(dissenting):
This case demonstrates the rationale for the raise-or-waive rule. United States v. Huffman, 40 MJ 225, 228-29 (CMA 1994)(Crawford, J., joined by Gierke, J., dissenting in part and concurring in the result). Now the Air Force will have to call tens of people who were originally stationed at Low-ry Air Force Base near Denver, Colorado, and Charleston AFB, South Carolina, to determine whether appellant’s restriction was a violation of Article 13, Uniform Code of Military Justice, 10 USC § 813.
Appellant, who was convicted of the unpremeditated murder of his 18-month-old son and the battery of his 3-year-old daughter, together with the willful disobedience of a lawful order not to be left alone with the children, had his original conviction and sentence which included confinement for 50 years set aside. He was not placed in pretrial confinement pursuant to RCM 305, Manual for Courts-Martial, United States (1994 ed.). Now, years after his court-martial, he submits a 24r-page affidavit complaining about his conditions of restriction. His affidavit does not contain one sentence of *335remorse as to the underlying circumstances surrounding his conviction.
The government brief, as shown below, sets forth chronologically what happened in this ease:
Date Event
26 September 1990 Original sentence adjudged
26 September 1990 Appellant enters confinement
10 June 1990 [sic] Original sentence approved
8 October 1992 Air Force Court decision setting aside unpremeditated murder finding and sentence
21 October 1992 Appellant released from confinement at United States Disciplinary Barracks; assigned to 3320th CRS, Lowry AFB
4 November 1992 Air Force Judge Advocate General certifies issue to then-Court of Military Appeals*
November & December 1992 Appellant granted 52 days leave over Christmas and Thanksgiving
19 July 1993 Appellant transferred to Detachment 3, Air Force Security Police Agency, Charleston, South Carolina
8 October 1993 Appellant placed on required leave
15 June 1994 Court of Military Appeals decision affirming set aside of unpremeditated murder finding and sentence
19 July 1994 Appellant returned to active duty
3 August 1994 GCMO No. 300, HQ llu‘ Support Wing, Bolling AFB promulgated, setting aside Appellant's conviction for unpremeditated murder and Appellant's sentence and orderinq a rehearing.
2 November 1994 Original unpremeditated murder charge referred for rehearing; additional charges referred
20 January 1995 Appellant arraigned
22 March 1995 Appellant sentenced after guilty plea to unpremeditated murder and rehearing on sentence
10 August 1995 Convening authority approves sentence; granting credit for any portion of punishment served from 26 September 1990 to 8 October 1992
30 July 1996 Air Force Court of Criminal Appeals affirms case upon rehearing
4 March 1997 Petition for review granted by Court of Appeals for the Armed Forces
Answer to Final Brief at 1-2.
*336Appellant contends that his restriction upon release from confinement on October 21, 1992, until he was sentenced again on March 22, 1995, should be converted to pretrial-confinement credit.
The defense has a two-fold argument. First, confinement runs from the date it is adjudged. Second, in any event, the conditions were such as to amount to unlawful confinement and therefore entitle appellant to credit.
Regarding appellant’s argument that the Government failed to toll his confinement, the Government responds that confinement was tolled when the approval of his sentence was set aside by the court below. As to the argument that the conditions, were tantamount to confinement, the Government asserts that this issue was not raised at trial where it could be fully litigated and, thus, it was waived absent plain error.
The onerous conditions appellant complains of both at Lowry AFB and Charleston AFB are as follows: he was given little privacy, had to share the telephone with inmates, had to wear battle dress uniforms, and was not permitted to wear his rank as a technical sergeant. Appellant also claims that while at Lowry AFB, he could not travel beyond 100 miles of Denver, Colorado; could have no visitors in the room, no alcohol, no leaves, and no off-base residence; and had a curfew. These conditions remained the same when he was transferred to Charleston AFB, although there he was also assigned to perform tasks such as cutting grass and house-keeping details.
But appellant admits certain privileges, including travel within 100 miles of the base. While he was not permitted visitors in his room, his wife did come to visit him on occasion. Additionally, he was allowed about 52 days of leave over Thanksgiving and Christmas. Appellant was not required to have an escort and did not have to march in formation. Although appellant had a curfew and was required to report to the Desk Sergeant, he was not subjected to the lights-out policy. Appellant enjoyed a full-time job at the base gymnasium while at Lowry AFB and was allowed off-duty employment while at Charleston AFB.
Appellant had nearly a 2-year period of time to seek redress from the commander, the inspector general, the military judge, or the convening authority during post-trial submissions. He did not avail himself of any of these opportunities.
While the majority of this Court in United States v. Huffman, 40 MJ 225, 226-27 (1994), refused to apply waiver to failure to raise an Article 13 issue at trial in that case, they indicated that failure to raise the issue is evidence that there was no violation. Waiver does not apply when there is plain error that affects the substantial rights of the accused. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993). Not allowing appellant to wear his original rank was not so onerous as to constitute plain error negating waiver of the issue in this case. The deferment of confinement does not restore appellant to his original grade. Cf. Art. 57(d), UCMJ, 10 USC § 857(d); RCM 1101(c), Manual for Courts-Martial, United States (1995 ed.). The facts set forth in appellant’s own affidavit established that he was not subject to illegal pretrial confinement, and there is no proffer of an intent to punish or stigmatize appellant while awaiting trial. See United States v. Phillips, 42 MJ 346, 349 (1995). For these reasons, I would affirm the decision of the court below.
Since decisions of the Courts of Criminal Appeals certified to this Court do not take effect because of the mandatory appeal, query whether appellant should be given credit for any pretrial confinement from October 21, 1992, until October 8, 1993. But see Moore v. Akins, 30 MJ 249 (CMA 1990). The analogy employed in Moore, supra at 251, comparing our system to the Federal bail system, is inaccurate because the military does not have a bail system.
Probably, the practical reason for the decision in Moore is the lengthy delay between appeal from the decisions of the courts below and this Court's resolution of those cases. In the future, when an appellant wins below and the case is certified, there should be expedited review at this Court.