(concurring in the result):
In my opinion, the majority misperceive the function of Article 57(d), Uniform Code of Military Justice, 10 U.S.C. § 857(d), and fail to recognize the importance of the difference between a commander’s decision to confine a convicted accused pending review of his conviction, as allowed by Article 13, UCMJ, 10 U.S.C. § 813,1 and his decision to deny an accused’s application, under subdivision (d), to “defer service of *342confinement.” I agree, however, with their conclusion that the decision of the Court of Military Review must be affirmed.
The majority hold that accused’s application for deferment was improperly denied, but, they refuse him relief because “the issue is moot,” since the term of adjudged confinement has expired. The accused applied to this Court for relief from the alleged abuse of discretion before his term of confinement had run. We turned aside his application “without prejudice to the right to raise” the matter again “during the [regular] course of appeal.” 3 M.J. 256 (C.M.A. 1977). Now that he is in the regular course of appeal, he is told the Court can do nothing because the confinement part of his sentence has expired. This sequence of decision has aspects of Heller’s Catch-22. I believe the accused and the Government are entitled to more than this summary disposition of the appeal.
Before setting out my views of the issue posed by the appeal, I am impelled to make some preliminary comments. First, no constitutional right to bail applies in the military, and, more particularly, a convicted accused has no right to bail pending review of his conviction. Secondly, the 1966 Bail Reform Act, which provides for a stay of confinement pending appeal, expressly exempts the military from its provisions. See Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967). In view of the congressional purpose to treat a military accused differently from a convicted defendant in a federal civilian court, I unqualifiedly reject the majority’s incorporation into military law of standards that are designed for the civilian community. See my opinion in United States v. Heard, 3 M.J. 14, 25 (C.M.A.1977).
Turning to the merits, the issue has been posed by the accused, and accepted by the majority, in terms of whether the convening authority abused his discretion in denying an application under Article 57(d) to “defer service of the sentence to confinement” adjudged by the court-martial. In those terms, the accused has no remedy.
Assuming, as the accused and the majority apparently do, that improper denial of deferment alone makes illegal a concomitant decision to confine the accused pending review of his conviction2 and that such illegal post-trial confinement entitles accused to the same relief as for illegal pretrial confinement, the rule adopted by my Brothers affords no relief in this case. Their rule is that illegal pretrial confinement entitles an accused only to “administrative credit of a period equal to that of the improper confinement.” United States v. Malia, 6 M.J. 65, 68 (C.M.A.1978). As accused’s term of confinement, which was 5 months, has expired by virtue of subdivision (b) of Article 57, which provides that confinement “begins to run from the date the sentence is adjudged by the court-martial,” administrative credit accords him no relief. My view of the remedy for illegal confinement, however, is different from my Brothers, and that difference requires me to consider the merits of accused’s claim for relief. See my separate opinion in United States v. Malia, supra.
To me, the accused’s real complaint is not simply that his “service” of confinement in execution of the sentence should have been postponed until after the requisite reviews of his conviction, but rather that he should have been permitted to remain at liberty pending those reviews, and while at liberty, he should have had the benefit of the running of the term of confinement “from the date the sentence . . . [was] adjudged by the court-martial” as provided by *343subdivision (b) of Article 57. This claim rests upon the unique rule on confinement that obtains in the military.
While subdivision (d) of Article 57 speaks of deferment of “service of the sentence to confinement,” that phrase manifestly does not mean confinement in execution of the sentence, which is the meaning it has in civilian practice. See Fed.R.Crim.P. 38(a)(2); Wright, Federal Practice and Procedure § 632. Subdivision (d) itself differentiates its subject matter from confinement in execution of the sentence by providing that “deferment shall terminate when the sentence is ordered executed.” In Reed v. Ohman, 19 U.S.C.M.A. 110, 116 n. 3, 41 C.M.R. 110, 116 (1969), the Court observed, correctly I believe, that temporary confinement pending appellate review is not service of the sentence. That point is further emphasized by Article 13 of the Code, paragraphs 185(3) and 125, Manual for Courts-Martial, United States, 1969 (Revised edition), and our cases which forbid treating an accused confined to await review of his case as a prisoner in confinement in execution of his sentence. See Reed v. Ohman, supra at 116-17.
Pending appeal of a conviction and sentence that includes confinement, the defendant in a federal civilian court may be admitted to bail. Fed.R.Crim.P. 38(a)(2); Wright, op. cit. § 632. During the period he is allowed at liberty, conditioned or unrestricted, the defendant is not serving his sentence, and he earns no credit on the term of confinement included in his sentence. A military accused is treated differently.
Under subdivision (b) of Article 57, a term of confinement “begins to run from the date the sentence is adjudged by the court-martial.” Article 71(c), UCMJ, 10 U.S.C. § 871(c), provides that a sentence extending to a punitive separation, such as the dismissal adjudged in this case, cannot be ordered into execution until completion of the reviews prescribed by the Code. Combined, these provisions confer an enormous benefit upon an accused whose sentence includes confinement. Specifically, by operation of these provisions, an accused, at liberty pending review of his case, may never have to face confinement of any kind because the full term of adjudged confinement may run out during the time required to complete the requisite reviews. Consequently, the dominant concern of an accused whose sentence includes confinement is to remain at liberty pending review of his conviction.
Article 13 of the Uniform Code authorizes, but does not demand, confinement of an accused pending review of his case. Both before and after the enactment of subdivision (d) of Article 57, the President provided guidelines for such confinement. This Court construed the earlier guidelines as having the force of law. Levy v. Resor, supra at 139—40. See also Collier v. United States, 19 U.S.C.M.A. 511, 514, 42 C.M.R. 113, 116 (1970). I agree with this view of the President’s authority, and I disagree with my Brothers that no guidelines exist. See also my concurring opinion in United States v. Newcomb, 5 M.J. 4, 7 (C.M.A. 1978), and my opinion in United States v. Heard, supra.
Before subdivision (d) became part of Article 57, paragraph 21d, Manual for Courts-Martial, United States, 1951, provided for such physical restraint of the accused pending appellate review as might be deemed “necessary.” See also paragraphs 44e(2) and 89c (6), Manual, supra. In Levy v. Resor, supra at 140, the Court held that the necessity for restraint in each case depended upon the facts of that case, and the commander’s exercise of his discretion to impose confinement was reviewable for abuse. After enactment of subdivision (d), the Court reaffirmed the rule as to the reviewability of a decision to confine. For example, in Collier v. United States, supra at 515-16, the Court said:
The legality of post-trial restraint pending appellate review of a court-martial conviction is well established. . And, as we said in Reed [v. Ohman], “the decision to restrain is reviewable for abuse of discretion.”
*344In discussing deferment, the 1969 Manual recognizes that circumstances establishing the necessity to confine may also have impact upon an application to defer. Three circumstances are expressly mentioned as weighing against the applicant: that “the accused may be a danger to the community or . that he may repeat the offense”; or that he may flee. Paragraph 88 f, Manual, supra. The enumeration impresses me as constituting additional guidelines to be considered in determining whether a convicted accused should be confined pending review of his case. Cf. United States v. Daniels, 19 U.S.C.M.A. 518, 42 C.M.R. 120 (1970).
In Reed v. Ohman, supra at 116, the Court suggested that Congress intended subdivision (d) to provide a means by which an accused could seek to avoid “confinement as an appropriate restraint pending appeal.” [Emphasis supplied.] I am of the sanie opinion. The majority observe that Congress did not specify guidelines for consideration of accused’s application for deferment. They perceive the omission as sanctioning their adoption of civilian guidelines. I see the omission as emphasizing the congressional declaration that the commander’s decision whether or not to defer rests “in his sole discretion.” Article 57(d), supra.
Although the Court, in Reed v. Ohman, supra at 116, avoided consideration of the meaning of deferment, I have no doubt it does not concern service of confinement in execution of the sentence. Deferment is concerned with the running of the term of confinement from the date of adjudgment of sentence by the court-martial that is decreed by subdivision (b) of Article 57; it interrupts that process.
If, as a matter of law, an accused is entitled to remain at liberty pending review of his case, why should he surrender his right to the running of the term of confinement? Oppositely, if a compelling need exists to confine the accused after trial, why should a commander nonetheless allow him to remain at liberty? At each of these extremes, the situation precludes invocation of deferment. I am convinced, therefore, deferment is intended for the intermediate case — the one in which confinement clearly appears “as an appropriate restraint pending appeal,” but the accused still wishes to avoid it. It is at this point that deferment provides what might be called a “second chance” for the accused to stay out of confinement pending review.
As I view the statutory and Manual pattern for post-trial restraint of an accused, the justification to confine him pending review is different from the justification to toll the running of the term of confinement by deferment; and the right to a review of each decision is different. The decision to confine must be made in light of the guidelines provided therefor, and an adverse decision is subject to review for abuse of discretion. The decision to defer rests within the “sole discretion” of the commander, and a discretion of that kind plainly sanctions no review.
Earlier, I pointed out that Article 71 imposes severe constraints on ordering a sentence into execution before completion of appellate review. During the time of review, however, the confinement term of a sentence continues to run from the date adjudged by the court-martial. I also observed earlier that if an accused remains at liberty pending review of his case, so much time may pass before completion of the review that accused may never be confined in execution of the sentence. However, faced with the probability of lawful confinement, an accused awaiting review might perceive personal advantage in trading off his right to have the term of confinement run for the chance that so much time might elapse, and so many changes of circumstances may occur, before completion of review, that when the time arrives for execution of the sentence, he might have an arguable case for remission of the unexecuted term of confinement. That deferment contemplates some such perceived advantage by the accused is, in my opinion, apparent from the fact that he must initiate the application for deferment. Without accused’s consent to surrender the benefit of the running of the term of confinement, the commander cannot defer.
*345An accused’s right to remain at liberty, unless necessity requires that he be confined, exists independent of deferment. In asking for deferment, therefore, the accused does not ask for justice as regards confinement but for mercy — to be treated with greater leniency than the law requires. Subdivision (d) says that whether that request is granted or denied rests in the “sole discretion” of the commander. Mercy, or if one prefers its legalistic term, clemency, is, as Shakespeare observes, “above the sceptred sway. It is enthroned in the hearts of kings.”3 It is not subject to review.
Examining the record, I am satisfied the decision to confine was not an abuse of discretion.4 But even if I err in that conclusion, illegal confinement, whether before or after trial, cannot impair the validity of findings of guilty. See United States v. Malia, supra at 68. Consequently, the accused’s postulate that the “incalculable harm” done him requires “the findings of guilty ... be set aside and ordered dismissed” lacks merit. Article 59(a), UCMJ, 10 U.S.C. § 859(a); United States v. Hightower, 5 U.S.C.M.A. 385, 18 C.M.R. 9 (1955). As to his sentence, in my view, improper posttrial confinement may justify reassessment of the adjudged sentence, not merely an administrative credit for the period of illegal confinement. See my opinion in United States v. Malia, supra. On the facts of this case, which include accused’s acknowledgement that “in light of the findings of guilty . . . dismissal from the Air Force was a rational sentence,” I am convinced the “amount of possible remaining prejudice” does not justify “adjustment of] the other aspects of the sentence, as the appellant requests.” United States v. Heard, supra at 23.
For the reasons noted, I join my Brothers in affirming the decision of the Court of Military Review.
. See United States v. Teague, 3 U.S.C.M.A. 317, 323-24, 12 C.M.R. 73, 79-80 (1953).
. Every case involving a punitive separation from the service or confinement for one year or more must be reviewed by the Court of Military Review of the accused’s service, and, thereafter, further review may be granted by this Court. See Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867. Pending completion of these reviews, the sentence cannot be ordered into execution unless the conditions provided by Article 71(c), UCMJ, 10 U.S.C. § 871(c), are met. The relevant conditions are:
No sentence which includes, unsuspended, a dishonorable or bad-conduct discharge, or confinement for one year or more, may be executed until affirmed by a Court of Military Review and, in cases reviewed by it, the Court of Military Appeals.
. Merchant of Venice, Act IV, Scene 1, Line 184.
. For a time after adjudgment of sentence, the accused was permitted to remain at liberty to arrange his personal matters. Thereafter, he formally applied for deferment. The application was denied, and he was ordered into confinement pending review of his case. The nature and number of the offenses support a reasonable conclusion that the accused had seriously compromised his position as an officer and as a military doctor. In Levy v. Resor, 17 U.S.C.M.A. 135, 140, 37 C.M.R. 399, 404 (1967), the Court observed that “[t]he character and extent of a series of offenses afford a proper basis for the exercise of discretionary power” to confine an accused pending review of his conviction.