(concurring in part and dissenting in part):
The record in this case shows that appellant received nonjudicial punishment on April 24,1992, for unauthorized absence and carrying a concealed weapon (a .357 magnum revolver and a .22 caliber pistol). The record also shows the punishment of a reduction from Petty Officer Third Class to Airman, 30 days extra duty, 30 days’ restriction, and forfeiture of $350.00 pay per month for 2 months was administered by the commanding officer of the USS CONSTELLATION (CV 64) at the Naval Shipyard, Philadelphia, Pennsylvania. Finally, defense counsel represented to the Court, without government contravention, that “the USS CONSTELLATION like the KITTY HAWK in those cases was not an operational vessel at the time it was in the yards here in Philadelphia____”
I agree with the majority opinion that the military judge erred in holding that United States v. Yatchak, 35 MJ 379 (CMA 1992), and United States v. Lorance, 35 MJ 382 (CMA 1992), were not applicable in- this case. Nevertheless, the record before me shows that appellant was attached to the USS CONSTELLATION (CV 64) at the time of his nonjudicial punishment, and that it was not a vessel for purposes of Article 15, Uniform Code of Military Justice, 10 USC § 815. See Mil.R.Evid. 104(a), Manual for Courts-Martial, United States, 1984 (in making admissibility determination, military judge not bound by rules of evidence). I would direct the Court of Criminal Appeals to reconsider appellant’s sentence in light of the erroneous admission of this non-judicial punishment. See Art. 59(a), UCMJ, 10 USC § 859(a).