(concurring in the result):
This appeal involves a punishment traditional in the Navy — confinement on bread and water. However, in this instance, the punishment was imposed by a military judge rather than by the captain of a vessel. Therein lies the principal issue before us.
I
For his numerous offenses,1 Valead was sentenced on August 16, 1988, “[t]o be confined on bread and water for three days; to be followed by ninety days confinement; to forfeit $100.00 pay per month for six months; and to be discharged from naval service with a bad-conduct discharge; and to be reduced to pay grade E-l.” Since the pretrial agreement provided that, “if a bad-conduct discharge is awarded, all confinement in excess of (3) three months shall *126be suspended for a period of one (1) year,” the military judge concluded
that the convening authority can approve the confinement; however, all confinement in excess of ninety-four days — excuse me, all confinement in excess of eighty-four days will be suspended for a period of one year from today’s date. The reason for this is that the court also awarded three days bread and water in accordance with RCM 1003(b)(9). Each day of confinement on bread and water counts as two days confinement.
According to an uncontested affidavit submitted by Valead during the review process, he commenced service of his confinement on bread and water on the afternoon of August 16, 1988 — the date of trial — and was released into general confinement at noon on August 19.2
Both in the Court of Military Review and in this Court, appellate defense counsel has contended that confinement on bread and water constitutes cruel and unusual punishment, in violation both of the Eighth Amendment of the United States Constitution and Article 55 of the Uniform Code of Military Justice, 10 USC § 855. The Court of Military Review rejected this contention in reliance on United States v. Wappler, 2 USCMA 393, 9 CMR 23 (1953); but it also ruled
that confinement on bread and water is not “confinement” within the meaning of Articles 19, 20, 57, or 58, 10 U.S.C. §§ 819, 820, 857, 858 but falls, instead, into the category of “any punishment [other than confinement] not forbidden by this chapter” within the meaning of Articles 18, 19, and 20, and “[a]ll other sentences of courts-martial” as used in Article 57(c); accordingly, that it is not effective until ordered executed; and that such a punishment was factually inappropriate under the circumstances of this case.
30 MJ 634, 636 (1990).
II
The Judge Advocate General of the Navy did not certify to this Court any issue concerning the correctness of the conclusion by the Court of Military Review that confinement on bread and water is not “confinement” within the meaning of Articles 19, 20, 57, and 58, 10 USC §§ 819, 820, 857, 858. During oral argument, and in response to a question from this Court, appellate government counsel indicated that the Government acquiesced in this interpretation of the Code by the court below. I also agree with this construction of the Uniform Code.
I conclude, therefore, that, unlike the usual sentence to confinement — which “begins to run from the date the sentence is adjudged by the court-martial,” see Art. 57(b) — the part of Valead’s sentence extending to confinement on bread and water could not take effect until “ordered executed by the convening authority or other person acting on the case under” Article 60 of the Code, 10 USC § 860. See Art. 71(c)(2), UCMJ, 10 USC § 871(c)(2); see also Art. 57(c).
The Court of Military Review decided that, in light of the purposes of confinement on bread and water, it was inappropriate to execute such punishment long after the sentence had been adjudged. This decision seems reasonable; and, in any event, it was within the power conferred on the court below by Article 66(c) of the Code, 10 USC § 866(c).
Because of the necessary delay between imposition of a court-martial sentence which includes a bad-conduct discharge and approval of that sentence by the convening authority pursuant to Article 60, it is fore*127seeable — and almost inevitable — that, in any such case, a significant number of days will have elapsed between the date when the sentence is adjudged and the date when the punishment of confinement on bread and water can lawfully be carried out. Under the view taken by the Court of Military Review, it would follow that, whenever a bad-conduct discharge is adjudged, it is “inappropriate” to adjudge confinement on bread and water. Accordingly, as a practical matter, the punishment of confinement on bread and water or diminished rations, as authorized by RCM 1003(b)(9), is impermissible if the sentencing authority chooses to adjudge a punitive discharge.
This still leaves open the possibility that a sentence may include confinement on bread and water if — as with a summary court-martial — it is probable that the sentence will be very swiftly approved by the convening authority and can be ordered executed almost immediately. Thus — despite the Government’s contention and the conclusion of the majority in this Court that the action of the court below has mooted the issues which appellant has sought to raise — I believe it is appropriate to address some of them.
III
As this Court made clear in Wappler, any punishment that would be cruel and unusual in violation of the Eighth Amendment is prohibited also by Article 55 of the Code, 10 USC § 855. See also United States v. Matthews, 16 MJ 354 (CMA 1983). Obviously, Congress did not believe that confinement on bread and water or diminished rations for 3 consecutive days violated either Article 55 or the Eighth Amendment; otherwise, it would not have authorized a commanding officer to impose such punishment nonjudicially under Article 15(b)(2)(A) of the Code, 10 USC § 815(b)(2)(A). Cf. United States v. Wappler, supra. Moreover, I doubt that the drafters of the Bill of Rights intended to outlaw these punishments, which then, as now, were commonplace in the American Navy and had long been customary in the British fleet.
Accordingly, I would hold that, when confinement for 3 days on bread and water is imposed promptly as a punishment for an accused’s misconduct, neither Article 55 of the Code nor the Eighth Amendment is violated. On the other hand, if confinement on bread and water is imposed as a deferred punishment, not only is this “inappropriate,” as the Court of Military Review held in appellant’s case, but also it is so out of keeping with the usual practice in imposing such punishment and with the purposes of such punishment that it may be “cruel or unusual” and therefore prohibited by Article 55.
IV
According to RCM 1003(b)(9), the punishment of confinement on bread and water “may be adjudged only in cases of enlisted members attached to or embarked in a vessel.” This limitation conforms to that which applies under the Uniform Code when this punishment is imposed nonjudicially. See Art. 15(b)(2)(A).3 Cf. United States v. Wappler, supra. As appellate defense counsel has emphasized, the ready availability of the punishment of confinement on bread and water or diminished rations was intended to provide a valuable disciplinary tool for ship captains who are at sea or about to put to sea.
At the time of his trial, Valead was “attached to” the USS KITTY HAWK for purposes of Naval personnel accounting. However, this vessel already had been in dry dock for many months; and many more months would pass before the ship could put to sea again. Appellate defense counsel insists that, regardless of Naval regulations and personnel accounting, Valead was not “attached to” the USS KITTY HAWK within the meaning of Article 15 or RCM 1003(b)(9) — which contemplates vessels at *128sea or about to go to sea. On the premise that form should not govern over substance, I tend to agree with this contention; but in view of our disposition of other questions, I need not now express a firm opinion on this issue.
V
As the Court of Military Review recognized, Valead was subjected to confinement on bread and water immediately after sentencing and before this portion of the sentence could be executed lawfully. Moreover, according to the Navy’s method of computing time of confinement, he actually served 4 days of confinement on bread and water, rather than only the maximum of 3 days allowed by the Uniform Code. See n.2, supra. Finally, as described by Valead in his affidavit and by his appellate defense counsel during oral argument, confinement officials may have imposed upon him conditions more rigorous than those which ordinarily would be authorized by a sentence to “confinement on bread and water or diminished rations.”
Appellate defense counsel has argued forcefully that the Court of Military Review was obligated to give appellant “meaningful” relief for this wrongful imposition of confinement on bread and water. From this premise, counsel reasons that the bad-conduct discharge adjudged by the military judge should be set aside, because no other relief would be meaningful: Appellant has served his confinement; no forfeitures of pay ever were collected under Navy regulations; and his service of confinement automatically reduced him to his lowest enlisted grade.
It appears that, with respect to the 3 (or 4) days of confinement on bread and water, Valead was credited with 6 days against the approved sentence to confinement for 90 days.4 Thus, Valead already has received some relief by reason of the time that he served in confinement on bread and water.
For some purposes, at least, a bad-conduct discharge has been equated with 6 months’ confinement. See United States v. Brown, 13 USCMA 333, 32 CMR 333 (1962). To set Valead’s discharge aside, as appellate defense counsel has urged, would provide relief that is totally disproportionate to the harm he suffered because of the improper punishment of 3 — or 4 — days of confinement on bread and water. I agree with the majority that this is not required, and I am not convinced that the infliction of excessive punishment must be remedied by granting appellant a major windfall.5
. Absence without leave, willful disobedience of orders, and drug abuse, in violation of Articles 86, 91, and 112a, Uniform Code of Military Justice, 10 USC §§ 886, 891, and 912a, respectively.
. As was noted by the Court of Military Review and reiterated by appellate defense counsel during oral argument, "the duration of’ Valead’s “confinement on bread and water was 4, not 3, days" when computed as specified in Article 9302 of the Department of the Navy Corrections Manual (Secretary of the Navy Instruction 1640.9A, dated 16 February 1983). 30 MJ 634, 636 n.1 (1990). This manual treats part of a day as a full day; accordingly, August 16 and August 19 — as well as the 2 days in between — each would be considered a day of confinement on bread and water.
. Whether a servicemember is "attached to or embarked in a vessel” also determines whether he may demand trial by court-martial in lieu of nonjudicial punishment. See Art. 15(a), Uniform Code of Military Justice, 10 USC § 815(a).
. This credit was derived from the provision in RCM 1003(9) that, "[i]f adjudged in the same sentence with confinement, hard labor without confinement, or restriction, confinement on bread and water or diminished rations for 1 day shall be treated as the equivalent of confinement for 2 days." As pointed out in the analysis of this rule, this formula is based on the Table of Equivalent Punishments in paragraph 127 of the Manual for Courts-Martial, United States, 1969 (Revised edition). Drafters’ Analysis, Manual for Courts-Martial, United States, 1984 at A21-64.1 (Change 3).
. Appellate defense counsel also has contended that, if the bad-conduct discharge were set aside, appellant would be separated administratively with a discharge that would reflect the quality of his service. Even so, in our view disapproval of the bad-conduct discharge would constitute relief totally disproportionate to appellant’s injury.