OPINION OF THE COURT
En Banc.
JONES, Senior Judge:
Charged with housebreaking, willful destruction of military property, and larceny (nine specifications), the appellant was convicted only of housebreaking and one count of attempted larceny in violation of Articles 130 and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 930 and 880. We are reviewing the case pursuant to Article 66, UCMJ.
The charges arose out of the entry by appellant and another into a barracks occupied by appellant’s unit which was on temporary duty from Fort Lewis to Alaska. Appellant, a member of the rear detachment of the unit, was supposed to be guarding the building and the property therein.
Appellant’s involvement in the break-in and theft was established immediately. He was confined on 18 November 1975, charges were preferred on 28 November 1975,1 the Article 32 investigation was conducted during the period 9-29 December 1975, charges were referred to trial on 7 January 1976, and the trial held on 16, 23 and 24 January 1976.
At trial, appellant raised the question of jurisdiction of the court-martial over his person because he was beyond the expiration of his term of service (ETS)2 and the convening authority had taken no action to retain him on duty as required by paragraph 2-4a, AR 635-200.3 On appeal the issue has properly been refined to one of whether the Government was precluded from exercising its jurisdiction over the appellant because it had failed to comply with its own regulation concerning retention beyond ETS, rather than whether the court-martial in fact had jurisdiction over the person.
[661]*661Jurisdiction of the court-martial over the person of this appellant is based on Article 2, UCMJ, 10 U.S.C. § 802, which provides:
“Article 2. Persons subject to this chapter.
The following persons are subject to [the Uniform Code of Military Justice]:
(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment, . . .”
As a member of the active Army awaiting discharge after his term of enlistment had expired, appellant came within the category of persons described by that provision. The expiration of his enlistment, by the very language quoted above, did not operate automatically to terminate jurisdiction. Rather, the appellant remained subject to jurisdiction until affirmative action, the formalities of discharge, was taken to discharge him. United States v. Klung, 3 U.S.C.M.A. 92, 11 C.M.R. 92 (1953).
That a serviceman remains subject to court-martial jurisdiction after his term of service expires but before his discharge has been the law for more than a century. It is set forth by Colonel Winthrop in his well-known treatise as follows:
“It is held . . . that if before the day on which his service legally terminated and his right to a discharge is complete, proceedings with a view to trial are commenced against him, — as by an arrest or the service of charges, — the military jurisdiction will fully attach, and once attached may be continued by a trial by court-martial ordered and held after the end of the term of the enlistment.” Winthrop, Military Law and Precedents, 90, 91 (2d ed. 1920 Reprint).
This rule which is currently restated in paragraph lldf, Manual for Courts-Martial, United States, 1969 (Revised edition), goes back at least to the case In Re Walker, 3 Am.Jurist 281 (Mass.1830). Its purpose is explained by Judge Alley in United States v. Calley, 46 C.M.R. 1131 (A.C.M.R.1973):
“The reason for the rule is clear, and can best be stated negatively. If no such rule existed, enforcement of military law would not be possible as to offenses committed or discovered shortly before one’s scheduled date of separation.” 46 C.M.R. at 1142.
The applicability of and the compliance with paragraph lid, MCM, 1969 (Rev. ed.), is not questioned here. All agree that the filing of charges and placing the appellant in pretrial confinement were proceedings with a view to trial which were taken prior to the expiration of appellant’s enlistment. If nothing more were involved, the jurisdictional issue would end there. It does not, however, because the Government in 1967 chose to include a paragraph in Army Regulation 635-200 on this subject. With subsequent changes, that provision evolved into its form at the time of this offense.4
The Army in effect has placed more stringent requirements on its exercise of jurisdiction over servicemen after their term of service has expired than is required by the long-existing law set out above, but that is permissible. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). The more stringent requirements are that retention beyond ETS must be approved by the general court-martial convening authority or his designee, or if no charges are preferred within 30 days, retention must be personally approved by the convening authority. It was stipulated by the parties that neither the convening authority nor any designee took any action regarding the appellant’s retention beyond his ETS date.
The appellant points to the line of cases applying the Accardi5 doctrine to the military in the following language:
“A government agency must abide by its own rules and regulations where the underlying purpose of such regulations is [662]*662the protection of personal liberties and interests.” United States v. Dunks, 24 U.S.C.M.A. 71, 51 C.M.R. 200, 1 M.J. 254 (1976); United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975); United States v. Walck, 54 C.M.R. 308, 2 M.J. 551 (A.C.M.R.1976).
He argues that the Government was bound by its regulation and as it did not follow the regulation, it was precluded from exercising jurisdiction in the court-martial.
The Government counters first with the proposition that the command complied with the regulation; and second, assuming the regulation was not followed, the lack of compliance did not require dismissal of the charges.
' No evidence was presented at trial or to this Court on the intentions of the drafters of the regulation in changing paragraph 2-4a into its present form. We are left to our resources in interpreting its meaning. In making that interpretation we believe the regulation should be consistent with the statement of the law contained in paragraph lid of the Manual.
The regulation obviously contemplates some action by the convening authority or his designee approving the retention of a member beyond his ETS for purpose of trial. It is silent, however, as to when, how, and to some extent by whom this may be accomplished.
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OPINION OF THE COURT
En Banc.
JONES, Senior Judge:
Charged with housebreaking, willful destruction of military property, and larceny (nine specifications), the appellant was convicted only of housebreaking and one count of attempted larceny in violation of Articles 130 and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 930 and 880. We are reviewing the case pursuant to Article 66, UCMJ.
The charges arose out of the entry by appellant and another into a barracks occupied by appellant’s unit which was on temporary duty from Fort Lewis to Alaska. Appellant, a member of the rear detachment of the unit, was supposed to be guarding the building and the property therein.
Appellant’s involvement in the break-in and theft was established immediately. He was confined on 18 November 1975, charges were preferred on 28 November 1975,1 the Article 32 investigation was conducted during the period 9-29 December 1975, charges were referred to trial on 7 January 1976, and the trial held on 16, 23 and 24 January 1976.
At trial, appellant raised the question of jurisdiction of the court-martial over his person because he was beyond the expiration of his term of service (ETS)2 and the convening authority had taken no action to retain him on duty as required by paragraph 2-4a, AR 635-200.3 On appeal the issue has properly been refined to one of whether the Government was precluded from exercising its jurisdiction over the appellant because it had failed to comply with its own regulation concerning retention beyond ETS, rather than whether the court-martial in fact had jurisdiction over the person.
[661]*661Jurisdiction of the court-martial over the person of this appellant is based on Article 2, UCMJ, 10 U.S.C. § 802, which provides:
“Article 2. Persons subject to this chapter.
The following persons are subject to [the Uniform Code of Military Justice]:
(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment, . . .”
As a member of the active Army awaiting discharge after his term of enlistment had expired, appellant came within the category of persons described by that provision. The expiration of his enlistment, by the very language quoted above, did not operate automatically to terminate jurisdiction. Rather, the appellant remained subject to jurisdiction until affirmative action, the formalities of discharge, was taken to discharge him. United States v. Klung, 3 U.S.C.M.A. 92, 11 C.M.R. 92 (1953).
That a serviceman remains subject to court-martial jurisdiction after his term of service expires but before his discharge has been the law for more than a century. It is set forth by Colonel Winthrop in his well-known treatise as follows:
“It is held . . . that if before the day on which his service legally terminated and his right to a discharge is complete, proceedings with a view to trial are commenced against him, — as by an arrest or the service of charges, — the military jurisdiction will fully attach, and once attached may be continued by a trial by court-martial ordered and held after the end of the term of the enlistment.” Winthrop, Military Law and Precedents, 90, 91 (2d ed. 1920 Reprint).
This rule which is currently restated in paragraph lldf, Manual for Courts-Martial, United States, 1969 (Revised edition), goes back at least to the case In Re Walker, 3 Am.Jurist 281 (Mass.1830). Its purpose is explained by Judge Alley in United States v. Calley, 46 C.M.R. 1131 (A.C.M.R.1973):
“The reason for the rule is clear, and can best be stated negatively. If no such rule existed, enforcement of military law would not be possible as to offenses committed or discovered shortly before one’s scheduled date of separation.” 46 C.M.R. at 1142.
The applicability of and the compliance with paragraph lid, MCM, 1969 (Rev. ed.), is not questioned here. All agree that the filing of charges and placing the appellant in pretrial confinement were proceedings with a view to trial which were taken prior to the expiration of appellant’s enlistment. If nothing more were involved, the jurisdictional issue would end there. It does not, however, because the Government in 1967 chose to include a paragraph in Army Regulation 635-200 on this subject. With subsequent changes, that provision evolved into its form at the time of this offense.4
The Army in effect has placed more stringent requirements on its exercise of jurisdiction over servicemen after their term of service has expired than is required by the long-existing law set out above, but that is permissible. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). The more stringent requirements are that retention beyond ETS must be approved by the general court-martial convening authority or his designee, or if no charges are preferred within 30 days, retention must be personally approved by the convening authority. It was stipulated by the parties that neither the convening authority nor any designee took any action regarding the appellant’s retention beyond his ETS date.
The appellant points to the line of cases applying the Accardi5 doctrine to the military in the following language:
“A government agency must abide by its own rules and regulations where the underlying purpose of such regulations is [662]*662the protection of personal liberties and interests.” United States v. Dunks, 24 U.S.C.M.A. 71, 51 C.M.R. 200, 1 M.J. 254 (1976); United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975); United States v. Walck, 54 C.M.R. 308, 2 M.J. 551 (A.C.M.R.1976).
He argues that the Government was bound by its regulation and as it did not follow the regulation, it was precluded from exercising jurisdiction in the court-martial.
The Government counters first with the proposition that the command complied with the regulation; and second, assuming the regulation was not followed, the lack of compliance did not require dismissal of the charges.
' No evidence was presented at trial or to this Court on the intentions of the drafters of the regulation in changing paragraph 2-4a into its present form. We are left to our resources in interpreting its meaning. In making that interpretation we believe the regulation should be consistent with the statement of the law contained in paragraph lid of the Manual.
The regulation obviously contemplates some action by the convening authority or his designee approving the retention of a member beyond his ETS for purpose of trial. It is silent, however, as to when, how, and to some extent by whom this may be accomplished.
First, the regulation does not state when the convening authority or his designee must give his approval. If the regulation were read to require such action prior to ETS it would defeat the very purpose for which the law allows jurisdiction to contin.ue beyond ETS. Therefore, we hold that such action-may be either before or within a reasonable time after ETS. Cf. United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970).
Second, the regulation is silent concerning the method of expressing approval for retention. We believe that any act which can reasonably be interpreted as manifesting an intention to retain a member for trial is sufficient, and we so hold. Certainly nothing is moré indicative of that intent than referral of charges to trial. We find no merit to the contention that the convening authority’s action was not a knowing approval of retention beyond ETS for purpose of trial. Although the ETS date was not specifically listed in the pretrial advice, it could be computed from the charge sheet which was attached as an inclosure to the advice. We may presume the Convening authority was aware of that information. In any event it is inconceivable that his decision to refer the case to trial would have been any different with or without such information.
We therefore find that the general court-martial convening authority’s action in referring the case to trial on 7 January 1976 was the necessary approval for retention contemplated by the regulation. This makes it unnecessary to consider who may be designees within the meaning of the regulation.
Even were we to find no compliance with the regulation we would not reach a different result in this case because of our views on the question of the remedy to be applied in a case where the Government fails to follow its own regulation.
The appellant maintains the only remedy available ' when the Government fails to follow its own regulation is dismissal of the charges. He cites our opinions in United States v. Walck, supra; United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (A.C.M.R.1975); and United States v. Kalt, 50 C.M.R. 95 (A.C.M.R.1975), in support of his contention. We disagree with appellant’s position as' we believe dismissal to be but one of several possible remedies.
The most reasonable remedy and the one followed by the courts whenever appropriate is to set aside the action that has been taken contrary to the regulation and require further proceedings in compliance with the regulation. That was the remedy directed by the Supreme Court of the United States in Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), [663]*663the basic case in this field; and by the Court of Military Appeals in United States v. Dunks, supra6 a recent military case based on Accardi.
Such a remedy is inappropriate, however, in those situations where once the action proceeds in noncompliance, there is no effective way the procedures can be rolled back and compliance required. The question then becomes one of prejudice to the accused as a result of the noncompliance. Peavy v. Warner, 493 F.2d 748 (5th Cir. 1974). We must look at what right has been infringed and what adverse result has occurred because of the failure to follow the regulation.
Assuming noncompliance for the purpose of applying such a standard in this case, we can perceive no prejudice to appellant from the Government’s failure to comply with its regulation. To say that appellant has had to remain in the service beyond his ETS and endure a criminal trial is to presuppose that he would have been released from service without trial had the regulation been followed. We find that to be such a remote possibility in this case as to be almost nonexistent. If the question had been presented to the convening authority prior to appellant’s ETS, we are convinced that appellant would be in the same position he is in today — standing before this Court convicted of the offenses of housebreaking and attempted larceny.
We further find no reason to penalize the Government in this case to insure compliance with the regulation in the future. Noncompliance is not in and of itself a violation of a basic constitutional right so as to require such a drastic measure as dismissal of the charges. Accordingly, we hold that each case must be examined for prejudice to the accused in determining what remedy to apply when the Government fails to comply with its own regulation.7 Finding no prejudice here, there is no relief to be given.
The staff judge advocate incorrectly advised the convening authority that the maximum period of confinement in this case was 15 years instead of 5V2 years. The trial defense counsel made no comment on this error in rebuttal to the post-trial review. His action amounted to a waiver. United States v. Mhyrberg, 2 M.J. 534 (A.C.M.R. 1976). We find no manifest miscarriage of justice as we find no reasonable possibility that the convening authority would have approved a lesser sentence had he been properly advised.
The assigned error alleging appellant’s confession was improperly admitted into evidence has been considered but does not warrant discussion. We are convinced that appellant was properly advised in accordance with Article 31, U.C.M.J., and United States v. Tempia, 16 U.S.C.M.A. 629, 37 [664]*664C.M.R. 249 (1967), and that he voluntarily waived his rights.
The findings of guilty and the sentence are affirmed.
Senior Judge CARNE, and Judges DONAHUE, FELDER, FULTON, MITCHELL and MOUNTS concur.
Chief Judge CLAUSEN and Judge CLAUSE, not participating.