concurring in result:
This case was properly tried under the traditional rules that military status raises amenability to military criminal law and that military status, once acquired, persists until terminated according to law. I write separately and overlong to emphasize the importance of the traditional rules and to contest certain threatened erosions of the proper scope of those rules.1
I reject appellant’s contention and the minority view that the Government was guilty of a misdeed equivalent to an individual soldier’s violation of Article 92(1), Uniform Code of Military Justice, such that it is estopped to assert criminal jurisdiction over this appellant. The majority opinion is in agreement with that view to the extent that it says that there was a misdeed possible (though none occurred) because the Government had imposed some voluntary limitations on its exercise of jurisdiction, paragraph 2 — 4, AR 635-200. That I also disagree with; no restrictions were intended or effected by that regulatory language. Both opinions speak of a soldier reaching the end of his enlistment, his “ETS” as it is called, and then being “retained” on active duty so that the compulsory continuation of military service results, a fortiori, in a continuation of jurisdiction.
This appellant, having made no demand for release from the Army, does not fall within the regulatory provisions relating to “retention”; he was in a “continued” status. That status and some of its consequences, including jurisdiction, are unusual, but they flow from fully supportive legal and military considerations.
Much of the difficulty with the notion of consequent criminal jurisdiction at this point in a person’s military career appears to flow from a perception that a soldier’s continuation on active duty beyond the end of his stated term of service, the ETS referred to above, is, somehow, illegal per se. See United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970) (Dissenting opinion of Ferguson, J., at 303-305). That just is not so, periods of service may vary lawfully.
First, there is a practical reason for regarding such periods as flexible. In an Army which may total millions of persons and be spread about the world, maladjustments in times of entry and departure and of personal availability for those actions may be expected with certainty. Congress recognized it — making everybody’s term of service variable by inserting the phrase “persons awaiting discharge” in Article 2(1), UCMJ, and providing that a soldier’s military service ends only when formally marked, consented to and signalled by a “certificate of discharge.” 10 U.S.C. § 1168.
Secondly, the principle of continuing military obligation is entirely consistent with the status theory of military service. In that view, entry into the armed services creates a new relationship between the citizen and the state, something like getting married or being appointed as a judge on good behavior. The status thus created cannot end ex proprio vigore nor can it “. . .be severed by breach of contract unfortified by a proper authoritative action [citing cases].” Dickenson v. Davis, 245 F.2d 317, 319 (10th Cir. 1957), cert. den. 355 U.S. 918, 78 S.Ct. 349, 2 L.Ed.2d 278 (1958) (Emphasis supplied). Accord United States v. Hout, supra; Taylor v. Resor, 19 U.S.C.M.A. 405, 42 C.M.R. 7 (1970); United States *665v. Blanton, 7 U.S.C.M.A. 664, 23 C.M.R. 128 (1957).2
Thus the proper general proposition is that stated periods of military service are extended by operation of law in the absence of an effective discharge or other appropriate separation document. The duration of such involuntary extensions may be for months. Dickenson, supra; Hout, supra. Whatever the inertial period, it is also clear that military criminal jurisdiction is an incident of the continued military status.
This statement follows from the general statutory rule. Criminal jurisdiction over persons in the armed forces is a consequence of their military status as defined by the Uniform Code, Article 2, e. g., a person belonging to a regular component. Dickenson, supra, at 319. People whose status does not change lose none of the consequences of the status, i. e., they continue in rank, position, pay, and other emoluments. However, when the status is destroyed as provided by law, such as by a discharge, courts quickly announce the end of the consequences, especially jurisdiction. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1,100 L.Ed. 8 (1955). The watershed between the exceptional powers of courts-martial on one hand and the protections of both the complete Bill of Rights and Article III of the Constitution on the other is the discharge of the citizen from the service. Id., at 22-23, 76 S.Ct. I.3 Before that, the bare military status is determinative. The automatic statement that criminal jurisdiction is a consequence of status appears shallow; however, there are more than abundant military requirements for the basic rule and the “persons awaiting discharge” part of Article 2(1). The reasons and requirements may be briefly listed:
1. To maintain integrity of the military force as by inhibiting soldiers from walking off an active battlefield on the day their enlistments nominally expire.
2. To provide order and regularity during the delay incident to the muster-out of troops after the need for massive mobilization has passed.
3. To prevent fortuitous cleansing of the slate by the routine discharge of those who deserve both to be called to account and to be barred from reenlistment.
4. To foster disciplined conduct by individuals in the final few days or hours of service.
5. To provide a legal status and basis for payment and management of such persons.
Thus there is a sound military basis for the consequent jurisdiction such as was exercised here and which has been consistently recognized by both military and civilian courts.4
What, then, is the impediment to the exercise of jurisdiction in this case? Appellant suggests that the Government is es-topped from asserting its jurisdiction for failure to comply with certain Army personnel regulations concerned with separations from the service. I will deal with the precise status of those regulations shortly, but there is a substantive reason why they are inapposite, as was suggested earlier. First, appellant relies on two cases from our jurisprudence for the proposition that: “Once the question of invalid personal jurisdiction has been raised, the Government bears the burden of proof that it had commenced action with a view to trial, sufficient to extend jurisdiction, before the enlistment expiration date.” Citing United States v. Kalt, 50 C.M.R. 95 (A.C.M.R.1975), and United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (A.C.M.R.1975) (App. Brief pp. 2-3).
*666The suggestion is that any assertion of no jurisdiction puts the Government to a very specific form and content of proof. A first look at Kalt would seem to support appellant’s suggestion. Here is its exact language:
“ ‘Once the question of jurisdiction over the accused after the expiration of his enlistment is placed in issue, the government has the burden to show that prior to the expiration thereof it had commenced action with a view to trial sufficient to preserve jurisdiction.’ United States v. Larson, 42 C.M.R. 941 (N.C.M.R.1970). (See also United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970), and paragraph lid, M.C.M.1969 (Rev. ed.).” (Emphasis supplied.) 50 C.M.R. at 97.
This states only a special rule and the Navy case quoted must be read in context. There the appellant made a demand for discharge after his ETS and before anything had been done to attach specific jurisdiction to him. Therefore, he was entitled to immediate discharge and to an end of the consequent jurisdiction flowing from his status under Article 2(1). The Navy Court properly took its law from Hout wherein the absence of a demand for release was conclusive of the question, Did status and consequent general jurisdiction continue? Hout was simply a person “awaiting discharge” within the meaning of Article 2(1), UCMJ, (albeit for eight months); Larson, however, made a timely demand, and it was that demand which put the question of jurisdiction in issue such that the Government was obliged to show a prior act “. with a view to trial sufficient to preserve jurisdiction.” Our later decision in United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (A.C.M.R.1975), is consistent with this view; there, the effect of the appellant’s protests was described as “the determinative issue” and, having found them timely with respect to the Government’s inaction, this Court dismissed the charges for want of jurisdiction. 1 M.J. at 611-612.
The foregoing analysis shows that the Larson rule is not to be applied here as contended. Moreover, and to the extent that prior cases from this level do suggest the applicability of the Accardi “failure to follow one’s own regulations” rule, I would also reject them. The reason for that rejection is that paragraph 2-i, AR 635 — 200, is just not the type of regulation contemplated by the Accardi and Russo line of cases. Rather than protecting or enlarging personal liberties, the provisions relevant here were expansive of the power of Government, designed to regulate only the conduct of officials below the policy-making level and had as their purpose a simple effort to stabilize record keeping.
Ten years ago, all of paragraph 2-4 was the present subsection b which provided simply that persons awaiting trial or the results of trial on their ETS would not be discharged until final disposition of the charges was made. AR 635-200, 15 July 1966. The first appearance of the present subparagraph a was on 22 December 1967. That addition delegated to general court-martial convening authorities part of the retention power exercised only by Headquarters, Department of Army, prior to the Vietnam buildup.
Most of the modern content of subparagraph a first appeared in 1971. At that time two things happened: the authority to retain was further enlarged to include designees of the general court-martial convening authority and the occasions for retention were enlarged to include those members who had been “apprehended, arrested, confined or otherwise restricted . . .” AR 635-200, 6 August 1971. That extension was modified the same year to require personal approval by the general court-martial authority to retain persons not charged but still continued more than 30 days beyond ETS. AR 635-200, 3 November 1971.5 That was the total version applicable to *667appellant, but its 30 day rule is not relevant to this discussion.
This tracing discloses nothing to suggest that the regulation was intended to modify any rule of law or provide additional legal protections to anyone. It is a personnel-administration device which locates certain decision making levels and amplifies rather than restricts the power to be exercised over members.
That view of AR 635-200 is supported by the view of its promulgators. Paragraph 1-2, Scope, of that regulation says:
“a. . . . Unless specifically provided for, the provisions of this regulation, as well as all regulations in the 635 series dealing with the discharge of enlisted personnel, are binding upon field commanders but not upon Headquarters, Department of Army.” [Emphasis supplied.] AR 635-200.
Patently, the power to bind and loose which was exercised only in Washington prior to 1966 remains there. Field commanders may act only within the scope of their delegations; they must come up through channels to obtain further authority to retain persons. Furthermore, the plenary power retained by Headquarters, Department of Army, meant that no improper local action need go unredressed. Simple administrative action — an appeal “through channels” —was clearly available to this soldier who had counsel well before trial. No such remedy was pursued.
Thus, the regulation was not violated, even if applicable; the putative violation raised no estoppel because appellant was not deprived of anything; and even if he had been injured his complaint is untimely in view of the posture of paragraph 1-2 of the regulation here involved. Therefore, none of the Government’s conduct under the regulation was a bar to the exercise of jurisdiction. Appellant was properly tried; the findings and sentence should be affirmed.
. It is fair to speak of “traditional” rules. See former Article of War 2a and paragraph 10, both in the Manual for Courts-Martial, 1928 (1943 Rev.); paragraph 334, Naval Courts and Boards (1937); British Army Act of 1955 §§ 11, 13, 131 and 132.
. Short periods of active duty for training contracted for by Reservists are not necessarily exceptions to this as they provide for automatic termination.
. I am personally persuaded that the soldier fares better at all stages of the proceedings, but civilian courts do not always see it that way.
. These cases of recognition in various circumstances are amply collected in the Government’s brief.
. The identity of this 30 day period with the period after which GCM authorities must personally review the pretrial confinement of accused persons cannot be overlooked.