(concurring in the result):
I disagree with several aspects of the principal opinion. First, Reed v Ohman, 19 USCMA 110, 41 CMR 110, did not hold that credit for confinement under the provisions of Article 57(b), Uniform Code of Military Justice, 10 USC § 857, is “service” of the confinement portion of a court-martial sentence. Secondly, denial of a speedy rehearing does not, in my opinion, entitle the accused merely to credit for the period detained in confinement between reversal of the conviction and the second trial; the right to a speedy trial exists in regard to a rehearing on the same basis as it does in regard to the original trial. Thirdly, while the original trial may have important consequences at the rehearing, such as the fact that the sentence at the rehearing cannot be more severe than that adjudged at the first trial (Article 63(b), Code, supra, 10 USC § 863), a sentence that has been set aside ordinarily has no vitality as a basis for confinement of the accused; instead, the necessity for confinement is determined by the same considerations that justify confinement before any trial. See Reed v Ohman, supra. Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 89c(8).
On reading the record, I am convinced that no new decision to impose pretrial confinement was made after the case had been reversed by the board of review. As a result, the accused was continued in confinement not because the circumstances demonstrated a necessity for confinement pending trial, but because he was a convicted accused. See Reed v Ohman, supra. Since the Government treated the original sentence as having sufficient vitality to deprive the accused of the right to a new determination of the necessity for confinement pending trial, it is, in my opinion, estopped from denying on this appeal such vitality for the purpose of depriving the accused of credit for time in confinement. Cf. United States v Garcia, 5 USCMA 88, 97, 17 CMR 88. I, therefore, agree with the majority that, in the special circumstances of this case, the accused is entitled to credit for the time he spent in confinement between reversal of his con*200viction by the board of review and the time of imposition of sentence at the rehearing.