(dissenting):
I disagree with the majority’s decision to give appellant 20 months’ confinement credit. I agree with Judge Crawford that we should apply waiver.
This case represents sandbagging at its worst. Appellant did not raise the pretrial-punishment issue at his sentence rehearing and did not complain to the convening authority who approved the results of this rehearing. He raised the issue for the first time before the Air Force Court of Criminal Appeals, 2 years after the events he now contends amounted to pretrial punishment. It is now more than 3 years after the fact. Appellant has virtually ensured that the Government will not be able to reconstruct what happened. In my view, appellant has forfeit*337ed his right to complain. See RCM 905(e), Manual for Courts-Martial, United States (1995 ed.) (failure to make motion for appropriate relief constitutes waiver); United States v. McCants, 39 MJ 91, 93 (CMA 1994) (request for credit for pretrial confinement waived if not raised at trial).
Furthermore, even if the issue was not waived, in my view appellant would not be entitled to 20 months’ sentence credit. The principal opinion rests on what I believe to be a faulty premise — that appellant’s rank was automatically restored when the Court of Criminal Appeals set aside his first conviction on October 8,1992, even though the case was certified to our Court and eventually affirmed on June 15, 1994. The principal opinion concludes that appellant should have been allowed to draw the pay and wear the stripes of an Air Force Technical Sergeant until October 8,1993, when he was placed on appellate leave, and from July 19,1994, when he was recalled to active duty, until March 22, 1995, when he was sentenced at his rehearing.
In my opinion the majority is wrong with respect to the period from October 8, 1992, until October 8, 1993. Under the provisions of Article 58a, Uniform Code of Military Justice, 10 USC § 858a, TSgt Combs was reduced to pay grade E-l by operation of law when the convening authority approved his original sentence to confinement.
Appellant did not, in my view, automatically revert to pay grade E-6 when the court below reversed his conviction. Since the Judge Advocate General certified that decision to our Court, the decision of the court below did not take effect until some time after our Court affirmed it on June 15, 1994. Opinions of the Court of Criminal Appeals are “not self-executing.” See United States v. Miller, 47 MJ 352 (1997); United States v. Kraffa, 11 MJ 453, 455 (CMA 1981); United States v. Tanner, 3 MJ 924, 926 (ACMR 1977). They do not take effect until the Judge Advocate General issues a mandate under Article 66(e), UCMJ, 10 USC § 866(e). No mandate may be issued if a certificate is pending before our Court. Therefore, appellant was still serving in pay grade E-l, not E-6, while his case was pending before our Court. Accordingly, requiring him to remove his stripes and draw the pay of an E-l was not punishment, but a correct application of the law.
Article 57(d), UCMJ, 10 USC § 857(d), and this Court’s decision in Moore v. Akins, 30 MJ 249 (1990), recognized the need for the military equivalent of bail to permit release from confinement during appellate review. Deprivations of rank and pay can be restored if a sentence is set aside, but confinement cannot. See Art. 58a(b) (provides for restoration of rights, privileges, pay, and allowances if reduction is set aside).
However, Moore v. Akins, supra, does not, in my view, support the majority position. Moore dealt only with confinement and has nothing to do with reduction in pay grade. The basis of that decision was Article 57(d), dealing only with deferment of confinement. 30 MJ at 251-53. There is no authority under the UCMJ to defer reduction in grade while appellate review is pending.
Accordingly, even if the majority opinion is correct in concluding that appellant was deprived of his rank in violation of Article 13, UCMJ, 10 USC § 813, the violation occurred only during the 8-month period after appellant was recalled from appellate leave until he was again sentenced at his rehearing and his reduction was again executed. At most, appellant is entitled to a credit for 8 months, not 20 months.
I believe the majority misreads Articles 57 and 58a, fails to recognize our precedent in Kraffa, and permits blatant sandbagging of appellate courts. Accordingly, I dissent.