concurring in part and dissenting in part:
I agree with my brothers that the findings of guilty should be affirmed. We part company on the double punishment issue.
The appellant’s situation in this ease is analogous to that of a soldier who returns to his unit after conviction by court-martial. Clearly, the soldier’s commander can take nonpunitive administrative actions to main*1011tain unit discipline. For example, he can order the soldier to stay away from his victim or admonish him to quit drinking or limit his pass privileges. Just as clearly, the Commandant of the Disciplinary Barracks can take nonpunitive measures to ensure safety or prevent agitation, etc. Administrative segregation comes to mind and is specifically provided for in AR 190-47. However, neither the commander nor the Commandant can impose punishment. The source of this limitation is not the Double Jeopardy Clause of the Constitution, which only bars a second federal trial; rather it is congressional intent and military case law. See United States v. Pierce, 27 M.J. 367, 369 (C.M.A.1989).
.Determining whether an individual is being nonjudicially punished, as opposed to administratively disciplined, can be difficult. Indeed, the intent of punishment is often to correct a tendency towards indiscipline. Some of the “administrative and disciplinary actions” which can be recommended by a Discipline and Adjustment Board are limited to administrative discipline.1 Disciplinary segregation, however, clearly constitutes punishment — to such a degree that it bars subsequent court-martial for a minor offense. United States v. Williams, 10 U.S.C.M.A. 615, 28 C.M.R. 181, 1959 WL 3434 (1959). Forfeiture of “Good Conduct Time” may also constitute punishment. United States v. Rosencrons, 34 C.M.R. 512, 1963 WL 4780 (A.B.R.1963).
Pierce requires court-martial convening authorities to “reconcile” legitimate pretrial nonjudicial punishment with punishment adjudged by a court-martial by directing credit against the adjudged sentence. Convening authorities must also direct credit when a military judge determines there has been illegal pretrial punishment. United States v. Suzuki 14 M.J. 491 (C.M.A.1983).
Post-trial punishment is apparently an issue of first impression for this court. Our authority is, after all, confined to the review of cases referred for our review. UCMJ, art. 66. In this case, however, additional punishment was imposed before the convening authority’s action and was properly brought to the attention of the convening authority by the appellant’s trial defense counsel. Given these circumstances, there appears to be no reason to treat additional punishment of the appellant differently just because it took place after his court-martial.
The Court of Military Appeals having spoken as to the punitive nature of disciplinary segregation, it seems entirely proper that the convening authority determine how many days of such segregation were served and order appropriate credit in the action.2 I would return this ease to The Judge Advocate General for a new action by the same convening authority.
. USDB Form 244-E lists fourteen possibilities for action. A "change in detail, domicile, or cell” could hardly be construed as punishment. Nor could "reduction of the Health and Comfort gratuity” be construed as punishment. “Disciplinary segregation” and "extra duty,” on the other hand, are more akin to the sorts of nonjudicial punishments possible under Article 15, UCMJ.
. Credit for forfeited "Good Conduct Time" is problematic. It seems obvious that a prisoner should not be credited with good time when he commits a court-martial offense, at least for the month or year during which the offense occurs. Whether some or all of the good time involved improper punishment seems more a matter for Disciplinary Barracks officials and administrative appellate authorities than for the convening authority or this Court. Credit against the sentence without at least initial reconsideration by Disciplinary Barracks officials would be presumptuous.