(concurring in part and dissenting in part):
Some of the problems generated in practice by the release provisions of the Federal Bail Reform Act and the inapplicability of some of the ABA Standards to the military community would, in any case, deter me from unqualified acceptance of the majority’s precept that pretrial confinement may be imposed “only when this ‘stepped’ process of appropriate lesser forms of restriction or conditions on release is first tried and proves inadequate.” As the new rule is apparently intended to replace entirely the provisions of paragraph 20 c of the Manual for Courts-Martial, I am constrained to disagree with it. In United States v. Gray, 6 U.S.C.M.A. 615, 620, 20 C.M.R. 331, 336 (1956), the Court held that the imposition of confinement previous to trial, as provided by the Uniform Code of Military Justice, is subject to “normal command controls” so that a superior commander can impose conditions upon his subordinates in regard to the exercise of their authority to confine. I have no doubt that the regulations as to pretrial confinement prescribed by the President on this subject have the force and effect of law. United States v. Haynes, 15 U.S.C.M.A. 122, 35 C.M.R. 94 (1964).
My views differ from those of the majority in other respects, and I expressly disagree with the implications of note 12, but I see no useful purpose in elaboration. The points on which I agree with the majority are: (1) that the accused’s confinement was illegal because it was imposed to serve the convenience of the commander, and was not for any reason authorized by law. United States v. Haynes, supra; and (2) that while illegal pretrial confinement merits consider*26ation in regard to the sentence, it does not taint an otherwise valid conviction and does not require corrective action where, as here, a remand would merely constitute an empty gesture. United States v. Porter, 11 U.S.C. M.A. 170, 175, 28 C.M.R. 394, 399 (1960).