(concurring):
In my dissent in Corley v. Thurman, 3 M.J. 192 (C.M.A.1977), I addressed at some length “[w]hat, if any, guidelines exist in the exercise of the convening authority’s sole discretion under Article 57(d) of the Code [Uniform Code of Military Justice, 10 U.S.C. § 857(d)] in resolving a petitioner’s request for a deferment of his confinement pending appeal of his conviction.” Id. at 194. In parts II and III of that opinion,1 I expressed the view that the convening authority’s discretion is not unfettered; that its exercise is reviewable for abuse; and that in the absence of standards articulated in the Uniform Code guiding the exercise of the convening authority’s discretion and in the absence of an authorization in the Code for some official to promulgate such standards by which an alleged abuse might be measured, “this Court must formulate its own standards by which it will review the exercise of the convening authority’s discretion for an abuse; otherwise, our responsibility to conduct such a review on proper application therefor would be thwarted.” Id. at 196 (footnote omitted). Now, since Chief Judge Fletcher has embraced my views, I concur.
The point where the Chief Judge’s instant opinion departs from my dissenting opinion in Corley is where the determinative burden lies. In Corley, I noted that both the Bail Reform Act2 in use in civilian *341federal courts and section 2.5(b) of the ABA Standards relating to criminal appeals3 invoke the same general standards guiding the post-conviction release decision — “risk of flight and danger to the community”— and both utilize “pretrial release factors” in applying those standards. However, whereas the ABA standard requires that a petitioner demonstrate “the absence of such” risks in order to win release, the Bail Reform Act gives the Government “the burden of showing the presence oí them” in order to prevent release. I expressed the view that
[A]s to who has the burden once such a request [for release] has been made, I agree with the language in Levy v. Resor, supra [17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967)] at 139, 37 C.M.R. 403:
“It is apparent, therefore, that if a military prisoner is entitled to bail [post conviction pending appeal, which he now is under Article 57(d)], the burden is on the Government to show why it should not be granted.”
The placing of the burden on the Government is consistent with the locus of responsibility under the Bail Reform Act and, therefore, is consistent with the expressed intent of the Congress in enacting Article 57(d), to create 6
“for the first time a procedure similar to release on bail pending appeal in civilian courts.”
Corley v. Thurman, supra at 197.
Chief Judge Fletcher, however, has opined that § 2.5(b) of the ABA Standards, supra, should apply in this area. While I adhere to my earlier expressed preference for the Bail Reform Act standard because I believe much can be said for military practice conforming to that in the federal district courts whenever possible, I do not believe that the standard is mandated, and I am persuaded that on this occasion a majority of this Court must speak with a single voice. Therefore, I now join the Chief Judge in embracing the standard expressed in § 2.5(b) of the ABA Standards as the guideline this Court will use to measure an alleged abuse of discretion by a convening authority in denying a request for release pending appeal under Article 57(d) of the Code.
Finally, I must note that while I concur in affirming the decision of the Court of Military Review, my concurrence rests upon the fact that the confinement portion of the sentence herein has been completely served — thus rendering the application for release moot. United States v. Sitton, 5 M.J. 394 (C.M.A.1978) (Perry, J., concurring).
. Part I concerned the propriety of addressing ourselves to this issue at that time in a petition for extraordinary relief. For the reasons stated therein, Corley v. Thurman, 3 M.J. 192, 193 (C.M.A.1977) (Perry, J. dissenting), I determined that a resolution of the legal question was proper and appropriate. However, the majority concluded otherwise, denying the petition “without prejudice to the right to raise the issues presented therein during the course of appeal pursuant to Articles 66 and 67, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 866-67.” Corley v. Thurman, 3 M.J. 192 (C.M.A.1977). A similar fate befell the appellant’s petition for a writ of habeas corpus, again over my dissent. Brownd v. Commander, 3 M.J. 256 (C.M.A.1977).
. Bail Reform Act of 1966, 18 U.S.C. §§ 3141-3152. 18 U.S.C. § 3148 states that a person convicted in federal court of an offense whose case is pending appeal
*341shall be treated in accordance with the provisions of section 3146 [pretrial release in non-capital cases] unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained.
Id. [Collier v. United States, 19 U.S.C.M.A. 511, 515, 42 C.M.R. 113, 117 (1970)], quoting S.Rep.No.1601, 90th Cong. 2d Sess., U.S.Code & Admin.News 1968, pp. 4501, 4503.
. A.B.A. Standards, Criminal Appeals § 2.5(b) (1970), requires:
Release should not be granted unless the court finds that there is no substantial risk the appellant will not appear to answer the judgment following conclusion of the appellate proceedings and that the appellant is not likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice. In making this determination, the court should take into account the nature of the crime and length of sentence imposed as well as the factors relevant to pretrial release.