(concurring):
While I concur in the judgment of the Court, I reach such result by a different path than that trod by the majority. Thus it would appear appropriate to set forth my own views dealing with the resolution of the thorny issue now before us.
Plaintiffs here seek to have the holding of the United States Court of Military Appeals in United States v. Greenwell, 19 U.S.C.M.A. 460 (1970), made broadly retroactive. They urge that all courts-martial conducted under the procedure disapproved in Greenwell be declared void ab initio, that all records resulting from those courts-martial be expunged, and that all back pay and other forfeitures flowing from sentences under those proceedings be ordered paid to the servicemen involved. This result follows inexorably, it is contended, because of the failure of the procedure, here dictated by the regulations, to conform to the statute creating special court-martial jurisdiction.
Certain salient facts are undisputed: The commander of any detached command may convene a special court-martial. Uniform Code of Military Justice, 10 U.S.C. § 823(a) (1959). The Secretary of the Navy has the power to designate commands as separate and detached for the purpose of establishing special court-martial jurisdiction. United States v. Greenwell, supra, United States v. Ortiz, 15 U.S.C.M.A. 505 (1965). Further, such designations may be made by the Secretary en bloc.
The Court of Military Appeals found that in promulgating section 0103b(5) of the JAG Manual,1 the Secretary believed that he acted in an authorized fashion pursuant to the statutory mandate. Yet the Court held that, whatever the good intentions of the Secretary, the effect of section 0103b(5) was an improper delegation to certain commanders of the power to designate separate and detached commands for disciplinary purposes. Greenwell, 19 U.S.C.M.A. at 463.
In essence, then, the invalidity of courts-martial convened pursuant to section 0103b(5) lies in the administrative failure of the Secretary of the Navy personally to identify commands as “separate and detached,” so that such commands, in turn, would be enabled to convene courts-martial.
Plaintiffs urge that, for want of this personal designation by the Secretary, verdicts rendered by all special courts-martial not so designated are required to be overturned for all purposes for want of jurisdiction from the outset. I am unable to subscribe to such a mechanical *629view of the law, which would require that a collateral attack result in the retroactive application of a technical notion of jurisdiction. Such an automatic and unreasoned result would seem improper without inquiry into the nature of the collateral attack, and without an analysis of the underlying court-martial proceedings and the competing policy considerations that should be weighed in the adjudicative process.
The situation we are asked to pass on here is somewhat anomalous. While criminal convictions lie at the root of the matter, no further incarceration is imposed,2 and the plaintiffs are seeking solely monetary and administrative relief. We are not confronted with the traditional collateral assault on a criminal conviction, that is, a habeas petition. Thus, the case presents an admixture of attributes of the civil field where repose is paramount and the criminal field where, although the era of absolute retroactivity is passed, current doctrines view favorably the possibility of retroactive application of new rules.
While it is unlikely that plaintiffs are entitled to rely on the relaxed finality rules of habeas,3 the nature of their suit also renders it less amenable to successful collateral attack than when practices presently found unconstitutional are responsible for an individual’s continued confinement. Less weighty policies favor retroactivity where, as here, the brute fact of incarceration is absent, judgments are final, and constitutional issues are not present.
I conclude that, viewed either as a collateral attack on a civil judgment or from the vantage of a habeas proceeding, plaintiffs cannot prevail. From the perspective of civil litigation, relief is foreclosed by principles of res judicata or collateral estoppel. But even assuming arguendo that this case is controlled by habeas corpus retroactivity doctrines, it would appear, first, that a finding of retroactivity is not required by precedent, but that a balancing process must be employed to reach a reasoned result; and, second, under such process, and in the context here presented, a broad retroactive application of Green-well would not comport with the precedents and philosophy underlying the retroactivity doctrine.
Accordingly, it is appropriate to deal with the rules applicable to collateral attack, first in the civil field and then in the criminal field.
I. Civil, or Non-Habeas Corpus, Model of Collateral Attack on a Final Judgment
Were the plaintiffs considered subject to applicable — non-habeas—rules of res judicata, their collateral attack could not succeed, despite the allegation of defective jurisdiction in the first tribunal.4 *630Admittedly, proper jurisdiction is generally considered a fundament, and want of jurisdiction may be raised at any time during trial or during the appellate process.5 Based on this accepted doctrine, plaintiffs contend that even a final judgment rendered pursuant to an assertion of jurisdiction later shown to be vulnerable is void as though never rendered.
Taken alone, policies dictating vigilance to the proper exercise of jurisdictional authority might suggest such a result. But once a judgment has become final, such policies collide with the well-respected and forceful precepts favoring repose and ultimate finality to litigation.6 Consequently, in civil litigation7 want of jurisdiction — while a potential issue in any non-final case — is generally not a ground for collateral attack.8 “One trial of an issue is enough. ‘The principles of res judicata apply to questions of jurisdiction as well as to other issues.’ ” 9
*631Chicot County Drainage District v. Baxter State Bank10 illustrates this. Baxter held bonds of the Drainage District, which had undergone reorganization in federal court in March, 1936. The district court exercised jurisdiction over the reorganization under a federal statute purporting to establish authority in the district courts to readjust the debts of financially-distressed subdivisions of a state. In May, 1936, in Ashton v. Cameron County Water Improvement Dist. No. One, the United States Supreme Court struck down as violative of the Constitution the statute that purported to give jurisdiction (298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309). Subsequently, Baxter sued on bonds it had received prior to the reorganization. When the Drainage District interposed a plea of res judicata, Baxter asserted that the judgment of the district court was void because it had no lawful jurisdictional basis. The Supreme Court rejected this contention, stating:
The actual existence of a statute, prior to such a determination [of invalidity], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. * * * Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. 308 U.S. at 374, 60 S.Ct. at 319.
The validity of the statute might have been raised by the parties in the original debt readjustment suit, but it was not. Thus, the Court held that principles of res judicata concluded issues that could have been asserted as well as those actually litigated.
According to the Supreme Court, no exception to res judicata was warranted in Chicot County, notwithstanding a later finding that the district court’s exercise of jurisdiction was based on an unconstitutional statute. Despite the jurisdictional defect, the “parties [had been] brought before [the court] in accordance with the requirements of due process * * 308 U.S. at 376, 60 S.Ct. at 319.
The jurisdictional defect here is less far-reaching than that asserted in Chicot County.11 In the various courts-martial attacked in this suit, the flaw lay in the regulation which exceeded the statutory grant of authority, whereas in Chicot County the statute conferring power on the district courts fell as beyond the constitutional power of Congress to enact.
Under Chicot County the crucial element that would bar collateral attack on a judgment seems to be whether the party was afforded an opportunity to litigate.12 Application of the Chicot County rule would preclude a collateral attack here, for it is not suggested that plaintiffs were unable to raise their jurisdictional objection at their courts-martial.13
If plaintiffs are considered on the same footing as those who attack a civil judgment collaterally, in the circumstances here there is no persuasive authority to support voiding the original judgments. Under the view that only habeas actions are relieved of the finality burden, res judicata mandates the *632outcome; there is no basis for this Court to consider altering the effects of the allegedly invalid exercise of special court-martial jurisdiction.14
II. The Habeas Corpus Model of Collateral Attack
The judgments here attacked are criminal convictions; therefore plaintiffs may argue that, although they are not in prison, this collateral proceeding has at stake certain aspects comparable to those determined in a habeas petition.15 In habeas cases, considerations of finality are not dispositive, and if circumstances warrant relief then such relief is granted. Assuming for the purposes of argument that an analysis consonant with habeas corpus doctrine would be more appropriate than one comporting with civil litigation, the question we now address is whether the Greenwell decision should be applied fully retroactively to the plaintiffs.
1. Factors Advanced in Support of Requiring Retroactivity.
In criminal proceedings collateral relief has traditionally been available through habeas corpus,16 a proceeding in which the law disavows the same type of interest in finality that characterizes the civil process. However, although post-conviction relief was afforded for wrongful incarceration, this has not meant that every new interpretation of law is retroactively applied to overturn convictions procured under an earlier questionable procedure or standard of law.17
Plaintiffs contend that, even though the issue of retroactivity is generally determined by a process of deliberation or balancing, three circumstances present here would in any event require full retroactivity. According to plaintiffs, these three considerations are: (a) that no defect in jurisdiction may be regarded as merely statutory, but must necessarily be cast as a due process question, and thus a holding of non-retroactivity is impermissible; (b) that any decision rendering a military conviction a nullity must perforce be fully retroactive because of the narrowly drawn jurisdiction of the military; and (c) that a decision either is retroactive or is not, and the holding in United States v. Ferry, 22 USCMA 339 (1973), that pre-Greenwell convictions may not be used to enhance punishment in a subsequent court-martial, must either be overruled or extended comprehensively to encompass full retroactivity.
Each of these arguments, if successful, would cut short further analysis and would, by the force of its own logic, require a holding that Greenwell is necessarily fully retroactive. Thus, it is es*633sential that we treat each contention separately.
(a) Jurisdictional Defect
Collateral attacks on jurisdictional failures in criminal cases have been adjudicated only infrequently. Although the general rule in the civil area is that res judicata and interest in repose foreclose collateral attack on a final judgment even where jurisdictional deficiencies are alleged,18 in the criminal field, the value of repose occupies a lower niche in the legal order. The traditional rule has been that a writ of habeas will be granted for the release of a prisoner jailed pursuant to an improper exercise of jurisdiction. Ex Parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1879). Yet access to the federal courts for a writ of habeas has no implications for the question whether a claimed jurisdictional defect at trial is to be applied in a broad retroactive manner. The rationale for permitting collateral attack differs from that governing retroactive application of law. As the Supreme Court has stated: “The availability of post-conviction relief serves significantly to secure the integrity of proceedings at or before trial and on appeal. No such service is performed by extending rights retroactively.” 19
The advisability of retroactive application of the jurisdictional Greenwell ruling must thus be weighed. Although strong precedent exists for declaring nonretroactive an interpretation of criminal law that narrows a court’s jurisdiction, prior case law is not conclusive.20 Yet the case-by-case approach taken by the Supreme Court on questions of retro-activity where constitutional violations are at stake, together with the approaches taken by circuit courts, are persuasive that automatic retroactivity is not mandated by the jurisdictional nature of the Greenwell defect.
The question of the retroactive application of a narrowing jurisdictional interpretation of the criminal contempt statute was raised in Warring v. Colpoys.21 Warring had been convicted under a construction of the statute that conferred power to punish for contumacious acts in the court or “so near thereto as to obstruct the administration of justice.” After Warring’s conviction was final, but while he was still incarcerated, the Supreme Court reinterpreted the statutory language to be geographically limiting. It was undisputed that Warring’s acts were not criminal under the new statutory interpretation. Warring brought a habeas petition alleging that he was tried by a court wanting in jurisdiction, claiming that “the statute never gave the court contempt ‘jurisdiction’ over his type of offense.”22 Circuit Judge, later Chief Justice, Vinson, rejected this contention, holding that retroactive application of a new statutory construction was not warranted despite the narrower jurisdiction that resulted.23
*634Although a civil action, McSparran v. Weist provides another example of a prospective-only jurisdictional decision. McSparran restricted the basis for diversity jurisdiction by holding that “manufactured” 24 diversity could not confer federal jurisdiction. 402 F.2d 867 (3d Cir. 1968). The Court, sitting en banc, made the operation of the rule prospective-only, to be applied solely to causes of action arising after the date of the decision. Cases in which the plaintiff was an out-of-state fiduciary thus continued to be adjudicated, although no proper jurisdictional foundation was presented.25 The Court stated, in language pertinent to the present case, “[T]he notion that ‘jurisdiction’ is a subject of some magical quality must yield to the knowledge that it is our construction of the statute which determines . whether jurisdiction exists or is absent.” 402 F.2d at 877.
Apparently, the possibility of applying the McSparran holding retroactively to upset judgments that were then final was not even considered. Although such final judgments rested on flawed federal jurisdiction, they stood unchallenged.26
While want of jurisdiction is an elemental ground for the grant of habeas relief, the existence of a jurisdictional defect of limited proportions does not, as plaintiffs would have it, constrain this Court to find that the defect applies retroactively. To the contrary, courts have used the same weighing process to determine retroactive application of new rules where jurisdictional questions arose as in other situations, constitutional or statutory, where a claim of retroactivity was presented.
(b) Military Jurisdiction
Plaintiffs point out that the Supreme Court has reiterated the proposition that military jurisdiction is limited to that provided by statute and limited to that permitted by the Constitution. The Court has expressed the standard for the proper exercise of jurisdiction by military tribunals as “the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.” 27
Based on this, plaintiffs argue that the failure to follow a statute’s precise prescription makes a military judgment vulnerable. As to an initial challenge to a questionable practice, admittedly no fair reading of the Supreme Court cases could support a different result. Runkle v. United States28 and McClaughry v. Deming29 made clear that court-martial juris*635diction must be exercised in strict conformity with statutes, and therefore are strong support for the holding in Green-well. However, extension of Runkle and Deming to the question whether retroactive operation is mandated is far from clear. In the cited cases the retroactivity issue was never raised. Hence, broad language in them regarding jurisdiction must not be read cavalierly as applying to a claim for full retroactive effect in a situation such as presently before us.
Military courts are not unique in having their jurisdiction curtailed to fit the contours of statutes and the Constitution. The jurisdictional reach of other courts in other areas is also narrowly circumscribed. In Chicot County, supra, for example, the scope of bankruptcy jurisdiction of the federal courts was at issue. Responding to the assertion that a prior judgment of the district court was void because dependent on an improper exercise of jurisdiction under the statute, the Supreme Court stated:
We think the argument untenable. The lower federal courts are all courts of limited jurisdiction, that is, with only the jurisdiction which Congress has prescribed. But nonetheless they are courts with authority * * *. Their determination of [questions of jurisdiction and statutory interpretation], while open to direct review, may not be assailed collaterally. 308 U.S. at 376, 60 S.Ct. at 319.
The distinctive flavor of judicial opinions narrowing military jurisdiction proceeds from an awareness of the underlying constitutional privileges of which a citizen is deprived before a military tribunal, e. g., indictment by grand jury, trial by petit jury, more vigorous interpretation of the confrontation clause.30 Because of the loss of these valuable rights, stalwart judicial efforts have, in effect, protected citizens from undue exposure to the military forum. And the applicable decisions frequently have been cast in terms of jurisdictional limitations on courts-martial.
However, the appellants in their courts-martial were not denied any constitutional protections to which they were entitled. It is not suggested that holding Green well retroactive would permit a fairer trial in a differently constituted tribunal or, indeed, a trial different in any regard. Thus, those policies which might dictate a jurisdictional spear thrusting back to open final cases would not appear to have persuasive power in this case. Whatever new trials might occur if retroactivity were mandated would merely replicate procedures undergone once before.
Even where important constitutional considerations are present, retroactivity is not foreordained where a ruling limits the scope of military jurisdiction. In the recent case of Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), the retroactivity of O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), was at issue. O’Callahan had held that military jurisdiction did not encompass the power to try servicemen in peacetime for non-service related offenses. Gosa was in custody after a court-martial and sought habeas relief. A petitioner in a companion case, Flem-ings, had already been released and was seeking correction of his military records. Arguing that their constitutional rights under the Fifth and Sixth Amendments had been curtailed by their military trials, the petitioners in Gosa contended that the O’Callahan rule should be retroactive.
Despite the fact that the Supreme Court had held in O’Callahan that trials by military courts of non-service related offenses in peacetime were invalid because such trials were beyond the constitutional limits of military jurisdiction, a sharply divided court in Gosa refused to grant relief.31 Justice Blackmun, writ*636ing for himself, Chief Justice Burger, and Justices Powell and White stated, in language that supports the majority’s position here, that in O’Callahan:
[T]he Court certainly did not hold, or even intimate, that the prosecution in a military court of a member of the armed services for a nonservice-con-nected crime was so unfair as to be void ab initio. 413 U.S. at 675, 93 S.Ct. at 2933.
Justice Blackmun then used the Linklet-ter-Stovall approach, and held that, on balance, retroactivity was not warranted. In his analysis, Justice Blackmun looked to the likelihood of unfairness in result and concluded that:
[T]he validity of convictions by military tribunals, now said to have exercised jurisdiction inappropriately over non service-connected offenses is not sufficiently in doubt so as to require the reversal of all such convictions rendered since 1916 when Congress provided for [such trials].32
Justice Marshall wrote in dissent that O’Callahan presented a forceful case for retroactive application, because it
[Dealt] with the constitutional limits of the military’s adjudicatory power over offenses committed by servicemen. No decision could more plainly involve the limits of a tribunal’s power to exercise jurisdiction over particular offenses and thus more clearly demand retroactive application.33
While the precise application of Gosa to our case is uncertain, the result of Gosa is manifest. Based on considerations either of non-retroactivity or res judicata, a majority of the Supreme Court held that Gosa would remain in prison despite the constitutional shortcomings of his court-martial. The circumstances of the present case appear to lead, in effect, to the same conclusion. Indeed, unlike Gosa, plaintiffs here have no grievances of constitutional dimension, and they are not presently imprisoned. It would thus appear that even the Justices who believed that O’Callahan warranted retroactive application might conclude differently in the present case, where “the constitutional limits of the military’s adjudicatory power” are not at issue. 413 U.S. at 694, 93 S.Ct. at 2943.
The only consideration advanced to support an outcome here different from that in Gosa is that the flaw in the procedure followed prior to Green well lay in the area of “jurisdiction in its classic form.” 413 U.S. at 693, 93 S.Ct. 2926. Yet, the invocation of jurisdictional deficiency does not end the matter. At least two courts of appeals had considered the retroactivity of O’Callahan prior to Gosa. Each concluded that O’Callahan was indeed a jurisdictional limitation on the court’s power. Nonetheless, each court declined to apply O’Callahan retroactively.34 And in the Supreme Court, although O’Callahan limited military jurisdiction-on constitutional grounds, it was held nonretroactive in Gosa. The exercise of jurisdiction by a tribunal later held to have acted improperly will not *637suffice ipso facto to void a final judgment.35
Were this Court to hold Greenwell broadly retroactive, the result would indeed be incongruous. Gosa and those like him, convicted before O'Callahan and denied fundamental constitutional rights, would remain in prison. In contrast, those whose courts-martial denied them no constitutional rights, whose trials would be virtually identical regardless of whether the court-martial authorization were proper or not, but whose trials were improperly convened under the regulation struck down in Greenwell, would enjoy a lump sum grant of back pay, effective immunity from retrial,36 and correction of records, with all the benefits that flow therefrom.
(c) The Impact of Ferry
As to trials conducted after Greenwell, the Court of Military Appeals in United States v. Ferry stated:
Whatever effect Greenwell may have on a conviction in other situations, we have no doubt that a conviction invalid under Greenwell cannot be used to increase the sentence for a later offense beyond that which the accused would have received had that previous conviction not been considered. 22 U.S.C. M.A. 339, 340 (1973).
Plaintiffs here assert that Greenwell, retroactive to the extent it applies to the augmentation of sentence, must necessarily be extended further, to apply consistently and fully to all possible retroac-tivity issues. Retroactivity doctrines, it is maintained, are cumbersome and difficult of application without adding the further dimension of selective retroactivity. Plaintiffs urge that once the issue of retroactivity of a new ruling is determined, the consequences should and do extend to all related situations.
Yet it is clear that the doctrine need not be applied with such persistence as to expunge every potential utilization of an improper procedure. For example, in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the Supreme Court announced the general retroactivity of its decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), holding prosecutions under gambling regulation laws impermissible where a challenge to filing wagering registration forms was bottomed on the Fifth Amendment right against self-incrimination. However, on. the very day Marchetti and Grosso were held retroactive, the Supreme Court announced in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), that use of these same forms, once completed, to procure a tax evasion conviction was not a basis for retroactive application of the Marchetti/Grosso rule. Justice White, in a plurality opinion joined by the Chief Justice and Justices Stewart and Blackmun, stated, “Mackey would have a significant claim only if Marchetti and Grosso must be given full retroactive sweep.” 401 U.S. at 674, 91 S.Ct. at 1164. Justice White found that neither the purpose of the Marchetti /Grosso rule nor the reliability of the trial result mandated full retroactivity in Mackey37 Thus, there appear to be limits even to where a ruling is declared retroactive, short of uprooting every pri- or decision tangentially dependent on tainted prior law.
The implications of Ferry must be measured against the example furnished by Mackey. In Ferry, while meticulously limiting the scope of its holding, the Court of Military Appeals acted in conformity with the Greenwell rationale. *638Ferry reflects an internal administrative vigilance by courts wishing to utilize only unimpeachable convictions for enhancement of further punishment. The prohibition on the use of pre-Greenwell convictions to augment sentences for future infractions allows Greenwell to be used as a shield for court-martial defendants, but not as their sword.
But, depending on the purpose to which the old conviction is put, giving it full effect or giving it no effect might be in order. Ferry and its philosophical underpinnings do not, and should not, bind the courts to all-out retrospectivity with its broad ramifications.
It is also to be noted that in Ferry the question of the continuing effect of a pr e-Greenwell conviction arose in the context of a direct appeal, rather than as here in a collateral proceeding. In such context, Ferry might be seen as standing for the proposition that to give a serviceman increased punishment now, based on a court-martial which could not be convened today, would be to continue the effect of a flawed practice. Such use of a pre- Green well conviction would surpass any interest in finality and would permit subsequent detriment to a defendant.37a A holding that Greenwell is not retroac-five in the present case thus would not be inconsistent with the Ferry decision that limits subsequent affirmative use of prior convictions.
2. Habeas Corpus and Retroactivity: The Context of the Present Case.
Since it is determined that, assuming collateral attack to be permissible, automatic retroactivity is not appropriate, a weighing process must be employed. Beginning a decade ago, the Supreme Court proceeded to fashion a test to determine the advisability of non-retroactive application of new adjudications of constitutional dimension in criminal cases.38 To defeat retroactivity in the criminal area a court had to draw three conclusions: the purpose of the new rule did not require retroactive application, the extent of reliance on the old practice by law enforcement officials was great, and the burden that would be imposed on the administration of justice by a holding of retroactivity suggested a prospective-only result.39 Linkletter required that this careful calculus be performed for each new situation.40 Retrospective application of new constitutional adjudications is now controlled by the *639latticework of doctrine that developed subsequent to Linkletter and Stovall.
In considering the present action in the context of habeas corpus principles, one further observation is significant: the non-constitutional nature of the defect struck down in Greenwell. Not every error of law can be raised in a collateral proceeding challenging the validity of a conviction. Last term, in Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), the Supreme Court held that non-constitutional claims can be asserted in collateral attacks on criminal convictions under 28 U.S.C. § 2255. However, the Court added that the scope of relief is more narrowly circumscribed where statutory, as opposed to constitutional, claims are presented. The Court made clear that habeas may not be used as a substitute for appeal.41
In general, no forum is provided by section 2255 to review non-constitutional errors of law not pressed on appeal, Su-nal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1949), even though “failure to take a direct appeal from conviction does not deprive a federal post-conviction court of power to adjudicate the merits of constitutional claims.” Kaufman v. United States, 394 U.S. 217, 220, n. 3, 89 S.Ct. 1068, 1071, 22 L.Ed.2d 227 (1969). Indeed, total failure to raise a constitutional question at trial does not foreclose collateral habeas relief. Kaufman, supra.
Although the present case is not, as we have indicated, governed by the doctrines surrounding habeas corpus, their guidance is instructive. It would appear that, in general, federal statutory claims should be presented at trial to be available as grounds for collateral attack.
The plaintiffs assert here that it is imperative that a statutory construction by the Court of Military Appeals be applied retroactively. Yet the validity of the statute itself is not challenged in any regard. Nor is the power of the armed forces to try servicemen for the offenses in question assailed. Indeed, it is conceded that the offenses were properly triable by the military.
Also, no one questioned that the special court-martial was the proper forum in which to bring these servicemen to account. Nor is it claimed that the composition of the actual court-martial panel was improper or that the members were not qualified to preside over the individuals and offenses in question. And finally, it is not suggested that the appointment of the court-martial was by a person who, had he been personally authorized by the Secretary, could not have appointed them.
Rather, the narrow statutory decision at the core of the present controversy is that the authorization of “separate and detached,” insofar as it carried the concomitant power to appoint the court-martial tribunal, was improperly communicated by the Secretary of the Navy. The Secretary’s indirect appointment, pursuant to section 0103b(5), was found to be an improper delegation of his authority as civilian head of the Navy to inferior military personnel. Far from announcing a change of constitutional magnitude that might cast doubt on the fairness of the procedure or the validity of the results in trials conducted under the old rule, Greenwell requires, in effect, the rerouting of authorizing papers via the Secretary when new disciplinary commands are being established.42
*640 3. Retroactivity: The Balance.
Assuming the rules of habeas are applicable here, and considering that both case law and logic permit limited retro-activity, it is appropriate to turn to a determination of the extent of the retro-activity of the holding in Green well43 under the Linkletter-Stovall test.44 In this regard I. concur with Judge Hunter’s analysis and wish only to add the following observations.
This Circuit stated in United States v. Zirpolo that “[generally, rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been applied retroactively.” 45 No substantial claim is made that the pre-Greenwell practice resulted in a likelihood of trials rendered vulnerable by unreliable evidence, improper procedures or other injustice. Nothing in the record questions the fairness of either the convictions or the sentences. A holding here of nonretroactivity would thus be consonant with the views espoused in Zirpolo. This Court has recently applied the Zirpolo test in a court-martial case, holding prospective-only a ruling that struck down, on due process grounds, certain Articles of the Uniform Code of Military Justice.46
The rationale of the Greenweil rule would not be served by broad retroactive application.47 The Greenweil court found that. the purpose of Congress in requiring a personal designation from the Secretary in order to establish an independent disciplinary command was to retain the reins on special court-martial jurisdiction in the hands of the civilian Secretary of the Navy.
, While prospective implementation of the Greenweil rule will advance the desired effect, broad application of the rule to the past, voiding all convictions, and requiring repayment of the fines and forfeitures pursuant thereto, would have no impact on furthering the results intended by Congress. All past abuses terminated with Greenwell. Prior designa*641tions of “separate and detached” ceased to constitute authorization for the power to convene special courts-martial.48 Accordingly, no lingering effects are perceptible on the allocation of power within the military.49
Under Linkletter-Stovall, a court must consider the impact of a holding of retroactivity both in terms of its practical effects and the fairness of the result obtained. Were Greenwell held fully retroactive, the administrative burden would be considerable. Searching and correcting all applicable records would absorb substantial personnel time, and there would be problems regarding not only back pay but retirement status, veterans’ benefits, and pensions.50
Generally, once a decision has been declared fully retroactive, convictions are overturned, records are expunged, and the defendants become, subject to retrial under a proper procedure. No retrial would be possible here, however, because in almost all cases, including the two named plaintiffs in this action, those affected are no longer in the military and, persons who have left the military may no longer be subjected to military discipline.50a The statute of limitations might also operate as a bar. And even if retrial were available, any further proceedings would differ in no particular from the trials undergone in the first instance.51
The net result of according complete retroactivity to the Greenwell rule, especially in this case, would be to afford a windfall to the plaintiffs. Such would be unwarranted under the generally acknowledged functions to be served by making judicial determinations retroactive or by the purpose of the Greenwell holding itself.52
Thus, were full retroactivity established here, the principal results would be that a material administrative disruption would be entailed, and benefits would inure to a class that concededly has committed violations of military law.
III. Conclusion.
Justice Cardozo reminded us that “the inn that shelters for the night is not the journey’s end.” Rather, the law which is announced today must be ready for tom-morrow. If we write too broadly, overturning final judgments in cases like the present one, if we apply black-letter law where circumstances require discrete case-by-case treatment, we shall place ourselves in a legal straitjacket, and be *642unable to deal rationally with these difficult questions as they present themselves in the future.
Because the res judicata effects of a final judgment are conclusive in the context of a civil action, and because even under a habeas approach retroactivity is not warranted, at least on the basis of the factual situation here, the requested relief may not appropriately be granted to plaintiffs.
. Manual of the Judge Advocate General of the Navy § 0103b(5).
“Special courts-martial. — In addition to those officers otherwise authorized by article 23(a)(1) through (6) [of the Code], the following officers are, under the authority granted to the Secretary of the Navy by article 23(a)(7) [of the Code], empowered to convene special courts-martial:
All commanding officers and officers in charge of commands now or hereafter designated as separate or detached commands by a flag or general officer in command.
. Maximum confinement sentences by special courts-martial are six months. 10 U.S.C. § 819 (1959), as amended, 10 U.S.C. § 819 (Supp.1974). Since the Greenwell decision in 1970, convictions under the procedure declared defective there have been routinely reversed. See, e. g., United States v. Cunningham, 21 U.S.C.M.A. 144 (1971).
. In a companion case to Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), Flemings, a released petitioner suing for correction of records, was treated no differently from Gosa, who brought a habeas action. Although the Supreme Court did not distinguish between the circumstances of the collateral proceedings, such a distinction would not be precluded, for the cases of Gosa and Fleming were otherwise distinguishable. See infra Part II 1(b), page 203.
. Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 17 L.Ed. 520 (1863). In Gelpcke, petitioners unsuccessfully challenged the force and effect of an earlier final decree regarding the status of bonds issued under a statute later held by the Iowa Supreme Court to be unconstitutional. See also. Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).
. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951); Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); 1 J. Moore, Federal Practice 0.60[4] at 641 (1974). However, jurisdiction is a coat of many colors. Justice Douglas in United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), suggests that the concept of jurisdiction is malleable, and he notes that upon occasion it has been redefined. See also, O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).
Among the elements comprising the flexible jurisdictional fabric, it would appear that some components are not indispensable. For example, not every failure of jurisdiction requires a court to stay its hand, even in the case before it. In McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), access to the federal court was circumscribed by tightening the diversity requirements. Nonetheless, the more generous older rule was applied, on equitable grounds, to the case before the court. This is similar to the jurisdictional holding in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), where a shorter statute of limitations period was applied only prospectively. See also, Cipri-ano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).
Nor is every order based on an unsustained assertion of jurisdiction void and unenforceable. In United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), the Court stated at pages 289-295, 67 S.Ct. 677 that even where a district court had no jurisdiction over the subject matter because of the Norris-LaGuardia Act, under certain circumstances an injunction might issue pending a determination of the jurisdictional question, and noncompliance with the injunction would appropriately be punished as contempt of court.
. In Gelpcke, supra note 4, in holding city bonds enforceable despite the later invalidation of the authorizing statute by the state’s highest court, the Supreme Court relied on the interest in having questions “settled,” and on the interim reliance by all parties on the legitimacy of the bond issue.
. The same rule has been applied in the criminal area. For example, in Warring v. Colpoys, Circuit Judge, later Chief Justice, Vinson declined to issue a writ of habeas corpus, asserting, “It is increasingly evident that ‘jurisdiction’ in the normal case is not subject to collateral attack. While habeas corpus is regarded more liberally than most forms of collateral attack, it is not to be used as an appeal or a writ of error.” 74 U.S.App.D.C. 303, 122 F.2d 642, 644, cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543 (1941) (citations omitted).
The increased liberality accorded the scope of habeas in Warring was attributed to the question of personal liberty involved there, an issue not present in the case before the Court here. See supra.
. Thus it has not been suggested that all judgments of three-judge courts would be overturned if it were ascertained, after such judgments were final, that, while the statute required the chief judge of the circuit personally to designate the additional judges required for each three-judge court, in fact for years the assignments had been made by the clerk of the court. 28 U.S.C. § 2284(1) (1965). Rather, it would seem that the interest in ending litigation would prevail, and a failure of jurisdiction in such circumstances would not vitiate judgments previously rendered under a presumption of properly founded jurisdiction.
. Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct. 44, 51, 84 L.Ed. 85 (1939), quoting American Surety Co. v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231 (1932) (footnote omitted). See also Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 377, 84 L.Ed. 329 (1940); Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 *631L.Ed. 104 (1938); McCormick v. Sullivant, 23 U.S. (10 Wheat.) 192, 6 L.Ed. 300 (1825); J. Moore, Federal Practice ílfl 0.60[5], 55.09 (1974).
. 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940).
. See also Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 17 L.Ed. 520 (1863), notes 4 and 6, supra.
. See Durfee v. Duke, 375 U.S. 106, 114 n. 12, 84 S.Ct. 242, 11 L.Ed.2d 186, citing Restatement, Conflict of Laws, § 451(2) (Supp. 1948); Restatement, Judgments, § 10 (1942).
. A small class of cases creates a narrow exception to the “opportunity to litigate” rule, but no considerations are present in this case which would justify a result different from that of Chicot County. The exceptional cases have involved adjudications of federal issues in state courts. See Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940); United States v. United States Fidelity Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940).
. For situations where prospective-only application has been ordered for jurisdictional rulings in the civil field, see Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) (statute of limitations); McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968) (diversity jurisdiction).
. Plaintiffs’ records carry a criminal conviction. Also, plaintiffs have forfeited wages, liberty, honorable discharges and veterans’ benefits. For a discussion of the “collateral consequences” of criminal convictions, see Ca-rafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).
. Access to habeas corpus relief in the federal courts is codified at 28 U.S.C. §§ 2241 et seq. Habeas corpus under 28 U.S.C. § 2255 is not available to plaintiffs because of the statutory requirement that a petitioner be “in custody” at least at the time a habeas petition is filed. E. g., Gosa v. Mayden, 413 U.S. 665, n. 3, at 670, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). See also Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).
. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The traditional Blackstonian view — also referred to as the declaratory theory — had been that constitutional rulings and interpretations by courts were wholly retroactive. The underlying rationale for the Blackstonian view of absolute retroactivity has been explored in a thoughtful article by Professor Mishkin in which he relates retroactive application of the law to the symbolic role of courts. Mishkin, The Supreme Court 1964 Term, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56 (1965).
. See Part I supra. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940).
. Kaufman v. United States, 394 U.S. 217, 229, 89 S.Ct. 1068, 1075, 22 L.Ed.2d 227 (1969).
. Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), discussed in part 2(b), infra, rules that O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), should not be retroactively applied. O’Callahan had been viewed by many as a decision going to the core of the military courts’ jurisdictional power. So viewed, the determination by the Supreme Court to apply O’Callahan prospectively only would appear compelling here. The judgment of the Court eschews a “jurisdictional” characterization of O’Callahan, however.
. 74 U.S.App.D.C. 303, 122 F.2d 642, cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543 (1941).
. 122 F.2d at 646.
. The Fifth and Tenth Circuits have also spoken on whether retroactive application is necessary where holdings concern jurisdiction. Schlomann v. Moseley, 457 F.2d 1223 (10th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3061, 37 L.Ed.2d 1041 (1973); Gosa v. Mayden, 450 F.2d 753 (5th Cir. 1971), aff’d, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). In Schlomann, having squarely decided that O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), set clear jurisdictional bounds on the military courts, the court nevertheless concluded, “We are not persuaded that the jurisdictional terminology of O’Callahan compels us to refuse con*634sideration of prospective application.” 457 F.2d at 1227.
In Gosa, while conceding that O’Callahan limited the power of the judicial forum, the Fifth Circuit denied O’Callahan retroactive application, holding “there is no arbitrary or simplistic basis for deciding retroactivity. The heart of the doctrine is a reasoned application of new constitutional precedent.” 450 F.2d at 759 (footnote deleted).
. Appointment of an out-of-state guardian or executor for purposes of suit.
. See, e. g., Groh v. Brooks, 421 F.2d 589 (3d Cir. 1970); Law v. Converse, 419 F.2d 38 (3d Cir. 1969). Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), is yet another case where a new jurisdictional rule, involving a statute of limitations, was applied prospectively only, because of reliance by the plaintiff there on an older, more liberal rule.
. Our research has not disclosed that any case was ever instituted to attack, collaterally, judgments predicated on jurisdiction that McSparran later held was nonexistent.
. Toth v. Quarles, 350 U.S. 11, 22, 76 S.Ct. 1, 8, 100 L.Ed. 8 (1955).- The courts-martial at issue in this case concededly fall within the Toth definition of the proper scope of military disciplinary proceedings. See also, O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed,2d 291 (1969); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902); Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887).
. 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887). In Runkle the petitioner successfully challenged his discharge from the army because, in contravention of the statute, the President had failed to affix his approval to the court-martial proceedings.
. 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902). In Deming, despite an express statutory prohibition, a volunteer officer in the army was tried by a court-martial comprised of officers in the regular army. The Supreme Court held, therefore, that the court-martial was without proper jurisdiction and a writ of habeas corpus lay.
. O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).
. On the issue of retroactivity, four justices concluded that O’Callahan did not require retroactive application; four indicated that retro-activity was called for, although only two of these justices found it necessary to reach the question; and one justice (Douglas, J.) concluded that res judicata required that Gosa’s *636petition be denied, and that Flemings’ offense was service-related.
While I respectfully differ with Justice Douglas’ application of the res judicata doctrine in a habeas corpus case, the application of res judicata in the case sub judice might be dis-positive. See Part I supra.
. 413 U.S. at 676, 93 S.Ct. at 2934. The tone of Justice Blackmun’s approach tends to refute the implication by Justice Marshall that a technical jurisdictional impairment would require a retroactive application.
. 413 U.S. at 694, 93 S.Ct. at 2943. Justice Marshall expressed the philosophy of four members of the Court. Justice Brennan concurred; Justices Rehnquist and Stewart, believing O’Callahan to be wrongly decided, nevertheless concluded that its holding must be retroactive, in substantial agreement with Justice Marshall’s reasoning. 413 U.S. at 692, 693, 93 S.Ct. 2926.
. Schlomann v. Mosely, 457 F.2d 1223 (10th Cir. 1972), cert. denied 413 U.S. 919, 93 S.Ct. 3061, 37 L.Ed.2d 1041 (1973); Gosa v. Mayden, 450 F.2d 753 (5th Cir. 1971), aff'd, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973).
. McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968); Warring v. Colpoys, 74 U.S.App.D.C. 303, 122 F.2d 642, cert. denied 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543 (1941). See discussion, supra.
. See infra Part 3.
. Justice Brennan, for himself and Justice Marshall, concurred separately, stating that the use to which the information was put was not in conflict with the Fifth Amendment purpose served by not compelling its disclosure at all.
. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Circumstances where courts have not been reluctant to grant full retrospective application, without consideration of the Linkletter-Stovall factors, include situations where persons had been convicted of “conduct that cannot constitutionally be punished in the first instance,” United States v. United States Coin & Currency, 401 U.S. 715, 723, 91 S.Ct. 1041, 1046, 28 L.Ed.2d 434 (1971); or where, because of prior conviction for the same offense, the Double Jeopardy Clause interposed an insuperable barrier to prosecution, Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). Retroactivity was also found where substantial detriment to the accused could be inferred that doubt was cast upon the validity of the result reached in a prior trial. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (denial of counsel); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (prejudicial material of doubtful probity coming before a jury).
. A pivotal consideration is whether the soundness of the result achieved in the prior trials is open to substantial question because of the newly ascertained constitutional defect. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); United States v. Zirpolo, 450 F.2d 424 (3d Cir. 1971). Unlike other cases where retroactivity is warranted on this basis, see note 38 supra, in the case here no such doubt may be appropriately entertained.
. See e. g., Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), holding Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), not retroactive (limited search incident to arrest); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), holding Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), not retroactive (trial by jury).
. 94 S.Ct. at 2303-2304. To the same effect, see Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); Warring v. Colpoys, 74 U.S.App.D.C. 303, 122 F.2d 642, cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543 (1941).
It has been suggested in dictum that non-con-stitutionai jurisdictional defects may be raised for the first time in habeas proceedings. The fact that collateral attack is not barred does not, however, determine the outcome on the merits. See, Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Sunal v. Large, 332 U.S. 174, 179-181, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947).
. “The Secretary, according to his attorneys, has continued to empower small units as routinely and widely as before [Greenwell] by his power under [10 U.S.C.] § 823(a)(7).” 365 *640F.Supp. 328, 348 (E.D.Pa.1973). A letter, reproduced in Addendum to Brief of Appellee, 33c-35c, constitutes one such personal authorization from the Secretary of the Navy to roughly 40 commands empowering them to convene special courts-martial. Included therein are the commands of the two named plaintiffs in this class action (Transient Facility, Camp Smedley D. Butler, Okinawa, which court-martialed plaintiff Brown; Student Company, Marine Corps Base, Camp Pendle-to'n, which on two occasions sentenced plaintiff Taylor after guilty pleas).
. The district court stated its accord with the Greenweil result, 365 F.Supp. at 347; the correctness of the Greenweil decision is not before us here.
. Linkletter v. Walker declares that “once the premise is accepted that we are neither required to, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case . . . .” 381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965). The decision must reflect concern with “the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard” the interests served by the new precept. Id. See Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).
. 450 F.2d 424, 432 (3d Cir. 1971). See also United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. Aug. 15, 1974). Although the majority of the Court en banc in Matthews did not reach the issue, the three judges who discussed retroactivity relied on Linkletter-Stovall and Zirpolo. They concluded they would not apply retroactively a ruling requiring jury instructions on voluntary manslaughter for murder defendants, although the failure to give such instructions in the past admittedly violated defendants’ constitutional rights, and resulted in what might well have been unfair sentences.
. Parker v. Levy, 478 F.2d 772, 796 (3d Cir. 1973), rev’d on other grounds, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
. Appellants urge, in reliance on Bell v. United States, that Congress intended a presumption to operate in favor of a serviceman, that he would receive statutory pay and allowances unless and until he was subjected to discipline by a “duly constituted court-martial.” 366 U.S. 393, 402, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961). This presumption, even if admitted, carries no implications for the question of broad retroactivity for Greenweil.
. See United States v. Cunningham, 21 U.S. C.M.A. 144 (1971), and cases cited therein. Were the plaintiffs still imprisoned under the convictions challenged here, and were they before this Court on petitions for habeas corpus, different considerations would be introduced.
. It is claimed that an interest does exist in curbing whatever potential abuse there is in permitting small units at the end of a chain of command to exercise such court-martial jurisdiction. We note, however, in agreement with the district court, that the statute properly construed does not alter whatever abuse might be generated by these practices. There is no change in eligibility for “separate and detached” status, and such appointments may continue to be made routinely and wholesale so long as they are made directly by the Secretary. See note 42, supra.
. Legitimate measurement of this administrative burden is not limited, as appellants claim, to the problems surrounding relitigation of offenses. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Gosa v. Mayden, 413 U.S. 665, 683, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973).
. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955).
. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). Further trial would, at the very least, be difficult of achievement. Since the offenses in question were petty crimes, evidence and witnesses to prove them would doubtless be unobtainable in almost all cases. To this extent the government’s legitimate interests in discipline, in deterrence, and in rehabilitation would go unsatisfied. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).
. A serious question of inequality of treatment would arise vis-a-vis those servicemen who, by mere happenstance, were less fortunate in being tried on identical charges before substantially the same type of special courts-martial, but tribunals that were empowered under 10 U.S.C. § 823(a)(l)-(6).