(dissenting):
There are sufficient differences between this case and United States v Haynes, 15 USCMA 122, 35 CMR 94, to reach the conclusion that the restriction imposed upon the accused was for a proper purpose. For example, in the Haynes case the purpose of the restriction was to deter the accused from going to Misawa City during off duty hours, an act unrelated to his military obligations. Here, the squadron commander’s purpose was to make certain the accused “would be present for duty during the normal duty hours.” Restraint for that purpose appears to be reasonably calculated to insure discipline through regular attendance at places of duty. From that standpoint, the restraint on the accused’s freedom of movement is authorized by the Manual for Courts-Martial. See Manual for Courts-Martial, United States, 1951, paragraph 1745. In any event, acceptance of the majority’s conclusion that the restriction was illegal does not require a holding that the commander’s subsequent order to the accused to sign in at stated times is also illegal.
The order, in my opinion, is legal. The majority misconstrue the staff judge advocate’s advice. He did not say the order to sign in was an implementation of the illegal restriction. On the contrary, he carefully analyzed the separate circumstances of the order, and concluded they were different from those surrounding the initial restriction. When he spoke of the purpose of the order he did not say, as the majority construe his advice to say, that it was designed to enforce the already existing restriction. Instead, he argued that the order amounted to “a restriction”; that is, it had the effect of a restriction. Therefore, it was important to determine whether the order, operating as a restriction, was “tainted in the same fashion as the initial restriction.”1 The staff judge advocate concluded the order was not so tainted. *443He gave several reasons for this conclusion. One of these is the fact that before the order was given, the accused became involved in the incidents which resulted in Charges III and IV. A restriction imposed pending investigation of charges is proper. Manual for Courts-Martial, supra, paragraph 20 6.
This construction of the staff judge advocate’s analysis makes his conclusion compatible with his reasons. To construe the advice otherwise,"makes it impossible, as the majority observe, to “follow the logic of his reasoning.” I prefer sense to nonsense.
If I am wrong in my choice as to the true meaning of the staff, judge advocate’s advice, I still cannot accept the majority’s view of it. I do not consider the staff judge advocate’s statement, that the order “was obviously designed to enforce a restriction,” to be a finding of fact. The staff judge advocate himself expressly rejected any factual connection between the order and the initial restriction. Among other things, he noted the different periods of time to which the two applied. He observed the initial restriction related only to normal duty hours, whereas the order applied “at the end of normal duty hours,” and extended to weekends. In my opinion, the statement as to the purpose of the order is, at best, a conclusion; and it is a conclusion contra to the underlying facts recited in the advice.
The record demonstrates that the accused’s commander sought to make the accused more amenable to military discipline. To achieve his purpose, he took two actions with respect to the accused. Each imposed a different requirement upon him; and each applied to different periods of time and to different conditions. In my opinion, the invalidity of one of the actions did not ipso facto invalidate the other.
I would affirm the decision of the board of review.
In pertinent part, the text of the post-trial advice is as follows:
A restriction is lawful only when imposed for reasons specifically authorized in the Manual for Courts-Martial; as interpreted by the Court of Military Appeals, the corn-mander’s authority to restrict is limited to situations wherein it is in the interest of training, discipline, or medical quarantine, where the continued presence of an accused pending investigation is necessary, where one under charges should not be *443exposed to temptation of similar misconduct, or where one convicted but not confined is restricted pending final action in the case (See US v Haynes, 35 CMR 94; also see MCM, 1951, par. 20b and 174b) .... “. . . Here again, though, the commander’s testimony as to the interview on 22 October is to the effect that he reminded Gentle that he was still restricted to the base arid also gave him the order alleged. Thus, this order to sign in was obviously designed to enforce a restriction so that the gravamen of the offense was breach of restriction and the maximum punishment for it was that authorized for breach of restriction. . . . As a result, is this order tainted in the same fashion as the initial restriction? I think not. . . . It must be remembered that the Squadron Commander’s testimony that his reason for restricting the accused was to insure his presence for duty during normal duty hours dealt only with the initial imposition of restriction on 19 October and that he was not queried as to his reason for issuing the order on 22 October, nor was the legality of this order challenged by the defense. Of significance, too, was the accused’s involvement in the intervening incident of the morning of 22 October which is the subject of Charges III and IV and their Specifications. Also of interest and militating against a conclusion that the commander’s motive on 22 October was the same as that on 19 October is the fact that the 22 October order became effective at 1700 hours on Friday afternoon, at the end of normal duty hours, on the day preceding a weekend. Certainly, ‘a military member is not generally free to come and go as he chooses’ and the importance of obedience to orders in the military establishment is not arguable (See US v Haynes, supra). Since the order involved in the Specification of Charge II was obviously one within the authority of the commander to give and since there is nothing indicating that Major Bozeman’s issuance of it was contaminated by unlawful motives or reasons, in the face of this prima facie showing of lawfulness, I do not feel it proper to presume that it was unlawful.”