In United States v Alderman, 22 USCMA 298, 46 CMR 298 (1973), a majority of this Court held that a conviction by summary court-martial which resulted in a sentence to confinement was constitutionally invalid if the accused had been denied his constitutional right to counsel. See Argersinger v Hamlin, 407 US 25 (1972). In this case we are concerned with a sentence to correctional custody by a proceeding under Article 15, UCMJ, 10 USC § 815, during which the appellant was not represented by counsel.
The Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 131c(4), defines correctional custody as:
[T]he physical restraint of a person during duty or nonduty hours, or both, imposed as a punishment under Article 15, and may include extra duties, fatigue duties, or hard labor. (Emphasis added.)
According to the Table of Maximum Punishments, paragraph 127 c, Manual, supra, one who escapes from correctional custody may he sentenced to a dishonorable discharge and confinement at hard labor for 1 year. A breach of restraint imposed during correctional custody could result in the imposition of a bad-conduct discharge and confinement at hard labor for 6 months. Since these are the same penalties a serviceman would face in the event he acts in contravention of Article 95, UCMJ, 10 USC § 895, by escaping from confinement or breaking arrest, there is, in my opinion, no practical difference between correctional custody and confinement, at least insofar as the question of the need for representation by counsel at both proceedings is concerned.
Although an Article 15 proceeding is categorized as nonjudicial and does not *364empower a court-martial to adjudge permissible additional punishments under Section B of the Table of Maximum Punishments as does a summary court-martial conviction, it may be introduced in evidence, as it was in this case, as a matter in aggravation for the purpose of determining an appropriate sentence. The effect of using a record of Article 15 punishment is in this respect indistinguishable from the use of evidence of previous convictions. United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970).
In Johnson, a record of an Article 15 proceeding in which that accused had been sentenced to restriction for 21 days, was admitted in evidence as a matter in aggravation on sentence. My brothers held the admission of this evidence to be error because the misconduct therein considered occurred prior to the effective date of a revision to the Manual for Courts-Martial. See United States v Griffin, 19 USCMA 348, 41 CMR 348 (1970); United States v Worley, 19 USCMA 444, 42 CMR 46 (1970). In Johnson, reversing as to sentence and directing that a rehearing thereon may be ordered, my brothers held:
Since there is nothing to reassure us that the severity of the sentence was unaffected by the error in this case, we must hold that it was prejudicial. (Emphasis added.)
19 USCMA at 468, 42 CMR at 70. My brothers also acknowledged at 467, 42 CMR at 69:
The 1962 amendment to Article 15 increased the punishments authorized to approximately those that could be awarded by a summary court.
In substance, correctional custody imposed as Article 15 punishment and confinement at hard labor as the result of a summary court-martial conviction are essentially similar in that both permit physical restraint and hard labor. In each instance, the accused is deprived of his liberty.1 Counsel have informed us that the Department of the Navy Corrections Manual, paragraph 109(4), provides that "'[t]he status of correctional custody prisoners is similar to that of sentenced prisoners’” (emphasis added by counsel). And, as noted in United States v Johnson, supra, the collateral effect of Article 15 punishment may be the same as that of a conviction by court-martial. As Chief Judge Darden noted in his dissent in United States v Alderman, 22 USCMA at 308 n. 1, 46 CMR at 308:
While it may be argued that counsel should be required for summary courts-martial since they constitute criminal convictions and not for Article 15 proceedings as they are noryudi-cial and corrective in nature, the effect of confinement under the former and correctional custody under the latter is difficult to distinguish. See In re Gault, 387 US 1 (1967).
Since I am unable to distinguish them, I would hold that evidence of nonjudicial punishment resulting, in correctional custody should not have been admitted in aggravation of appellant’s sentence for the reasons set forth in my separate opinion in United States v Alderman, supra, and would return the record of trial to the Court of Military Review for reassessment of the sentence.
Restriction, although it also results in a deprivation of liberty, does not, in my opinion, come within the purview of Argersinger v Hamlin, supra, since it "involves moral rather than physical restraint” (emphasis added). Paragraph 131c(2), Manual for Courts-Martial, United States, 1969 (Revised edition).