(dissenting):
Since the Supreme Court’s determination, in Gerstein v. Pugh,1 that the Constitution requires “a neutral magistrate” to confirm that probable cause exists to confine a person arrested for alleged commission of a crime, a majority of this Court has evinced a disposition to deny the military commander eligibility to act as the magistrate. I have elsewhere recorded the reasons that led me to conclude that the endeavor to achieve that purpose by decree of this Court is contrary to the Uniform Code of Military Justice and the Manual for Courts-Martial.2 Suffice it to iterate that, contrary to the majority’s insistence that “a magistrate by definition is a judge,” the magistrate contemplated by the Supreme Court for the probable cause proceeding need not be a judge, and to repeat my conviction that the military commander is not inherently disqualified to act as a neutral and detached magistrate charged with assuring the constitutional right of an accused delineated in Gerstein. See Wallis v. O’Kier, 491 F.2d *691323 (10th Cir. 1974), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974); United States v. Head, 416 F.Supp. 840 (D.C.N.Y.1976).3
Turning to the specifics of this case, it can be decided, as the Court of Military Review held, only on the basis of the regulations. The court held, and I agree, that the accused’s confinement on August 11 was “quite lawful.” Under the Uniform Code and the Manual, only the military commander can release a confinee from properly imposed confinement.4 The military magistrate provided for in the confinement release program, under which Captain Cheatham purported to act, derives his authority solely by command empowerment. Consequently, the majority’s analogy to United States v. Ware, 1 M.J. 282 (C.M.A. 1976), is inappropriate. Ware held that, under the language of Article 62(a), Uniform Code of Military Justice, 10 U.S.C. § 862(a) the convening authority could not overturn a trial judge’s ruling dismissing a charge on a ground not amounting to a finding of not guilty, but could only return the case to the judge with a request for reconsideration. Although Captain Cheat-ham is a member of Army JAG, that status alone does not constitute him a military judge within the meaning of Article 26, UCMJ, 10 U.S.C. § 826. See also Article 6, UCMJ, 10 U.S.C. § 806. His authority to rule definitely cannot, therefore, be likened to the authority of a trial judge under Artiele 62(a), unless his power to act is like that of a trial judge. What his authority is, must, therefore, be determined by examination of the regulations that have created the office and prescribed its powers. Similarly, if, under the regulations, the magistrate is not, in fact, a military judge, he cannot claim the independent power to release that the Court has ascribed to a trial judge in the cases cited in note 1 of the majority’s opinion.
Army Regulation 27-10, chapter 16, c. 15 (September 9, 1974), creates the office of military magistrate and defines the magistrate’s authority. The regulation directs that the “magistrate will presume that, the charges and specifications are based upon substantial evidence.” Para. 16-4a. To me, the plain meaning of this provision is that the magistrate cannot inquire into the probable cause of accused’s confinement. Thus, we are not dealing with a Gerstein situation. What then does this “magistrate” do? The regulation says he will determine whether “continued pretrial confinement meet[s] legal requirements (see para. 20 to 22, inclusive, MCM, 1969 (Rev.)).” Para. 16-3 (emphasis supplied). Considering the content of the referenced Manual paragraphs and that the declared purpose of the regulation is “to monitor pretrial confinement” (para. 16-1), the inescapable conclusion is that the magistrate’s responsibility is to effectuate the Manual precept that *70“[confinement will not be imposed pending trial unless deemed necessary to insure the presence of the accused at the trial or because of the seriousness of the offense charged.” Manual, supra, para. 20c. This is the subject matter of a bail proceeding; and that is the issue here.
Quite recently, the majority confirmed that inquiry into whether an accused has been legally confined is different from inquiry into whether he should be continued in confinement, despite the existence of probable cause to believe that he has committed a crime. United States v. Heard, 3 M.J. 14, 17 (C.M.A.1977). The latter inquiry concerns the concept of bail. Although the right to bail, that is, release from confinement on some assurance that the accused will be present for trial, is a constitutional right, it is not available in the military. In the federal civilian courts, bail is considered in conjunction with the inquiry into probable cause. 18 U.S.C. §§ 3041, 3141 and 3146; Fed.R.Crim.P. 5(a) and (c) and 44; 1 Wright Federal Practice and Procedure §§ 78 and 81 (1969). However, AR 27-10 provides a contrary procedure. While it requires the military magistrate to interview the accused personally, it also directs that “[h]e will not hold a formal hearing in the matter,” and it expressly forbids “adversary proceedings.” AR 27-10, para. 16-4b and f. I am not at all certain that these requirements conform to the “ ‘stepped’ process” promulgated in Heard under which “lesser forms of restriction or conditions on release . . [must be] tried and . . . found wanting” before continuation of confinement is allowable,5 but as the incidents before us long preceded Heard, I am satisfied that under then prevailing law, the regulation was valid.6 Id. at 21-22.
Under the regulation, the magistrate could make only one of two decisions. He could determine that “continued pretrial confinement” was “warranted,” in which event he was to “record that fact,” or he could determine “the confinee should be released,” in which event he would notify the unit commander and the prisoner would be “released within 48 hours.” AR 27-10, para. 16-4a and b. The magistrate could not impose “conditions” upon the release, but he could “recommend appropriate restrictions.” Para. 16-4e. With or without recommendation by the magistrate, the regulation continued the unit commander’s right to “impose any reasonable pretrial restraint he deems necessary upon a prisoner released from confinement by a magistrate.” Para. 16-4d.
The process of review for release was “automatic” and continuous. The regulation required that the first review be made “within 7 days after the confinee has entered pretrial confinement,” but the Fort Carson regulation reduced the period to 5 days. AR 27-10, para. 16-4a ; Headquarters, Fort Carson, and 4th Infantry Division (Mechanized), Supp. 1 to AR 27-10 (6 Feb. 1975), para. 4b(l). Under both regulations, a subsequent review had to be made not less than every two weeks thereafter, until pre-trial confinement was terminated.
I have already noted that the Court of Military Review determined, and I agree, that the initial imposition of pretrial confinement was “quite lawful.” As required by the regulations, Magistrate Cheatham reviewed various documents mentioned in the regulation and conducted a timely personal interview of the accused. Although he received “good vibs” from the accused and a co-accused, Specialist Johnson, he thought it necessary to check out their involvement in a reported threat of injury to a government witness. He concluded that continued confinement was warranted until completion of the Article 32 investigation. The investigation hearing was held on August 26. That day Magistrate Cheatham spoke to the investigating officer; he was informed, mistakenly, that no testimony had been presented at the hearing of the involvement in the threat of either the ac*71eused or Johnson. As a result, he went the next day to the stockade and had “them let out.”
On August 28, Colonel Nichols was apprised of the accused’s release. He discussed the matter with his legal officer. Informed that the Article 32 investigating officer had reviewed the tapes of the hearing he had conducted and had found that testimony had, in fact, been presented to connect the accused and Johnson with the threat to a prospective government witness, he concluded the magistrate had not known “all the facts,” and his lack of such knowledge constituted “new evidence” which warranted reconfinement. Accordingly, he ordered that the accused and Johnson be reconfined.
Magistrate Cheatham was also informed that testimony of the threat had been introduced at the Article 32 hearing. On September 2, he met with Colonel Nichols and others to discuss the matter. Although certain he would not have released the accused had he known the true facts, he believed that the reconfinement was improper because under his “SOP” (standard operating procedure), it appeared that a commander could'reconfine only for “subsequent misconduct” or “additional facts discovered relating to the original offense,”7 and neither of these conditions was present. However, on the basis of the “newly disclosed” information, he concluded that the accused and Johnson should continue in confinement. He went to the stockade and informed them of his decision and his reasons for it.
The Court of Military Review determined that Colonel Nichols had no authority to reconfine the accused under the magistrate regulations. I agree with that determination. Although the Army regulation authorizes a unit commander to impose physical restraints upon a person released by the magistrate “he may not return the confinee to pretrial confinement but upon the commission of another offense or upon receipt of newly discovered information.” AR 27-10, para. 16-4d. Colonel Nichols conceded that the accused had not committed another offense, but he regarded the report of the misinformation given to Magistrate Cheat-ham as “newly discovered information,” within the meaning of the regulation. Whether that construction of the regulation is permissible is open to question, especially in view of the interpretation of the regulation expressed in the SOP used by the magistrate, but even if it comprehends the situation that confronted the Colonel, the Court of Military Review held, and I agree, that this exception was not available under the Fort Carson supplement. The supplement provides that no person released by the magistrate “may subsequently be recon-fined unless he commits an additional offense or offenses after his release,” and “no appeal” lies from the magistrate’s release, either by the accused or the commander. Section 4, paras, e and f.
Neither the Army regulation nor the Fort Carson supplement specifically provides for the possibility that a decision to release might be predicated upon a mistake as to the existence of material facts, or upon a mistaken view of known facts. Nor does either regulation expressly provide for reconsideration of a decision to release. Nevertheless, the Court of Military Review determined that, as there is no general prohibition against reconsideration in law and no specific prohibition in the regulations, a magistrate could reconsider a decision to release, either on his own motion or on application.
Viewing the September 2 proceedings according to its “substance,” the court con-*72eluded that Magistrate Cheatham had reconsidered his decision to release the accused, and his new determination established “a continuum of pretrial confinement from its initiation on 11 August.” I agree with the ruling that the magistrate could, under the regulations, reconsider a decision to release, but I disagree with the court’s conclusion that the accused suffered “no injury from the abortive action” of Colonel Nichols.8 The fact is, the accused was entitled to remain out of confinement until the magistrate vacated his order to release. That action was not taken until September 2. Consequently, the accused was improperly in confinement for the period of August 28 to September 2.
Long ago, this Court held that improper pretrial confinement does not justify dismissal of the charges. On that ground alone the trial judge’s denial of the defense motion to dismiss was correct. What is left is the possible effect of pretrial confinement on the sentence. In the civilian community, a defendant in pretrial confinement, whether it be legal or illegal, is entitled to day-for-day credit in the calculation of the period of confinement he is required to serve. Until United States v. Larner, 1 M.J. 371, 374 n. 11 (C.M.A.1976), that was not the practice in the military; as there was no statute or regulation requiring that the accused be given administrative credit for pretrial confinement, legal or illegal, the rule was to allow the fact of confinement to be taken into account in assessment of sentence. See United States v. Jenkins, 19 U.S.C.M.A. 478, 42 C.M.R. 80 (1970); United States v. Jennings, 19 U.S.C.M.A. 88, 41 C.M.R. 88 (1969); United States v. Clark, 17 U.S.C.M.A. 26, 37 C.M.R. 290 (1967).
In Larner, while conceding that under military law a “convicted accused . is not entitled by right to credit on his sentence for pretrial confinement,” a majority of the Court distinguished between legal confinement and illegal confinement. Id. at 374 n. 11. As to the latter, it held that instead of being taken into account in assessment of the sentence, the accused must be given administrative credit on a day-for-day basis. In Heard, the present majority indicated that the Larner rule was also applicable “at the trial level.” 3 M.J. at 23.
I dissented in Larner and in material part in Heard. My reasons made it unnecessary to consider the correctness of the Court rule, but I perceive a number of flaws in it that impel me to comment now. First, an analogy to civilian cases, exemplified by Lee v. United States, 400 F.2d 185 (9th Cir. 1968), is inappropriate because the federal civilian courts are required by law to credit the defendant for pretrial confinement on a day-for-day basis; it is immaterial to the allowance of credit whether the confinement is legal or illegal. Secondly, my experience with military courts suggests that an accused is likely to benefit more from a procedure that allows the sentencing authority to take account of pretrial confinement, especially if it was illegal, either in imposition or in the conditions of confinement, than he is by an administrative credit for the exact number of days of his confinement. See United States v. Drown, 19 U.S.C.M.A. 562, 42 C.M.R. 164 (1970); United States v. Nelson, 18 U.S.C.M.A. 177, 39 C.M.R. 177 (1969).
As to the disposition of the case, in Heard, despite the existence of a “degree” of prejudice resulting from the failure to give the accused administrative credit for illegal pretrial confinement, the majority concluded that further judicial proceedings were unwarranted. Here, the adjudged period of confinement has fully expired, and there is no possibility whatever of residual prejudice from the small period of illegal confinement to which the accused had been subjected. I agree, therefore, that the decision of the Court of Military Review should be affirmed.
. 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
. Porter v. Richardson, 23 U.S.C.M.A. 704, 50 C.M.R. 910 (1975); Phillippy v. McLucas, 23 U.S.C.M.A. 709, 50 C.M.R. 915 (1975).
. I am constrained to note that the majority’s quotation of part of a reference by the Court of Military Review to Colonel Nichols as being “primarily concerned with the threat to other persons” is grossly misleading in its implication that the Court of Military Review had determined that the Colonel was disqualified to act as a magistrate in the proceedings in issue. The fact is the Court of Military Review specifically held that the accused’s initial confinement on August 11, at Colonel Nichols’ direction, was “quite lawful.” Responding to accused’s contention that the Colonel had confined him for a “wrong reason,” the court said [2 M.J. 963, 965 (A.C.M.R.1976)]:
It is clear from the record that Colonel Nichols was primarily concerned with the threat to other persons which would flow from not restraining appellant. However, we find that he was also aware of the other legal predicates for pretrial confinement. His emphasis on the threat only reflects the differences among reasonable men; it does not create legal error, particularly where the emphasis is on a reason which is itself sufficient to justify restraint. Nixon, supra [21 U.S.C.M.A. 480, 45 C.M.R. 254 (1972)]. Consequently, we hold that appellant’s initial incarceration was for proper purposes and lawful.
Not a single circumstance in the opinion of the Court of Military Review, or in the record itself, justifies any implication that Colonel Nichols was either inherently, or by disposition or previous inconsistent conduct, disqualified from acting in the pretrial confinement proceedings. Nor does the record raise any question as to the legality of the decision to confine the accused.
. See my dissent in Porter v. Richardson, supra.
. The process seems to me to require some kind of hearing, with the accused and his counsel present.
. An earlier majority of the Court has given its imprimatur to the regulation. See Courtney v. Williams, 1 M.J. 267, 271 n.14 (C.M.A.1976); United States v. Bielecki, 21 U.S.C.M.A. 450, 45 C.M.R. 224 n.1 (1972).
. In material part, para. 3k of the Standard Operating Procedures, Fort Carson Military Magistrate Program, reads as follows:
Reconfined Prisoners. No prisoner who has been released from pretrial confinement upon an order of a military magistrate may be subsequently placed in pretrial confinement except for another offense or offenses that occur subsequent to the release, or based upon newly discovered facts relating tó the original offense. Circumstances of prisoners who are returned to pretrial confinement after release by the magistrate will be reviewed. Determination whether continued pretrial confinement is warranted will be made on the same basis for returned prisoners as that for any other prisoner, the fact that the prisoner has been previously released by the military magistrate notwithstanding.
. As a decision to confine is not a function of the magistrate, I believe the regulation’s provision as to reconfinement is directed only to those who can impose confinement. It does not, therefore, in my opinion, foreclose reconsideration by a magistrate of a decision to release, which, as the Court of Military Review indicated, would be a reinstatement of the original confinement.