concurring in the result:
I concur outright in the principal opinion on the question of the admissibility of the record of previous convictions. Although I concur in the result reached with respect to the records of previous nonjudicial punishment, I have filed this separate concurring opinion because I believe it is appropriate to furnish a more detailed analysis of the difference between retention and admissibility of records of nonjudicial punishment.
The Manual for Courts-Martial provides at paragraph 75d that personnel records of an accused which reflect his past conduct and performance and which are maintained in accordance with departmental regulations may be received in evidence before sentencing as matter in aggravation. Records of nonjudicial punishment which are required to be maintained in the accused’s Field Personnel Records Jacket (DA Form 201) qualify as personnel records reflecting past conduct and performance within the meaning of paragraph 75d of the Manual. Paragraph 2-205 (2), Army Regulation 27-10, 26 November 1968. See United States v. Johnson, 19 U.S.C.M.A. 464, 42 C.M.R. 66 (1970). Only if these records are properly in the accused’s file at the time of trial, may they be received in evidence. See United States v. Cohan, 20 U.S.C.M.A. 469, 43 C.M.R. 309 (1971).
The Secretarial regulations in implementation of the Manual provision set forth the conditions for retention and disposition of records of nonjudicial punishment. The regulation presently in effect provides essentially that records of nonjudicial punishment will be removed from the 201 File when the person is separated from the Army, when all punishments are set aside or when two years have expired since the imposition of the punishment. In determining the two-year period, periods of unauthorized absence as shown by records of nonjudicial punishment or records of previous convictions are excluded. Paragraph 3-155(1), Army Regulation 27-10, 26 November 1968 (Change 8, 7 September 1971). The present regulation, which became effective 15 December 1971, superseded an earlier regulation which set forth a shorter period of retention (one year) when the person was transferred to another organization and which contained no provision for excluding periods of unauthorized absence. Paragraph 3-15d, Army Regulation 27-10, 26 November 1968.
The initial determination to be made in this, as in any case concerning the admissibility of records of nonjudicial punishment, is whether the records were properly in the accused’s 201 File at the time of trial. The punishments were imposed on 21 April 1970, 3 February 1971 and 6 April 1971, respectively. As to the first nonjudicial punishment, we are concerned with the earlier *516regulation. Since the accused was transferred subsequent to the imposition of the punishment, the record of punishment should have been removed one year following imposition, viz., on 21 April 1971. As to this record, the military judge correctly determined that it was inadmissible.
As to the other two nonjudicial punishments, we are also concerned initially with the earlier regulation. Thus, in the normal course of events, these records also would have been removed one year after imposition — 3 February 1972 and 6 April 1972, respectively — as the accused was transferred subsequent to the imposition of the punishments. However, another factor enters the equation as to these two punishments. The pertinent regulation was changed effective 15 December 1971. Accordingly, we must determine whether the new regulation acted to extend the period the records were to be retained.
To decide this issue, we must first determine the nature of paragraph 3-15 b. The paragraph is essentially administrative in nature, addressing, as it does, such matters as the type of forms to be used, the number of copies to be made, the distribution of the records in the personnel files, and the withdrawal and destruction of the records.1 Because the paragraph is administrative in character, there is no reason why an amendment to the regulation may not extend the time that records of nonjudicial punishment may be retained in the 201 File. Cf. United States v. Tofoya, 48 C.M.R. 969 (A.C.M.R. 1974).
Viewing the last two records of nonjudicial punishment in this framework, it follows that the new regulation operated to extend the period these records were to be maintained. On the effective date of the change to the regulation, viz., 15 December 1971, the records of nonjudicial punishment were properly in the 201 File under the preexisting regulation. (The appellant had been reassigned, but one year had not elapsed from the date of imposition.) Under the two-year rule of the new regulation, the records would, in the normal course of events have been removed on 3 February 1973 and 6 April 1973 and would not have been in the 201 File on the date of trial, 25-26 June 1975. However, the appellant absented himself without authority on 3 May 1971. Under the current regulation, this factor permitted retention of the records in the appellant’s file.2 Accordingly, the records were properly in the appellant’s 201 File at the time of trial.
The fact that the records were properly in the file at the time of trial is not conclusive as to admissibility, as admissibility may depend on other considerations. To determine admissibility in this case we must consider the date of the commission of the offense as well as the date the controlling regulation was changed. This Court has previously held that in determining the admissibility of records of nonjudicial punishment, the current paragraph 3-15 b should be followed only when an accused is convicted of offenses which were committed after the effective date of the change, viz., 15 December 1971. Otherwise, the regulation would have an impermissible ex post facto effect. United States v. Gowing, 45 C.M.R. 749 (A.C.M.R. 1972).
In the instant case, the unauthorized absence offense was committed before 15 De*517cember 1971, while the bad check offenses were committed after that date. I agree that by analogizing to the rule governing the admissibility of previous convictions, the records of nonjudicial punishment imposed on 3 February 1971 and 6 April 1971 were admissible and that the military judge erred in ruling to the contrary. See United States v. Geib, 9 U.S.C.M.A. 392, 26 C.M.R. 172 (1958). This issue was never addressed in United States v. Carter, 42 C.M.R. 898 (A.C.M.R. 1970); so that case does not stand for a contrary position.
The next determination is whether the staff judge advocate properly referred to the three records of nonjudicial punishment in his review. As to the first non judicial punishment, the record of which should have been removed from the appellant’s file, the staff judge advocate incorrectly brought this to the attention of the convening authority. United States v. Turner, 21 U.S.C.M.A. 356, 45 C.M.R. 130 (1972). As to the other two records of nonjudicial punishment, the staff judge advocate properly considered them, notwithstanding the ruling of the military judge. Although the rulings of a military judge generally become the law of the case, binding on appellate authorities,3 that rule is not applicable to the present situation. The convening authority, in determining an appropriate sentence, is permitted to consider matters outside the record, with certain limitations not here pertinent. Paragraph 85h, Manual for Courts-Martial, United States, 1969 (Revised edition). As the records of nonjudicial punishment in question were properly in the appellant’s file, the convening authority could legally refer to them in determining the sentence to be approved.
I agree that the appellant was not prejudiced by the erroneous consideration of the first record of nonjudicial punishment and therefore concur in the result reached in this case.
. Records of nonjudicial punishment are used for many purposes other than determining an appropriate sentence at trials by court-martial. For example, they are considered in making assignments, determining qualifications for promotions and selection for Army schools.
. In this connection, paragraph 3-155 provides: “In computing the two-year period, periods of unauthorized absence as shown by records of nonjudicial punishment under Article 15 or by records of court-martial conviction shall be excluded. If at the expiration of the two-year period, the individual is in an unauthorized absence status, the records of nonjudicial punishment under Article 15 shall be retained until the individual is returned to military control, a determination is made as to whether discipline action will be taken against him, and the results of such action, if any, are known.”
. See United States v. Strand, 6 U.S.C.M. 297, 20 C.M.R. 13 (1955); United States v. Richardson, 2 M.J. 436 (A.C.M.R. 1975).