dissenting.
Although I agree with the ultimate result of the majority opinion, which affirms the underlying military personnel action, this congruence in outcome is purely coincidental. I write separately to articulate my opinion that review by this Court is inappropriate, as there is no jurisdiction and the matter is nonjusticiable.
My conclusion regarding lack of jurisdiction results from analyzing the state and federal roles of Appellee Galen Kise (Kise) and the Adjutant General (AG) and untangling the intertwined components of the Active Guard/Reserve (AGR) program in order to view their separate state and federal identities. I am compelled to address nonjusticiability, as well, based on United States Supreme Court precedent, which refuses to allow challenges to decisions of command, which, if permitted, “would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” United States v. Shearer, 473 U.S. 52, 59, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985).
In analyzing the jurisdictional issue, it is necessary to understand the nature of the National Guard. The National Guard is part of a “dual enlistment” system, where a guardsman simultaneously belongs to the National Guard of the United States and the National Guard of a particular state. “The Guard occupies a distinct role in the federal structure that does not fit neatly within the scope of either state or national concerns.” Knutson v. Wisconsin Air National Guard, 995 F.2d 765, 767 (7th Cir.1993).
Under this “dual enlistment” system, guardsmen are state employees of their respective state National Guard units when they are not on active duty in the National Guard of the United States. Kise v. Department of Military and Veterans *552Affairs, 784 A.2d 258, 255 (Pa.Cmwlth.2001) (internal citations omitted). The Department of Military and Veterans Affairs (DMVA), in its Brief of Appellant at 8-9, explains the five types of duty that a Pennsylvania National Guardsman can perform: (1) state active duty — pursuant to an emergency declaration or in anticipation of an emergency, the Governor may place the National Guard on active duty. The Commonwealth then controls and funds their activities, pursuant to 51 Pa.C.S. § 508; (2) special state active duty — the Governor may place or delegate authority to the AG to order volunteer members of the National Guard on special state duty “to respond to community needs, support Commonwealth functions, support federal, state and local drug eradication and interdiction operations and perform other necessary military duties to the extent funds are available.” This is state funded status authorized by 71 P.S. § 391e; (3) Title 10 (federal) status — this is when the President activates the National Guard for call-up, such as Operation Desert Shield. This duty is subject to the exclusive control of the federal government. This duty preempts any. state duty; (4) Title 32 status — this is a drilling member of the National Guard, who is compensated by the federal government as a reserve component of the Armed Forces of the United States. It is subject to the control of the AG and the Governor, but it is federal status pursuant to 32 U.S.C. § 502; (5) AGR status — full-time active duty by a member of the National Guard; subject to day-today control of the AG but federal in status, federally reimbursed and regulated, and authorized by 32 U.S.C. § 502. Prior to his dismissal, Kise was on full-time active duty as a member of the AGR of the National Guard and was an enlisted member in the Pennsylvania National Guard. His termination from the AGR did not affect his status in the Pennsylvania National Guard.
This AGR program is instituted, administered by and subject to the direction of the federal government. Kise was terminated from this, his full-time position, for an improper sexual relationship, involving inappropriate professional conduct and moral dereliction, attributes that could not be tolerat*553ed in his position of supervisory authority in the special AGR program.1
The majority finds jurisdiction based on its conclusion that Kise was a state employee at the time of his discharge and that the AG acted in his state capacity when he terminated Kise. However, this is wrong, and the facts support the opposite conclusion, given the complex intertwining of state and federal roles in the Pennsylvania National Guard and AGR programs. As aptly characterized by the DMVA, Kise was a federal soldier, and the AG acted in his federal capacity.
The DMVA does not deny that many jurisdictions regard AGR duty pursuant to 32 U.S.C. § 502 as “state duty.” However, this classification likely results from the confusion surrounding AGR status, and the fact that a Pennsylvania Guardsman can wear as many as five different hats. AGR status is defined as Army National Guard personnel serving on “full-time National Guard duty.” 10 U.S.C. § 101(d)(6)(A). Although subject to the day-to-day administrative control of the AG, it is federal in nature, and Guardsmen in that category are prohibited from serving either state active duty or special state active duty.
The majority points to a military regulation and legislative history reflecting that AGR service is performed under the control of state National Guard authorities, rather than the federal government. The majority believes that were it not for this regulation and legislative history, the DMVA’s arguments “might be colorable.” The majority is incorrect; neither the legislative history nor the regulation answers the question sub judice.
The legislative history reflects only that personnel in full-time National Guard service are under control of state National Guard authorities and are not subject to the restrictions of the Uniform Code of Military Justice (UCMJ) or the Posse *554Comitatus Act.2 1984 U.S.C.C.A.N. 4174, 4201^202. Persons subject to the UCMJ include “members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.” 10 U.S.C. § 802(a)(3).
Thus, AGR personnel are exempt from the restrictions of the UCMJ, and the UCMJ recognizes that National Guard members are sometimes in federal service and other times not. In my view, this does not warrant the conclusion of the majority — that Kise was a state employee who was terminated by the AG, acting in his state capacity. Rather, it provides support for the determination that there is no jurisdiction.
The AGR program is federally reimbursed, federally regulated, and authorized by federal law at 32 U.S.C. § 502. Kise was paid by the federal government, wore a United States Army uniform, was subject to the direction and control of the military, was investigated pursuant to Army regulation, and was dismissed by the AG pursuant to a purely federal regulation.
While the majority chooses to focus on the state aspects of the duties of Kise and the AG, it has not been able to surmount the obstacle to jurisdiction that Judge Pellegrini raised in his dissenting opinion in Kise, which was joined by Judge Leadbetter. The dissenters made an absolute and strong statement when they concluded that:
the investigation into Kise’s misconduct was conducted pursuant to the provisions of a Department of Army regulation ... This is relevant because, not only is there evidence that this is a federal matter, but regardless of u-hat this court orders, ive cannot force the federal government to pay for or approve Kise’s active duty status. Courts should not enter orders they cannot enforce.
Kise, 784 A.2d at 266 (emphasis added).
Although I determine that we lack jurisdiction to hear this case, I believe that it is important to articulate my opinion that *555this matter is nonjusticiable. The United States Supreme Court describes nonjusticiability as inappropriateness of the subject matter for judicial consideration. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In Baker, the Court stated “that in the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Id. at 198 (emphasis added).
In the instant case, Kise challenges termination from his federally salaried position in the AGR. His termination was initiated and implemented pursuant to federal regulation. As the Commonwealth Court recognized, the due process rights of Pennsylvania’s Administrative Agency Law are not implicated, and Rise’s challenges go to the application of the federal regulation.3 As the Commonwealth Court dissent correctly noted, even if we determined that Rise’s termination was improper, we could not require the federal government to pay his salary or to reinstate his AGR status. This fact renders the matter nonjusticiable, for the third prong of Baker, that protection can be judicially molded, cannot be achieved. Because we cannot order the federal government to reinstate Kise to the AGR and pay him his salary, we cannot effectuate a judicial remedy, and the matter is nonjusticiable.
The majority recognizes that the AGR is comprised of the most highly qualified and exemplary soldiers whose purpose is to provide officers and enlisted personnel to support the National Guard and Army Reserves, generally in positions related to organizing, administering, recruiting, instructing or training. Given the special nature of the AGR program and the military’s determination that Kise was unfit to serve in it, we should not interfere with the decision to terminate him. *556Our jurisprudence has long expressed that “judges are not given the task of running the Army.” Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 97 L.Ed. 842 (1953). The majority cites the United States Supreme Court, which said, “it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). While not every action or decision of the military is nonjusticiable, the issue sub judice is inappropriate for judicial review. See, Shearer, 473 U.S. 52, 58, 105 S.Ct. 3039, 87 L.Ed.2d 38 (claim against Army under the Federal Tort Claims Act barred because “[t]o permit this type of suit would mean that commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions; for example, whether ... to discharge a serviceman ...).”
The majority asserts that its determination “ameliorates the justiciability and deference concerns related to the amenability of military decisions to judicial review.... It describes its review as a limited review [which] is far less intrusive upon the federal military domain.” However, I believe that the matter is nonjusticiable, and review of any degree is precluded. The majority’s characterizing the review as less intrusive does not eradicate the harm that it causes by injecting itself into the militarys investigative process.4
The case sub judice illustrates perfectly the terrain on which this Court should not tread. The decision to terminate Rise resulted from the strategic importance of the AGRs mission, as well as the attributes demanded of its members. The courts are not equipped to evaluate the subjective wisdom *557of particular military judgments. “[Civilian courts may not sit in plenary review over intraservice military disputes.... [T]here can be little doubt that the permissible range of lawsuits by present or former servicemen against their superi- or officers is, at the very least, narrowly circumscribed.” Farmer v. Mabus, 940 F.2d 921, 924 (5th Cir.1991), cert. denied, 502 U.S. 1058, 112 S.Ct. 935, 117 L.Ed.2d 107 (1992) (internal citations omitted). Although Farmer held that a dispute involving the AG and Governor was not justiciable in federal court, its reasoning is relevant to Rise’s appeal. In Farmer, the district court reached the merits of a dispute between the governor and the AG, where the governor removed the AG’s federal and state authority to oversee the day-to-day operations of the Mississippi National Guard. On appeal, the court found the case nonjusticiable, describing the issue as:
little more than a direct attack on a personal order of the [governor]. While the courts occasionally have been willing to examine the lawfulness of induction or discharge, decisions internal to the chain of command require much greater deference, lest we soon find ourselves mired in the nigh-impossible task of judicially reviewing each order or directive issued by lawful military authority.
Id. at 924 (internal citations omitted).
The Commonwealth Court dissent at Rise, 784 A.2d at 266, expresses my opinion succinctly: “[T]he National Guard is being prepared to wage war, involving killing and dying. If the military believes that [Rise] should not serve, we should not interfere.”
. The separation notice sent to Kise stated “[y]our lack of honesty, sound judgment and moral dereliction is not in keeping with the values and ethics expected of a professional soldier. Values are what soldiers, as a profession, judge to be right. They are moral, ethical and professional attributes of character.” Kise, 784 A.2d at 265, n. 23.
. 18 U.S.C.A. § 1385 (prohibits use of Army or Air Force military personnel in civilian law enforcement).
. Kise contends that the AG abused his discretion by failing to address certain “mandatory” factors; that his commander failed to counsel; that the sufficiency and competency of the evidence are in question; and that the rules of fraternization did not apply to his sexual relationship with another soldier who was not in his chain-of-command.
. Because the matter is nonjusticiable, the adequacy of the record is irrelevant. Nevertheless, I note that the majority has conducted its review and made its conclusions based on a record that the Commonwealth Court determined was inadequate.