(concurring in the result):
In United States v. Ornelas, 2 U.S.C.M.A. 96, 101, 6 C.M.R. 96, 101 (1952), this Court held that members of the court-martial should decide, as part of their determination of guilt or innocence, whether the accused had been validly inducted into the Army. That ruling was the source1 of the pertinent language in paragraph 57b of the Manual for Courts-Martial, United States, 1969 (Revised edition):
A question is interlocutory unless the ruling on it would finally decide the case on its merits. Questions that go to the ultimate issue of guilt or innocence are not interlocutory. Whether a question is interlocutory may vary with the context in which it arises. An issue is not purely interlocutory if an accused raises a defense or objection and the disputed facts involved go to the ultimate question of guilt or innocence. For example, if during a trial for desertion the accused makes a motion to dismiss for lack of jurisdiction and presents evidence tending to show that he is not a member of an armed force, his status as a military person reaches the ultimate question of guilt or innocence, and, if the motion is denied, the disputed facts must be resolved by each member of the court in connection with his deliberation upon the findings. If, on the other hand, the accused was charged with larceny and presented the same evidence as to his military status, the evidence would bear only upon his amenability to trial and the issue would be disposed of solely as an interlocutory question.
The appellant’s defense that he was innocent of unauthorized absence because he had not validly enlisted in the Armed Forces is close enough to the example set forth in the Manual that I must conclude the President intended for it to be submitted to the members of the court-martial. Cf. United States v. Bailey, 6 M.J. 965 (N.C. M.R.1979).2
In United States v. Torres, 22 U.S.C.M.A. 660-61 (1973), the offenses involved were non-military offenses and therefore, under paragraph 57b of the Manual, supra, the issue as to jurisdiction of the person would properly be decided finally by the military judge as an interlocutory manner. Thus, the order of remand in that case was not inconsistent with the Manual. While, as the principal opinion herein points out, on *478other occasions this Court entered similar orders in cases involving military offenses,3 where a remand for determination of in personam jurisdiction by a military judge might seem inconsistent with the accused’s right to have this issue determined by the court members, I assume that any inconsistency with the Manual provision was an oversight, rather than a sub silentio overruling of Ornelas and rejection of the President’s directive.
Thus, in the case at hand, the issue of recruiter misconduct, if properly before the court-martial at all,4 ultimately had to be decided by the trier of fact pursuant to the standard of proof beyond a reasonable doubt. After coming to this conclusion, the military judge adopted a procedure which embodied the logic that, if the Government could not convince the court members beyond a reasonable doubt that the appellant’s enlistment did not result from recruiter misconduct, then there was no need for the trier of fact to hear evidence on the other issues relevant to appellant’s guilt. Under some circumstances, such an approach might forestall an unnecessarily lengthy trial; and so the judge’s innovativeness can be applauded. However, it is doubtful that the case at hand, which involved five specifications of unauthorized absence,5 was especially suitable for employment of the procedure. Moreover, if the court members are asked to make special findings, the procedure thereafter should be different from that which the military judge used here.
After the court members initially determined by a two-thirds secret ballot vote that the enlistment contract was valid, they were instructed on the elements of the offense. However, the judge advised them that, as they had already determined the enlistment contract to be valid, they need not consider that issue further. In so doing, he overlooked the possibility that of the four court members participating in appellant’s trial, one might have entertained a reasonable doubt as to the validity of the enlistment contract and another might have experienced a reasonable doubt as to some other issue concerning guilt of the offense. Under this hypothesis, the procedure employed by the judge would make it theoretically possible that only two of the four court members were convinced beyond a reasonable doubt that Laws was guilty of all the elements of the charged offenses and had no valid defenses.
While recognizing this possibility, I have concluded from my reading of the record that in this case it is no more than theoretical. The issue upon which the parties met in combat was recruiter misconduct. In other respects, the charges were not seriously contested and, as in most cases of unauthorized absence, were tried on the basis of official records. The bifurcated procedure employed by the judge tended to highlight the primary issue of recruiter misconduct; thus, it was beneficial to the appellant and was fully acquiesced in by defense counsel, who did not object in any way to the judge’s instructions or raise any question about the voting percentages. Under these circumstances, I am sure that appellant was in no way prejudiced by the procedure employed or by the judge’s instructions.
. See D.A. Pamphlet 27-2 (1970), Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition), para. 57b (2d subparagraph). The Ornelas case is erroneously cited therein as Orvelas.
. Since the President has prescribed the applicable procedure pursuant to his powers under Article 36, Uniform Code of Military Justice, 10 U.S.C. § 836, I need not consider whether the Uniform Code or the Constitution would compel a similar result.
. See, e. g., United States v. Craig, 4 M.J. 141 (1977) (unauthorized absence); United States v. Kneeland, 23 U.S.C.M.A. 717 (1975) (unauthorized absence), according to the appellate papers on file in this Court.
. The Court has not yet decided whether the 1979 amendment of Article 2 of the Code, 10 U.S.C. § 802 has retroactive effect.
. After arraignment, appellant departed once again without permission.