(concurring in the result):
I concur in the affirmance of the findings and sentence. In my opinion, however, when an accused raises the issue of illegal pretrial confinement at his court-martial, the military judge has a nondelegable responsibility to make an independent disposition of that issue on its merits.
Appellant’s motion for appropriate relief was not an appeal from the magistrate’s determination. It was appellant’s commanding officer, and not the magistrate, who was keeping appellant confined. The motion was an original application for relief from alleged illegal pretrial confinement, directed to the court in the first instance. The military judge had a responsibility to determine that issue de novo. Compare 8 Am.Jur.2d Bail and Recognizance §§ 53, 54 (1963), (application of the abuse-of-discretion standard for appellate review) with 8 C.J.S. Bail § 46, at 124 (1962) (subsequent applications for bail merit de novo consideration).
Resolution of the illegal confinement issue directly affects the sentence to be adjudged. See United States v. Larner, 1 M.J. 371 (C.M.A.1976). The trial judge must independently determine this issue and cannot depreciate his role by merely reviewing the handiwork of a magistrate. The military judge therefore erred when he disposed of the issue by determining if the magistrate had abused his discretion.
All the evidence appellant chose to offer in support of his motion is in the record of trial, however, and the evidence shows that appellant’s pretrial confinement was lawful. Appellant was not prejudiced by the military judge’s error in using the abuse-of-discretion standard.