(concurring in the result):
I
12. Several aspects of the provocative issue before this Court are clear. First, Wicca is a socially recognized religion. It is acknowledged as such by the Army. See Dept, of the Army (DA) Pamphlet 165-13-1, Religious Requirements and Practices of Certain Selected Groups: A Handbook for Chaplains (April 1980), revising DA Pamphlet 165-13, Religious Requirements and Practices of Certain Selected Groups: A Handbook for Chaplains (April 1978). Further, it is acknowledged as such in courts of law. See, e.g., Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 739 (1987). Cf. Thomas v. Review Board of The Indiana Employment Security Division, 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981)(“[T]he resolution of that question [whether a belief is a religion] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consis*350tent, or comprehensible to others in order to merit First Amendment protection.”). Unfortunately, the military judge’s essential findings following the post-trial session under Article 39(a), Uniform Code of Military Justice, 10 USC § 839(a), reflect that he was unaware that Wieca is a recognized religion, and appellant’s defense counsel did nothing to illuminate him.
13. Second, Wicca embraces religious readings, specifically, its “authoritative” book entitled The Book of Shadows. The 1978 Chaplains’ Handbook says the following of that book:
In the Gardnerian tradition, these are hand copied from High Priestess to High Priestess. Each High Priestess then shares the information with her coven. They are part of the traditional teachings of the Craft, and are available only to initiates. From coven to coven, the rituals vary slightly. The Gardnerian tradition is an evolved and evolving tradition. Hence, each coven will start with the materials passed on to its High Priestess, and then experiment with new emphases, magical formulas and rituals.
Page 5. The latest version of the Chaplains’ Handbook similarly explains:
Most groups have a handwritten collection of rituals and lore, known as a Book of Shadows. Part of the religious education of a new member will be to hand copy this book for him or herself. Over the years, as inspiration provides, new material will be added. Normally, access to these books is limited to initiated members of the religion.
Appendix to Assignment of Errors Before Court of Military Review at 232.
14. Third, appellant’s evidence indicates that written religious materials were readily available for delivery to appellant by family members, but appellant was not allowed to receive them. Neither was he “allowed to have people administer to [him], come up and visit and administer to [him] in a pastoral sense.” The military judge specifically inquired about these materials and their denial to appellant, as follows:
Q: What would you have needed to have practiced your religion? Are we talking primarily—the only thing that’s really been mentioned here is reading material. Is that correct?
A: Materials to help me study, help me meditate and so forth. Help me with basic study for astrology and astronomy and herbalisms and stones. There’s one book that covers all of this.
Q: Where was this book available? Did you have a copy?
A: I had a copy. It was brought up three times and each time it was brought up, it was given back to the person who brought it up. I even had the priest of my religion bring it up and they said no.
15. Fourth, the law is clear concerning reconciliation of a prisoner’s First Amendment religious rights and the prison’s security interests. A devotee of a nonconventional religion must be given “a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.” Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). Prison officials may impose only reasonable restrictions that are necessary for the operations and security of the prison. Childs v. Duckworth, 705 F.2d 915, 920 (7th Cir. 1983). Impingement upon a prisoner’s First Amendment religious rights “must be carefully scrutinized to ascertain the extent to which [it is] necessary to effectuate the legitimate policies and goals of the corrections system. The two compete ing interests—the state’s interest in the proper administration of the penal system and the prisoner’s interest in his First Amendment right to adhere to the tenets of his faith—must be mutually accommodated.” Id. at 920-21.
16. Finally, bringing all this into focus, the record of this proceeding establishes— just as one might suppose—that the confinement officials would have permitted appellant to have a Christian Bible had he wanted one. As the majority acknowledges, appellant’s First Sergeant testified that the jailers’ denial to appellant of Wiccan reading material was based entirely on their erroneous view *351that Wicca “wasn’t a recognized religious practice.” ¶2.
II
17. On the basis of the foregoing and contrary to the view of the majority, in my view appellant’s evidence indicates that his First Amendment religious rights were violated in pretrial confinement. He is a member of a recognized religion. That religion uses an authoritative book which, contrary to the majority opinion, ¶ 9, is not blank at all but, rather, is hand copied from High Priestess to High Priestess and, in turn, hand copied by individual members, like appellant. While appellant legitimately may have been denied certain tools for ceremonial celebration of his religion (like the ritual knife), there was no reason at all, consistent with the state’s interests in penal operations and security, to deny the religious book.
18. Simply stated, confinement officials were wrong when they concluded that Wicca was not a recognized religion, and they were wrong as well when they denied appellant his Book of Shadows so he could meditate on his religious beliefs. See Cruz v. Beto and Childs v. Duckworth, both supra. ¶ 15.
19. That being the case, it also seems clear to me that appellant’s trial defense counsel dropped the ball, within the sense of the first prong of Strickland v. Washington, 466 U.S. 668, 687, 699, 104 S.Ct. 2052, 2070-71, 80 L.Ed.2d 674 (1984), when he unexplainably failed to furnish the military judge with authoritative bases for the Wicca religion, such as the Chaplains’ Handbook, both versions of which apparently were readily available. Cf. United States v. Scott, 24 MJ 186 (CMA 1987)(ineffective assistance of counsel where defense attorney did not adequately investigate the ease in preparation for trial). The majority’s sheer speculation as to whether counsel uncovered the Chaplains’ Handbook and, if so, as to why he did not produce it does not fill the void in the record. If the majority is unable to find a reasonable explanation on the face of the record, it should order a factfinding proceeding, see United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), at which defense counsel can be compelled to appear and to explain; it should not guess.
20. In any event, even that speculation is not persuasive. There is absolutely nothing in either version of the Chaplain’s Handbook that is contrary to the legitimacy of Wicca as a religion or contrary to the efficacy of the Book of Shadows as a source of religious support for a Wiccan devotee. Regardless of any practical barriers to actual ceremonial celebration that might have been reflected in the handbooks, the law nonetheless mandates freedom to pursue religious beliefs to the extent practicable in the context of a prison environment. Childs v. Duckworth, supra. At a minimum, this meant permitting appellant access to his Book of Shadows. If counsel discovered the Chaplains’ Handbook at all, he should have recognized the affirmative support that it lent to his client’s cause in this regard.
21. The military judge gave counsel 48 hours from the end of the post-trial session to furnish him such material, and counsel repeatedly gave the military judge assurances that he would do so. Notwithstanding, the published essential findings of the military judge make it clear that he received no material from counsel: “[T]he defense has presented no evidence whatsoever, except for some sketchy testimony by the accused, concerning the nature of the Wiccan religion, its tenets and practices.” As a direct result of counsel’s failure, the military judge was led to conclude: “I am not convinced by the evidence that the Wiccan religion is in fact a ‘religion,’____” As now has been demonstrated, that was clearly erroneous.
Ill
22. Had appellant sought relief from this unlawful denial of access to religious material by means of a pretrial Article 39(a) session and had defense counsel at such a session performed according to the standard, surely relief would have been afforded. There, he would have been required to show only that his religion was legitimate and that denial of his religious readings was not pursuant to any paramount interest of the state. When a pretrial eonfinee is suffering some particular *352unlawful condition of confinement, his most effective relief—indeed, his only true “relief’—is to apply for a judicial order to lift the condition in issue.*
23. However, if a pretrial confinee suffers in silence and, instead, seeks an after-the-fact penalty credit on adjudged confinement as compensation for his suffering, as appellant has done, he must carry the additional burden of demonstrating that the condition was, in law, “punishment.” See Art. 13, UCMJ, 10 USC § 813; United States v. Huffman, 40 MJ 225, 227-28 (CMA 1994). In Huffman, we stated: “While there is no single standard as to what constitutes ‘punishment,’ the Supreme Court has stated that one significant factor in that judicial calculus is the intent of the detention officials.” Id. at 227; accord United States v. Palmiter, 20 MJ 90, 95 (CMA 1985)(Supreme Court has “decided that the question of whether particular conditions amount to punishment before trial is a matter of intent, ____”).
24. In some cases, affirmative evidence of intent to punish via complained-of conditions may appear in the record. However, “in the absence of a showing of intent to punish, a court must look to see if a particular restriction or condition, which may on its face appear to be punishment, is instead but an incident of a legitimate nonpunitive governmental objective.” Id. at 95, quoting Bell v. Wolfish, 441 U.S. 520, 539 n. 20, 99 S.Ct. 1861, 1874 n. 20, 60 L.Ed.2d 447 (1979). “[I]f a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment.” Bell v. Wolfish, supra at 539, 99 S.Ct. at 1874.
25. Thus, the analytical construct: Look for evidence of an intent to punish—an unlawful, negative purpose for the condition; in the absence of such evidence, shift the focus and look for evidence that the condition serves “a legitimate nonpunitive governmental objective”—a lawful, positive purpose; and in the absence of the latter, a court may infer an intent to punish, even though actual evidence of such intent is not discernible.
26. The only evidence in this record would suggest that appellant was denied his Book of Shadows because the head jailer thought that Wicca was not a recognized religion and that, therefore, appellant was not entitled to the reading materials. Wrong? Yes. Evidence of a malicious intent to punish? Apparently not. Shifting the inquiry, it is clear to me on the other hand, based on the earlier discussion in this opinion, that denying appellant his Book of Shadows was not related to any legitimate governmental purpose.
27. Without more, an inference of purposeful punishment is permissible. Here, however, there is more: unrebutted evidence that the jailer denied the materials because of honest error. In the face of such evidence, the permissible inference of malintent does not seem appropriate. Indeed, the military judge’s essential findings included this statement: “In any event, I find that deprivation of such materials was not intended by anyone ... to be pretrial punishment.” This finding of fact was based on the evidence and was not clearly erroneous, so we are bound by it.
28. Under these circumstances, I conclude that exclusion of appellant’s religious material from jail was legally wrong but was not “punishment.” The jailer’s honest mistake would not have barred appellant from getting relief from the unlawful condition, but it is not sufficient basis to gain him post facto penalty credit on his adjudged confinement as compensation.
29. In that light, even if counsel had measured up by producing the materials necessary to persuade the military judge of the legitimacy of appellant’s religion, any relief *353that the military judge might have granted would have been an erroneous windfall. See Lockhart v. Fretwell, — U.S.-, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Accordingly, while defense counsel fell short in his duty of effective representation, appellant suffered no prejudice thereby. On this basis, I join with the majority in affirming the decision below.
While in confinement, appellant complained of the repeated denial of access to his Book of Shadows both to confinement personnel and to representatives of his command. Yet, when he appeared for another purpose at a pretrial Article 39(a) session on October 16, 1991, the subject was not raised. This omission does not bar appellant from raising it subsequently at the trial level, as he has done, see United States v. Huffman, 40 MJ 225, 227 (CMA 1994). It is troublesome to me, however, that either appellant did not advise his counsel of the problem or counsel did not judicially pursue appellant’s best remedy in the form of relief from the condition.