(dissenting):
I dissent.
The only real issue in this case is whether the Secretary of the Air Force may lawfully promulgate regulations which provide that service of an accused’s sentence to confinement at hard labor will be interrupted by the ordering into execution of a subsequent sentence to confinement for another offense. In short, are the provisions of Air Force Manual 125-2, September 1, 1956, which make all court-martial sentences consecutive, contrary to the provisions of the Code? The author of the principal opinion holds that they are not, apparently on the simple basis that the opposite conclusion is absurd. I am unable to join him in this belief, as I am of the view that Congress has expressly provided for courts-martial sentences to run concurrently. It may be that this results in unfortunate consequences for the armed forces. However, this is a matter for the legislature to consider and not a change to be made by us under the guise of judicial construction.
Uniform Code of Military Justice, Article 57, 10 USC § 857, provides pertinently:
“ (b) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended *140shall be excluded in computing the service of the term of confinement.
“(c) All other sentences of courts-martial are effective on the date ordered executed.” [Emphasis supplied.]
Air Force Manual 125-2, supra, prescribes the following:
“When a prisoner serving a sentence to confinement adjudged by court-martial on or after 31 May 1951 is convicted by a court-martial for another offense and sentenced to a term of confinement, the subsequent sentence, upon being ordered into execution, will begin to run as of the date adjudged and will interrupt ;the running of the prior sentence. After the subsequent sentence has been fully executed, the prisoner will resume the service of any unremitted interrupted sentence to confinement.”
One need only compare the regulatory provision with the quoted statute in order immediately to detect their inconsistency. The statute prescribes that “Any period of confinement . . . begins to run from the date the sentence is adjudged by the court-martial” and “All other sentences . . . are effective on the date ordered executed.” On the other hand, the Secretary’s regulations provide that the initial sentence will cease to be operative upon the ordering into execution of the second sentence and will not begin to run again until the latter penalty is completed. In other words, Congress has provided that every sentence to confinement shall run from the day adjudged, but the Air Force has decreed that, in the event of multiple sentences, one shall not commence until the other is served.
It may be that the common law permitted imposition of cumulative sentences. See, generally, 15 Am Jur, Criminal Law, § 464, and 18 CJS, Convicts, § 8, and the cases cited therein.1 Consecutive sentences were then cumulatively executed, however, by adding the second period of confinement to the end of that which accused has already been awarded, rather than by interruption of the initial confinement by the subsequent judgment. Thus, “a prisoner has a right to serve his sentence continuously, and cannot be required to serve it in installments.” McDonald v Lee, 217 F2d 619 (CA 5th Cir) (1954), at page 623; White v Pearlman, 42 F2d 788 (CA 10th Cir) (1930). From the tenor of the regulations quoted supra, it is clear the Air Force recognized that merely to delay the effective date of the second sentence would be so clearly in violation of the terms of (Jode, supra, Article 57, that it could not possibly receive judicial sanction. Hence, it hit upon the device of “interrupting” the service of the first sentence by the adjudication of the second. This attempt to evade the Congressional prescription is so transparent that it should be denied all legal effect. In this connection, I call attention to the fact that a regulation regarding the court-martial process which is inconsistent with the Code simply has no vitality here, regardless of the Secretary’s general authority to promulgate such directives. United States v Scott, 11 USCMA 646, 29 CMR 462; Hirshberg v Cooke, 336 US 210, 93 L ed 621, 69 S Ct 530 (1949). Indeed, the inconsistency between the statute and the regulation is so patent that the principal opinion does not seek to say their provisions can be reconciled. Rather, it bases its conclusion upon the former military practice and its suppositions concerning the intent of the legislative branch.
With respect to the first proposition, I do not imagine anyone would contend that Congress could not change *141the military view in this area, nor that it even could be argued that Congress did not, by enacting the Code, make the most sweeping changes in the military justice system which have been devised since the days of the American Revolution. Hence, it is difficult to perceive the relevance of authorities such as Winthrop in construing a statute passed by a deliberative assembly concerned with abolishing so many of the former practices of the armed services.
With respect to the determination of Congressional intent, attention must initially be directed to a basic tenet of statutory construction. Courts may not properly go behind the plain and unambiguous words of a legislative enactment in order to seek a basis for its judicial construction. Lewis v United States, 92 US 618, 23 L ed 513 (1876); The Samuel E. Spring, 27 Fed 764 (D Mass) (1886); Berens v Byram, 26 F2d 953 (D SD) (1927); United States v Turner, 246 F2d 228 (CA 2d Cir) (1957); Christner v Poudre Valley Cooperative Ass’n, 235 F2d 946 (CA 10th Cir) (1956). As was cogently noted in the last-cited case by Circuit Judge Phillips, at page 950:
“Courts should confine themselves to the construction of a statute as it is written and not attempt to supply omissions or otherwise amend or change the law under the guise of construction.”
It cannot be seriously contended that Code, supra, Article 57, does not clearly and unambiguously provide that all sentences to confinement begin to run from the date on which the penalty is adjudged, whereas all other sentences, except forfeitures, do not commence their operation until ordered into execution. To me, this statutory provision requires no inquiry into its legislative background, for it is clear upon its face and no exception is made either for suspension of the first sentence’s execution or for delay of the running of the second sentence until it is ordered into execution with nunc pro tunc credit from the date it was adjudged.
Finally, if one grants arguendo that we may properly refer to the legislative hearings on the Code and disregard the plain language of Article 57, no basis for consistency between the regulation and the statute can be discovered. The scanty discussion of the confinement provision of the Article makes it clear beyond cavil that Congress was deeply concerned with the former military practice of crediting the accused with no service of confinement until his sentence was approved by the board of review. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 1089-1090. Therefore, it provided that all sentences to confinement would begin to run on the date adjudged, even though the accused was actually not in confinement, unless his freedom was due to a suspension of sentence. House Report No. 491, 81st Congress, 1st Session, page 27.
The regulations, however, which we have before us circumvent that Congressional purpose by depriving the accused of simultaneous credit for the two sentences. Indeed, it is clear that he may remain in confinement for a considerable period and receive no credit on his first sentence, even though the second sentence has not been ordered into execution. For example, if A is sentenced to confinement for one year, and six months later receives an identical sentence which is not ordered executed for three months, he receives no credit on the first sentence for the period of delay between the date the second is adjudged and ordered executed, albeit the order has a nunc pro tunc effect with respect to the later penalty. Accordingly, it is clear the regulations involve little more than a means to subvert the express command of Congress ; are inconsistent with the legislative purpose; and contravene the plain and unambiguous meaning of Code, supra, Article 57.
In sum, therefore, I am of the view that Article 57 requires that all court-martial sentences to confinement run concurrently and that the attempt by the Secretary of the Air Force to cause them to run consecutively is inconsist-*142ént with the Code and thus invalid. I might add that this conclusion is not as absurd as the author of the.principal opinion seems to believe, when one finds, as one must, that Congress intended for the sentence to run regardless of whether accused was actually under physical restraint.
With regard to the second issue before us, I agree with Judge Latimer that the law officer’s instructions effectively informed the court-martial that whether their sentence would run consecutively or concurrently with the former sentence did not concern them and must not affect their deliberations. Accordingly, I find no error in this area.
I would reverse the decision of the board of review and return the record of trial to The Judge Advocate General of the Air Force with an order designed to insure that accused’s sentences run concurrently rather than consecutively.
The United States District Courts, however, apply a different rule. Retaining the common-law authority to adjudge cumulative sentences, they apply the principle that all sentences are deemed concurrent in execution unless it clearly appears that the sentencing judge intended for them to run consecutively. This construction governs whether the sentences are adjudged in a single hearing or in different trials. See 18 USC § 3568; United States v Harrison, 156 F Supp 756 (D NJ) (1957); and Sherman v United States, 241 F2d 329 (CA 9th Cir) (1957).