(dissenting):
I dissent.
I do not believe it necessary to go beyond the ordinary rules of construction to arrive at a proper disposition of this case. Except in a few isolated instances, the Code provides that the punishment for the violation of a particular Article shall be as a court may direct. Pretermitting the limitations imposed on the lesser courts-martial and those fixed by the Table of Maximum Punishments — neither of which are herein involved — the punishment assessable is unfettered except by the Code proscription against cruel and unusual punishment.
Prior to the enactment of the Uniform Code of Military Justice, Naval law authorized the imposition of solitary confinement for a period not to exceed thirty days. Articles 30 and 35, Articles for the Government of the Navy. However, the Army and Air Force courts were denied that authority by paragraph 115, Manual for Courts-Martial, U. S. Army, 1949. The latter obviously was a limitation imposed by the President, for the Articles of War did not prohibit that form of punishment. Accordingly, the real questions confronting us are whether the Code made any significant change in the sentencing powers of the respective courts and whether there are sufficient indicia in the Code or its legislative history to establish that Congress intended to ban solitary confinement because it was cruel and unusual punishment.
A very similar problem was presented to us in United States v Wappler, 2 USCMA 393, 9 CMR 23. There we discussed the provisions of paragraph 125, Manual for Courts-Martial, United States, 1951, and determined that a sentence imposing confinement on bread and water for over three days was illegal. The process of reasoning which led us up to that conclusion commenced with the concept found in the following quoted paragraph:
“. . . However, paragraph 125, Manual for Courts-Martial, United States, 1951, after forbidding sentences to confinement on bread and water for Army or Air Force person*387nel — except, apparently, as non judicial punishment imposable under Article 15 of the Code, supra — goes on to provide specifically that Navy, Marine, and Coast Guard courts-martial may impose confinement on bread and water for periods not in excess of 30 days, with the restriction that ‘no accused shall be deprived of a full ration for a period longer than three consecutive days.’ Other limitations not here pertinent are also stated there. If this provision of the Manual is not in conflict with the Code, the sentence of the court-martial in this case to confinement on bread and water was not an unlawful one. If however, there is conflict with the Code, the latter, of course, controls and we must hold that the court below erred. United States v Clark (No. 190), 2 CMR 107, decided February 29, 1952.”
From that hypothesis, we then went on and determined that, because Congress had only permitted confinement on bread and water for three days, any greater period was cruel and unusual within the intendment of Article 55. An application of the rationale of that opinion to this case compels the conclusion that solitary confinement has not been determined by Congress to be within the pale of that Article.
If, as we said in United States v Wappler, supra, paragraph 125 of the Manual specifically permits Navy, Coast Guard, and Marine Corps courts to impose confinement on bread and water, it follows as a matter of course that the paragraph specifically allows them to punish by sentencing an accused to solitary confinement. Limiting the last two sentences in that paragraph to those 'Services, it becomes clear that their courts-martial may adjudge solitary confinement if the accused is an insubordinate or recalcitrant offender, provided it is limited to a period of time not exceeding thirty days. Consequently, unless that form of punishment is directly or mferentially prohibited by the Code, the Manual provision remains valid and legal. I find no variance between the two provisions (see in this connection Stroud v Johnston, 139 F2d 171 (CA9th Cir) (1943), certiorari denied, 321 US 796, 88 L ed 1085, 64 S Ct 846 (1944)), none are reflected in the briefs, and none are mentioned by the Court in its opinion. True, a preceding statement excludes such punishment against Army or Air Force personnel, but that does not affect courts-martial in the other services.
Even if I were to conclude that the solitary confinement portion of the sentence imposed in this case was illegal and void, I still could not join with my brothers. The remainder of the accused’s sentence is perfectly legal since there exists no conflict with the law. While the convening authority approved the sentence and ordered it executed, he suspended that portion adjudging a bad-conduct discharge for the period of confinement and three months thereafter, at which time, unless the suspension was sooner vacated, the punitive discharge was to be remitted without further action. The supervisory authority approved the action taken by the convening authority. The board of review decided that solitary confinement should not have been imposed in this case because the accused was not shown to have been insubordinate or recalcitrant. However, it noted the accused had already served the solitary confinement portion of the sentence and remedial action as to that ingredient would be pointless. It registered disapproval of the practice but affirmed the findings and sentence. Thus, the board has already considered the appropriateness of sentence, sans the solitary confinement feature. For this reason, I feel that this Court is requiring the board to repeat a task already accomplished.
I would affirm the decision of the board of review.