(dissenting):
I have elsewhere expressed my conviction that the successive Presidents of the United States, in discharging their responsibilities under Articles 36 and 56, Uniform Code of Military Justice, 10 U.S.C. §§ 836 and 856, respectively, to prescribe procedures and punishment limitations in courts-martial, have consistently and unmistakenly ratified the long-standing practice1 that pretrial confinement is not automatically credited against adjudged confinement. Rather, the sentencing authority is invested with broad discretion to determine how much, if any, credit should be given for such confinement. United States v. Davidson, 14 M.J. 81, 89-91 (C.M.A.1982) (Cook, J., concurring in part, dissenting in part). How else can paragraph 76a (2), Manual for Courts-Martial, United States, 1969 (Revised edition), be explained, wherein it is provided: “In the exercise of its discretion in adjudging a sentence, the court may consider evidence when properly introduced respecting ... the nature and duration of any pretrial restraint, ... ”? What else could the President have intended, when, in paragraph 88 b, Manual, supra, he stated: “The 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”? Surely my Brothers do not contend that a policy of granting automatic credit for pretrial confinement is consistent with a policy of urging the sentencing authority and the convening authority to take into consideration, in adjudging a sentence, the nature and extent of that same pretrial confinement!
Yet this double benefit for the same period of pretrial confinement is the absurd result my Brothers have now achieved — unless we are to understand that the Secretary of Defense’s instruction somehow repealed the relevant portions of the President’s Manual for Courts-Martial. I would have thought it unnecessary to remind my Brothers that it is the President to whom Congress delegated the authority to prescribe the rules in this area. Articles 36 and 56, supra. Thus, to the extent that the President has established policy under that authority, any action to the contrary by a subordinate would be ultra vires.
Of course it is perfectly clear that the Secretary of Defense had no such nefarious purpose. For just as it is a commonly recognized principle of statutory construction that “[l]ong-continued contemporaneous and practical interpretation of a statute by the executive officers charged with its administration and enforcement ... constitutes an invaluable aid in determining the *131meaning of a doubtful statute,”2 so too are contemporaneous interpretations of quasi-statutory provisions instructive as to their meaning and scope. Since all of the parties herein, including my Brothers, agree that the Secretary of Defense has never, in the history of the military justice system, enforced a policy of granting credit for pretrial confinement, it should be quite evident that he never intended this belatedly ascribed result. (Incidentally, I take it as a given that the Secretary of Defense is not so impotent as to be unable to enforce his instructions to his own subordinates.)
Nevertheless, I concede that the language of the DOD Instruction is not without a certain degree of superficial ambiguity. Thus, the mandate to compute sentences in conformity with those published by the Department of Justice can be taken to refer exclusively to the award of good-time credits, work abatements, and the like (as it unquestionably did prior to the time when Federal prisoners received credit for pretrial confinement).3 Or it can be construed literally to include credit for pretrial confinement. But as I have indicated, a moment’s reflection discloses that the latter interpretation produces an absurd result. Given a choice between two conflicting interpretations, one of which is logical, historically consistent, and compatible with higher authority, the other of which is illogical and contradicts higher authority, I would have opted for the former.
Accordingly, I would affirm the decision of the United States Navy-Marine Corps Court of Military Review in its entirety.
. United States v. Davidson, 14 M.J. 81, 85-86 (C.M.A.1982).
. 2A Sutherland, Statutes and Statutory Construction § 49.03 (C. Sands 4th ed. 1973) (footnote omitted).
. As noted by my Brothers, the paragraph in the instruction relating to sentence computation, para. III.Q.6., DOD Instruction 1325.4, remained exactly the same in the 1968 version as it was in the 1955 version.