(concurring in the result):
I
For many decades the standard charge sheet used in connection with courts-martial has contained at the bottom of the first page a place for the entry of data as to restraint. See Appendix 5, Manual for Courts-Martial, United States, 1969 (Revised edition); Appendix 5, Manual for Courts-Martial, United States, 1951. According to the Manual for Courts-Martial, after findings of guilty have been announced, trial counsel shall present service data from the charge sheet, including “the duration and nature of any restraint imposed [upon the accused] before trial”. Para. 75b, 1969 Manual, supra; para. 75b, 1951 Manual, supra. Furthermore, “[i]n the exercise of its discretion' in adjudging a sentence, the court may consider evidence when properly introduced respecting the character of the accused as given in formal discharges, the number and character of previous convictions, that a guilty plea is a mitigating factor, the nature and duration of any pretrial restraint, any evidence of mental impairment or deficiency (123), and the circumstances extenuating, mitigating or aggravating the offense.” Para. 76a(2), 1969 Manual, supra. (Emphasis added). Similar language appeared in the 1951 Manual, supra.1
Although the language concerning pretrial restraint is substantially the same in the 1969 and 1951 Manuals, a major change in Federal law occurred in the interval between promulgation of the two Manuals. In 1966, as part of the Bail Reform Act, Congress directed that credit be given on a sentence for time spent in pretrial confinement. 18 U.S.C. § 3568. In so doing, Congress recognized that, although in legal theory pretrial confinement may not constitute punishment, it often seems almost the same from the standpoint of the person confined and may have much the same effect upon him.
Since 18 U.S.C. § 3568 contains an express exception for “an offense triable by court-martial,” Congress left the President free to adopt or reject the new rule applicable to Federal civilian trials. Unfortunately, in promulgating the 1969 Manual, the President continued to authorize the sentencing authority to “consider” pretrial restraint, but failed to specify whether he had elected to apply the newly prescribed rule for trials in the Federal District Courts— whereunder full credit is allowed on the sentence for pretrial confinement. The Armed Services have assumed that by retention of language from the 1951 Manual, the President evidenced an intent to continue the earlier practice which denied credit for pretrial confinement. On the other hand, court members — at least if they are aware of the rule used in Federal courts— might assume that an accused will receive credit on his sentence for pretrial confinement and that this is the reason for informing them as to the time spent in pretrial confinement. In that event, the members may adjudge a sentence which includes more confinement than they would impose if they believed that no credit would be allowed for pretrial confinement. Accordingly, court members should be advised by the military judge whether the accused will receive any credit on a sentence to confinement for time spent in pretrial confinement; I agree with the principal opinion that the absence of an instruction in this regard constitutes error. In the present case, the error was prejudicial.2
*88II
For another more fundamental reason I also must concur in reversing the judgment of the court below. As evidenced by our Court’s concern about pretrial confinement, see, e.g., United States v. Lynch, 13 M.J. 394 (C.M.A.1982); United States v. Heard, 3 M.J. 14 (C.M.A.1977); United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971), we have recognized implicitly that confinement while awaiting trial is not completely dissimilar from confinement after sentence is adjudged. Congressional recognition of this same fact is reflected not only in the Bail Reform Act of 1966, which requires credit on sentence for pretrial confinement, but also in the language of Article 13 of the Uniform Code of Military Justice, 10 U.S.C. § 813, which prescribes that no one pending trial “may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him.” (Emphasis added). Moreover, prior to its recent change,3 Article 13 placed in the same class all persons “being held for trial or the result of trial,” so it grouped those in pretrial confinement with persons who were not considered “sentenced” prisoners but under Article 57(b), UCMJ, 10 U.S.C. § 857(b), were entitled to credit for time spent in post-trial confinement while awaiting the results of appellate review.
In short, criminal justice — both civilian and military — has recognized that, while pretrial confinement may be necessary to protect certain well-defined and circumscribed societal interests, see United States v. Heard, supra, the fact remains that significant adverse consequences are inflicted on the persons confined.4 Accordingly — absent an explicit statement to the contrary in the Manual — I infer that, when the President prescribed the maximum confinement that may be imposed as punishment for an offense, he did not intend to draw a distinction between pretrial and post-trial confinement. Indeed, since a different interpretation would tend to produce an unfair result, it should be rejected unless its adoption is compelled by Manual language.
Secondly, the provisions contained in the Bail Reform Act of 1966 reveal a congressional rejection of technical distinctions between pretrial and post-trial confinement in determining what punishment is imposable. Since 18 U.S.C. § 3568, which requires that credit for pretrial confinement be given in all instances, contains an exception for courts-martial, it is not binding on the President when he prescribes maximum punishments. Nonetheless, since under this statute a civilian defendant in a Federal District Court would not be subject to aggregate imprisonment for a period greater than the maximum which Congress prescribed as punishment for his crime, I believe that its provisions should be taken into account in construing the Table of Maximum Punishments prescribed by the President.
The 1951 Manual for Courts-Martial did not specify whether allowance for pretrial confinement was required in applying the Table of Maximum Punishments. Thus, even then, an ambiguity existed as to what the President intended. Congress’ enactment of 18 U.S.C. § 3568 in 1966 made this ambiguity more obvious. However, when the Manual was revised in 1969, no effort was made to resolve the ambiguity — despite ample opportunity to do so. The resulting uncertainty about the intent of the Table of Maximum Punishments should be resolved in favor of the accused when determining whether his pretrial confinement should be taken into account in determining the maxi*89mum aggregate confinement to which he is subject.5
Finally, the Table of Maximum Punishments should be construed as I have suggested in order to avoid constitutional issues.6 Admittedly, since appellant’s pretrial confinement was not imposed pursuant to a court sentence, the Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) — requiring that credit be given for confinement under a sentence which was later set aside — can be readily distinguished from the case at bar, where pretrial confinement did not result from a court sentence. However, unless the Manual is interpreted to prohibit aggregate confinement — pretrial and post-trial — which exceeds the maximum stated in the Table of Maximum Punishments, equal protection issues arise.
In the first place, servicemembers like appellant have been singled out in legal effect from all others convicted of the same offense. Because of the fortuitous circumstance of pretrial confinement, the former group will spend an aggregate time in confinement greater than that which is specified by the Table of Maximum Punishments; the latter group will not. The rational basis for the different outcomes is questionable.7 Second, the failure to allow credit under these circumstances discriminates against Davidson in relation to any defendant, military or civilian, tried in a Federal District Court, who because of the provisions of the Bail Reform Act would not be compelled to serve more than the maximum punishment authorized by the statutes under which they were convicted.8
While a person in pretrial confinement who is ultimately acquitted is at a disadvantage in relation to other defendants who are not placed in pretrial confinement and are acquitted, that disadvantage has no ready remedy. However, in the present case the remedy is simple and obvious — to credit appellant with that portion of the pretrial confinement which would cause his aggregate confinement to exceed the ceiling established by the Table of Maximum Punishments. In my view, the Table should be interpreted in this manner, and so, since the court-martial sentenced Davidson to the maximum confinement allowed by the Table, he should be credited with all of his pretrial confinement.
. See paragraph 76a(2), which provides that “the court should consider ... the nature and duration of any pretrial restraint.” The problem arises if the members proceed on an erroneous premise as to whether credit for pretrial confinement will be given on the sentence adjudged.
. I am not convinced that the President intended for courts-martial to be bound by the Federal rule or that service regulations have adopted the rule that pretrial confinement must be credited on sentence. However, as long as the court members are instructed either that the pretrial confinement will be credited on a sentence to confinement or that it will not be — and that instruction is followed later in computing the release date — I do not believe that an ac*88cused will be prejudiced. This is especially true since military justice does not utilize minimum sentences as do civilian courts. See (1960) U.S.Code Cong, and Ad.News 3288, 3289. Of course, in a trial by judge alone the intention of the judge with respect to pretrial confinement should also be made manifest.
. Act of November 20, 1981, Pub.Law No. 97-81, 95 Stat. 1085; H.R. 4792, H.R.Rep.No. 97-306 97th Cong. 1st Sess. 4-5 (1981).
. In the Air Force an accused awaiting trial is treated in much the same manner as a sentenced prisoner. See United States v. Fortenberry (A.C.M. 23073, July 29, 1981) (Miller, J., dissenting).
. Cf. United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973); United States v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971); and United States v. Baker, 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969). Ambiguous penal statutes generally are interpreted in favor of the defendant.
. Like ambiguous statutes, ambiguous Manual provisions should be construed in a manner that would avoid constitutional issues. Cf 2A Sutherland, Statutes and Statutory Construction § 45.11 (4th ed. 1973).
. The law is not similarly offended when it is simply the jurisdictional limit of a special court-martial — rather than the Table of Maximum Punishments — which is exceeded by a combination of pretrial confinement and confinement adjudged in a sentence. Presumably, the nature and extent of pretrial confinement was considered by the convening authority when he decided to refer the case for trial by a court of limited jurisdiction.
. This discrimination is all the greater if the accused is prosecuted under the third clause of Article 134 of the Uniform Code 10 U.S.C. § 934 — which has the general effect of allowing prosecution in a court-martial under other Federal penal statutes. In that event, the servicemember sentenced to the maximum confinement allowed by the applicable penal statute will receive no credit for pretrial confinement, while a civilian convicted of violating the same statute would receive full credit for pretrial confinement if sentenced to the maximum punishment authorized by the statute.
Admittedly, the servicemember’s plight is mitigated by the circumstance that he probably will be in a pay status while in pretrial confinement. However, that is not enough, in my view, to offset the discrimination as to aggregate loss of liberty if pretrial confinement is not credited.