(concurring in the result):
A
In my view, the Manual for Courts-Martial clearly dictates rejection of Gray’s claim; but I differ with the lead opinion concerning the route to this result. R.C.M. 707(a), Manual for Courts-Martial, United States, 1984, requires that, in general, “[t]he accused shall be brought to trial within 120 days after notice to the accused of preferral of charges under R.C.M. 308 or the imposition of restraint under R.C.M. 304, whichever is earlier.” As I read this language, an accused placed in pretrial confinement is entitled to the benefit of the 120-day time limit, whether he receives notice of preferral of charges. Otherwise, the Government could avoid the operation of R.C.M. 707(a) by placing an accused in pretrial restraint and then failing either to prefer charges against him or to notify him that charges had been preferred.
Moreover, the existence of pretrial “restraint” does not depend on the preferring of charges or the giving of notice of those charges. According to R.C.M. 304(a)(4), “[pjretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses.” (Emphasis added.) Thus, the Manual contemplates that an accused may be restrained under R.C.M. 304(a)(4) prior to preferral of charges *; but that even in this event, he will be protected under R.C.M. 707(a).
Although Federal criminal practice under the Speedy Trial Act often is instructive, it is irrelevant in the present context. In the Federal District courts, some type of criminal complaint is usually filed prior to or immediately after an accused is arrested; and so a charging document exists at a very early stage — even though the indictment often will come later. Moreover, an accused prosecuted in a Federal District Court has a right of bail; but this right does not exist in trials by courts-martial. With this in mind, Congress commanded in Article 10 of the Code, 10 U.S.C. § 810, that “immediate steps shall be taken to inform ... [the accused] of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.” (Emphasis added.) Likewise, the President in R.C.M. 707(a) has attempted to minimize pretrial restraint and assure speedy trials. This intent of Congress and the President would be contravened were we to disregard the plain language of R.C.M. 707(a) and rule that, under 707(a), restraint prior to preferring of charges does not start the 120-day clock.
The President also recognized that, after initially being apprehended and confined before trial, an accused may be released from confinement and that it would be desirable to specify the effects of such release. Of course, if charges have already been preferred and notice given thereof, release from pretrial restraint would be irrelevant, because under R.C.M. 707(a), notice to the accused of preferral of charges is itself an event which starts the 120-day speedy-trial period.
It is conceivable that an accused could be in confinement and not have received notice of the preferral of charges. However, this would be extraordinary, because R.C.M. 308 requires that the accused’s immediate commander cause him “to be informed of the charges preferred ... as soon as practicable,” and it should be very easy to provide such information to an accused who is in confinement. Thus, as R.C.M. 707(b)(2) is written, release of an accused is immaterial if charges have been preferred, regardless of the lack of any notice thereof to the accused.
If an accused has been in confinement but no charges have been preferred, then, *22according to 707(b)(2), release “from pretrial restraint for a significant period” will stop the running of the 120-day clock. If “restraint” is “reinstituted,” the 120-day period will begin again but will not be tacked on to the earlier period of restraint. The words “for a significant period” were designed to forestall use of the tactic of releasing an accused for a few hours or a day and then reconfining him and claiming that the 120-day clock must be started anew.
If charges were preferred during the original period of restraint but were dismissed, an accused who has been released from confinement will not be credited for speedy-trial purposes with the time that he originally spent in pretrial confinement. Instead, the Government will be accountable only from the date of reinstitution of the charges. The Rule does not specify whether reinstitution means only the re-preferring of charges or whether it also requires notice that the charges have been re-preferred. On the one hand, it can be argued that omission of any reference to notice was deliberate and that the re-preferring of the charges is sufficient to constitute reinstitution. On the other hand, there seems little point in requiring notice as a triggering event for speedy-trial purposes when charges are first preferred and not requiring it when the charges are re-preferred or preferred for the first time after an accused has been placed in pretrial restraint and then released from confinement “for a significant period.” Fortunately, I need not resolve this issue now, since it is immaterial to the decision of Gray’s appeal.
R.C.M. 707(b)(2) also deals with the granting of a mistrial; and apparently such an event eliminates consideration of time already spent in pretrial restraint. It is unclear to me what constitutes reinstitution of charges after a mistrial, since the charges have never been dismissed and remain pending. That question also is not before us at this time.
B
In light of my interpretation of the applicable Manual language,' I conclude that, when Gray was originally placed in pretrial confinement on December 6, 1984, the 120-day period prescribed under R.C.M. 707(a) began to run pursuant to R.C.M. 304(a)(4). However, when appellant was released from pretrial confinement on January 4, 1985, and this release was followed by “a significant period” of almost a month’s liberty, the earlier restraint became irrelevant. The stop watch was reset at zero.
A new 120-day period did not begin to run until after charges finally had been preferred in February. Under these circumstances, the Government’s delay was well within the 120-day limitation; and the military judge properly denied the defense speedy-trial motion.
Of course, R.C.M. 304(e) directs that the person "under restraint ... be informed of the nature of the offense which is the basis for such restraint.”