(concurring in the result):
My Brothers, as in the past,1 proceed to answer a legal question in the abstract before they have a proper record of the facts as found by a court lawfully empowered to make such determinations. As a result, they anticipate constitutional questions not necessarily raised in the case.
The initial question to be decided in this case is under what statute does the Government assert court-martial jurisdiction over petitioner? Petitioner asserts that she was discharged from the military on October 15, 1980. Accordingly, she states that court-martial jurisdiction could only be exercised over her under Article 3(b), Uniform Code of Military Justice, 10 U.S.C. § 803(b), but she argues that provision is unconstitutional.
The exhibits attached to the papers filed in this case clearly state that petitioner was released from active duty and assigned to an inactive reserve unit to complete her service obligation. Whether court-martial jurisdiction can be exercised over her under the circumstances of this case is a mixed question of fact and statutory law to be decided by the military judge under Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1).
*154I would dismiss the petition for extraordinary relief.
If petitioner objects to the military judge’s deciding this question concerning her military status, she might seek appropriate relief in a federal district court. See Schlesinger v. Councilman, 420 U.S. 738, 759-60, 95 S.Ct. 1300, 1313-14, 43 L.Ed.2d 591 (1975).
. Cooke v. Ellis, et. al, 12 M. J. 17 (C.M.A.1981).