(dissenting):
Petitioner seeks extraordinary relief in the nature of a Writ of Habeas Corpus, praying that this Court order his immediate release from confinement. I would grant that relief.
On the 27th of February 1980, a military judge sitting as a general court-martial sentenced this petitioner to, among other things, 14 months confinement at hard labor. In the process, he ordered that petitioner be administratively credited with 120 days pretrial confinement, which the judge had found to be lawfully imposed. Compliance with the judge’s order for confinement credit, assuming no forfeiture of good time earned at the rate of 6 days per month, would have resulted, according to petitioner, in his release from confinement on 5 October 1980.1 Release was not effected on *738that date and petitioner remains in confinement, presumably because the convening authority failed to further implement the judge’s order upon approving the sentence as adjudged. In this regard, the convening authority’s staff judge advocate offered the following advice:
The military judge made a finding that the approximately 120 days of pretrial confinement was legal but nevertheless directed that administrative credit be given therefor. (R/T 219). I am unable to find any authority for such an order and am therefore of the opinion that no administrative credit need be given. However, you may, if you wish, credit the accused with time served in pretrial confinement in determining which amount of the sentence, if any, you will approve.
Government counsel argues that the staff judge advocate’s advice was correct and that a military judge does not have the authority to direct administrative credit for lawful pretrial confinement. He further asserts that the judge’s order would have effectively precluded the convening authority from exercising his discretionary powers in clemency matters under Article 71(a), Uniform Code of Military Justice, 10 U.S.C. § 871(a), and paragraph 88b, Manual for Courts-Martial, 1969 (Rev.) (MCM). I disagree.
I see no infringement upon the convening authority’s clemency powers by the judge’s order. The convening authority retained his unlimited and unfettered discretion with respect to exercising clemency. The judge placed no restrictions on the convening authority in this regard. As is always the case, however, the convening authority’s action was limited to the precise sentence imposed by the court. The convening authority could approve, disapprove, reduce, suspend or give further confinement credit to the sentence adjudged but he could not increase that sentence in any manner. As I see it, the sentence that the convening authority was confronted with when he took his action included credit for approximately 4 months pretrial confinement and he could not take that credit away without thereby unlawfully increasing the sentence.
Furthermore, the proscriptions of paragraph 67f, MCM, are pertinent here. According to that paragraph a convening authority may not direct the military judge to reconsider a ruling on a motion to grant appropriate relief. That certainly means a convening authority cannot change or countermand a judge’s ruling on such a motion. See generally United States v. Ware, 1 M.J. 282 (1976). Here, the judge granted confinement credit as part of his ruling on what was essentially a motion for appropriate relief. Accordingly, I do not believe the convening authority could interfere with that ruling under the terms of paragraph 67 f.
The Government contends that the confinement credit was a nullity because the judge had no authority to order it when he determined that, the underlying pretrial confinement was lawful. Government counsel reaches this conclusion from his interpretation of United States v. Larner, supra, and Hart v. Kurth, 5 M.J. 932 (N.C. M.R. 1978). I conclude otherwise from my reading of those cases. In United States v. Larner, it was determined that the accused. had been unlawfully confined prior to trial. The Court of Military Appeals was confronted then with the question of what the proper remedy would be for illegal pretrial confinement. In answering that question, the Court established a new and specific action to be taken by trial courts and reviewing authorities when faced with unlawful pretrial confinement. The remedy in such a situation is to direct day-for-day administrative credit for time spent in unlawful detention, after first determining the appropriate sentence based on all the circumstances of the case. In Hart v. Kurth, supra, this Court had to decide whether a military confinee is entitled to day-for-day sentence credit for lawful pretrial incarceration as a matter of right under the terms of the Federal Bail Reform Act, 18 U.S.C. § 3658. That statutory provision entitles civilian Federal prisoners to credit for each day spent in custody in connection with the offense for which the *739sentence is imposed, irrespective of whether the pretrial restraint is lawful or unlawful. This Court found that military prisoners are excluded from the provisions of that statute and are, thus, not entitled to confinement credit as a matter of right. The Government concludes from these cases that credit for pretrial confinement may be ordered by a military judge only in those instances when the confinement prior to trial is unlawful. The Government perceives these decisions as precluding a judge from ordering credit for confinement that is lawful.
I view the cases differently. I see one as setting forth a specific instance when confinement credit must be given and the other as establishing that it will not be credited in every instance as a matter of law, but I do not read anything more restrictive into these decisions. I see neither opinion as placing a limit on the military judge’s ability to give confinement credit under other circumstances which he determines to be appropriate. This matter was not addressed in either opinion but the same rationale that was used in Larner to justify the conclusion that administrative credit is the only “fully adequate remedy for an accused who finds that the time he spent confined prior to trial was imposed upon him unlawfully,”2 leads me equally to the conclusion that such credit may be the only fully adequate remedy in other situations involving pretrial restraint, as determined by the sentencing or reviewing authorities. When viewed in this light, I see Larner as creating a new procedure or tool for righting wrongs that may result from pretrial confinement and not necessarily limited to legal wrongs. A judge may find the pretrial confinement lawfully imposed under strict legal standards but upon applying a more subjective standard may believe that the accused should not have been locked up and that the confinement, while lawful, was wrong under all the circumstances of the case. In such a situation, I believe the judge should have the discretion to use this new procedural tool and give administrative credit for the pretrial confinement if he considers credit to be the only fully adequate remedy.
I do not believe it was intended by the Court in Larner to restrict the use of this new procedure to only one situation — where the pretrial confinement is found to be unlawful. I find implicit authority for its use whenever it is deemed appropriate by either sentencing or reviewing authorities. I can see no reason to limit its use, particularly when viewed against the federal rule for civilians that requires a crediting in every instance. Furthermore, it seems to me eminently good policy for sentencing and reviewing authorities to have unlimited use of the ability to credit for pretrial confinement in a system that does not permit bail for those confined prior to trial. Accordingly, in light of my reading of United States v. Lamer and Hart v. Kurth, I believe the law to be as follows: while credit for pretrial confinement is not provided automatically in every case, it must be ordered when the incarceration is illegal and may be ordered by sentencing and reviewing authorities in all other instances as deemed appropriate.
As a separate matter, much has been made in the instant case of the fact that the judge ordered the convening authority to give credit for confinement. The Government views this order to be an unauthorized interference with the responsibilities of the convening authority. I find it unfortunate that the judge denominated his crediting action as an order to the convening authority. I do not believe anything was required of the convening authority to implement the crediting and that the judge should not have couched his sentencing action in such terms. I believe the judge’s decision to credit should have been conveyed to the appropriate authority at the confinement facility as an integral part of the sentence that had been imposed and that a projected release date should have then been computed at that facility based on this sentence, as is done in all cases when the adjudged sentence is made known to the confining authority. Later, if the convening authori*740ty had mitigated the confinement in any way, an earlier release date would have been computed at the confinement facility. As I view it, no crediting action by the convening authority was needed to implement the judge’s sentencing decision. Accordingly, approval of the adjudged sentence by the convening authority in this case should have left the confinement credit intact. I believe under the law it was incumbent upon the officer in charge of the confinement facility to release the petitioner on the date called for by a sentence to 14 months confinement which included judicially directed credit for the approximately 4 months pretrial confinement.
For these reasons, I would grant the instant petition and would issue a Writ of Habeas Corpus.
. Petitioner has arrived at this release date by using the formula established in United States v. Larner, 1 M.J. 371 (C.M.A. 1976). He has backdated the commencement of adjudged confinement to 27 October 1979 and then has computed good time for 14 months at 6 days per month, resulting in a release date of 5 October 1980.
. United States v. Larner, supra at 372.