(concurring in part and dissenting in part):
I concur in that portion of the Court’s opinion which orders a new staff judge advocate’s review, but I disagree with the disposition of the other issue.
The question is not of great moment, and a few brief observations will suffice to point up the area of disagreement. I believe that Article 58(b) of the Uniform Code of Military Justice, 10 USC § 858, removes previous differences between a sentence to confinement and a sentence to confinement with hard labor. Courts-martial fix the punishment, and I do not believe Congress intended to clothe a confinement official with powers to increase the severity of the sentence actually imposed. That result follows if the Court’s interpretation is correct because if the two are not the same, the imposition of hard labor is grafted on the sentence by a confinement officer — not for administrative reasons, but as additional punishment for the offense. Moreover, such a construction renders Article 58(b) in conflict with the many punitive Articles which say punishment shall be as a court-martial may direct. Under my interpretation, a sentence to confinement without more is not illegal, for a Congressional enactment has made hard labor part of every sentence when confinement is adjudged. Therefore, failure to mention a condition which must legally follow does not render the sentence invalid. The net result of the law officer’s colloquy with the court was merely to have the sentence recite what the law states is part of such a sentence. Even when it is stricken the same punishment can be exacted.