The opinion
Darden, Judge
(concurring in the result) :
Though normally an accused is in some kind of confinement and is receiving sentence credit for the period between the date the court-martial adjudges his sentence and the date on which appellate review is completed, I believe it is important not to characterize confinement during this period as “service of sentence.” This Court has held that confinement during appellate review does not necessarily constitute execution of sentence in violation of Article 71(c), Uniform Code of Military Justice. Reed v Ohman, 19 USCMA 110, 41 CMR 110 .
Confinement between the reversal of a trial and the date of the rehearing should be credited under Article 57 (b) 1 of the Code. Under the terms of that article only suspension or deferment stops the running of sentence credit. Neither suspension nor deferment is involved here. I hardly believe Congress intended to give an accused sentence credit from the date his sentence was adjudged, irrespective of whether he was actually confined, but that it did not intend to credit the same accused with time he actually spent in confinement between his first trial and a rehearing. The Manual for Courts-Martial, United States, 1951, provision that required a different result (paragraph 89c (7)) has the force of law only if it is not inconsistent with the law. United States v Smith, 13 USCMA 105 , 32 CMR 105 . In this instance I think the Manual provision is inconsistent and that it must yield to the law.
If an accused is not credited with time spent in confinement between the date a rehearing is ordered and the date the rehearing is accomplished he could be disadvantaged by winning an appeal. For instance, a person who had received credit for eleven months on a one-year sentence would be discouraged in pressing an appeal if his sentence credit were to be interrupted in case he won a reversal. One can argue that he is not required to appeal and that if he does not want the sentence credit interrupted he should not urge appellate authorities to grant him a rehearing. In my view, however, this argument would operate to penalize an accused for successfully pursuing appellate rights granted him by law.
Since the circumstances of an appeal from a conviction in one of the armed forces are so different from those that obtain in civilian life, I regard North Carolina v Pearce, 395 US 711 , 23 L Ed 2d 656 , 89 S Ct 2072 (1969), as not controlling the result in the instant case.
“Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.” Article 57(b), Uniform Code of Military Justice, 10 USC § 857 .