v. Arsneault, 6 M.J. 182 (C.M. A.1979).
I agree with the Government that the hybrid charge sheet upon which the accused was tried in this case constitutes but one charge sheet. United States v. Brown, 1 M.J. 1151 (N.C.M.R.1977). This charge sheet shows, however, that the statute of limitations had run against the offense upon which the accused was tried, an unauthorized absence commencing on 27 May 1978. This charge was not received by the officer exercising summary court-martial jurisdiction until 11 July 1980, the date it was referred to a special court-martial. The statute of limitations was not tolled against this charge by receipt on 6 July 1979 of another charge alleging an unauthorized absence commencing on 27 May 1979. Therefore, the military judge was required to advise the accused of his right to plead the statute of limitations. His failure to do so is reversible error.
. In his dissenting opinion in United States v. Rodgers, supra, Judge Latimer characterized this rule as a classic example of elevating form over substance. If the issue arises in a proper case, I urge the Court of Military Appeals to reconsider its Rodgers and Arsneault decisions.