(concurring):
Here, the accused was subject to military law at the time the offense was committed. Thereafter, he was released from active duty and transferred to the Air Force Reserve. When his complicity in the offense was established, he initiated his recall to active duty with a written request for such action. Although he contested the vol-untariness of this action before the District Court for the Northern District of Florida, the issue was not decided by that tribunal. Its decision was predicated entirely upon the accused’s amenability to trial under the provisions of Article 3(a) of the Uniform Code of Military Justice, 10 USC § 803.
When the case came on for trial before the general court-martial convened at Eglin Air Force Base, Florida, the accused, represented by competent counsel of his own choice, did not raise an issue of the voluntariness of his request for recall. Rather, he entered into a stipulation respecting the facts upon which jurisdiction was claimed. This stipulation adverts to his active duty tour, his relief from active duty and transfer to the reserve, and closes with these significant recitations of fact:
“On 26 March 1958 the accused executed an application for extended active duty with the United States Air Force (AF Form 125); which form states that the application was made under the provisions of AFR 45-21 and which form contains the following legend in the remarks section: T *658understand if this application is accepted I will immediately be confronted with court-martial proceedings arising out of the allegations related to incidents while I was on active duty under my Air Force enlistment.’ By Direction of the Secretary of the Air Force the accused was relieved from Reserve Assignment Headquarters ConAC (ISLRS) Air Reserve Records Center, Denver 5, Colorado, and assigned to Headquarters, Air Proving Ground Center, Eglin Air Force Base, Florida, effective 26 March 1958 by Special Orders Number A-1232 dated 26 March 1958 for a period of 48 months unless sooner relieved.”
Nowhere is mention made of involuntariness of the accused’s request for recall. Indeed, a logical inference may be drawn from the recitation of facts that the request was not occasioned by unlawful coercion, fraud or other conditions of involuntariness. Having passed over this item before the trial court — “the only satisfactory forum for conducting truly adversary proceedings, and for testing the validity of evidence in the time-honored process of cross-examination”1 — he attempted to inject it into the proceedings before the board of review; but before this Court, again no question of voluntariness is raised.
From the foregoing it appears certain that this record affirmatively and incontestably establishes that the accused’s return to an active duty status is not affected by any taint of involuntariness. This leads me to conclude that no issue relative to a recall for purposes of court-martial only is presented for our decision. Such an issue could arise only if the recall was without the accused’s consent.
Thus, the crime was committed, and the trial was held, when the accused was subject to military law. In legal effect, therefore, this situation is precisely the same as was found in United States v Gallagher, 7 USCMA 506, 22 CMR 296, where we held that a discharged serviceman who re-enlists, may, subject to the statute of limitations, be tried for the type of offense defined in Article 3(a) and committed in a prior enlistment. There, the accused had a discharge from the former enlistment. Here, his tour of active duty was terminated by an order which transferred him to the Air Force Reserve. In both instances, his amenability to military law came to an end, momentarily at least. What I observed in Gallagher, supra, is equally pertinent here:
“One who re-enlists in the service after a discharge is not ‘like Toth.’ On the contrary, his position is like that of a person who leaves the country after committing a crime. During the time he is outside the jurisdiction he cannot be tried. But if he returns, he can, subject to the Statute of Limitations, be tried’and convicted for an offense committee! by him before his departure. From that point of view, the time hiatus between discharge and re-enlistment is completely immaterial.” [See also United States v Martin, 10 USCMA 636, 28 CMR 202.]
I therefore join in the action affirming the decision of the board of review. I express no opinion as to the continuation of court-martial jurisdiction under Article 3(a) of the Code over individuals relieved from active duty and transferred to a reserve component for completion of a military service obligation under the Universal Military Training Act. That question must await determination in a case in which the factual situation presents it.
United States v Brown, 10 USCMA 498, 503, 28 CMR 64.