(dissenting):
I respectfully dissent.
30. I would hold that trial defense counsel was ineffective in the sentencing portion of the trial in failing to provide the Chaplain’s Handbook and the Wiccan Bible after being given 48 hours by the judge to do so. Moreover, I would find that Specialist Phillips was prejudiced by counsel’s incompetence because the military judge refused to find that deprivation of Wiccan religious materials amounted to pre-trial punishment. Having found that the defense counsel was ineffective here and that appellant was prejudiced by this, I would give relief under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). For relief, I would award Specialist Phillips 142 days of confinement credit.
31. I am disappointed by the majority’s analysis of this case. As I see it, this prepunishment question does not turn on the benevolence or malfeasance of civilian jail officials’ intent when they refused appellant access to Wiccan materials. Rather, the issue is whether jail officials quashed Specialist Phillips’ rights under the First Amendment when they denied him access to a Wiccan Bible but offered him the option of a Christian Bible. As to that issue, I would find that Cumberland County jail officials violated Specialist Phillips’ constitutional right to practice religion * under the Free Exercise Clause of the First Amendment. See generally Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986).
32. Prisoners retain their right to practice their respective religions. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). Moreover any rules limiting this right must relate to “legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), and must treat people from traditional and non-traditional religious sects the same way. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). In particular, “the prison may not, because it is contemptuous or unreasonably fearful of a particular sect, place arbitrary obstacles in the way of inmates seeking to participate in the sect’s modes of observance.” Johnson-Bey v. Lane, 863 F.2d 1308, 1311 (7th Cir. 1988).
33. This record shows that Wiccan and non-Wiccan sect members were not treated the same way. I note that the military judge in the present case found “that the accused was denied access to materials concerning the Wiccan religion.” Yet the record shows that the civilian jail officials sanctioned bible reading in their jail house. According to his First Sergeant:
Q Do you know anything about Phillips’ religious practices?
A I remember one time when we were visiting him when he was in Cumberland County, he stated they wouldn’t let him have his bible and some kind of religion that I’m not aware of and Captain—I think it was Captain Johnson, notified—talked to the head jailer there and the woman stated that it wasn’t a recognized religious practice in the State of North Carolina and that he was more than welcome to have a *354bible, but the one that he wanted, they wouldn’t allow, no.
34. Thus, I look at this record and find a deprivation of a servicemember’s constitutional rights. I cannot agree with the majority’s view that the “military judge’s findings of fact that there was no intentional punishment were not clearly erroneous.” I am alarmed that this Court would choose to overlook denial of a First Amendment right because it can discern no ill will associated with its deprivation. Religious freedom is one of the cornerstones of our American heritage. No one should be denied this right; not even a non-Christian soldier sitting in a jail awaiting trial.
Whether Wicca is a religion is not before this Court. I do note, however, that the Supreme Court evaluates whether the faith fills a place in the lives of its followers "parallel to that filled by the orthodox belief in God” as manifested in this country’s mainstream religious sects. United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 854, 13 L.Ed.2d 733 (1965). At least one federal appellate court has applied that test and concluded that "the Church of Wicca occupies a place in the lives of its members parallel to that of more conventional religions. Consequently, its doctrine must be considered a religion.” Dettmer v. Landon, 199 F.2d 929, 932 (4th Cir. 1986), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 739 (1987). Based on the facts before me, I have no reason to disagree with the Fourth Circuit on this matter.