Opinion of the Court
Tried by special court-martial, the accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. He was sentenced to bad-conduct discharge, confinement at hard labor for three months, and forfeiture of $25.00 per month for three months. Intermediate appellate authorities affirmed, and we granted accused’s petition for review on the issue whether he was subject to military jurisdiction at the time of his trial.
Accused enlisted in the United States Air Force on September 4, 1958, for a term of four years. On July 9, 1959, his discharge for unfitness was ordered by an authorized commander under the provisions of Air Force Regulations 39-17, March 17, 1959. On July 10, 1959, accused completed the procedures necessary for clearing his base and received a final settlement of his pay and allowances. A general discharge certificate and copies of special orders announcing his separation from the service were delivered to him. He signed out of his organization, but did not leave the area. Subsequently, a radio belonging to another airman was discovered to be missing. During the late afternoon, the radio was found in the quarters of a third airman. He identified the accused as the person who had left it there. At 6:00 p.m., the accused voluntarily confessed to the theft. At 6:45 p.m., the base commander ordered his discharge revoked, and the accused was notified of this action at 7:30 p.m. He was thereafter confined in the stockade, and his discharge certificate was taken from him. His trial took place on August 4, 1959.
Jurisdiction to try the accused depends upon whether he was in the Air Force at the time of the commencement of the proceedings against him. Toth v Quarles, 350 US 11, 100 L ed 8, 76 S Ct 1 (1956); Kinsella v United States, 361 US 234, 4 L ed 2d 268, 80 S Ct 297 (1960); McElroy v United States, 361 US 281, 4 L ed 2d 282, 80 S Ct 305 (1960); Grisham v Hagan, 361 US 278, 4 L ed 2d 279, 80 S Ct 310 (1960). The answer to this question in turn depends upon whether accused’s discharge became effective upon delivery of the certificate and orders to him or whether, as the Government contends, it did not operate to separate him from the service until midnight, July 10, 1959.
Section 8811, Title 10, United States Code, provides pertinently:
“(a) A discharge certificate shall be given to each lawfully inducted or enlisted member of the Air Force ivpon his discharge.” [Emphasis supplied.]
This statute and its predecessors have long been construed to separate a member of the armed services upon delivery to him of the discharge certificate or other valid notice of the ending of his status. Digest of Opinions, The Judge Advocate General, 1901, pages 323, 324; Digest of Opinions, The Judge Advocate General, 1912, page 448; Digest of Opinions of The Judge Advocate General of the Army, 1912-1940, page 998; Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 548; Davis, A Treatise on the Military Law of the United States, 1903, page 352; United States v Christian, 22 CMR 780; United States v Banner, 22 CMR 510; United States v Santiago, 1 CMR 365; Hironimus v Durant, 168 F2d 288 (CA 4th Cir) (1948). Moreover, we inferentially recognized the effect of this view when we pointed out in United States v Downs, 3 USCMA 90, 11 CMR 90, and United States v Klunk, 3 USCMA 92, 11 CMR 92, the necessity of compliance with formal discharge procedures in order to terminate military jurisdiction. The Government nonetheless contends that a different rule must be applied, as Air Force Regulations 39-17,
A similar argument was pressed upon the Supreme Court in Hirshberg v Cooke, 336 US 210, 93 L ed 621, 69 S Ct 630 (1949). There, the Navy sought to overcome the long continued administrative interpretation of a jurisdictional statute by arguing that it had been changed in that service by a lawfully promulgated naval regulation. A unanimous Court refused to permit court-martial jurisdiction to be enlarged in such a manner, pointing out that they did not believe Congress intended the general regulatory power of the Secretary of the Navy so to be used. We agree with the rationale of that case and deem it dispositive of the Government’s argument here.
As noted above, the armed services have long interpreted discharge statutes to mean that an individual is no longer a member of the armed forces after he receives notice that he has been validly separated. That view is entirely consonant with the terms of 10 USC § 8811, supra, and if it is to be changed, Congress must do it. Hirshberg v Cooke, supra. Moreover, if a service is permitted to delay for a few hours the effective date of a discharge merely by regulatory provision, what is to prevent them from using the same device to extend military jurisdiction over a member of the armed forces for a few days, a few weeks, or even a few years ? Such an exercise of their regulatory authority would raise grave constitutional questions, but it is apparent that power to continue an individual in the service for a short period beyond discharge rests upon no sounder basis than the extension of his service for a longer time. Nor are we impressed by the argument that the delay is necessary in order to protect the separated individual during his journey homeward, for it is clear that many service members would be unable to complete their travel within the prescribed time limit. On the other hand there are indications that the purpose of the regulation was to maintain jurisdiction over such individuals as this accused. Cf. Toth v Quarles, supra. Other means to prevent crime after discharge and prior to departure of the individual from his station must be found in the absence of the legislation we deem necessary.
For the foregoing reasons, we conclude that one’s military service, with the concomitant jurisdiction to try him by court-martial, ends with the delivery to him of a valid discharge certificate. 10 USC § 8811, supra; United States v Banner, United States v Santiago, both supra. Accordingly, it appears that the accused was not a person subject to the Code at the time of his offense and trial, and the proceedings concerning him were a nullity.
The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Air Force. The charges are ordered dismissed.