dissenting:
I cannot find any basis in law or fact to disagree with the conclusion of the military judge. Therefore, I very respectfully dissent.
The Supreme Court long ago recognized that the principle of continuing attached jurisdiction is an integral part of court-martial jurisdiction created by Congress. Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1879); Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236 (1902); see also Barrett v. Hopkins, 7 F. 312 (C.C.D.Kan. 1881). Thus, it has long been understood that a person’s court-martial status is fixed at the time court-martial proceedings begin. Peebles v. Froehlke, 22 U.S.C.M.A. 266, 46 C.M.R. 266, 268, 1973 WL 14499 (1973), citing Carter, 183 U.S. 365, 22 S.Ct. 181. On the other hand, persons who are validly discharged before jurisdiction attaches are constitutionally immune from court-martial jurisdiction. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955).4
*599Congress has explicitly limited the class of persons subject to the Uniform Code of Military Justice [hereinafter UCMJ], See Articles 2 and 3, UCMJ. However, Congress has not explicitly limited the exercise of attached court-martial jurisdiction. Accordingly, I am satisfied that a grant of authority to commence court-martial proceedings embraces the authority to continue to exercise attached jurisdiction over an inadvertently discharged soldier until the court-martial process is lawfully concluded.
Since Toth, military courts have consistently recognized that attached jurisdiction survives an apparent change in UCMJ status, thereby permitting the continuation of court-martial jurisdiction after the issuance of a valid discharge. For example, the Court of Military Appeals (now the Court of Appeals for the Armed Forces) held that a valid discharge issued after trial but before action by the convening authority does not sever military jurisdiction over the ease, and the military justice process prescribed by law may continue to completion. United States v. Speller, 8 U.S.C.M.A 363, 24 C.M.R. 173, 1957 WL 4734 (1957). Aso, because of the principle of attached jurisdiction, jurisdiction to retry an accused following reversal of a court-martial conviction is not terminated by an intervening dishonorable discharge delivered pursuant to the sentence in a separate court-martial. Peebles, 22 U.S.C.M.A 266, 46 C.M.R. 266.
Moreover, in two discharge cases decided after Toth where our superior court considered the effect of a valid discharge on court-martial jurisdiction, the court expressly relied on the absence of attached jurisdiction in reasoning that court-martial jurisdiction had been severed by a discharge. See United States v. Smith, 4 M.J. 265 (C.M.A.1978); United States v. Howard, 20 M.J. 353 (C.M.A.1985). “The critical question ... in a [diseharge case] is whether jurisdiction attached prior to discharge.” Smith, 4 M.J. at 267. A valid discharge cuts off jurisdiction if issued “before any action was taken with a view to trial by court-martial.” Howard, 20 M.J. at 355.
In the cases in which military courts have discussed continuing jurisdiction in dicta, all point to the conclusion that attached jurisdiction survives a valid discharge. See, e.g. United States v. Engle, 28 M.J. 299 (C.M.A. 1989); United States v. Montesinos, 28 M.J. 38 (C.M.A.1989); United States v. Douse, 12 M.J. 473 (C.M.A.1982); United States v. Jackson, 3 M.J. 153 (C.M.A.1977); United States v. Entner, 15 U.S.C.M.A. 564, 36 C.M.R. 62, 1965 WL 4785 (1965); United States v. Sippel, 4 U.S.C.M.A 50, 15 C.M.R. 50,1954 WL 2251 (1954).
Based on the foregoing, it is apparent to me that Congress did not create Article 3, UCMJ, to extend jurisdiction to dischargees whom they understood were already subject to attached jurisdiction. Rather, I believe that Aticle 3, UCMJ, reflects an effort by Congress to extend court-martial jurisdiction to those UCMJ offenders whose crimes were undetected at the time of discharge, but for whom a new jurisdictional status had begun or whose discharges were voidable by fraud. This construction of Aticle 3, UCMJ, is self-validating; not surprisingly, it demonstrates that the only category of ex-soldier not covered by Article 3, UCMJ, is the constitutionally exempt category announced in Toth: persons who are validly discharged without action with a view toward court-martial and who have not subsequently re-entered military service.5
The class of persons affected by this ease is probably small and well-defined. Action with a view towards court-martial sufficient to attach jurisdiction does not include any *600amorphous conduct in furtherance of the military justice process: it is official action, such as preferral of charges, that occurs at a precise point in time and authoritatively signals the sovereign’s intent to prosecute. See Smith, 4 M.J. at 267. That category of persons is further defined and reduced by those cases where attachment has expired prior to discharge due to administrative action, dismissal of the charges, or action or inaction tantamount to dismissal of the charges. Thus, I am not fearful that applying the principle of attached jurisdiction in cases such as this will create a great ground swell of concern from ex-soldiers uncertain about their court-martial status.
Finally, inasmuch as court-martial jurisdiction had certainly attached at the moment charges were preferred against the petitioner, a judicial act by proper authority was required to abate the court-martial process. United States v. Woods, 21 M.J. 856 (A.C.M.R.1986). Thus, as a matter of law,6 the petitioner’s administrative discharge, lacking the imprimatur of competent judicial authority with power over the ease, could not serve to change the status of the petitioner from that of a soldier awaiting court-martial. Accordingly, I would hold that if the convening authority desires to continue the military justice process, he may revoke the petitioner’s discharge and, after proper notification, compel him to appear before the court-martial to complete the proceedings commenced against him. If the convening authority does not desire to continue the court-martial process, he may dismiss the charges with prejudice, thereby ratifying the discharge.
APPENDIX
UNITED STATES V SGTToddA. Vanderbush HHC, 21D APO AP 96258
Finding of Facts and Conclusions of Law
Defense Motion to Dismiss
On 21 June 1996 the defense moved to dismiss all charges against the accused on the grounds that the court-martial lacks jurisdiction to try the accused for the offenses charged (AE I). The government responded on 23 June 1996 (AE III). Hearings pursuant to Article 39(a), UCMJ, were held on 24, 26, and 28 June 1996. Based on the evidence presented, the following findings of fact and conclusions of law are made. The standard applied was a preponderance of the evidence and the government had the burden.
Findings of Fact
1. On 2 May 1996 charges were preferred against the accused by the Commander, Headquarters and Headquarters Company, 2d Infantry Division (HHC, 2ID), CPT Steven A. King. The charges allege 14 violations of the UCMJ and include disrespect to superior commissioned officers, disobedience of superior commissioned officers, resisting apprehension, provoking words, assault on a Korean female, assault on military policemen, solicitation for sexual intercourse, and drunk and disorderly conduct.
2. CPT King considered the charges the most serious he had preferred since he took command on 29 August 1995. He informed the accused of the charges and told him he would be “flagged.” The “flag” was never entered in the accused’s records.
3. On 14 May 1996 the charges were referred to a Special court-martial empowered to adjudge a bad conduct discharge by the Commander, 2d Infantry Division, MG Franks.
4. On 20 May 1996 the U.S. Army Transition Center, Yongsan (Seoul, Korea), issued orders directing the accused to report to the Yongsan Transition Center for final outpro*601cessing from the Army on 14 June 1996. The orders included clearing instructions and were designated to be distributed to offices within Eighth U.S. Army, but none were designated to be distributed specifically to the 2d Infantry Division (enclosure to AE I).
5. On 24 May 1996 the referred charges were served on the accused.
6. On 30 May 1996 at an Article 39(a), UCMJ, session the accused was arraigned on the charges. At the arraignment the government indicated they were prepared to proceed to trial. The defense requested a delay which the Military Judge granted.
7. On 5 June 1996 a second Article 39(a), UCMJ, session was held. The accused was present. The defense requested another delay until the last week in June “in order to adequately prepare for trial, and in order to contact witnesses, and in order to fully discuss this ease with my client.” The government opposed the motion on the grounds that some witnesses might not be available if the case were further delayed. The Military Judge granted the delay and set the ease for trial on 26 June 1996.
8. Sometime prior to 14 June 1996 the accused received the ETS orders from the Yongsan Transition Center. He discussed his court-martial with his supervisors. He told the civilian who was in charge of his section, Mr. Paul Francik (Chief, Range Management Branch-North), that his defense counsel advised him to remain in Korea for his trial.
9. Mr. Francik allowed the accused to begin his clearing process. He even assisted him by signing a memorandum which tasked another NCO to complete the accused’s outprocessing so the accused could “meet his ETS date” (AE XXI).
10. Since Mr. Francik knew that the accused was pending court-martial, he notified his own supervisor that the accused had received ETS orders and personally delivered a copy of the ETS orders to an office at HHC, 2ID. However he did not speak to the Commander or First Sergeant about the problem. 11. On 14 June 1996 the accused “cleared” the Personnel Actions Center (PAC) at Headquarters and Headquarters Company, Eighth U.S. Army (HHC, EUSA). The NCO who “cleared” him, SSG James Blake, always asks soldiers if they are pending any investigations before he clears them. If they say they are, he calls their commauder to seek further guidance. He does not specifically recall the accused, but is sure that he would remember if the accused had said he was pending an investigation or a UCMJ action.
12. On 14 June 1996 the accused “cleared” HHC, EUSA. 1SG Michael Pridgen “cleared” the accused. He remembers him because there had been a question about who had UCMJ jurisdiction over the accused when 1SG Pridgen took over as the HHC, EUSA, First Sergeant' (January 1996). It was 1SG Pridgen’s impression that HHC, 2ID, exercised UCMJ jurisdiction over the accused. He knew the accused had been in trouble, but was led to believe by his conversation with the accused and his escorts (the accused’s NCOIC, SSG Ryan, and SSG Manson) that the accused was being “chaptered” out of the Army. There was no mention of a pending court-martial. 1SG Pridgen would not have cleared the accused if he had known he was pending a court-martial.
13. Sometime prior to 15 June 1996 the accused’s final pay had been computed by the 176th Finance Battalion, Yongsan, Korea. As of 15 June 1996 the final pay computation had not yet been audited by the 176th Finance nor had the finance office sent a message to the Defense Finance and Accounting Service asking them to verify the amount and mail a final pay to the accused.
14. On 14 June 1996 the accused reported to the Yongsan Transition Center. The accused had not finished clearing all of the facilities listed on his clearance form, but he had a power of attorney which authorized SSG Manson to clear for him. While he was at the transition center the Chief, Ms. Thomas, received a call from someone who identified himself as the accused’s commander. The caller expressed concern about the accused’s separation. Ms. Thomas said her office needed something in writing to hold *602the accused. The accused did not say he was pending court-martial. If Ms. Thomas had been aware that the accused was pending court-martial, she would have contacted his commander. It was Ms. Thomas’s impression that soldiers who are pending court-martial are not allowed to ETS.
15. On 14 June the accused was given copies 1 and 4 of his DD form 214. The effective date on the form was 15 June 1996.
16. On 24 June 1996 an Article 39(a), UCMJ, session was held. The accused was absent. The defense counsel moved to dismiss all charges for lack of jurisdiction.
Conclusions of Law
1. The government has shown by a preponderance of the evidence that court-martial jurisdiction attached over the accused when actions with a view toward trial were taken. These actions included preferral of charges, referral of those charges to court-martial, arraignment on those charges, and the setting of a trial date by the Military Judge.
2. Once court-martial jurisdiction over the accused attached, it continues for all purposes of trial, sentence, and punishment notwithstanding the expiration of the accused’s term of service.
3. The government has shown by a preponderance of the evidence that those actions taken by HHC, EUSA, to “clear” the accused, by the 176th Finance Battalion to begin “final pay” processing for the accused, and by the U.S. Army Transition Center, Yongson, to “deliver a DD form 214” and discharge the accused, were all taken under the mistaken belief that the accused was eligible for discharge.
4. Once charges were preferred and court-martial jurisdiction had attached, the accused was not eligible to be discharged until action on the charges (trial, sentence, and appellate review or dismissal of the charges) was completed by lawful authority. Actions taken to the contrary were without actual authority and do not terminate jurisdiction.
Based on on the foregoing findings of fact and conclusions of law, the defense motion to dismiss is denied. Done this 8th day of July 1996 at Yongsan, Korea.
Original Signed JAMES SMITH COL, JA Military Judge
UNITED STATES Y. SGT Todd A. Vanderbush HHC, 21D APO AP 96258
Findings of Fact and Conclusions of Law Defense Motion to Dismiss
On 21 June 1996 the defense moved to dismiss all charges against the accused on the grounds that the court-martial lacks jurisdiction to try the accused for the offenses charged (AE II). The government responded on 23 June 1996 (AE IV). Hearings pursuant to Article 39(a), UCMJ, were held on 24, 26, and 28 June 1996. Based on the evidence presented, the following findings of fact and conclusions of law are made. The standard applied was a preponderance of the evidence and the government had the burden.
Findings of Fact
1. After the accused arrived in Korea, he was given orders issued by Headquarters, 34th Support Group (a subordinate unit of Eighth U.S. Army), attaching him to Headquarters and Headquarters Company, 2d Infantry Division (HHC, 2ID) for the purpose of rations, quarters, UCMJ, and training. The orders were effective 18 March 1993 for a period of one year (AE VI).
2. Eighth U.S. Army Supplement 1 to Army Regulation 27-10, dated 3 May 1993, established area jurisdiction responsibilities within Korea. The Commander, 2ID, was given responsibility for an area which included Camp Casey (AE IV).
3. The accused was billeted at Camp Casey, Korea, which was the location of a large number of 2ID soldiers. He worked at a range which supported 2ID soldiers. His chain of supervision was mostly civilian and ran to Eighth U.S. Army.
*6034. In early 1996, 1SG Michael D. Pridgen, the First Sergeant of Headquarters and Headquarters Company, Eighth U.S. Army (HHC, EUSA), had a discussion with his commander, MAJ West, about who was responsible for UCMJ actions with regard to the accused. The First Sergeant was told that MAJ West and the commander HHC, 2ID, CPT King, had agreed that HHC 2ID had UCMJ authority over the accused.
5. Sometime after the incidents which gave rise to his case, the accused had a conversation with a fellow worker, SSG Ryan, regarding his case. The accused told SSG Ryan he was assigned to 2ID for UCMJ purposes.
6. On 2 May 1996 charges were preferred against the accused by the Commander, HHC, 2ID, CPT Steven A. King. The charges allege 14 violations of the UCMJ and include disrespect to superior commissioned officers, disobedience of superior commissioned officers, resisting apprehension, provoking words, assault on a Korean female, assault on military policemen, solicitation for sexual intercourse, and drunk and disorderly conduct.
7. The charges are alleged to have occurred on 17 February 1996 and 26 April 1996 at or near Camp Casey and Tongduehon, Korea. Tongduchon adjoins Camp Casey.
8. CPT King considered the charges the most serious he had preferred since he took command on 29 August 1995. He informed the accused of the charges.
9. On 14 May 1996 the charges were referred to a Special court-martial empowered to adjudge a bad conduct discharge by the Commander, 2d Infantry Division, MG Franks.
10. On 24 May 1996 the referred charges were served on the accused.
11. On 30 May 1996 at an Article 39(a), UCMJ, session the accused was arraigned on the charges. The defense requested a delay which the Military Judge granted.
12. On 5 June 1996 a second Article 39(a), UCMJ, session was held. The accused was present. The defense requested another delay until the last week in June. The Military Judge granted the delay and set the case for trial on 26 June 1996.
13. On 24 June 1996 an Article 39(a), UCMJ, session was held. The accused was absent. The defense counsel moved to dismiss all charges for lack of jurisdiction.
Conclusions of Law
1. The government has shown by a preponderance of the evidence that the charges against the accused where properly preferred by an individual subject to the UCMJ, and were properly referred to a court-martial, by a convening authority authorized to convene the court-martial.
2. The government has shown by a preponderance of the evidence that the accused was initially formally attached to 2ID for UCMJ purposes. That the accused resided and worked within the 2ID area of UCMJ jurisdiction. That the alleged offenses were committed within the 2ID area of UCMJ jurisdiction. That the commanders of HHC, 2ID, and HHC, EUSA, agreed that the accused was subject to 2ID UCMJ jurisdiction. That the accused told his fellow worker he was subject to 2ID UCMJ jurisdiction. Under these circumstances, there was no procedural error in the forwarding of the accused’s charges.
Based on the foregoing findings of fact and conclusions of law, the defense motion to dismiss is denied. Done this 8th day of July 1996 at Yongsan, Korea.
Original Signed JAMES J. SMITH COL, JA Military Judge
. Interestingly, Mr. Toth apparently acknowledged (albeit gratuitously) that had jurisdiction attached prior to his discharge, military authorities would have had court-martial jurisdiction. See Toth, 350 U.S. at 44, 76 S.Ct. at 20 (Minton, J., dissenting).
. Having concluded that Congress does not expect that a valid discharge will cut off attached court-martial jurisdiction, it would be anomalous to conclude that Congress expects that a fraudulently obtained discharge would cut off attached jurisdiction. Accordingly, I conclude that Congress created Article 3(b), UCMJ, jurisdiction for those situations where there is probable cause to believe that the discharge was obtained by fraud and Article 2, UCMJ, jurisdiction had not attached prior to issuance of the discharge. See United States v. Cole, 24 M.J. 18, 19, n. 1 (C.M.A.), cert, denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987); see also Cole, 24 M.J. at 28 (Everett, C.J., dissenting). However, if the government chooses to base their claim of jurisdiction on Article 3(b), UCMJ, alone, courts must follow the Article 3(b), UCMJ, process explicitly. United States v. Reid, 43 M.J. 906 (Army Ct.Crim. App.1996).
. This preeminence, as a matter of law, of judicial action over administrative action is recognized by the Secretary of the Army in Army Reg. 635-200, Enlisted Personnel (17 Oct. 90), paras l-24b and 1-33, which prohibit discharge of persons awaiting court-martial until the court-martial process is lawfully concluded. The Judge Advocate General has construed this prohibition as a limitation on the actual authority of field commanders to issue a discharge, and discharges so issued are null and void. See generally Opinion of The Judge Advocate General, DAJA-AL 1986/2036, 11 June 1986.