dissenting.
I dissent from the application of the Feres doctrine to bar Anderson’s action for *612unlawful arrest under the Federal Tort Claims Act (FTCA). The Feres doctrine is a judicially-created exception to the broad waiver of governmental immunity contained in the FTCA. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Act, by its own terms, does not prohibit servicepersons from suing the government, except when the claims arise out of combatant activities during times of war.1 On the contrary, the Act’s legislative history indicates that Congress did not intend to bar all tort claims by members of the armed services.2 The Feres doctrine, therefore, must be applied with care, for the extension of the doctrine beyond its proper scope allows the judicially-created exception to countermand the language of the FTCA and the intent of Congress.
The Feres doctrine bars Anderson’s claim only if his alleged injury arose out of or was in the course of “activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159. The test is not purely causal. Parker v. United States, 611 F.2d 1007 (5th Cir.1980). Anderson’s alleged injury, therefore, is not necessarily “incident to service” simply because, but for his outstanding military obligation, he would not have been arrested AWOL.
In this case, the facts that are usually considered indicative of “activity incident to service” are simply not present. See, e.g., Miller v. United States, 643 F.2d 481, 494 (8th Cir.1981) (in applying the Feres doctrine, the court considered the claimant’s duty status, where the injury occurred, and what the claimant was doing at the time he was injured). Anderson had not reported for active duty, although he was ordered to do so. The incident did not occur on a military base. Anderson was arrested in the front yard of his private home. He was not availing himself of a privilege related to or dependent upon military status. He was not involved in any military mission or acting under the compulsion of military orders. Nor was he subject to the direct control and authority of his military superiors. On the contrary, the very purpose of the arrest was to establish that control.
The fact that Anderson had been ordered to active duty should not transform his alleged injury into one received “incident to service.” Anderson never reported for active duty. Although his absence is unauthorized, his situation is akin to that of those servicepersons on leave, pass, or furlough, whom courts frequently permit to proceed under the FTCA. See, e.g., Mills v. Tucker, 499 F.2d 866 (9th Cir.1974) (survivors of a serviceman, who was on furlough when he was killed in a traffic accident on a navy-maintained road, could maintain an FTCA action). In all these cases, the servi-ceperson’s absence, authorized or unauthorized, essentially eliminates that “peculiar and special relationship of the soldier to his superiors * * * ” which renders the maintenance of FTCA actions by servicepersons disruptive to military discipline. See, e.g., United States v. Carroll, 369 F.2d 618, 621 (8th Cir.1966).3
*613Not only do the facts contraindicate application of the Feres doctrine, but the rationale behind the judicial exception does not support its extension to this case. As previously mentioned, Anderson never established that “peculiar and special relationship of the soldier to his superiors * *.” In addition, the Veterans’ Benefits Act, although an adequate substitute for tort liability in some situations, offers no compensation to Anderson. Finally, because Anderson never reported for active duty, his “relationship” with the government as a member of its armed services can scarcely be characterized as such, much less as a “distinctively federal” relationship. This is not a situation where, if allowed to proceed under the FTCA, a serviceperson would be involuntarily subjected to the law of the jurisdiction where he or she was required to live. Anderson was at his own home in the jurisdiction of his own choosing at the time of his alleged injury. The law of that jurisdiction, therefore, should apply to Anderson’s tort claim as it does in any FTCA action.
I recognize that Anderson technically was a member of the armed services. His enlistment contract had not terminated at the time of his arrest and his return to “civilian” status did not occur until he received his discharge from the United States Army effective July 14, 1977, nearly a year after his allegedly unlawful arrest. But that formal military status does not preclude this action. The Feres doctrine does not bar all tort claims by every serviceperson; it only prohibits claims for injuries sustained “incident to service.” Application of the Feres doctrine to bar Anderson’s claim for unlawful arrest simply because of his military status is therefore inappropriate. Accordingly, I would reverse and remand this case for further proceedings.
. See 28 U.S.C. § 2680(j) (1976 & Supp. V 1981).
. Eighteen tort claims bills were introduced in Congress between 1925 and 1935 and all but two expressly denied recovery to members of the armed forces. The present FTCA, adopted in 1948, contains no such exception. See Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 156, 95 L.Ed. 152 (1950).
. The government cites only two cases which are arguably similar. In Garrett v. United States, 625 F.2d 712 (5th Cir.1980), cert. denied, 450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981), a member of the Marine Corps alleged that he had been negligently detained for two months between the expiration of his enlistment contract and his formal discharge. The Fifth Circuit held that the Feres doctrine barred his FTCA action. This case is clearly distinguishable from the present case. In Garrett, the serviceperson had reported for active duty and indeed had served in the United States Marine Corps. Thus that “peculiar and special relationship of the soldier to his superi- or * * * ” had been established.
In Whitaker v. United States, No. CV76-4051-LEW (C.D.Cal., June 8, 1977), the claimant had enlisted in the Army Reserves and subsequently was ordered to active duty. He failed to report to active duty and was ultimately arrested and detained. The court summarily dismissed his FTCA action, citing the Feres case with no discussion. To the extent that the dismissal is inconsistent with the *613views expressed herein, I disagree with the disposition of that case.