(dissenting):
I disagree unqualifiedly with the majority’s rule that, henceforth, the Government must “demonstrate through sworn charges/indictment, the jurisdictional basis for trial of the accused and his offenses.” The office of the specification has never before been perceived to require a statement of the evidence in support of an essential allegation. The Uniform Code does not require allegation of that kind; nor is it prescribed by the President, whose authority, under Article 36, Uniform Code of Military Justice, 10 U.S.C. § 836, to regulate courts-martial procedure comprehends, in my opinion, the power to specify short forms of specification for military offenses. United States v. Marshall, 18 U.S.C.M.A. 426, 40 C.M.R. 138 (1969).
Until now, the accused’s status as a person subject to the Uniform Code was sufficiently identified by allegation of his rank and organization; thus, the Manual indicates that “description by rank and organization . . . [shows the accused] is within court-martial jurisdiction as to persons.” Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 28 a(l). Henceforth, the possibility that accused’s entry into the service may have been tainted would require allegations in the specification to “demonstrate . the jurisdictional basis” for the exercise of jurisdiction over him. See United States v. Barrett, 23 U.S.C.M.A. 474, 50 C.M.R., 493,1 M.J. 74 (1975). Similarly, until now, delineation of conduct proscribed by the Code has always been enough to demonstrate subject-matter jurisdiction. Now, the totality of the evidence bearing on the matter must be set out in the specification. It seems to me that if elaboration is believed necessary to the accused, the proper way for him to obtain it is by a motion for further particulars. United States v. Williams, 12 U.S.C.M.A. 683, 685, 31 C.M.R. 269, 271 (1962).
It may be that, when challenged at trial, the Government will not be able to establish that a military offense that has been committed in the civilian community was sufficiently service connected to allow the exercise of court-martial jurisdiction in that instance. However, that situation is no different from the failure of the Government to establish guilt beyond a reasonable doubt. In the latter instance, the failure of proof does not retroactively invalidate the specification. I believe the same underlying reasoning requires the conclusion that a facially sufficient allegation of the commissiofi of a military offense is not rendered null and void by the failure to establish, when challenged, the service connection of the offense charged. See Byrnes v. United States, 327 F.2d 825, 834 (9th Cir. 1964), cert. denied, 377 U.S. 970, 84 S.Ct. 1652, 12 L.Ed.2d 739 (1964). To me, the rule now promulgated by the majority has an unacceptable potential for mischief and runs counter to the modern practice under which supportive evidence is excluded from the specification. See Manual, supra, paragraph 28; Fed.R.Crim.P. 3 and 7(c).
Turning to the merits, evidence at the Article 32 investigation indicates that the arrangements for the meeting, in an off-base parking lot, for the sale of cocaine were made by the accused in a telephone call to him, pursuant to his request, at his “duty phone number at the Dental Clinic” at Homestead Air Force Base. In that conversation the caller, Specialist Hines, informed the accused that he “had CQ” and the transaction had to be accomplished “on *422. [his] dinner hour.” The accused agreed, and designated the off-base parking lot as the place for the transfer of the drug “because he felt it was safer.” From these circumstances, I believe it can fairly be inferred that the accused anticipated that Hines would immediately return to the base with the drug in his possession.
In note 12, the majority imply that frustration of the accused’s anticipation that the drug would be introduced into the military community militates against consideration of the accused’s anticipated consequence of his conduct as a jurisdictional factor. I disagree. In my view, the record, in its entirety, establishes the service connection of the offense, and allows the exercise of court-martial jurisdiction. United States v. McCarthy, 25 U.S.C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (1976).
On the basis of note 2 in McCarthy, the majority hold, in note 6 of their opinion here, that recourse to the Article 32 investigation for matter relevant to jurisdiction “is inappropriate.” I disagree with that determination for two reasons. First, the footnote in McCarthy cited United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973), “as barring resort” to the record of investigation “to resolve the jurisdictional issue.” 25 U.S.C.M.A. at 34, 54 C.M.R. at 34, 2 M.J. at 28. As I read the Bethea opinion, it is not nearly as expansive as represented in McCarthy. The Court held in Bethea that “review of the guilt or innocence of an accused [is limited] to the evidence presented at trial,” but that extra record matter, including that contained in the allied papers, can properly be considered by the convening authority in connection with his action on the sentence. 22 U.S.C.M.A. at 225, 46 C.M.R. at 225.
Not a word in the Bethea opinion cast doubt upon then prevailing practice that when the jurisdiction of the court-martial is challenged for the first time in this Court, the Court can look, not just to the evidence at trial, but also to the Article 32 investigation 1 and to reliable post-trial recitals of facts relevant to the issue.2 Without reference to these cases, note 2 of the McCarthy opinion took a different tack. In my opinion, that tack was erroneous because it did not properly distinguish between uncontested facts and disputed facts. Quite recently, the majority has acknowledged that “matters outside the record” of trial can be considered to decide a “question of effectiveness of counsel.” United States v. Davis, 3 M.J. 430 n. 1 (C.M.A. 1977). As with appellate assessment of the trial effectiveness of counsel, undisputed facts in the allied papers before the Court can provide a solid basis for determination of the issue. Where the evidence is in conflict, a limited DuBay-type3 hearing into the matter to resolve the conflicts is appropriate. As the facts crucial to my decision are undisputed, I have no hesitancy in deciding the jurisdictional issue.
The second reason I reject the majority’s holding that Article 32 investigation evidence cannot be considered at all on the jurisdictional issue is that McCarthy is to the contrary. As I read note 2 of that opinion, matter in the allied papers can be considered at least for the limited purpose of determining “whether a rehearing to gather additional evidence is warranted”; in other words, such evidence can call for a DuBay hearing. In fact, McCarthy refers to DuBay in that context. As this case was decided before McCarthy, I believe the an*423tecedent practice should be followed; but, in any event, on this record, the Government is, in my opinion, entitled to the opportunity to prove the jurisdictional basis for the exercise of court-martial jurisdiction.
. United States v. Plamondon, 19 U.S.C.M.A. 22, 41 C.M.R. 22 (1969); United States v. Crapo, 18 U.S.C.M.A. 594, 40 C.M.R. 306 (1969); United States v. Chandler, 18 U.S.C.M.A. 593, 40 C.M.R. 305 (1969).
. United States v. Riehle, 18 U.S.C.M.A. 603, 40 C.M.R. 315 (1969); United States v. Cochran, 18 U.S.C.M.A. 588, 40 C.M.R. 300 (1969).
. United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).