Opinion
COOK, Judge:Appellant was tried by a special court-martial with members and stands convicted of five specifications of absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. We granted review to determine if the military judge erred to the prejudice of appellant by the manner in which he instructed the members on a jurisdictional issue which was litigated at trial. 8 M.J. 39 (1979).
During an Article 39(a)1 session, appellant testified that the recruiter responsible for his enlistment had advised him to conceal various matters related to his earlier involvement with civilian law enforcement officials. The defense submitted that appellant’s enlistment was contrary to regulation and the recruiter’s misconduct precluded the exercise of court-martial jurisdiction under the doctrine of United States v. Russo, 1 M.J. 134 (C.M.A.1975).2 The Article 39(a) session adjourned without determination of the issue; when it reconvened, appellant was absent. After receiving evidence reflecting that appellant was voluntarily absent, the military judge ordered the proceedings to continue.3 In due course, the recruiter testified and totally contradicted appellant’s version of the enlistment process. The military judge then *476ruled that “there is jurisdiction in this court over the accused.” At the insistence of the military judge, the jurisdictional issue was relitigated before the court members. Over the Government’s objection, the testimony appellant had given during the Article 39(a) session was read to the court members. The Government again called the recruiter, who repeated his earlier testimony.
Over trial counsel’s objection, the military judge submitted the jurisdictional issue to the court members prior to submitting the issue of guilt or innocence. He specifically instructed the members that they “must be persuaded beyond a reasonable doubt that there was no recruiter misconduct.” Upon returning from deliberation on the jurisdictional issue, the president announced that, “with at least two-thirds of the members concurring,” they had determined that the enlistment contract was valid. The Government then presented documentary evidence to establish appellant’s unauthorized absence for each of the five alleged occasions. In his instructions on the elements of the offense, the military judge said:
Gentlemen, you have already determined the first element, although it is not usually stated as an element, but the first element of any unauthorized absence offense is jurisdiction over the accused. You have already made a determination against the accused in this regard. You have determined that there is jurisdiction over him, so you may regard the language in these Specifications that he is a person subject to the jurisdiction of the Marine Corps under Article 2, you may regard that as surplusage at this point since that issue has already been determined.
Trial defense counsel offered no objection to either the bifurcation of the trial or the instructions, but appellate defense counsel have taken a different position. As appellant was tried before four members, only three votes were required for an adverse determination. Under military practice only the required fraction of the members voting is announced. United States v. Hendon, 6 M.J. 171 (C.M.A.1979). Thus, counsel argue that it is mathematically possible that only three members voted against him on the jurisdictional issue and only three members voted against him on the ultimate determination of guilt. Appellate defense counsel argue that, if this were the actual vote, there is a possibility that one member could have voted against the accused on the jurisdictional question but for him on the ultimate issue of guilt or innocence. The remaining third vote on guilt would have been cast under such circumstances by the member who voted in his favor on the jurisdictional issue. Accordingly, counsel submit that there is no assurance that the same three members voted against him during the two segments of the bifurcated trial.
Appellant’s argument presumes that, under the authority of United States v. Ornelas, 2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952), the military judge was required to submit the issue to the court members. I have reservations about the continued validity of the Ornelas holding which requires the court members to resolve an issue of in personam jurisdiction when there are contested facts and a purely military offense is involved. The metamorphosis of in personam jurisdiction into a matter for the members’ determination, with respect to such military offenses as desertion and absence without leave, seems to me to be an unwarranted exception to the general rule that jurisdiction over person and offense is a question of law for the trial judge. My reservations are heightened by the practical difficulties inherent in the Ornelas rule. For example, if several offenses are before the court and some are military but others are not, I can imagine the accused’s and the court members’ confusion at the judge’s determination of jurisdiction with respect to the nonmilitary offenses and the court members’ determination of jurisdiction of the military offenses.4
*477In recent years, this Court has remanded cases for resolution of in personam jurisdiction by a judge alone without regard to the nature of the offense.5 My Brothers have chosen to adhere to Ornelas. We all agree that, under the circumstances of this case, the appellant was not prejudiced by the court members’ first considering the jurisdiction issue and subsequently determining the issue of guilt.
The decision of the United States Navy Court of Military Review is affirmed.
. Uniform Code of Military Justice, 10 U.S.C. § 839(a).
. This doctrine has been modified by P.L. 96-107, 93 Stat. 810-811 (November 9, 1979).
. See generally para. 145b, Manual for Courts-Martial, United States, 1969 (Revised edition), and Mil.R.Evid. 804(b)(1).
. There is a concomitant problem of different standards of proof. See para. 57g(1), Manual, supra; United States v. White, 611 F.2d 531 (5th Cir.1980), cert. denied, 446 U.S. 992, 100 S.Ct. 2978, 69 L.Ed.2d 849 (1980); Wright, Fed*477eral Practice and Procedure: Criminal § 307 (1969).
. See United States v. Owens, 7 M.J. 388 (C.M. A. 1979); United States v. Craig, 4 M.J. 141 (C.M.A.1977); Douglas v. United States, 3 M.J. 463 (C.M.A.1977); Barnett v. United States, 3 M.J. 251 (C.M.A.1977); United States v. Kneeland, 23 U.S.C.M.A. 717 (1975); United States v. Jones, 23 U.S.C.M.A. 715 (1975); United States v. Martin, 23 U.S.C.M.A. 714 (1975); United States v. Mathis, 23 U.S.C.M.A. 695 (1974); and United States v. Torres, 22 U.S.C. M.A. 660 (1973). Chief Judge Everett suggests that “any inconsistency” between these cases and “the Manual provision [on the subject] was an oversight.” The cases, however, can be construed differently. Even United States v. Ornelas, 2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952), recognized that submission of the jurisdictional issue is required only if there are “contested” issues of fact; a remand to a trial judge to determine the actuality of conflict is, therefore, appropriate.