(concurring):
I concur in the opinion of the Chief Judge. However, I add these comments in view of a statement in my Brother Cook’s dissenting opinion which I believe needs to be addressed.
As the Chief Judge’s opinion points out, there was a stipulation of fact between the parties at trial that “all of the sales were conducted as a result of the military association of the accused with individuals that the accused worked with and were known to him to be active duty Marines serving as military policemen.” The Government, in its brief on this issue, suggests: “The only .logical inference to be drawn therefrom is that appellant and his buyers, Corporal Whitehurst and Lance Corporal Stewart, discussed the availability of drugs at appellant’s off-post residence in the course of their military duties.”1 Thus, in the view of the Government, the criminal enterprise “was formed on base, during duty hours and in the course of the military duties of *285appellant and the transferees.”2 Judge Cook apparently accepts this suggestion, for he refers to “[t]he majority’s separation of the preliminary on-base activities from the final off-base act.” (Emphasis added.)
The stipulation relied upon by the Government, and apparently by Judge Cook, is ambiguous at best. I read it to suggest that the buyers, by virtue of being military policemen like the appellant, simply became aware through that association, of his activities, not that they approached him during duty hours on post to make arrangements for sale. As it is the burden of the prosecution to establish jurisdiction over the subject matter of a court martial, see United States v. Alef, 3 M.J. 414 (C.M.A.1977), and United States v. McCarthy, 2 M.J. 26 (C.M.A.1976), I cannot draw the “inference” urged by the Government and embraced by Judge Cook.
Moreover, even if the inference lies, that does not alone permit the exercise of court-martial jurisdiction over the sales which occurred off post. The Government had a statutory remedy for vindication of its interest in discouraging such “on-base activities” as negotiations on the installation: Article 81, Uniform Code of Military Justice, 10 U.S.C. § 881, Conspiracy. United States v. Hedlund, 2 M.J. 11 (C.M.A.1976); United States v. Washington, 1 M.J. 473 (C.M.A.1976). However, the appellant was not charged with the conspiracy, but rather with the substantive offense itself.
. Brief on Behalf of the United States, page 12.
. In its opinion below, the Navy Court of Military Review may likewise have so concluded, for one of the factors relied upon by that court to find jurisdiction here was “the formation of the criminal intent for the offense on base.” This could mean that the court believed the appellant simply decided while on post to engage in these acts, or it could mean that the court, as does the Government, believed that the appellant and these buyers engaged in negotiations on post for these specific sales. In either event, for the reasons to be discussed, infra, the conclusion is unsupported by any evidence of record and is neither binding nor persuasive.