(concurring):
I agree with Chief Judge Everett’s excellent resolution of the issue before the Court and join those who urge further examination of these difficult jurisdictional questions by Congress. My purpose in writing is to identify the statutory defects which unfortunately preclude court-martial jurisdiction in this case and to distinguish it from United States v. Clardy, 13 M.J. 308 (C.M.A. 1982).
The jurisdictional crevice in which this case falls is one which has been recognized and approved by Congress as part of a legislative compromise. See H.R. Rep. No. 491, 81st Cong., 1st Sess. 4-5 (1949). Prior to the enactment of the Uniform Code of Military Justice, only the Navy was authorized by statute to court-martial its Reserve personnel for offenses committed while a Reservist was on active duty but which were discovered after the Reservist returned to an inactive-duty status. 34 U.S.C. § 855. The initial draft of Article 3(a) of the Uniform Code of Military Justice sent to Congress contained a similar provision for all the services to court-martial Reserve personnel. See United States v. Clardy, 13 M.J. at 313 n. 9. Under both these provisions, court-martial jurisdiction would exist to try appellant for these offenses. However, Congress considered and chose not to adopt this proposal for expanded jurisdiction over Reserve personnel and repealed its previous broad grant of jurisdiction to the Navy. See United *37States v. Schuering, 16 U.S.C.M.A. 324, 330, 36 C.M.R. 480, 486 (1966). The redrafted version of Article 3(a), UCMJ, 10 U.S.C. § 803(a), which was eventually enacted and remains unchanged to this day, does not authorize this court-martial.
The argument that jurisdiction can nevertheless be sustained by a literal construction of Article 2 (a)(1), UCMJ, 10 U.S.C. § 802(a)(1), is singularly unpersuasive. This argument generally suggests that Congress rejected the initial proposal for expressly conferring jurisdiction over Reserve personnel because it was already implied in Article 2 (a)(1). The rationale is that, because appellant was subject to court-martial jurisdiction at the time of the offense and at the time of trial, any interim break in active-duty service may be ignored. In view of the decision of the Supreme Court in United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 212-13, 69 S.Ct. 530, 531-32, 93 L.Ed. 621 (1949), such an approach by Congress seems highly improbable. The cornerstone of that decision was that Congress must speak expressly and unambiguously when marking the boundaries of court-martial power. See also Runkle v. United States, 122 U.S. 543, 555-56, 7 S.Ct. 1141, 1145-46, 30 L.Ed. 1167 (1887). Moreover, it held that statutes designed similarly to Article 2(a)(1) do not meet this test on their face where breaks in court-martial jurisdiction have occurred. See Hirshberg v. Cooke, supra 336 U.S. at 213-14, 69 S.Ct. at 531-32.
Chief Judge Quinn in his opinion in United States v. Schuering, supra, did not agree with this approach to Article 2 and further asserted that Article 3(a) was designed to deal only with a discharge or separation from the service. In other words the latter codal provision was a response to the Hirshberg case only. However, the legislative history cited by Chief Judge Everett and that which I highlight here shows that Congress intended Reservists as well as Regulars to be covered by Article 3(a) and not by implication in Article 2.
Senator Kefauver spoke to this problem during the floor debate in the Senate on the Code. He stated:
Article 3 represents a new provision in military law. It provides a type of continuing jurisdiction over persons who have been separated from military service or are on inactive duty, who, nevertheless, are charged with having committed offenses while in an active-duty status. Under the Articles of War, persons who commit serious crimes overseas, such as murder, theft of crown jewels, or mistreatment of American prisoners, or who commit a military offense in this country, may not be tried by court martial or in any court after they have been discharged from the service. Moreover, Army reservists may not be tried for such crimes after they go on inactive duty. In a recent Supreme Court case, the case of United States ex rel. Hirshberg v. Cooke, Commanding Officer (226 [336] U.S. 210 [69 S.Ct. 530, 93 L.Ed. 621]), [sic] it was held that a person discharged from the naval service cannot be tried by court martial during a subsequent reenlistment for a crime committed during the first enlistment, even though in this case it was 1 day only that he was out of the service. But the same principle would apply if he had been out of the service for 20 minutes only. Of course, the crime committed in the Hirshberg case was not discovered until after the reenlistment, and that, of course, could happen very readily.
By virtue of these inadequate provisions, a considerable number of persons were able to escape trial for serious offenses committed while in the armed services, and it was apparent to the Senate committee that this situation should be corrected. The House committee was of the same opinion. There is in the House hearings a great deal of discussion about abuses which have resulted from this holding by the Supreme Court. It was felt, however, that the jurisdiction of courts martial should not, in general, be extended to civilians, and for this reason the continuing jurisdiction pro*38vided over the types of cases I have described is limited to cases which fall, first, within the statute of limitations; second, which are not triable by Federal courts; and, third, which involve serious crimes calling for a sentence of at least 5 years. In other words, there is continuing jurisdiction only in those cases. This provision would, therefore, correct the inadequate jurisdiction heretofore provided and, at the same time, limit and restrict the jurisdiction to proper areas.
96 Cong. Rec. 1358 (1950) (emphasis added).
Senator Kefauver later included in the record of this floor debate a letter from Senator Millard E. Tydings, Chairman of the Armed Services Committee, to Senator Pat McCarran, Chairman of the Judiciary Committee, which states in part:
You mention that you feel that parts of the code deal with matters within the jurisdiction of your committee and you state, specifically, that you feel article 2 is such a provision. Your comment on article 2 is that it greatly broadens the scope of authority and jurisdiction in military courts. I think you will find that a close scrutiny of the present statutory provisions covering jurisdiction as found in the Articles of War and the Articles for the Government of the Navy disclose that article 2 is, to a large extent, a reincorporation of the present laws and there are no subdivisions of it which can be said to create new jurisdiction or broaden the present authority of either the Army or the Navy, or a combination of both of them. For instance, article 2, subdivision (1) is drawn from present Article of War 2, 10 United States Code, section 1473 (a) and section 12 of the Selective Service Act of 1948.
Article 2, subdivision (2), which reads, “Reserve personnel while they are on active duty training authorized by written orders,” etc., is actually a restricted version of the authority heretofore provided for the Navy in 34 United States Code, section 855. Very close attention was given to this article. I am sure you are familiar with the extensive discussion in the House hearings and our hearings on that single subdivision. For your convenience, I here quote the present Navy jurisdiction and you will note that, by comparison with it, subdivision (2) greatly restricts the jurisdiction.
“S. 855. Naval Reserve, application of laws, regulations, and orders of Navy; disciplinary actions:
“All members of the Naval Reserve, when employed on active duty, authorized training duty, with or without pay, drill, or other equivalent instruction or duty, or when employed in' authorized travel to or from such duty, or appropriate duty, drill, or instruction, or during such time as they may by law be required to perform active duty, or while wearing a uniform prescribed for the Naval Reserve, shall be subject to the laws, regulations, and orders for the government of the Navy: Provided, That disciplinary action for an offense committed while subject to the laws, regulations, and orders for the government of the Navy shall not be barred by reason of release from duty status of any person charged with the commission thereof: Provided further, That for the purpose of carrying the provisions of this section into effect, members of the Naval Reserve may be retained on or returned to a duty status without their consent, but not for a longer period of time than may be required for disciplinary action. (June 25, 1938, ch. 690, title III, p. 301, 52 Stat. 1180.)”
* * * # * *
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 *39armed 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. Several cases of this kind received a considerable amount of publicity and you will undoubtedly remember them. For instance, a case falling in the category of reenlistment is the Hirshberg case in the Navy. You will recall that Hirshberg was captured by the Japanese and, after being rescued and returned to this country, was discharged from the Navy and on the same day reenlisted for a new term. There later came to light facts which warranted the charge that he had mistreated fellow-American prisoners while he was a Japanese captive for purposes of enhancing his own fortunes. 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.
Another case falling within one of these classifications was the Durant case, in which it was charged that Mrs. Durant, at one time a captain in the WAC, was implicated in the theft of the crown jewels of Hesse. Since the theft was committed in Europe, the civilian courts had no jurisdiction and the question of jurisdiction of the military courts was raised because the facts were not discovered, nor was the trial instituted, until Mrs. Durant was on terminal leave. You will recall, in this case, that it was held that the Army courts martial had jurisdiction, but it is clear that, if the referral for trial had been delayed for another 2 or 3 weeks, when her terminal leave would have expired, Mrs. Durant could not have been tried at all for a very serious crime of which she was ultimately convicted. Providing jurisdiction in this type of case, as this subdivision attempts to do, finds some precedent in the existing Articles of War and Articles for the Government of the Navy, which, of course, give a continuing jurisdiction over certain types of offenses committed while on active duty involving frauds against the Government. (See article of war 94, 10 U.S.C., sec. 1566, and article 14 of the Articles for the Government of the Navy, 34 U.S.C., sec. 1200.)
Insofar as reservists in inactive duty are concerned, I assume you have already noted from Thirty-fourth [sic] United States Code, section 855, that the Navy has jurisdiction over reservists who have previously committed offenses while on active duty.
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, within 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 type, 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 *40that 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. 1366-67 (emphasis added).
Of course, it can be argued that the legislative history cited above indicates no concern for the reservist who later voluntarily returns to an active-duty status. The suggestion is that Article 3(a) was intended to cover only those reservists who never voluntarily return to active duty. Admittedly, Article 3(a) and its legislative history are not clear on this precise point. However, like the Supreme Court in Hirshberg, we are permitted to consider the manner in which jurisdiction has been exercised under this codal article in the past in determining its proper interpretation. See Hirshberg v. Cooke, supra at 216, 69 S.Ct. at 533. The cases cited by Chief Judge Everett support an interpretation that Article 3(a) applies to a Reservist returning to active duty. Also paragraphs 11(a) and (b), Manual for Courts-Martial, United States, 1969 (Revised Edition), were in effect at the time of appellant’s trial and, as indicated in United States v. Caputo, 18 M.J. 259, 266-67 (C.M.A. 1984), they indicate the position then held by the Commander-in-Chief that Article 3(a) was applicable in this situation and court-martial jurisdiction did not exist under this provision.
Finally, an argument is raised that jurisdiction may be found in the present case on the basis of this Court’s decision in United States v. Clardy, supra. The military judge adopted such a position in his ruling at trial. He said:
MJ: As a result of all this, it’s apparent that this accused was in continual reserve status during the period that is alleged in the offenses set forth on the charge sheets, and was on active duty during the periods alleged on the charge sheets. It is apparent also that this accused, at the time of these offenses that are alleged, was voluntarily on active duty, and it’s apparent that the accused is also voluntarily on active duty and has been for some time preceding the date of this convening of the court, and was on active duty at the time that the charges weré preferred and referred to trial, and there has been no break in the accused’s reserve status during this period of time so as to fall within the decision of U.S. versus Clardy, in this court’s opinion, because that 23 September 83 reenlistment appears to be one which fits within the exception language to U.S. versus Clardy in that it appears that the enlistment of the accused in May of 79 was for six years which, of course, would not be up until May of 85.
Therefore, based on those findings of fact, the court finds that there is jurisdiction over the accused at this time, so your motion to dismiss on the grounds of lack of jurisdiction in personam is denied.
Clardy, however, was not a Reservist and this Court found as a matter of law that there was no break or hiatus in his status as a member of the regular armed forces subject to court-martial jurisdiction. Id. at 316. Appellant is a Reservist and all parties concede that there were two breaks in his active-duty service, i.e., his status as a person subject to the code, between the time of the offenses and his trial. Accordingly, the Clardy decision is not dispositive in his ease. Id. at 313 n. 9.
In sum, Congress was well aware that there would be breaks in active-duty service of Reservists as well as regular members of the armed forces. It was also aware that a statute then existed which conferred jurisdiction over Naval Reserve personnel after a break in their active-duty status. As a matter of legislative prerogative, it rejected an expansion of this jurisdiction not only for the Reserve personnel of the other services but for members of *41the Regular forces as well. It also revoked its previous grant of jurisdiction to the Navy. Its solution, although criticized by the services and others over the years, is Article 3(a), which does not permit appellant’s trial.
After exhaustive research on this point, I am convinced that Article 3(a) was Congress’ measured and direct response (in 1950) to the outrage at the 1949 Supreme Court decision in Hirshberg. In Article 3(a), Congress made sure that a soldier who is charged with a serious crime in a Japanese prison camp (or at any other geographical location outside of the reach of the jurisdiction of an American civilian court) could never escape justice by the simple act of leaving active duty. As outlined above, Congress was aware of the “Reservist” situation that we face in the instant case, but Congress chose to ignore it and not to grant continuing jurisdiction. In my opinion, reconsideration of this solution is long overdue. However, it is for Congress, not this Court, to fashion legislation extending jurisdiction to the instant case.