(dissenting):
In my dissent in Wickham v. Hall, 12 M.J. 145, 154 (C.M.A.1981), I explained my conclusion that Article 3(b), Uniform Code of Military Justice, 10 U.S.C. § 803(b), is unconstitutional in light of United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). In his dissent in Wickham v. Hall, 706 F.2d 713, 718 (5th Cir.1983), Judge Thomberry expressed similar views. Consistent with my rationale in Wickham, I am convinced that in this case the court-martial had no jurisdiction to try Cole for fraudulent separation from the Army.
In Toth, the Supreme Court established a “bright line” test in ruling that a former servicemember could no longer be tried by court-martial for offenses which came to light after his discharge. This test focused on the presence or absence of military status. It was based on the language of Article I, section 8, clause 14 of the Constitution of the United States, which refers to “the land and naval Forces”; and, according to Toth, these “forces” do not include persons who previously were in the armed forces.1
*28If Cole had forged his discharge certificate, I would fully agree with the majority that jurisdiction continued to exist because a forged document is a nullity. In that event, he would not have been “separated” from the armed services.2 Also, in my view, if military jurisdiction attached by the preferral of charges or by the taking of similar action with respect to the other offenses with which Cole was charged, such jurisdiction was not lost by reason of a subsequent discharge or release from active duty. See United States v. Douse, 12 M.J. 473, 479 (C.M.A.1982) (Everett, C.J., concurring in the result). Once military criminal jurisdiction attaches, it is not lost by a later change in the accused’s status.
Cole’s discharge certificate, however, was not forged. Moreover, the conviction now being reviewed is not for an offense as to which court-martial jurisdiction attached before he was separated. Instead, Cole has been tried and convicted by court-martial for obtaining his separation pursuant to a document — DD Form 214 — which purported to end his active-duty status. This document was regular on its face and was voluntarily delivered to him by the Army’s own agents.
Thereafter, Cole was living as a civilian at his residence in Florida when the Army sought to exercise court-martial jurisdiction over him and to force him to return to Fort Stewart, Georgia, to face trial. This exercise of jurisdiction was based on an accusation that he had procured his separation— and his civilian status — by fraud. However, the Army’s assertion of jurisdiction over Cole was not preceded by a hearing before a magistrate or judge — civilian or military — to determine whether probable cause existed to believe that he was guilty of procuring a fraudulent separation.
After his return to Army custody, a pretrial hearing took place on the charges pursuant to Article 32 of the Uniform Code, 10 U.S.C. § 832. However, this hearing — which was not conducted by a military magistrate or judge — was not binding on the convening authority who, regardless of any recommendation by the Article 32 hearing officer, was still free to proceed with trial by court-martial.
The implications of this procedure are disturbing. Simply on the basis of an allegation that he has violated Article 83, UCMJ, 10 U.S.C. § 883, which prohibits fraudulent procurement of separation from the armed forces, someone who has received a discharge valid on its face and has become part of the civilian community may be seized by military police, carried away from his residence for trial at a distant location, and kept in confinement pending trial. No hearing of any type — military or civilian, adversary or ex parte — is necessary. Thus, contrary to the usual presumption of innocence, jurisdiction is based on a presumption of guilt derived from a mere accusation of fraudulent separation.
Toth is a clear bar to such an exercise of military jurisdiction. Indeed, Article 3(b) fails all three of the tests used there by the Supreme Court and discussed by Judge Cook in Wickham v. Hall, 12 M.J. at 151. In the first place, unlike prosecutions for combat offenses, the prosecution of an ex-servicemember like Cole does not further materially “the ‘primary’ function of the military ‘to fight or be ready to fight wars,’ rather than the ‘incidental’ purpose of maintaining discipline within the service.” See 350 U.S. at 17, 22-23, 76 S.Ct. at 5, 8-9. Moreover, although it affects available manpower, the offense of fraudulently procuring a discharge does not involve a flouting of military authority to the same extent as desertion or unauthorized absence.
Second, to uphold military authority here would “ ‘actually and potentially’ sweep un*29der military jurisdiction a great number of persons not otherwise subject to military law.” Id. at 19-20, 22-23, 76 S.Ct. at 6-7, 8-9. Only two cases have been prosecuted under Article 3(b) during the 35 years the Uniform Code of Military Justice has been in effect. If, however, an allegation of fraudulent separation suffices to establish military jurisdiction, henceforth any veteran runs the risk of being subjected to trial by court-martial for having allegedly procured a fraudulent discharge; and, if convicted, he can be tried by court-martial for any other alleged violation of the Uniform Code that preceded the discharge.3
To take advantage of this opportunity for exercising military jurisdiction over veterans, the Armed Services could slightly modify discharge procedures to require that, as a condition for separation, a servicemember make a large number of representations — perhaps including a representation that he has not committed any crime during his period of military service. Later, if military authorities choose to court-martial him, they can allege that the discharge was procured by means of a misrepresentation; prosecute the purported ex-servicemember for fraudulent separation in violation of Article 83; and, if successful, then try him for any other alleged offenses under the Uniform Code.4
The third criterion under Toth concerns the necessity for having court-martial jurisdiction; and the premise of Toth is that such jurisdiction should be “limited to ‘ “the least possible power adequate to the end proposed.” ’ ” Id. at 23, 76 S.Ct. at 8. See also Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 5 L.Ed. 242 (1821). As the Supreme Court later explained in Lee v. Madigan, 358 U.S. 228, 232-33, 79 S.Ct. 276, 279-80, 3 L.Ed.2d 260 (1959):
We do not write on a clean slate. The attitude of a free society toward the jurisdiction of military tribunals — our reluctance to give them authority to try people for nonmilitary offenses — has a long history____ We pointed out the great alarms sounded when James II authorized the trial of soldiers for nonmilitary crimes and the American protests that mounted when British courts-martial impinged on the domain of civil courts in this country. The views of Blackstone on military jurisdiction became deeply imbedded in our thinking: “The necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land.” 1 Blackstone’s Commentaries 413. [Other citation omitted.] We spoke in that tradition in Toth v. Quarles, 350 U.S. 11, 22 [76 S.Ct. 1, 8], “Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.”
The paucity of cases prosecuted under Article 3(b) — only two in 35 years — demonstrates that no necessity exists for the claimed jurisdiction. Equally significant— as Judge Thomberry and I both pointed out in our Wickham opinions — there are adequate means for handling fraudulent discharges without extending court-martial jurisdiction.
For one thing, more careful processing of discharges would prevent commission of the offenses with which Wickham and Cole have been charged. If this care had been exercised, military authorities might be prosecuting the accused for an attempt to procure a fraudulent separation, an offense as to which court-martial jurisdiction clearly exists, rather than for the consummated *30crime, as to which such jurisdiction is lacking.
If, however, a fraudulent discharge is procured, the Government can obtain relief in a Federal District Court. A civil suit— not subject to the requirement of proof beyond a reasonable doubt — can be commenced to set aside the discharge on grounds of fraud and to restore the accused’s military status and thereby subject him to military jurisdiction. Also, a criminal prosecution under 18 U.S.C. § 1001 can be instituted in a Federal District Court.
Even though Article 3(b) seems clearly to violate the constitutional mandate of Toth, the Government — with some support in recent lower court opinions — contends that it is valid. The argument is made that a court — in this instance, the court-martial which tried Cole — should be free to determine its own jurisdiction. However true this may be in some instances, it is difficult, in light of Toth, to conclude that this principle authorizes a military tribunal to override the presumption of innocence and try an ex-servicemember who has been issued a discharge which is valid on its face and unrevoked by any decree of a civilian court.
There also has been some reliance on deference to “military expertise.” While this expertise may be helpful in interpreting orders and regulations, the issue of fraud raised here and in Wickham does not require special expertise for its resolution. Instead, it is the very type of issue that can be handled well in a civilian court. Thus, “military expertise” is no better justification for court-martial jurisdiction over Cole than it was for such jurisdiction over Toth.
The point also has been made that military justice offers many safeguards for an accused — such as protection against coerced confessions or cruel and unusual punishment. See 706 F.2d at 717 n. 5.
However, courts-martial do not provide trial by jury, which the Constitution requires for persons not in the “land and naval Forces.” Cf. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); Toth v. Quarles, supra, 350 U.S. at 17-19, 5-7. The Supreme Court has emphasized the importance of the right to jury trial in rejecting efforts to extend court-martial jurisdiction.5 Since Cole was not in the “land or naval forces” when the Army sought to exercise jurisdiction over him, he could not lawfully be deprived of this right. The presence of other safeguards in a trial by court-martial is immaterial because the Supreme Court has not recognized any functional equivalent for jury trial.6
In support of Article 3(b), it has also been suggested that, if unjustly treated by court-martial, the accused can seek a writ of habeas corpus. However, in seeking the writ, he apparently will not have the assistance of appointed counsel to aid him, even if he is indigent. Also, if exhaustion of remedies is required,7 a hearing on the merits of his petition for a writ of habeas corpus may be long delayed.
Although Cole may have been a reservist, he had — as I understand the facts— completed all the active duty contemplated under his enlistment contract with the Army. He would not have been recalled to active duty other than during mobilization in some time of national emergency. 10 U.S.C. §§ 672 and 673. Under these circumstances, his membership in the inactive reserve did not authorize his trial by court-martial. See United States v. Brown, 12 *31U.S.C.M.A. 693, 695, 31 C.M.R. 279, 281 (1962). For purposes of military criminal jurisdiction, the DD Form 214 received by Cole was the equivalent of Toth’s honorable discharge.8 Therefore, until that DD Form 214 had been revoked by a civilian court, Cole was no more subject to trial by court-martial — even for fraudulent discharge — than was Toth.
If, prior to prosecution by court-martial, Cole had been properly returned to active-duty status pursuant to valid orders, the situation would have been different. However, active-duty status is a prerequisite for court-martial jurisdiction. Duncan v. Usher, 23 M.J. 29 (C.M.A.1986).9 In the absence of this status, any reserve obligation to which Cole was subject is irrelevant.
There is not only a statutory but also a constitutional basis for the emphasis on active-duty status. In requiring grand-jury indictment, the Fifth Amendment makes an exception for “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Apparently, the drafters of the Bill of Rights did not consider that the potential obligation of militiamen to serve on active duty justified denying them the protection of a grand-jury indictment or a jury trial.
The “Militia” referred to in the Fifth Amendment was the forerunner of the National Guard. However, when the Bill of Rights was adopted, the Army and Navy had no reserve component of the type that now exists. In my view, reservists on active duty are clearly part of the “land and naval Forces” — both for purposes of the Fifth Amendment and of Article I, section 8, clause 14 of the Constitution, which empowers Congress to make “Rules for the Government and Regulation of the land and naval Forces.”
A greater question exists as to the inclusion of inactive reservists in the “land and naval Forces” for purposes of exercising court-martial jurisdiction. Indeed, for someone like Cole, who will be called to active duty only in a period of national emergency, I do not believe that court-martial jurisdiction can be rested on inactive-reserve status. Indeed, if Cole’s inactive-reserve status made him subject to Article 3(b) — while other ex-servicemembers who had no comparable reserve obligation were outside its purview — the basis for the distinction as to jurisdiction would be so ephemeral as to raise a serious equal-protection issue.10
I am sympathetic with the goal that Article 3(b) seeks to achieve. However, I can not ignore the guidance provided in Toth. There, Justice Black said that “[i]t is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving ex-servicemen the benefit of a civilian court trial when they are actually civilians.” 350 U.S. at 22, 76 S.Ct. at 8. Likewise, these baneful effects will not be encountered if, in the first instance, a civilian court considers the allegations that the facially valid discharge received by Cole was fraudulently procured.
Accordingly, I have no choice but to conclude that Article 3(b) is unconstitutional and that appellant’s conviction for fraudulent separation should be set aside and the charge dismissed.
. Perhaps Toth has not overturned some earlier holdings like Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469 (1921), which involved offenses committed by an ex-servicemember *28who, even though discharged, was in custody pursuant to the sentence of a court-martial. Cf. Art. 2(a)(7), Uniform Code of Military Justice, 10 U.S.C. § 802(a)(7).
. Therefore, probably he could not be prosecuted under Article 83, UCMJ, 10 U.S.C. § 883, for fraudulent separation. However, prosecution would be permissible under Article 123, UCMJ, 10 U.S.C. § 923, for forgery and perhaps also under Article 134, UCMJ, 10 U.S.C. § 934.
. See Art. 3(b). Under the Government's rationale, he might even be subject to trial for alleged offenses occurring between his receipt of the fraudulent discharge and the conviction for having procured the discharge fraudulently.
. The statute of limitations has recently been extended; and so this jeopardy would continue for at least 5 years. See Military Justice Amendments, Pub.L. No. 99-661, § 805 (1986), to Art. 43, UCMJ, 10 U.S.C. § 843.
. See, e.g., Lee v. Madigan, 358 U.S. 228, 234, 79 S.Ct. 276, 280, 3 L.Ed.2d 260 (1959); United States ex rel. Toth v. Quarles, 350 U.S. 11, 17-18, 76 S.Ct. 1, 5-6, 100 L.Ed. 8 (1955); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866).
. The absence of a right to bail in connection with trials by courts-martial is an aggravating factor because Cole had no remedy if military authorities decided to keep him in pretrial confinement.
. Cf. Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969).
. The opinions in Toth v. Quarles, supra, do not discuss whether, under the statutes then in effect, Toth had any reserve obligation that survived his discharge.
. I have noted earlier that, in my view, if military jurisdiction attaches by the preferral of charges while the accused is in an active-duty status, this jurisdiction will continue even after the active-duty status terminates.
. “Due process" in the Fifth Amendment includes equal protection. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).