(concurring):
Although 18 U.S.C. § 3568 does not require that an accused sentenced by a court-martial to confinement receive credit for time spent in pretrial confinement, it does not prevent the Department of Defense from allowing such credit. On its face, DOD Instruction 1325.4 (October 7, 1968), when construed in conjunction with the rules promulgated by the United States Parole Commission and the Bureau of Prisons, appears to require that such credit be granted. According to the comments made by counsel during oral argument, any memoranda or correspondence which might have provided insight into the origins of this Instruction have been destroyed or, in any event, cannot be located. Thus, we have little choice but to give the language of DOD Instruction 1325.4 its most obvious meaning.
Several benefits result from this construction, though. For example, crediting a servicemember tried by court-martial with pretrial confinement places him in the same position as a military or civilian defendant who is tried in a Federal District Court. Thus, it provides greater uniformity of treatment. Secondly, this interpretation of DOD Instruction 1325.4 eliminates the problem which I discussed in United States v. Davidson, 14 M.J. 81, 87 (C.M.A.1982) (Everett, C.J., concurring in the result) — namely, that otherwise the aggregate of pretrial and posttrial confinement to which a service-member is subjected may exceed the maximum confinement authorized as punishment by the Table of Maximum Punishments. See para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition).
Furthermore, to construe the DOD Instruction in this way provides a certainty that is now lacking in the treatment of pretrial confinement in this military justice system. According to the Manual for Courts-Martial, a sentencing authority— whether a military judge or court members —“may consider evidence” about “the nature and duration of any pretrial restraint.” Para. 76a (2). Indeed, when a trial takes place before members, they should be instructed to that effect. See United States v. Davidson, supra. Likewise, in determining what sentence should be approved, a convening authority may consider pretrial confinement or other pretrial restraint. Para. 88b, Manual, supra.
But, of course, no one can foresee exactly what weight will be given to pretrial confinement by various sentencing authorities and convening authorities. Indeed, insofar as court members are concerned, it usually is impossible, even after the fact, to determine how an accused’s pretrial confinement fits into their determination of an appropriate sentence. In its deliberations one court-martial may reduce a proposed sentence to confinement by the precise number of days of an accused’s pretrial confinement; but another court-martial may reduce the proposed sentence by some lesser amount or may give no reduction in sentence because of pretrial confinement. Similarly, one convening authority may reduce an adjudged sentence by the amount of pretrial confinement; another may direct that the pretrial confinement be credited on the sentence;1 and a third may use some other remedy or give no relief.
If, however, pretrial confinement must be credited day-for-day on a sentence to confinement, any uncertainty is removed from the outset. In determining to what level of court-martial he should refer charges against an accused, a convening authority will know that pretrial confinement must be credited on the sentence adjudged. *130Likewise, an accused, in determining what pleas to enter or what pretrial agreement to propose, will know that pretrial confinement will be credited in full against any sentence to confinement. Moreover, in instructing court members, a military judge can specifically advise them how pretrial confinement is treated for sentencing purposes.
We cannot ascertain if the practical advantages of crediting pretrial confinement on a sentence were in the minds of the draftsmen of DOD Instruction 1325.4. However, absent any contrary evidence as to their intent, I have no hesitancy about construing the Instruction in a manner that yields these favorable results. Of course, I find no inconsistency in these results with Presidential intent as expressed in the Manual for Courts-Martial. If, however, the President desires a different outcome, he has readily available remedies — such as a direction to the Secretary of Defense to change DOD Instruction 1325.4 or insertion of more specific language in the Manual.2
. Because of the way in which good-conduct time is calculated, see United States v. Larner, 1 M.J. 371 (C.M.A.1976); see also United States v. Hannan, Dkt. No. 42,988, 17 M.J. 134 (C.M.A.1983), an accused’s release date, if his adjudged sentence is reduced by the amount of pretrial confinement, may be different from the date on which he would be released if he is credited with pretrial confinement on service of the adjudged sentence.
. If the President chooses to specify a different rule in the Manual for Courts-Martial, I hope that he will also clarify whether he intended for pretrial confinement to be considered in computing maximum punishment imposable, since in my view the majority’s interpretation of the Table of Maximum Punishments in United States v. Davidson, 14 M.J. 81 (C.M.A.1982), was at odds with Presidential intent.