(concurring in the result):
In the present case, the majority affirms the decision of the Court of Military Review setting aside the findings of guilty of two specifications. I agree with this action and also vote to affirm the decision of the Court of Military Review. I do not agree with the prospective jurisdictional rule established in this case for the reasons stated below.
At the outset, I would note that this case does not embrace constitutional problems similar to those encountered by the Supreme Court in United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). Nevertheless, it does raise an important question concerning the statutory jurisdiction of courts-martial as authorized by the Uniform Code of Military Justice. See United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621 (1949); Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887). In addressing this question, the majority overrules an earlier decision of this Court in United States v. Ginyard, 16 U.S.C.M.A. 512, 37 C.M.R. 132 (1967). In so doing, I believe that it rewrites Article 2, Uniform Code of Military Justice, 10 U.S.C. § 802 and partially abrogates Article 3(a), UCMJ, 10 U.S.C. § 803(a). In my opinion, such legislative activity is the responsibility of Congress. See U.S.Const., Art. I, § 8, cl. 14.
The majority first asserts that the Supreme Court’s Hirshberg decision is not applicable to the accused’s situation of an early discharge and reenlistment prior to the expiration of the term of the original enlistment. It points out that “Hirshberg had been ‘granted an honorable discharge because of expiration of his prior enlistment’ ” and he was reenlisted one day later. 13 M.J. 308,314.
Such a factual distinction does exist. Yet, the conclusion drawn by the majority ignores the broader principle of interpretation of jurisdictional statutes espoused in the case. In Hirshberg, the Supreme Court expressly rejected the Government’s argument that Article 8 of the Articles for the Government of the Navy and its words “in the Navy” should be interpreted to include a person who reenlisted after discharge but not include a person who did not reenlist after discharge. Such a distinction was considered “whimsical and uncertain.” 336 U.S. at 213, 69 S.Ct. at 532. The Supreme Court stated: “Jurisdiction to punish rarely, if ever, rests upon such illogical and fortuitous contingencies.” Id. at 214, 69 S.Ct. at 532.
The majority today in interpreting Article 2(a) makes an even more whimsical distinction based on the fortuitous circumstance of the time of reenlistment. Absent express language in the statute, such a statutory interpretation should also be barred by the general jurisdictional principle articulated in Hirshberg.
The majority, in the alternative, asserts that if the rationale of Hirshberg was applied to the accused’s situation, jurisdiction would nonetheless be sustained by the Supreme Court. It points out that the Supreme Court, in finding no jurisdiction in Hirshberg, “purported to give ‘great weight’ to ‘the manner in which court-martial jurisdiction has long been exercised by the Army and Navy.’” 13 M.J. at 311.
*318Two problems exist with such an assertion. First, in Hirshberg, the Supreme Court recognized that since 1932 the Navy had considered Article 8, A.G.N., to confer jurisdiction over a person who remained in the service after discharge. See § 334, Naval Courts and Boards, 1937. In the present case, the practice relied on by the majority belatedly began in 1917. I fail to see any material difference between the two cases on this basis which would lead to a different result. Second, in Hirshberg, the longstanding practice of the service was used to support a finding of no jurisdiction. The majority today employs the practice of the services as embodied in paragraph 10, Manual for Courts-Martial, U.S. Army (1928) and 1949 and paragraph 11, Manual for Courts-Martial, United States, 1951, to find jurisdiction. The Supreme Court, however, did address the question of expansion of court-martial jurisdiction in this manner in United States ex rel. Hirshberg v. Cooke, supra at 218, 69 S.Ct. at 534:
we are not able to agree that the Navy could in this manner acquire the expanded court-martial jurisdiction it claimed. For we cannot construe 34 U.S.C. § 591, 34 U.S.C.A. § 591, as permitting the Navy to extend its court-martial jurisdiction beyond the limits Congress had fixed.
For this reason, I conclude jurisdiction would not be sustained by the Supreme Court which decided Hirshberg.
The majority’s second argument for overruling the decision of this Court in United States v. Ginyard, supra, rests on its assessment of the intent of Congress in enacting Article 3(a). It asserts that the language of this provision, in particular the words, “termination of that status,” reflects the fact that Congress intended mere changes of status such as reenlistment prior to discharge to be covered by Article 2.
The purpose of this enactment is best explained in a concise manner in a letter from Senator Millard E. Tydings, then Chairman of the Senate Armed Services Committee, in answer to a letter from Senator Pat McCarran and introduced into the Congressional Record during the floor debate on the Uniform Code of Military Justice. That part of the letter pertaining to Article 3(a) is as follows:
Article 3 of the code provides, in general, for a continuing jurisdiction under certain circumstances where jurisdiction has previously attached and was segregated from article 2 for that reason, even though as you pointed out, it generally covers the question of jurisdiction. The problem encountered in connection with this article, and particularly subdivision (a) of it, concerns those types of situations where persons have committed offenses while serving on active duty in the armed services and who, thereafter, by virtue of some artificial situation, are unable to be tried either by courts martial or the Federal courts. In general, the classes of cases fall into three categories:
(1) Reservists who go on inactive duty; (2) persons who are discharged from the service; and (3) persons who, although once discharged, reenter the service. A number of cases falling into these categories have taken place, and it has been found that no jurisdiction resides in any court to bring them to trial.... The alleged acts, of course, occurred overseas, outside the jurisdiction of the Federal courts. The question of whether or not the Navy had jurisdiction to try him for these charges, where the discharge intervened — even though he was out of the service for 1 day only — was settled by the Supreme Court, which held that the Navy had lost jurisdiction by virtue of the discharge. Under these circumstances, no court — military or civilian — had jurisdiction to determine whether or not Hirshberg had committed a serious offense. I think it is noteworthy to point out that the Supreme Court’s decision was based entirely on a lack of statutory authority and specifically did not involve a constitutional question.
It was for the purpose of covering cases of this type, over which there is no present jurisdiction, that article 3(a) was drafted. It seems entirely fair that, *319within the statute of limitations, persons who have committed offenses should not gain an immunity or be excused by virtue of the administrative act of going off active duty or being separated from the armed forces. However, it was not intended to extend blanket jurisdiction over cases of this time, or to convey to military courts jurisdiction under these circumstances over every trivial offense. For that reason, the jurisdiction is limited to serious crimes only by virtue of the provision that the offense must call for a sentence of at least 5 years. In addition, it was felt that where the Federal or State courts have jurisdiction, such jurisdiction should not be disturbed, and there would be no justification in also giving it to the courts martial. For that reason, it is provided that the courts martial are to have jurisdiction only if the civil courts do not have it.
96 Cong.Rec. 1367 (1950).
In my opinion, discharge prior to expiration of enlistment and reenlistment is one of the “artificial situationfs]” Congress attempted to remedy in Article 3(a). Article 2 lists various military statuses a person may be in which render him subject to the Code. Accordingly, Article 3(a) was designed to permit court-martial jurisdiction to continue under certain circumstances where the person’s original military status was terminated and he entered a new military status mentioned in Article 2. See United States ex rel. Toth v. Quarles, supra. Rather than creating a gap as suggested by the majority, the statute ensures equal treatment of reenlisted service members. See 10 U.S.C. 1171.
The majority’s third argument, based on Article 4(a), is specious. Congress spoke specifically in that Article to a particular situation involving officers. Accordingly, any inference drawn from it concerning an enlisted member under Article 2 is unsupported.
The majority’s fourth argument is unpersuasive for the reasons stated earlier that the services may not unilaterally expand court-martial jurisdiction beyond that expressly fixed by Congress.
Section II of the majority opinion betrays the majority’s lack of confidence in its earlier analysis of Article 2. It first suggests that Article 2(b), 93 Stat. 810 (1979), reflects an intent by Congress to return to the rule announced in paragraph 11b of the 1951 Manual for Courts-Martial. There is no hint of such an intent in the legislative history of this provision. Moreover, the words “change of status” do not stand alone in Article 2(b), but are expressly limited to the “change of status from civilian to member of the armed forces.” This problem is materially different from the majority’s assertion that appellee’s status once properly obtained in the military never terminated. 10 U.S.C. § 1168; see Article 3(a).
The majority also relies on Article 2(c) and the words, “active service,” to conclude that United States v. Ginyard, supra, must now be overruled. The position, as I perceive it, is that where a service member is discharged prior to expiration of his enlistment and then is reenlisted, there is no termination of — and no hiatus in — his “acive service.” Apparently, the majority is now concluding that jurisdiction to try appellee exists under Article 2(c) rather than Article 2(a).
The legislative history of Article 2(c) lends no express support to the majority’s statutory analysis. In fact, it reveals a general intent to eradicate confusion over the doctrine of constructive enlistment where a formal enlistment is found defective. See United States v. Russo, 1 M.J. 134 (C.M.A.1975); United States v. Brown, 23 U.S.C.M.A. 162, 48 C.M.R. 778 (1974); United States v. Catlow, 23 U.S.C.M.A. 142, 48 C.M.R. 758 (1974); United States v. Overton, 9 U.S.C.M.A. 684, 26 C.M.R. 464 (1958). In the accused’s case, there was no question that his original enlistment, discharge, and reenlistment were all valid, and therefore no need exists to rely on this provision for court-martial jurisdiction. If the majority’s interpretation was correct, both Article 2(a) and 2(b) could in large part have been eliminated.
*320In addition, Article 2(c) states that court-martial jurisdiction exists over such persons “until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.” In my opinion, 10 U.S.C. § 1168 provides for termination of active service of a member of the regular army. It states:
§ 1168. Discharge or release from active duty: limitations
(a) A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.
In addition, Congress provided in 10 U.S.C. § 508, that a person so discharged might be reenlisted. The provision states:
§ 508. Reenlistment: qualifications
(a) No person whose service during his last term of enlistment was not honest and faithful may be reenlisted in an armed force. However, the Secretary concerned may authorize the reenlistment in the armed force under his jurisdiction of such a person if his conduct after that service has been good.
(b) A person discharged from a Regular component may be reenlisted in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard, as the case may be, under such regulations as the Secretary concerned may prescribe.
(Emphasis added.)
(c) This section does not deprive a person of any right to be reenlisted in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard under any other provision of law.
Congress also provided in 10 U.S.C. § 1171, for early discharges of regular enlisted members. The provision states:
§ 1171. Regular enlisted members: early discharge.
Under regulations prescribed by the Secretary concerned and approved by the President, any regular enlisted member of an armed force may be discharged within three months before the expiration of the term of his enlistment or extended enlistment. A discharge under this section does not affect any right, privilege, or benefit that a member would have had if he completed his enlistment or extended enlistment, except that the member is not entitled to pay and allowances for the period not served.
(Emphasis added.)
Finally, Army Regulations provide in paragraph 5-9, AR 635-200 (21 Nov. 1977), a more particular discussion of this termination of active service:
5-9. Discharge for the purpose of immediate enlistment or reenlistment. Enlisted personnel who are accepted for enlistment/reenlistment as set forth below will be discharged for the convenience of the Government. Members so discharged will be enlisted/reenlisted on the day following discharge. The discharge certificate will not be delivered to the member until after enlistment/reenlistment is accomplished.
a. Unit commanders are authorized to order discharge for reenlistment under the provisions of AR 601-280.
b. Commanders responsible for US Army reception station processing are authorized to discharge members to enlist for warrant officer flight training.
Consistently construing Article 2(c) in view of these statutes and regulations as well as other provisions of the Uniform Code of Military Justice, I find the majority’s final argument unpersuasive.
In my opinion, if court-martial jurisdiction existed to try appellee on these two specifications, it must be found in Article 3(a). Since these offenses were clearly punishable in a federal or state court, I find that Congress did not intend that they be tried by court-martial. As lamentable as this result may be, I am constrained to advise the services to make the case for *321military discipline and expansion of court-martial jurisdiction under these circumstances before the proper legislative body, Congress.1
. E.g., Woodruff, The Rule in Ginyard's Case-Congressional Intent or Judicial Field Expedient?, 21 A.F.L.Rev. 285, 325-29 (1979).