GRANGER, Judge:
Appellant was convicted of 14 specifications variously charging him with unauthorized absence, disobedience, disrespect, and striking a petty officer. His sole assignment of error is that his pretrial restraint was illegal.
On 3 January 1977, appellant was assigned to the USS BAINBRIDGE and was charged with five minor unauthorized absences, possession of marijuana, disrespect, and a number of orders violations. At a pretrial hearing, appellant objected to being tried within 3 days of service of charges. Article 35, Uniform Code of Military Justice, 10 U.S.C. § 835. As his ship was going to sea the-following day, the court-martial was set for trial in early February, when the BAINBRIDGE would again be in port.
Appellant’s military record reflected a rich history of dissidenee and misconduct. Harboring considerable reluctance to take appellant to sea, the Commanding Officer of the BAINBRIDGE prevailed upon the Commanding Officer, Naval Support Activity (NSA) Seattle to accept appellant in a temporary duty status pending the ship’s return to port. Meanwhile, appellant ab[746]*746sented himself without authority for 15 hours, returning to the BAINBRIDGE the morning of 4 January. He was transferred to NSA Seattle and was promptly placed in restriction.
Appellant remained restricted until 20 January, when he was confined. By order of a military magistrate, he was released from confinement on 28 January and returned to restricted status until 31 January, when he was confined until his trial.
Considering first the legal propriety of appellant’s two periods of pretrial confinement, the evidence shows that appellant committed a number of serious offenses while restricted, culminating in the assault of a petty officer master-at-arms. The officer who ordered appellant’s confinement on 20 January was aware of these offenses and appellant’s prior misconduct, and confined appellant because he considered it necessary to insure appellant’s presence for trial, among other reasons. Lesser forms of restraint had proven ineffective. We find no irregularity in this first period of confinement, it being harmonious with the tenets of United States v. Heard, 3 M.J. 14 (C.M.A.1977).
Shortly after being released from confinement on 28 January, appellant allegedly assaulted and injured another petty officer master-at-arms, and was again confined. The military judge declined to rule on the legality of this period of pretrial confinement because that issue was then pending before a military magistrate and the judge was reluctant to encroach upon the magistrate’s functions. In this regard, the trial judge erred. Defense counsel laid before him an issue clearly impacting upon the disposition of appellant’s case. The legality of his pretrial confinement was a matter to be considered in determining appropriate punishment, and the issue should have been litigated. It was a matter within the judge’s purview. See Courtney v. Williams, 24 U.S.C.M.A. 87, 51 C.M.R. 260, 1 M.J. 267 (1976); Porter v. Richardson, 23 U.S.C.M.A. 704, 50 C.M.R. 910 (1975); Phillippy v. McLucas, 23 U.S.C.M.A. 709, 50 C.M.R. 915 (1975); Milanes-Canamero v. Richardson, 23 U.S.C.M.A. 710, 50 C.M.R. 916 (1975). It is true that the assault which resulted in appellant’s confinement was not referred to this court-martial. It is not necessary to decide whether the military judge has power to rule upon pretrial confinement issues in the absence of such referral, see Cooke, The United States Court of Military Appeals, 1975-1977: Judicializing the Military Justice System, 76 Mil.L.Rev. 43, 84-87 (1977), because the testimony of the confining officer makes it clear that he predicated his decision not only upon that assault but upon appellant’s prior record of misconduct, which encompassed the offenses upon which appellant was tried herein. The trial judge’s failure to consider this matter did not prejudice appellant, however, as the testimony on the circumstances leading to appellant’s 28 January confinement provides probable cause to confine him and amply supports his continued confinement through his trial.
There remains at issue the legal propriety of appellant’s pretrial restriction from 4 to 20 January. We find that this restriction was punitive and illegal.
The terms of appellant’s restriction were set out in his restriction order, the text of which is reproduced below.1
[747]*747Testimony elicited on appellant’s motion for appropriate relief revealed these additional facts:
The eight daily musters consumed approximately 10 minutes each, with the exception of the 2130 muster, which entailed a “full inspection” of restricted personnel by the Command Duty Officer, and an opportunity to air grievances. These proceedings usually took approximately 30 minutes. Every 30 minutes during the night a master-at-arms, using a flashlight, would visually ensure that each restricted person was in his bed. During the day, if not assigned to a working party, restricted personnel were restricted to the same “restricted dorm” in which they were berthed. After duty hours, they could go outside in the immediate vicinity of the building for recreation and fresh air but had to sign out and in. To go anywhere else, including the dining facility, a restricted person had to fill out a “walking chit,” have it approved, carry it on his person at all times, and have it signed by a party at his destination, as well as sign out and in. A restricted person could not go to the exchange unless escorted by a master-at-arms, with approval of the chief master-at-arms, and he was limited as to what he could purchase (toilet articles, candy, cigarettes, magazines). No regular program was established in this regard, such trips apparently being made at the discretion of the individual master-at-arms. Haircuts for restricted personnel were given in the building in which they were restricted or in the brig. A restricted person could get a haircut in the exchange barbershop if escorted by a master-at-arms. Escort was also required to go to the banking facility on base.
Appellant spent three or four short interludes locked in a holding cell approximately 6 feet square. This facility, known as “the cage,” was used to hold sentenced prisoners [748]*748awaiting transfer to confinement and to hold restricted personnel who created disturbances.
Persons restricted by sentence of court-martial or as a result of nonjudicial punishment, and those in pretrial restriction were comingled. All were issued the same restriction order set forth supra. All were quartered in the same “restriction dorm,” and there was no distinction made in their treatment.
Under the circumstances, we consider appellant’s restriction illegal. We do not question the propriety of the commander placing appellant in restriction. The information available to him afforded probable cause for him to conclude, as he did, that some limitations were necessary to ensure appellant’s continued presence, avoid temptation for further transgressions, and provide the close supervision appellant obviously needed.
Appellant’s conditions of restraint, however, amounted to arrest, if not confinement. United States v. Weisenmuller, 17 U.S.C.M.A. 636, 38 C.M.R. 434 (1968).
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GRANGER, Judge:
Appellant was convicted of 14 specifications variously charging him with unauthorized absence, disobedience, disrespect, and striking a petty officer. His sole assignment of error is that his pretrial restraint was illegal.
On 3 January 1977, appellant was assigned to the USS BAINBRIDGE and was charged with five minor unauthorized absences, possession of marijuana, disrespect, and a number of orders violations. At a pretrial hearing, appellant objected to being tried within 3 days of service of charges. Article 35, Uniform Code of Military Justice, 10 U.S.C. § 835. As his ship was going to sea the-following day, the court-martial was set for trial in early February, when the BAINBRIDGE would again be in port.
Appellant’s military record reflected a rich history of dissidenee and misconduct. Harboring considerable reluctance to take appellant to sea, the Commanding Officer of the BAINBRIDGE prevailed upon the Commanding Officer, Naval Support Activity (NSA) Seattle to accept appellant in a temporary duty status pending the ship’s return to port. Meanwhile, appellant ab[746]*746sented himself without authority for 15 hours, returning to the BAINBRIDGE the morning of 4 January. He was transferred to NSA Seattle and was promptly placed in restriction.
Appellant remained restricted until 20 January, when he was confined. By order of a military magistrate, he was released from confinement on 28 January and returned to restricted status until 31 January, when he was confined until his trial.
Considering first the legal propriety of appellant’s two periods of pretrial confinement, the evidence shows that appellant committed a number of serious offenses while restricted, culminating in the assault of a petty officer master-at-arms. The officer who ordered appellant’s confinement on 20 January was aware of these offenses and appellant’s prior misconduct, and confined appellant because he considered it necessary to insure appellant’s presence for trial, among other reasons. Lesser forms of restraint had proven ineffective. We find no irregularity in this first period of confinement, it being harmonious with the tenets of United States v. Heard, 3 M.J. 14 (C.M.A.1977).
Shortly after being released from confinement on 28 January, appellant allegedly assaulted and injured another petty officer master-at-arms, and was again confined. The military judge declined to rule on the legality of this period of pretrial confinement because that issue was then pending before a military magistrate and the judge was reluctant to encroach upon the magistrate’s functions. In this regard, the trial judge erred. Defense counsel laid before him an issue clearly impacting upon the disposition of appellant’s case. The legality of his pretrial confinement was a matter to be considered in determining appropriate punishment, and the issue should have been litigated. It was a matter within the judge’s purview. See Courtney v. Williams, 24 U.S.C.M.A. 87, 51 C.M.R. 260, 1 M.J. 267 (1976); Porter v. Richardson, 23 U.S.C.M.A. 704, 50 C.M.R. 910 (1975); Phillippy v. McLucas, 23 U.S.C.M.A. 709, 50 C.M.R. 915 (1975); Milanes-Canamero v. Richardson, 23 U.S.C.M.A. 710, 50 C.M.R. 916 (1975). It is true that the assault which resulted in appellant’s confinement was not referred to this court-martial. It is not necessary to decide whether the military judge has power to rule upon pretrial confinement issues in the absence of such referral, see Cooke, The United States Court of Military Appeals, 1975-1977: Judicializing the Military Justice System, 76 Mil.L.Rev. 43, 84-87 (1977), because the testimony of the confining officer makes it clear that he predicated his decision not only upon that assault but upon appellant’s prior record of misconduct, which encompassed the offenses upon which appellant was tried herein. The trial judge’s failure to consider this matter did not prejudice appellant, however, as the testimony on the circumstances leading to appellant’s 28 January confinement provides probable cause to confine him and amply supports his continued confinement through his trial.
There remains at issue the legal propriety of appellant’s pretrial restriction from 4 to 20 January. We find that this restriction was punitive and illegal.
The terms of appellant’s restriction were set out in his restriction order, the text of which is reproduced below.1
[747]*747Testimony elicited on appellant’s motion for appropriate relief revealed these additional facts:
The eight daily musters consumed approximately 10 minutes each, with the exception of the 2130 muster, which entailed a “full inspection” of restricted personnel by the Command Duty Officer, and an opportunity to air grievances. These proceedings usually took approximately 30 minutes. Every 30 minutes during the night a master-at-arms, using a flashlight, would visually ensure that each restricted person was in his bed. During the day, if not assigned to a working party, restricted personnel were restricted to the same “restricted dorm” in which they were berthed. After duty hours, they could go outside in the immediate vicinity of the building for recreation and fresh air but had to sign out and in. To go anywhere else, including the dining facility, a restricted person had to fill out a “walking chit,” have it approved, carry it on his person at all times, and have it signed by a party at his destination, as well as sign out and in. A restricted person could not go to the exchange unless escorted by a master-at-arms, with approval of the chief master-at-arms, and he was limited as to what he could purchase (toilet articles, candy, cigarettes, magazines). No regular program was established in this regard, such trips apparently being made at the discretion of the individual master-at-arms. Haircuts for restricted personnel were given in the building in which they were restricted or in the brig. A restricted person could get a haircut in the exchange barbershop if escorted by a master-at-arms. Escort was also required to go to the banking facility on base.
Appellant spent three or four short interludes locked in a holding cell approximately 6 feet square. This facility, known as “the cage,” was used to hold sentenced prisoners [748]*748awaiting transfer to confinement and to hold restricted personnel who created disturbances.
Persons restricted by sentence of court-martial or as a result of nonjudicial punishment, and those in pretrial restriction were comingled. All were issued the same restriction order set forth supra. All were quartered in the same “restriction dorm,” and there was no distinction made in their treatment.
Under the circumstances, we consider appellant’s restriction illegal. We do not question the propriety of the commander placing appellant in restriction. The information available to him afforded probable cause for him to conclude, as he did, that some limitations were necessary to ensure appellant’s continued presence, avoid temptation for further transgressions, and provide the close supervision appellant obviously needed.
Appellant’s conditions of restraint, however, amounted to arrest, if not confinement. United States v. Weisenmuller, 17 U.S.C.M.A. 636, 38 C.M.R. 434 (1968). Article 13, Uniform Code of Military Justice, provides that no person held for trial may be subjected to punishment or penalty other than arrest or confinement, nor shall the arrest or confinement imposed be any more rigorous than the circumstances require to insure his presence. The conditions here imposed were oppressive, and some of the terms of appellant’s restraint bore no relation to the purposes of his restriction and were unnecessary to ensure his presence.
The essence of restriction is moral restraint. United States v. Self, No. 77 0548 (N.C.M.R. 15 August 1977). Another salient distinction between restriction and confinement is that the former does not carry with it the stigma of being a prisoner. United States v. McKnight, 20 C.M.R. 520 (N.B.R.1955). The severe curtailment of appellant’s freedom transcended the bounds of moral restraint. His constant, enforced association with sentenced convicts and persons undergoing non judicial punishment in the “restriction dorm,” and the requirement for master-at-arms “escorts” outside that building stigmatized appellant as one undergoing punitive restraint. We therefore find appellant’s pretrial restraint to be illegal, and it should have been so considered by the trial judge.
The appropriate remedy to cure the error discussed above is reassessment of the sentence. See United States v. Pringle, 19 U.S.C.M.A. 324, 41 C.M.R. 324 (1970); United States v. Nelson, 18 U.S.C.M.A. 177, 39 C.M.R. 177 (1969). While we have reached a different conclusion than did the military judge on the issue discussed above, his trial of this case was otherwise commendable. His rulings and legal bases for those rulings are clearly set forth in the record and show that, while he did not consider appellant’s pretrial restriction illegal, he did take it into consideration in reaching punishment. Appellant has not been severely prejudiced. He has served his adjudged confinement. Remission of forfeitures will afford adequate remedy.
The findings are affirmed. Upon reassessment of the sentence, we affirm so much thereof as adjudges confinement at hard labor for 3 months and separation with a bad conduct discharge.
Senior Judge NEWTON concurs.
Judge GLADIS (absent).