Opinion
COOK, Judge:
Petitioner seeks to prohibit her trial by special court-martial on a charge that she fraudulently procured her separation from the Army, in violation of Article 83(2), Uniform Code of Military Justice, 10 U.S.C. § 883(2). She alleges she was released from active duty for reason of pregnancy, and was duly issued a DD Form 214, titled Certificate of Release or Discharge from Active Duty. The Government asserts petitioner’s representations of pregnancy were fraudulent; that the separation order directing her release has been revoked; and that she is amenable to trial by court-martial under the provisions of Article 3(b), UCMJ, 10 U.S.C. § 803(b). A government motion to dismiss the petition because it does not present a “case ... appropriate for extraordinary relief” has been denied. See 11 M.J. 357 (C.M.A.1981).
I. FACTS
In late August 1980, petitioner submitted a urine specimen for a pregnancy test. Subsequently, she received a medical certificate indicating that she had been pregnant for about seven weeks. Thereupon, petitioner formally requested that she “be released from duty on 15 Oct. 80 by reason of" pregnancy.” On September 10, 1980, the Commander, Fort Sam Houston, Texas, approved the request for release. As petitioner had entered upon active duty in the Army on January 30, 1979, for a term of four years, the letter of approval directed that petitioner “be released from active duty and transferred to the Individual Ready Reserve to complete her military service obligation.” On the same day as the approval, the command promulgated Orders 177-105, which reassigned petitioner to US Army Separation Transfer Point, Fort Sam Houston, Texas. It further provided that, on completion of processing, she was to be “relieved from active duty” and assigned, effective October 16, 1980, to United States [147]*147Army Reserve Control Group (Annual Training), with her “Military Selective Service Act obligation” to end on April 9,1984. A subdivision of the Orders, captioned “Additional instructions,” lists certain obligations of petitioner. Among them is the following:
You are responsible for maintaining your military clothing for military purposes to include short active duty tours and inactive duty training until such time as you are discharged from your United States Army Reserve status.
Department of Defense Form (DD Form) 214 was issued to petitioner on October 15, 1980. Consistent with the Orders, it notes petitioner was transferred to “USAR CON Gp (Anl Tng) RCPAC St Louis MO 63132,” and listed her “Reserve Oblig. Term. Date” as April 9, 1984. The form also noted petitioner’s “Primary Specialty,” her qualification with the M-16 rifle, her military education, excess creditable leave, and her “SGLI [Servicemen’s Group Life Insurance] Coverage” in the amount of $20,000.00.
Information surfaced early in November suggesting that petitioner may have submitted, as her own, a urine sample obtained from a pregnant servicewoman whom she knew. Investigation by agents of the Army Criminal Investigations Division (CID) led to procurement of sworn statements verifying the reported information. A formal charge was then lodged against petitioner, alleging she had violated Article 83(2) of the Code. Fort Sam Houston also issued Orders 245-102 revoking Orders 177-105.
The parties disagree as to the character of the events that led to petitioner’s return on January 12, 1981, to Fort Sam Houston, and her engagement in work at Headquarters Company, US Army Garrison, which petitioner’s then civilian counsel described, in an affidavit before the Court, as “her daily on-base routine.” Appellate government counsel maintain that petitioner “voluntarily” submitted to military control. The civilian attorney represents that he “advised” petitioner “to present herself physically to” the post only because he had been told by the Chief of the Criminal Law Branch that if petitioner failed to do so, “a ‘pickup’ order” would issue for her apprehension, and she might not be allowed “evenings and weekends at her private residence.”
On the day of petitioner’s return to Fort Sam Houston, she was served with a copy of the formal charge. Petitioner displayed “a good attitude,” and her unit commander considered “[h]er work” and “personal conduct” to be “satisfactory.” However, petitioner still regarded herself as “a civilian,” and refused to accept “pay or any other benefits from the Army.”
Petitioner’s case came on for trial before a special court-martial on January 23, 1981. After arraignment but before plea, trial was continued to March 2 to enable petitioner to retain a different civilian lawyer. On February 23, petitioner, represented by a new civilian attorney and the detailed military defense counsel, filed her pleading in this Court. The next day, this Court issued an order to show cause to the Government and directed a stay of the court-martial proceedings. Two days later petitioner applied to the installation commander “for Permission to Return to Civilian Lifestyle,” but the request was denied. A government exhibit characterizes her as “AWOL” since March 30, but petitioner argues that the Government knows her “whereabouts” and has given “no indication” that it has “in fact treated . . . [her as] absent without authority according to . . . [its] regulations.”1
II. PETITIONER’S AMENABILITY TO TRIAL BY COURT-MARTIAL
Article 3, UCMJ, 10 U.S.C. § 803, contains two subdivisions authorizing trial by court-martial of a person who has changed his [148]*148relationship to the military between the commission of an offense under the Uniform Code and the commencement of proceedings on a formal charge. Subdivision (a) provides, in pertinent part, that, notwithstanding the change of relationship, a person is not “relieved from amenability to trial by court-martial” if the offense is “punishable by confinement for five years or more” and is not “tri[able] in the courts of the United States or of a State.” Subdivision (b) provides that, if after discharge, a former service person is “charged with having fraudulently obtained his discharge,” he remains “subject to trial by court-martial on that charge,” which is a violation of Article 83(2).2 The subdivision further provides that if the ex-service person is convicted of the charge of having fraudulently obtained his discharge, he then “is subject to trial by court-martial for all offenses . . . committed before the fraudulent discharge.”
Several years after the Uniform Code became operative, the Supreme Court determined that Congress could not, under its constitutional authority to make rules for the government of the armed forces (U.S. Const, art. I, § 8, cl. 14), subject a service member who had been honorably discharged to trial by court-martial for a violation of military law committed before the discharge. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). The Supreme Court acknowledged, and did not tergiversate, Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469 (1921), which upheld the exercise of court-martial jurisdiction over a dishonorably discharged soldier who was a prisoner serving a court-martial sentence. The Court reasoned that Congress could not extend its special military legislative authority to “civilian ex-soldiers who had severed all relationship with the military and its institutions.” 350 U.S. at 14, 76 S.Ct. at 3 (footnote omitted). “[T]he primary business of” the military, said the Court, is “to fight or be ready to fight wars.” It perceived the trial of a military offender to be “merely incidental” to the “fighting function,” (id. at 17, 76 S.Ct. at 5), and, therefore, considered it “impossible” that disruption of discipline or impairment of morale would result from a civilian court trial of an ex-serviceman who is “actually” a civilian. Id. at 22, 76 S.Ct. at 8.
This Court has faithfully .followed the Toth decision, both' with respect to the effect of an actual discharge from the service (United States v. Gallagher, 7 U.S.C.M.A. 506, 22 C.M.R. 296 (1957); United States v. Dickenson, 6 U.S.C.M.A. 438, 20 C.M.R. 154 (1955)), and in recognition of the constitutional authority of Congress to extend court-martial jurisdiction over a prisoner serving a court-martial sentence under an executed dishonorable discharge. United States v. Nelson, 14 U.S.C.M.A. 93, 33 C.M.R. 305 (1963).
With Toth as the linchpin of their argument, appellate defense counsel contend that, like Article 3(a), Article 3(b) is unconstitutional, because like Toth, the petitioner was “discharged” and became a “civilian” who could not be tried by court-martial. As his dissent indicates, Chief Judge Everett has been persuaded by the analogy to Toth to conclude that Article 3(b) is also unconstitutional, although he concedes that, if petitioner’s separation was “void,” she would be triable by court-martial. However, at least three circumstances relied upon by the Supreme Court in Toth to support its conclusion that Article 3(a) is unconstitutional are materially different from the facts in this case. I consider each separately.
In Toth, the ex-service member had severed all connection with the military, and, as the Supreme Court observed, “he had no relationship of any kind with” it. 350 U.S. at 13, 76 S.Ct. at 3. Here, if certain repre[149]*149sentations in the government’s pleadings are supported by evidence and are believed, they can support a finding by the trial court that petitioner voluntarily returned to and performed active duty until after her arraignment.
In United States v. Wheeler, 10 U.S.C.M.A. 646, 653, 28 C.M.R. 212, 219-20 (1959), Judge Latimer opined that Toth does not bar trial by court-martial of a service member who, after commission of an offense violative of the Uniform Code, is released from active duty and transferred to a reserve unit for completion of an obligated term of service under the Universal Military Training and Service Act, 10 U.S.C. § 651(a). The other two members of the Court as then constituted, Chief Judge Quinn and Judge Ferguson, deemed it unnecessary to consider the effect of the accused’s reserve obligation. But, they concluded from the evidence that the accused had “voluntarily” returned to active duty and was, therefore, not like Toth.
Secondly, petitioner here has, as Toth did not, an obligated period of reserve service. The obligated service encompasses “active duty tours” as well as “inactive duty training until . . . discharged from . . . United States Army Reserve status.” She has not been so discharged. Considering obligated reserve service of this kind, in United States v. Brown, 12 U.S.C.M.A. 693, 695, 31 C.M.R. 279, 281 (1962), Chief Judge Quinn concluded, as Judge Latimer had in Wheeler, that accused’s separation from active duty did not relieve him from amenability to trial by court-martial for an offense of the kind specified in Article 3(a), committed before his separation. However, the majority of the Court in Brown affirmed the decision of the United States Navy Board of Review (now Court of Military Review), which held that, notwithstanding the reserve obligation, a sufficient basis for continued military jurisdiction over Brown was lacking.
Wheeler and Brown may merit reexamination. For purposes of this proceeding, I assume, but do not decide, that petitioner’s return to active duty was not voluntary, and her obligation to perform reserve duty, even with tours of active duty, is insufficient connection with the military to make her, constitutionally, amenable to trial by court-martial under Article 3(b) of the Code. Those circumstances aside, I proceed to the third point of difference between Toth and petitioner’s case.
The validity of the proceedings which released Toth from active duty to return to the civilian community was unchallenged in his case. Here, the Government charges that petitioner procured her separation by fraud. This difference impresses me as so crucial to petitioner’s relationship to the military as to set her situation apart from Toth’s. It also convinces me that Congress could, constitutionally, make her amenable to trial by court-martial for the offense charged.
In Toth, three members of the Supreme Court dissented. Mr. Justice Black’s opinion for the majority discusses the major point of the dissent, as stated in Mr. Justice Reed’s opinion. Mr. Justice Black’s discussion reveals an implicit acknowledgement that the Court’s holding in Toth did not apply to a person in this petitioner’s position.
The dissenters in Toth referred to earlier statutes which subjected ex-service members and civilian contractors with the military to trial by court-martial for certain frauds committed before termination of their military relationships. They argued that judicial and administrative decisions had upheld the authority of Congress to provide for military trial for such frauds. Taking cognizance of the dissenters’ argument, Mr. Justice Black pointed out that the “[ljower courts” that had considered the matter had disagreed as to the constitutionality of the statutes as regards civilian contractors. Turning to the constitutionality of these statutes as to ex-service members, Mr. Justice Black cited, with approval, a statement in Colonel Winthrop’s eminent work, Winthrop, Military Law and Precedents 107 (2d ed. Reprint 1920). The statement was that “this class of statutes, which in terms or inferentially subject persons [150]*150formerly in the army, but become finally and legally separated from it, to trial by court-martial, are all necessarily and alike unconstitutional.” 350 U.S. 14-15 n. 8, 76 S.Ct. 3-4 (emphasis added).
Analysis of the “ ‘class of statutes’ ” considered by the “[l]ower courts,” to which Mr. Justice Black referred and Colonel Winthrop’s statement alluded, discloses that they dealt with fraudulent acts independent of the process or proceeding by which the service members had been released from military control.
Colonel Winthrop’s statement, which was unreservedly approved by Mr. Justice Black, implicitly recognized that not every separation from the service barred court-martial for a fraud offense. To have that effect, the separation had to be final and legal. Colonel Winthrop explained the meaning of this qualification earlier in his text. Persons separated from the military, he said, “cease to be military and become civil persons ” only if the separation is accomplished by “the recognized legal modes of separation.” Winthrop, supra at 89. Then, to foreclose any possibility of misconstruction of his meaning, Colonel Winthrop declared in a footnote: “The discharge must of course be due and legal, not fraudulent.” Id. n. 46.
A long and unbroken line of civilian and military rulings confirms Winthrop’s declaration.3 I unqualifiedly agree with it now, as this Court did in United States v. Scott, 11 U.S.C.M.A. 646, 648, 29 C.M.R. 462, 464 (1960), where it said that military jurisdiction over the person “ends with the delivery to him of a valid discharge certificate.” (Emphasis added.)
Separation procured by fraudulent means is not a valid separation. The fraud is not expunged by the issuance of a writing certifying the separation; rather the fraud taints the writing. The taint inheres in the act and the document — at least until it is affirmatively forgiven or recourse to it is barred by expiration of the prescribed period of limitations, as Article 3(b) recognizes. The service member may merge with the civilian populace, but the fraudulent character of his separation exists and it binds him to the military community.
Congress’ power to subject a person to trial by court-martial, under its constitutional authority “[t]o make Rules for the Government” of the armed forces,4 depends upon whether military jurisdiction exists over both the person and the act. The Supreme Court has enumerated extensive guidelines for inquiry into the military connection or significance of an act committed by a service member in the civilian community which is violative of both the military and civilian penal code. See Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). The military courts have regularly utilized those guidelines. See United States v. Trottier, 9 M.J. 337 (C.M.A.1980); United States v. Moore, 1 M.J. 448 (C.M.A.1976). The Supreme Court has also determined that certain connections between a civilian and the military are too insubstantial to allow Congress to authorize trial by court-martial for a violation of the rules prescribed for the government of the military.5 The Court, however, has not propounded specific guidelines for de[151]*151termination of jurisdiction over the person. Toth, however, deals with the connection between an ex-service member and the military, and analysis of it yields points of reference that can appropriately be treated as criteria. They are:
1. Would trial of the ex-service member further 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? 350 U.S. at 17, 22-23, 76 S.Ct. at 5, 8.
2. Would the particular extension of military authority over the ex-service member “actually and potentially” sweep under 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.
3. Is the scope of the extension of court-martial jurisdiction limited to “ ‘the least possible power adequate to the end proposed ’ ”? Id. at 23, 76 S.Ct. at 8.
Whatever might be the effect of fraud in other transactions, I am certain that a fraud that procures separation from active duty impairs the ability of the service to meet its primary function. Viewed from the standpoint of its practical consequences upon the service member’s unit, fraudulent procurement of the member’s separation is the functional equivalent of the member’s desertion. Both acts directly diminish the unit’s readiness and capability to perform its mission.
As to the second criterion, unlike subdivision (a) of Article 3, subdivision (b) does not sweep into military jurisdiction all ex-service members but only those who fraudulently procure release from active duty. Similarly, the extension applies to a single offense that is not normally cognizable by civilian courts, not to a vast variety of offenses that might otherwise be triable in a civilian court. See 350 U.S. at 19, 76 S.Ct. at 6.
Turning to whether the jurisdiction conferred by Congress is “‘the least possible power adequate to the end proposed ’ ” (id. at 23, 76 S.Ct. at 8), it may be that the time for its continuation is too long, even as restricted by the statute of limitations. The separated member’s term of obligated service could expire before the running of the period of limitations. Expiration of a term of service does not automatically result in a change of status from military to civilian,6 but, arguably, application of that principle to a person physically out of the service might be inappropriate. I need not, however, press the argument to decision. Petitioner had more than three years remaining on her obligated tour when Article 3(b) was invoked against her. All actions taken against her have been well within the period of limitations. See Article 43(c), UCMJ, 10 U.S.C. § 843(c).
Without deciding whether satisfaction of any one of the criteria is alone sufficient to support continuation of court-martial jurisdiction, as provided in Article 3(b), I conclude that all the Toth criteria are met, and that petitioner is subject to court-martial jurisdiction under Article 3(b).
In United States v. Keaton, 19 U.S.C.M.A. 64, 67 n. 3, 41 C.M.R. 64, 67 n. 3 (1969), this Court remarked that the power of Congress “to make Rules for the Government” of the armed forces must be construed in conjunction with its authority “[t]o make all Laws which shall be necessary and proper for carrying into Execution” that power.7 I am satisfied that in [152]*152enacting Article 3(b), Congress did not improperly “encompass [under court-martial jurisdiction] persons who cannot be fairly said to be ‘in’ the military service.” Reid v. Covert, 354 U.S. 1, 22, 77 S.Ct. 1222, 1233, 1 L.Ed.2d 1148 (1957). Congress could have authorized trial by a federal civilian court for the fraud alleged to have been committed by petitioner. Toth v. Quarles, supra 350 U.S. at 21, 76 S.Ct. at 7. That it did not do so did not foreclose exercise of its constitutional authority to vest jurisdiction over the offense in a court-martial.8 Such vesting impresses me as a uniquely “necessary and proper” means to effectuate the power of Congress to raise and govern the armed forces. I iterate, therefore, that in enacting Article 3(b), Congress properly exercised its constitutional power to govern the armed forces.9
III. PETITIONER’S IMPLIED DUE PROCESS CHALLENGE TO THE PROCEEDINGS AGAINST HER
Petitioner challenges a number of the government’s actions previous to referral of the charge to trial. She contends, for example, that the order directing her separation was revoked “unilaterally,” and, thus she was deprived of the opportunity to be heard on the issue. A number of federal courts have upheld similar “unilateral” decisions. Hironimus v. Durant, 168 F.2d 288 (4th Cir. 1948), cert. denied, 335 U.S. 818, 69 S.Ct. 40, 93 L.Ed. 373 (1948); Neary v. Greenough, 120 F.Supp. 833 (D.Me.1954); O’Malley v. Hiatt, 74 F.Supp. 44 (M.D.Pa.1947). In several cases in this Court, the parties and the Court have assumed the propriety of unilateral administrative revocation of a discharge or order of separation from active duty, prior to judicial determination of the legality of the separation and its legal consequences. United States v. Brown, supra; United States v. Scott, supra.
Whatever purposes revocation of a discharge or separation order may serve administratively, Article 3(b) does not require formal revocation of the written instrument of discharge or separation as a condition to subjecting the former service member to trial on a charge of fraudulent separation. The Article authorizes military apprehension of, and custody over, the individual, until the charge is determined by a court-martial.
Assuredly, the Fourth Amendment guarantees petitioner a hearing in respect to her apprehension and custody. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The hearing, however, is not to decide the merits of the charge, but to determine whether there is probable cause to believe that the offense charged has been committed and the person apprehended committed it; and if probable cause is found to exist, to consider what restraints, if any, should be imposed upon the individual’s liberty pending judicial determination of the charge. United States v. Heard, 3 M.J. 14 (C.M.A.1977). It does not appear that petitioner was accorded that sort of hearing. But, since the Court’s issuance of a stay of proceedings, she seems to have freed herself from all military restraint. [153]*153Should she eventually be tried, convicted, and sentenced to a period of confinement, she can move for administrative credit for any part of the period of restraint deemed to be illegal. United States v. Larner, 1 M.J. 371 (C.M.A.1976).
One further aspect of the proceedings in the command merits consideration. As indicated earlier, petitioner has discontinued performance of military duties assigned to her. Article 3(b) says nothing about a dischargee’s obligation to perform military duty when taken into military custody on a charge of fraudulent procurement of the discharge. Until the charge is determined, it is nothing more than a charge. Only if the charge is proven or confessed can it be said that accused’s status as a member of the military was not lawfully terminated.
Congress has provided in Article 3(b) that a court-martial shall determine whether the dischargee procured separation from the service by fraud. If the court-martial acquits the dischargee, it is more likely than not that he is “actually” a civilian. An acquittal casts doubt on the validity of a pretrial unilateral administrative revocation of the separation. Although the standard of proof of guilt in a criminal case is more demanding than that for proof of a claim in a civil suit, it may be that Congress nonetheless intended the government’s failure to convince a court-martial that separation from the service had been procured by fraudulent means to operate as a bar to further administrative consideration of the validity of the separation. But if, despite the acquittal, the Government can properly reexamine the issue administratively, petitioner may well have a due-process right to a hearing, with full opportunity to challenge the government’s evidence and to present her own, before she can be required to perform military duties. See Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). I need not, however, decide these issues. Petitioner is not now performing military duties. She is, however, constitutionally subject to trial by court-martial on the charge of fraudulent procurement of her separation; and the Army provides an appropriate forum for consideration of the conditions of her custody, pending determination of the charge.
I conclude that petitioner is not entitled to any relief and that the stay of proceedings heretofore entered, should be dissolved.
DISPOSITION
Chief Judge Everett and I disagree as to the merits of the petition, while Judge Fletcher votes to dismiss the petition without deciding the merits. The result is that the petition for extraordinary relief is not granted, and the stay of proceedings is dissolved. Rule 5(a), Rules of Practice and Procedure, United States Court of Military Appeals, 4 M.J. XCVIII.