concurring:
Admittedly United States v. Smith, 20 M.J. 528 (A.C.M.R.), petition denied, 21 M.J. 169 (C.M.A.1985), and its progeny have enhanced the perception of the military justice system as one that is eminently fair in protecting the rights of the soldier. This line of cases has served to alert commanders, staff judge advocates and counsel to the consequences of pretrial restriction which severely curtails an accused’s freedom of movement. Furthermore, these cases have provided commanders and judge advocates with the necessary factual basis to gauge the practical meaning of poet Richard Lovelace’s observation that “stone walls do not a prison make, nor iron bars a cage.”
*633However, Smith and its progeny also have provided a fertile ground for post-trial appellate litigation, necessitating submission of affidavits and various other documents. This cumbersome procedure should end with the court’s extension of the waiver doctrine to the area of restriction tantamount to confinement in future cases, a rule which I highly favor. But I would suggest that military judges adopt the following procedure where the front page of the charge sheet reflects a form of pretrial restraint other than confinement. After reviewing or being informed of the pertinent data on the charge sheet, the military judge should not only ask the defense counsel whether the information is correct, but whether the defense is satisfied that the pretrial restraint was not tantamount to confinement. Adoption of this procedure will result in the issue being litigated at trial or being expressly waived.
*634APPENDIX A
[[Image here]]
Defense Appellate Exhibit A
*635[[Image here]]
*636APPENDIX B
[[Image here]]
Government Appellate Exhibit 1
*637[[Image here]]
*638APPENDIX C
[[Image here]]
Government Appellate Exhibit 2
*639[[Image here]]
*640APPENDIX D
[[Image here]]
Government Appellate Exhibit 3
*641[[Image here]]
*642APPENDIX E
[[Image here]]
Defense Appellate Exhibit B
*643STATEMENT (SMSmE to Korea, PV& Ecoffey vas placed-under-the control-of the rear detachment NCOIC, §FC Ackman. PVT. Ecoffey was assigned to SSG White during a.portion of that time until be PC'S'ed. bSG White.^as in charge of the -Chapter PlafcoonT-which was -¿nade up-of-soldiers-wasting to be separated from the Army. PVT Ecoffey was assigned to this platoon because I-did not — want—him t-o-mix-with other-members of the -unit. PVT Ecoffey was given details which included grass cutting, sweeping, painting, and cleaning his TA<-50 gear. When I returned from Korea in early April, I was told that PVT Ecoffey frequently broke his restrictions, and was disrespectful. I observed him walking towards the barracks in civilian clothes at approximately 0500 hours. As a result of his misconduct, I gave PVT Ecoffey an Article 15. As a result of his continually breaking his restriction orders, he was told to check in with the CQ after duty hours once an hour until he went to sleep. Once again, he continued to break the restriction and so I had the 1SG place NCO's, unarmed, in a position to supervise him for 24 hours a day. After about 10 days, I dropped this due to hardships placed upon the NCO's. The CQ was then required to check on him frequently to insure he remained in the billets during non duty hours. At no time was PVT Ecoffey denied the opportunity to go to the PX, commissary, or other places as needed. He was however required to be escorted. Although I cannot remember the exact time, about two weeks prior to his trial date, he was not given duties, but was escorted to his room when he was not at a designated appointment AFFIDAVIT NAVI READ OR HAVE HAD READ TO HE THIS STATEMENT WHICH REOINt OH RASE I AMD ENOS ON RAPE 2. . I RULLY UNDERSTAND THE CONTENTS DR THE ENTIRE STATEMENT HADE EV ME. THE STATEMENT IS TRUE. I HAVE IhTTOlIO ALL CORRECTIONS AND HAVE INITIALED THE BOTTOM OR EACH RAOE CONTAMINO THE STATEMENT. I HAVE MADE THIS STATEMENT RREELV WITHOUT MORE OR DEMERIT OR REWARD. WITHOUT THREAT OR RUNISHMENT. AND WITHOUT COERCION. UNLAWRUL INFLUENCE. OR UNLAWFUL INDUCEMENT. JJL twbitrtbil mi «wwi» to Mm mm, m pmmm mémtmi br b* to ifalihiw tli «Ml ém W # It f¿o •* -Mn.t*»uA\a ,Te_wat_ OROAMIZATIOH OR ADDRESS W*ailH.«^NHH,SlEeW>> ORSANIIATION OR ADDRESS ■ Kenwft. raftciir_fllfly-xW_ (Tjpm*Hmm mtfmtm ItihfiWrlH Pit) KfraftftNT_ ¿h*L PMII —• tlNiWTIWI'Mitin»