(concurring in part, dissenting in part):
For the most part, I concur with the excellent opinion of my Brother Fletcher, as his opinion ably and accurately traces the evolution of the treatment accorded pretrial *90confinement in the military justice system. My disagreement with the principal opinion concerns the remedy announced. Since the error was committed first at the trial level and not cured by the convening authority, I believe that the proper remedy is to return the case to the convening authority for a rehearing on the sentence. Para. 92a, Manual for Courts-Martial, United States, 1969 (Revised edition). Only in this way may we be assured that the accused receives proper consideration of the effect of his pretrial confinement on the deliberations in arriving at an appropriate sentence. I write separately primarily to take issue with certain of the positions advanced by Chief Judge Everett in his opinion concurring in the result.
I
As Judge Fletcher pointed out, military law has always treated pretrial confinement as a matter in extenuation and mitigation, and indeed only recently has pretrial confinement been brought to the attention of the court-martial. Thus, the Manual for Courts-Martial provides that, except where mandatory punishments are prescribed, “the determination of a proper punishment for an offense rests within the discretion of the court subject to the limitations prescribed in chapter XXV [Punishments! and by the article violated." Para. 76a(l), Manual, supra (emphasis added). Further, it is provided that the court, “[i]n the exercise of its discretion .. . may consider ... the nature and duration of any pretrial restraint.” Para. 76a(2), Manual, supra (emphasis added). In other words, the court-martial may, but need not, consider an accused’s pretrial confinement in arriving at a sentence — “consider” being defined as: “to reflect on: think about with a degree of care or caution.” Webster’s Third New International Dictionary, Unabridged 483 (1961). Otherwise, the court’s discretion is limited only by the maximum punishments established by the Uniform Code of Military Justice and the Manual for Courts-Martial.
Likewise, it is provided that “[t]he convening authority should consider as a basis for approving only a part of a legal sentence all matters relating to clemency, such as long confinement pending trial.” Para. 88b, Manual, supra (emphasis added). Thus, the convening authority also is urged, but not required, to “consider” an accused’s pretrial confinement. However, he is not encouraged to consider any and every period of pretrial confinement, but only long pretrial confinement. A clearer procedure for treating pretrial confinement and a clearer refutation of the contention that the President intended pretrial confinement mechanically to be credited against adjudged punishment is difficult for me to conceive!
Nevertheless, the Chief Judge finds that because “[tjhe 1951 Manual for Courts-Martial did not specify whether allowance for pretrial confinement was required in applying the Table of Maximum Punishments” an “ambiguity existed” which was not resolved by the 1969 revision. 14 M.J. 81, 88. I am at a loss to understand this conclusion. If the Chief Judge suggests that the 1969 Manual failed to provide for the treatment to be accorded pretrial confinement, he is simply wrong. See paras. 76a(1) and (2) and 88b, 1969 Manual, supra. Surely the Chief Judge does not suggest that the President, in perpetuating a longstanding and heretofore unquestioned practice (see United States v. Clark, 17 U.S.C. M.A. 26, 27 n.1, 37 C.M.R. 290, 291 n.1 (1967); United States v. Larner, 1 M.J. 371, 374 n. 11 (C.M.A.1976); and the authorities cited by Judge Fletcher in the principal opinion), continued an “ambiguity” into the 1969 Manual by failing to advert to a specifically inapplicable Act of Congress! *
Whatever the Chief Judge’s rationale, I believe he has violated one of the most fundamental principles of statutory construction, i.e., that language clear and unambiguous on its face is accorded its plain meaning. See 2A Sutherland, Statutes and Statutory Construction § 45.02, et seq. (4th ed. 1973). Thus by ignoring altogether or *91by ascribing hitherto unknown obscurity to ordinary language, the Chief Judge would overrule both the President of the United States and the Congress, without the slightest indication that either desired change. For example, I take it to be irrefutable that Congress, by specifically exempting the military from the reach of the Bail Reform Act, consciously intended to leave undisturbed the prevailing military practice. As for the President, the only change relevant here between the 1951 Manual and the 1969 Manual is that the admonishment that the court-martial “should consider” the nature and extent of pretrial confinement has been softened to read, “may consider.” Compare para. 76a(2), Manual for Courts-Martial, United States, 1951, with para. 76a(2), Manual for Courts-Martial, United States, 1969 (Revised edition). If anything, this change represents even less presidential desire that the court-martial feel compulsion to make allowance for or to “credit” confinement pending trial.
I take no position regarding my own preferences in this matter; I merely dispute the assertion that the 1969 Manual fails to address pretrial confinement in unambiguous terms.
II
In addition, I do not accept the Chief Judge’s conclusion that “equal protection issues arise” unless pretrial confinement invariably be credited against sentence. 14 M.J. at 89. In the first place, Congress at least was obviously of the opinion that non-credit for pretrial confinement did not violate the Constitution, else they would not have exempted the military. Second, several federal circuits have indicated that, absent a statute, sentence credit for pretrial confinement is within the discretion of the trial judge and is not required by the Constitution. Lewis v. Cardwell, 609 F.2d 926 (9th Cir. 1979); Matthews v. Dees, 579 F.2d 929 (5th Cir. 1978). Admittedly, other circuits hold that the Equal Protection Clause requires credit for pretrial custody. However, these courts have based their decisions on a factor not present in the military justice system, i.e., the effect of wealth on a defendant’s ability to “make bail.” Johnson v. Prast, 548 F.2d 699 (7th Cir. 1977); King v. Wyrick, 516 F.2d 321 (8th Cir. 1975); United States v. Gaines, 449 F.2d 143 (2nd Cir. 1971).
Absent wealth as a consideration, I perceive no “suspect classification” or “fundamental interest” in appellant’s circumstance such that, under Equal-Protection analysis, “strict scrutiny” is required. Thus, the Equal Protection Clause is offended here only if the distinction between the treatment accorded pretrial confinees and nonconfinees is arbitrary and lacking reasonable basis. See Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). However, as Judge Fletcher has pointed out, pretrial confinement is seen in the military purely as a matter of necessity, not punishment, and is employed exclusively where a servicemember has demonstrated by his conduct that he cannot be permitted to remain at large. United States v. Heard, 3 M.J. 14 (C.M.A.1977). Such necessity I regard as the obverse of arbitrariness and unreasonableness. Thus, if a pretrial confinee serves in the aggregate more confinement than a non-pretrial confinee, it is reasonable, not arbitrary. Barring some contrary indication from the Supreme Court, the ultimate arbiter of the Constitution, I am satisfied that credit for pretrial confinement is not required in the military.
The Bail Reform Act of 1966, 18 U.S.C. § 3568.