(concurring):
I concur fully with the principal opinion’s conclusion that the Air Force procedure for hearings on pretrial confinement — although it does not appear to have operated unfairly — cannot be reconciled with the constitutional requirement that “the detached judgment of a neutral magistrate” must determine whether an accused remains in pretrial confinement. See Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975).
In many instances, the officer exercising special court-martial jurisdiction will ultimately be called upon to make the decision whether charges concerning the offenses for which an accused is confined should be referred for trial by special court-martial. On occasion he may determine whether that court-martial will be empowered to adjudge a bad-conduct discharge. See paras. 33k and 7, Manual for Courts-Martial, United States, .969 (Revised edition).1 Also, since the Air Force makes rare use of the summary court-martial, I assume that many responsibilities assigned by paragraph 33 of the Manual for Courts-Martial to “the officer exercising summary court-martial jurisdiction over the accused” are instead performed by the officer who convenes special courts-martial at an Air Force Base.2
*398While the staff judge advocate of a commander who exercises special court-martial jurisdiction is not subject to the explicit responsibilities imposed on the staff judge advocate of an officer exercising general court-martial jurisdiction, see, e.g., Article 34(a), Uniform Code of Military Justice, 10 U.S.C. § 834(a); paras. 30d and 35b, Manual, supra, certainly the Uniform Code contemplates that he and the convening authority will be in close communication. See Article 6(b), UCMJ, 10 U.S.C. § 806(b). Thus, typically he will be so closely related to the decisions made by the officer exercising special court-martial jurisdiction that he, too, could not qualify as a neutral and detached magistrate if the decision on pretrial confinement were his alone to make.
Consistent with the Supreme Court’s approval of flexibility in Gerstein v. Pugh, supra, there are several ways to meet the constitutional requirements. Certainly a military magistrate or military judge3 can be used for this purpose — as has been done in the other Services; but that is not necessarily the only solution. The sine qua non is that the person who decides whether an accused remains in pretrial confinement not be someone who is involved in deciding in what court, if any, the accused should be prosecuted and on what charges.
. Paragraph 7, Manual for Courts-Martial United States, 1969 (Revised edition), provides that “[t]he convening authority, when he deems it appropriate, may direct that a [court] reporter not be used in special courts-martial.” When a convening authority does so, “[a] bad-conduct discharge may not be adjudged... [because] a complete record of the proceedings and testimony. .. [will not have] been made.” Article 19, Uniform Code of Military Justice, 10 U.S.C. § 819.
. Obviously, there is concern that by conducting a hearing on pretrial confinement a military judge disqualifies himself to try a case. However, up to now our Court has denied review of all claims that a military judge was disqualified to try a case because he had ruled that the accused should be continued in pretrial confinement. See, e.g., United States v. Spearman, 13 M.J. 226 (C.M.R.1982); United States v. Weber, 13 M.J. 226 (C.M.R.1982).