(dissenting):
I dissent.
In the case at bar, when stockade officials discovered the existence, within the stockade, of a partially-completed escape tunnel, the confinement officer, Major Ford, ordered the assembly of all of the cellbloek prisoners. Sentenced and unsentenced prisoners alike, who were quartered in the cellbloek, lined up in two ranks. Major Ford announced the discovery and directed those involved in the digging to step forward. Receiving no re*236sponse he repeated the directive, again with negative results. He then ordered “the first eight men in the front rank, on the left, fall out for detail to fill in the tunnel. I then instructed Sergeant Smith to fall the men out and fill in the tunnel.” The accused, an unsentenced prisoner,1 objected to participation in this activity. He told the Sergeant that he had only been in the cellblock two days, he had nothing to do with digging the tunnel and he was not going to fall out and fill it in. The Major testified that when he heard this he gave the accused a direct order to “fall out for detail and fill in the tunnel,” and when the accused stated he was not going to comply, the Major directed the Sergeant to place the accused in segregation for refusing to comply with his order. This is the basis for the accused’s conviction under Article 90, Uniform Code of Military Justice, 10 USC § 890 —willful disobedience of a lawful command of a superior officer.
My brothers believe this to be a valid order, unless it was given as a form of punishment, on the ground that it was not work of a kind commonly associated with the execution of a sentence at hard labor, despite the evidence that at least three of the prisoners on the tunnel detail were sentenced prisoners. Since the issue of whether the work was punishment was submitted to the court members, under instructions of the law officer, to be decided as a question of fact, they hold that there was ample evidence to support the verdict. I disagree as to their view of the nature of the work involved.
Article 13, Code, supra, 10 USC § 813, provides :
“Art. 13. Punishment prohibited before trial.
“Subject to section 857 of this title (article 57),2 no person, while being held for trial or the result of trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.” [Emphasis supplied.]
In United States v Bayhand, 6 USCMA 762, 21 CMR 84, we reviewed the history of this Article, including military Manuals and Directives, in order to determine the intent of the Congress in the enactment thereof. As we there stated, at page 768, with reference to Article 13, Code, supra:
“. . . the conclusion is inescapable that Congress, the framers of the Manuals for Courts-Martial, and the Army must have recognized that gross injustices might result from any confinement system in which one accused of crime was treated no better than one proved guilty. Therefore, to eliminate any and all forms of punishment prior to trial, except that which is inherent in all confinement, laws and regulations were enacted to protect the untried confinee. It must be remembered that the only valid ground for ordering confinement prior to trial is to insure the continued presence of the accused, as where he has earlier indicated that his obligation to remain with his unit weighs lightly with him, or where the seriousness of the offense alleged is likely to tempt him to take leave of his surroundings.
“. . . While the history of that Article of the Code supplies us with no test for determining when an un-sentenced prisoner has been ‘subjected to punishment or penalty *237other than arrest or confinement upon the charges pending against him,’ we are sure that Congress contemplated a realistic approach by stockade officials to the utilization of military manpower. All servicemen, confined or otherwise, can be gainfully used, but to what extent unsentenced prisoners can be ordered to work on projects with sentenced prisoners without offending against Article 13 is not made clear. However, a close examination of the 1949 and 1951 Manuals for Courts-Martial, as well as other expressions in this area, affords a possible answer.
“Previously in this opinion, we noted that Article of War 16, . . . [10 USC (1946 ed, Supp IV) § 1487], was the first enactment which specifically provided that unsentenced prisoners should not be subjected to punishment or penalties, other than confinement. In order to ascertain the general understanding of that Article of War at that time, and to learn the opinion of the men who drafted the Manual and their interpretation of the manner in which the Article should be applied, we refer to the discussions held contemporaneously with the publication of the 1949 Manual. See Seminars Presented During the Orientation Conference on the Manual for Courts-Martial, U. S. Army, 1949, pages 101 — 102. When paragraph 19, quoted supra, of that Manual was under discussion by its draftsmen, the question was asked: Can a soldier under a sentence which has not yet been approved be employed on a work detail with soldiers who are undergoing punishment? Thereupon, the following explanation was offered:
‘. . . Under the provisions of Article 16 a soldier cannot be punished, other than by confinement, prior to the time his sentence is approved by the reviewing authority. Prior to such time the accused cannot be required to perform work that constitutes punishment or put on any work detail with prisoners yjfiQ ape undergoing punishpnent, The interpretation is that such work in the same detail with prisoners who are undergoing punishment, who are working supposedly at hard labor, cannot properly be interpreted to be military duty — it is punishment, if performed with prisoners who are undergoing punishment.
‘Q. Suppose there are two details, one detail with people having been sentenced and working at hard labor, and one detail with people whose sentences have not been approved and detailed at, say kitchen police ?
‘A. Kitchen police detail is a military duty. Cutting the grass is another. Although the actual work may be the same, if required to be done with prisoners being punished by hard labor it ceases to be a mere military duty and becomes punishment. It is perhaps a fine line of distinction, but we have to draw such lines at times.’
“The view expressed above, that work performed on a detail with sentenced prisoners is punishment, is not a novel one, particularly when the duties performed are identical. Indeed, as early as 1904, Davis, in his Treatise on Military Law, 2d ed, page 485, wrote:
‘The work which may be required of soldiers in arrest is determined by paragraph 907, Army Regulations of 1895. Under the regulation as thus established, soldiers in confinement awaiting action on the proceedings of their trials are assimilated to those awaiting trial, and both classes may, at the discretion of the commanding officer, be employed, separately from prisoners undergoing sentence, upon such labor as is habitually required of soldiers. More severe or other labor would not be legal, nor would labor with a police party consisting in whole or in part of men under sentence however slight their sentence might be.’
*238Colonel Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, advances the same principle for it states, at pages 124-125:
‘A prisoner is to be presumed to be innocent till duly convicted, and till thus convicted, he cannot legally be punished as if he were guilty or probably so. The arrest by confinement of an enlisted man with a view to trial and for the purposes of trial is wholly distinguished from a confinement imposed by sentence. It is a temporary restraint of the person, not a punishment, and should be so strict only as may be necessary properly to secure the accused. Anything further is unauthorized. . . .
‘Neither hard labor nor severe service should be exacted of a soldier while remaining in arrest. Enlisted men in confinement awaiting trial or sentence should not be assimilated in their treatment to those under sentence, or required to perform labor with them. They should, however be given proper exercise, and may be put on drill or other light duty.’ ” [Emphasis partially supplied.]
In pursuance of Article 13, AR 210-181, change 3, paragraph 35Á(1), January 17, 1963, provides:
“h. Work limitations. Prisoners normally will be detailed to work on support-type functions subject to the limitations prescribed below.
(1) Prisoners may be required to perform useful work to the same extent as soldiers available for general troop duty. Detained and adjudged prisoners will not be commingled with sentenced prisoners on work details and they will be segregated on work assignments by specifying daily certain types of work for detained and adjudged prisoners and a different type for sentenced prisoners. Further segregation will be accomplished by separation on work assignment rosters. An officer or noncom-missioned officer prisoner will be required to perform only work which is normally performed by an officer or noncommissioned officer of his rank or grade.” [Emphasis supplied.]
In the case at bar, Major Ford testified that he believed the above-noted regulation applied only to the “customary” work programs of the stockade and not to the “unusual” situation presented by the unfilled tunnel. He agreed that it did not constitute an “emergency.” He also testified that he did not know, and made no inquiry to determine, the custody status of the persons he ordered to fill the tunnel.
My brothers agree that the regulation was intended to apply only to “customary” work programs of the stockade and hold that extraordinary or unusual work programs are not within its reach.3
In my view, my brothers’ concurrence in the administrative determination by stockade officials of the intent of the regulation is their basic error. The Army Regulation was intended to provide guidelines for those responsible for the maintenance of prisoners, both sentenced and unsentenced. It could not direct procedures in conflict with the law any more than can the Manual for Courts-Martial, United States, 1951 (see Tedrow, Digest, Annotated and Digested Opinions, U. S. Court of Military Appeals, Manual for Courts-Martial, pages 643-651), which, at least, has the force of law. United States v Smith, 13 USCMA 105, 32 CMR 105. Any determination that it did is, of course, in error.
Article 13, Code, supra, expressly prohibits any punishment or penalty, of an unsentenced prisoner, other than arrest or confinement and the imposition of the latter shall not be more rigorous than the circumstances require to insure his presence. The Manual, supra, paragraph 125, prescribes that unsentenced prisoners *239“will not be required to observe either duty hours or training schedules devised as punitive measures, nor required to perform punitive labor.” (Emphasis supplied.)
When Major Ford had the prisoners assembled in the cellbloek, about 8:30 p. m., it was the hour for holding bedtime head count. The day’s work was done. Since there were no dress regulations for this procedure, the prisoners appeared in various stages of undress. His fruitless efforts to ascertain the identities of those who dug the tunnel resulted in an order which can only be regarded as punitive, especially in view of the hour and the circumstances. Since no emergency presented itself, no reason, other than punitive, existed for ordering the work to be done at that time. The men could have been sent to their cells and the filling of the tunnel scheduled for the next day. There is simply no evidence that this accused committed any infraction of discipline for which punitive action might have been appropriate.
The Major further compounded his error by ordering sentenced and un-sentenced prisoners alike to work together. Even if this be considered as military duty, which I doubt, the order was illegal under the Army’s own interpretation. As we noted in United States v Bayhand, supra, at page 769:
“ . . Kitchen police detail is a military duty. Cutting the grass is another. Although the actual work may be the same, if required to be done with prisoners being punished by hard labor it ceases to be a mere military duty and becomes punishment. It is perhaps a fine line of distinction, but we have to draw such lines at times.’ ”
Since I believe the Major’s order to be in contravention of the provisions of Article 13, Code, supra, hence, illegal, I would reverse the conviction on this issue and dismiss the Charge. In view of the disparity between the maximum imposable penalty for the remaining offense (one year) and the offenses for which accused was convicted (six years), I would order a rehearing on sentence.
APPENDIX
“Changes in force: C 1 and C 3
AR 210-181 *C 3
Installations
STOCKADES AND HOSPITAL PRISONER Wards
HEADQUARTERS, DEPARTMENT OF THE ARMY Washington 25, D. C., 17 January 1963 CHANGES No. 3
AR 210-181, 24 September 1957, is changed as follows:
Section III (Superseded) TRAINING and WORK
35. General, a. Objectives. Objectives established for work and training programs for prisoners must insure that, consistent with correctional treatment, prisoners are fully occupied with intensive training and useful work projects. Combined training and work programs must not be less arduous and demanding than those prescribed for soldiers in garrison duty status. Employment and training activities prevent idleness among prisoners, improve their skills, assist them in rehabilitation, and alleviate custodial problems. The combined training and work programs for potentially restorable' prisoners and those considered nonrestorable for further military service will consist of 63 hours each week. A 40-hour workweek for the employment of prisoners will be the minimum.
g. Work programs. Work programs in conjunction with correctional treatment principles require that prisoners be employed in work projects that are most beneficial to them, and are consistent with the labor needs of the installation. The loss of services which occurs when persons are confined can be minimized through such construc*240tive programs. Physically qualified prisoners except those in administrative and disciplinary segregation will be required to engage in the work program.
h. Work limitations. Prisoners normally will be detailed to work on support-type functions subject to the limitations prescribed below.
(1) Prisoners may be required to perform useful work to the same extent as soldiers available for general troop duty. Detained and adjudged prisoners will not be commingled with sentenced prisoners on work details and they will be segregated on work assignments by specifying daily certain types of work for detained and adjudged prisoners and a different type for sentenced prisoners. Further segregation will be accomplished by separation on work assignment rosters. An officer or noncommissioned officer prisoner will be required to perform only work which is normally performed by an officer or noncommis-sioned officer of his rank or grade.
(2) Work will be constructive in nature and should contribute to the training objectives stated in a above for each type of prisoners. Prisoners not training for return to duty or restoration to duty should, whenever practicable, be assigned to jobs which will help to prepare them for return to civilian life.
(3) Prisoners will not be detailed on any projects classified as prohibited work under the provisions of AR 633-5.
(4) Prisoners will not be worked on projects which can be considered as placing them in competition with civilian labor other than within the boundaries of the Army installation.
(5) Care should be exercised to avoid mixed work details of minimum, medium, or maximum custody prisoners.
(6) The work of prisoners on Sundays and holidays will be limited to maintenance, mess, housekeeping, and other essential tasks, except in emergency situations.
(7) Working and guarding of prisoners will be in accordance with their custody grade set forth in paragraph 11.
(8) A prisoner will not be placed in any position wherein the discharge of such duties may reasonably be expected to involve the exercise of authority over other prisoners and will not be designated or referred to as a leader.
(9)The development of work projects to be conducted in fenced inclosures or other areas which permit good supervision and minimum custodial requirements is recommended.
36. Temporary release to organizations. Prisoners in minimum and medium custody grades may be temporarily released to their units for work and training in preparation for and participation in field training and field training exercises. Release of prisoners for this purpose should contribute to their successful association with the organization, and will provide excellent opportunities for deserving prisoners to prove their fitness for early return to duty. Such work and training activities are inducements toward rehabilitation and, where practicable, are encouraged. The unit commander will be responsible for the security, conduct, and welfare of prisoners from the time of their temporary release until return to the stockade.”
Accused was confined on charges of being absent without leave for which he was also convicted at this trial.
Article 57, Uniform Code of Military Justice, 10 USC § 857, deals with the “Effective date of sentences.” Its provisions are not pertinent to a resolution of the issue in this case since the accused was an unsentenced prisoner.
My brothers’ makeweight example of an emergency (stockade explosion) is simply not in point for Major Ford specifically testified that the unfilled tunnel did not represent an emergency.
These changes supersede C 2, 27 June 1960.