Appellant was charged with willful destruction of government property after he had cut 29 communication cables on board USS HUNLEY (AS-31), a violation of Article 108, Uniform Code of Military Justice *870(UCMJ), 10 U.S.C. § 908. Appellant pled guilty by exception and substitution to negligent destruction of government property. A general court-martial composed of officer members found appellant guilty as charged and sentenced him to confinement at hard labor for 1 year, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence adjudged. Appellant assigns three errors for our consideration. The first of these errors has merit. The remaining issues are moot.
At the initial Article 39(a), 10 U.S.C. § 839(a) session, appellant moved to dismiss the charges for lack of personal jurisdiction. Appellant alleged that previous use of marijuana, an extensive record of juvenile adjudications, expulsion from high school, and a pending criminal charge, all known to the recruiter, rendered his enlistment void. After extensive personal testimony by appellant, the recruiter, and appellant’s mother, as well as documentary exhibits submitted for consideration, the military judge denied appellant’s motion.
The following day, appellant renewed his motion to dismiss. Supplemental documentary evidence was received and reflected that during his enlistment appellant had a pending criminal charge for possession of marijuana. An accompanying stipulation of testimony by the custodian of public records unequivocally established that this information would be known to the recruiter. The military judge then granted appellant’s motion to dismiss.
Sometime later, the ease was reconvened pursuant to an order from the convening authority to reconsider the dismissal in light of the recent, 9 November 1979, amendment to Article 2, UCMJ, 10 U.S.C. § 802. See Article 62, UCMJ, 10 U.S.C. § 862. Upon reconsideration, apparently on the basis of the retroactive application of Article 2, UCMJ, the trial judge found that the court did have personal jurisdiction.
Appellant now alleges that a recent decision of this Court renders the military judge’s reconsideration improper. We agree.
Retroactive application of the amendment to Article 2, UCMJ, violates the prohibition against ex post facto laws. United States v. Marsh, 11 M.J. 698 (N.M.C.M.R.1981) (en banc). Consequently, the military judge’s reconsideration and ruling based upon the retroactive application of Article 2 is erroneous. Since the reconsideration did not involve any issue of fact and was based solely on the erroneous application of Article 2, the military judges’ original findings and ruling which granted appellant’s motion to dismiss must control, subject to appellate review.
Since the resolution of the motion to dismiss for lack of personal jurisdiction does not, in this instance, involve adjudication of an ultimate question of guilt or innocence, the ruling is interlocutory. Paragraphs 57b and 68b, Manual for Courts-Martial, 1969 (Rev.) (MCM); United States v. Laws, 11 M.J. 475 (C.M.A.1981); United States v. Bailey, 6 M.J. 965 (N.C.M.R.1979). The decision should be reviewed on the test of abuse of discretion, as is true of all interlocutory matters. United States v. Buckingham, 9 M.J. 514 (A.F.C.M.R.1980); 5A CJS Appeal and Error § 1643 (1958). The sufficiency of facts to support an interlocutory ruling may be challenged. United States v. Polas, 20 UCMA 104, 42 CMR 296 (1970); United States v. Knudson, 4 USCMA 587, 16 CMR 161 (1954).
The legal standard we apply for analysis of recruiter misconduct, vis-a-vis valid enlistment, has changed since the trial judge ruled.1 Evolution of this doctrine does not, however, affect the final resolution rendered by the military judge. The Russo doctrine2, as presently construed, does not apply to recruiter misconduct involving waivable regulatory defects in an *871accused’s enlistment. Failure to follow prescribed requirements for obtaining a waiver will not void an enlistment as a basis for court-martial jurisdiction as long as the defect is merely a waivable regulatory defect. United States v. Stone, 8 M.J. 140 (C.M.A.1979); United States v. Gennosa, 11 M.J. 764 (N.M.C.M.R.1981). Appellant’s use of marijuana, expulsion from high school, and previous criminal record are all waivable regulatory defects under the regulations applicable at the time of his enlistment. COMNAV CRUITCOMIN ST 1130.8A. A pending criminal charge is not, however, a waivable defect. COMNAVCRUITCOMINST 1130.8A, page 2-II — 22. Since sufficient evidence exists on the record to support a conclusion that the recruiter knew of a pending criminal charge at the time appellant was enlisted, we cannot say that the military judge abused his discretion by granting appellant’s motion to dismiss.
Accordingly, the findings of guilty and sentence are set aside and the charge is dismissed. All rights and privileges which may have been denied appellant as a result of the sentence are hereby restored.
Judge BOHLEN concurs.. Defense counsel relied heavily upon United States v. Robbins, 7 M.J. 618 (N.C.M.R.1978), which has been summarily reversed, 9 M.J. 12 (C.M.A.1980).
. United States v. Russo, 1 M.J. 134 (C.M.A.1975).