concurring,

I agree we possess appellate jurisdiction under either 18 U.S.C. § 3731 (1982) or 28 U.S.C. § 1291 (1982). I also agree there was no impermissible selective prosecution in these cases. Nevertheless, I write separately to voice my concern that the Air Force’s policy of refusing to refer its personnel for prosecution in federal court violates at least the spirit of Department of Defense policies and creates an unfortunate impression of unnecessary disparate treatment between civilians and military personnel accused of identical crimes.

Until 1980, Department of Defense Instruction, DoD Inst. 6055.4 (Nov. 7, 1978) provided that all traffic violations occurring on military installations must be referred to a United States magistrate or to a state or local magistrate. An amendment to that policy provided that such referrals may be made. The amended policy nevertheless makes clear that such referrals are made “in the interest of impartial judicial determination and effective law enforcement.” DoD Inst. 6055.4 (amended June 4, 1980). Despite this policy directive, the Air Force has decided its personnel should be punished exclusively under the Uniform Code of Military Justice. See AF Reg. 110-15 (Nov. 1, 1982). I share the district court’s concern that there appears to be no justifiable basis for that decision. See United States v. Lee, 604 F.Supp. 416, 418 (D.Hawaii 1985).

We have recognized that the broad powers courts possess to regulate civilian life may be in large part inapplicable to the military. Watkins v. United States Army, 721 F.2d 687, 690 (9th Cir.1983), citing Chappell v. Wallace, 462 U.S. 296 , 103 S.Ct. 2362, 2367 , 76 L.Ed.2d 586 (1983). Military and civilian life are regulated by two systems of justice, parallel but distinct. *959 Watkins, 721 F.2d at 690 . Nevertheless, no valid purpose can be served by regulation which results in unjustified, disparate treatment. See United States v. Walker, 552 F.2d 566 , 567 n. 3 (4th Cir.), cert. denied, 434 U.S. 848 , 98 S.Ct. 157 , 54 L.Ed.2d 116 (1977). Here, the Air Force argues there is no basis for the district court’s assumption that military offenders are likely to escape criminal prosecution. Because the Air Force is unwilling to routinely supply information to the district court on Air Force traffic offenders, it is impossible to accept the argument of the Air Force.

The district court also expressed concern with the collateral consequences incurred by civilians but not by Air Force personnel. The court observed that in addition to sentences imposed, civilians may also be subject to increases in automobile insurance premiums and the possible suspension of driver licenses. Lee, 604 F.Supp. at 418 . Air Force violators avoid such sanctions because the Air Force does not forward to the state Traffic Violations Bureau any reports regarding traffic violations on base. AF Reg. 125.14 ch. 2, (12-3(a)(b) requires the Air Force to report to the host state all moving violations and infractions of motor vehicle laws if “statutory authority exists within the host state for reciprocal suspension and revocation of driving privileges.” The Air Force explains it is not technically required to report because of incompatibility between the state and military “point” systems. In other words, the Air Force contends that because there does not exist symmetry between military and state point systems, the Air Force refuses to provide the state with reports of traffic violations by military personnel on base. I find the Air Force’s rationale specious. Additionally, the Army, Navy and Marines have solved this “incompatibility” by simply agreeing to the state’s point system.

I do not dispute there exists concurrent jurisdiction of federal and military courts over military personnel who commit traffic violations on base. Grafton v. United States, 206 U.S. 333, 348 , 27 S.Ct. 749, 752 , 51 L.Ed. 1084 (1907); Walker, 552 F.2d at 567 . But see United States v. Smith, 614 F.Supp. 454, 459 (D.Me.1985) (Assimilated Crimes Act does not assimilate, as against military personnel subject to the UCMJ, state statutes punishing offenses that are enumerated in the UCMJ; thus military violators charged in federal court under the ACA must be dismissed). A federal court clearly has jurisdiction to try a military offender when such an offender is delivered to civil authorities for prosecution. Peek v. United States, 321 F.2d 934, 936-37 (9th Cir.1963), cert. denied, 376 U.S. 954 , 84 S.Ct. 973 , 11 L.Ed.2d 973 (1964). While the Air Force is not constitutionally required to refer its personnel to federal court, Armed Forces’ policy and the avoidance of an unnecessary appearance of disparate treatment should cause the Air Force to reconsider its maverick decision to handle “in-house” Air Force personnel who commit traffic violations on base.