(concurring):
My dissenting colleagues continue their quest to impose waiver or forfeiture of rights upon servieemembers who fail to raise pre-sentence punishment, confinement, or deprivation issues at trial. See United States v. Huffman, 40 MJ 225 (CMA 1994). I have no problem imposing waiver, provided the waiver is knowingly made, either on the record or in some other form commonly accepted in our system of jurisprudence, such as in a pretrial agreement.
In this ease five judges of this Court cannot agree. What is it we would have appellant knowingly waive?
This case is simple to me. Appellant was deprived of his status as an ordinary Technical Sergeant during the pendency of his rehearing. The point is the fact that his rank was reduced, not whether such reduction was right or wrong as a matter of law. Further, it is unrebutted that his freedom was substantially burdened until he was placed on appellate leave and that his pay was reduced. His allegations to that effect are not rebutted by the Government. Under these circumstances, and in my judgment, he is entitled to pretrial credit for this interim period— whether we view this as illegal punishment under Article 13, Uniform Code of Military Justice, 10 USC 813, or ordinary pretrial deprivation of liberty tantamount to confinement, United States v. Allen, 17 MJ 126 (CMA 1984).
Therefore, I join Judges Sullivan and Ef-fron in ordering that credit be given.