OPINION
YOUNG, Chief Judge:
May a military accused lawfully be ordered into pretrial confinement while awaiting trial solely to prevent him from committing suicide? We hold that he may not.
The appellant pled guilty to, and was convicted of, committing indecent acts on his daughter, who was under 16 years of age. Article 134, UCMJ, 10 U.S.C. § 934. The approved sentence consists of confinement for 12 months and reduction to E-4. The appellant claims the military judge erred by denying his motion for appropriate relief for illegal pretrial confinement, the sole purpose of which was to prevent him from committing suicide. We find error, but affirm the findings and sentence.
I. Facts
On 17 September 1997, Air Force authorities learned that the appellant had been committing indecent acts on his daughter. The acts occurred over a four-year period while the daughter was between 12 and 15 years of age. On 19 September, the appellant voluntarily admitted himself to a civilian mental health facility because of suicidal ideation. He was released on 30 September because he was no longer “actively suicidal,” but continued to receive treatment from Major (Doctor) Bradshaw, the Chief, Outpatient Mental Health Services at Elmendorf Air Force Base (AFB), Alaska.
During December, the appellant was permitted to go on emergency leave to New York. He returned as scheduled. He voluntarily admitted himself to a mental health facility again because of suicidal ideation, but was later released. During the first week of January 1998, the appellant was sent to David Grant Medical Center at Travis AFB, California, for psychiatric evaluation. As the appellant was not imminently suicidal, he was returned to duty at Elmendorf AFB. On 10 February 1998, the appellant was informed that a specification had been preferred against him under Article 134, UCMJ, alleging he committed indecent acts with his daughter.
On 2 March, during a routine appointment, the appellant told Dr. Bradshaw that he had lied the previous Friday when he said he was not considering suicide. He admitted that he had in fact considered two plans. He described one of the plans to Dr. Bradshaw. The appellant told Dr. Bradshaw that he felt better as the weekend progressed and he became determined to make it to the next day. The appellant explained to Dr. Bradshaw that he was not then suicidal. Dr. Bradshaw telephoned the appellant’s first sergeant expressing his concern that the appellant might commit suicide.
The first sergeant took Dr. Bradshaw’s call after he had just finished speaking with Mr. Wallrich, one of the appellant’s coworkers. Mr. Wallrich reported to the first sergeant that the appellant had claimed to have had a difficult weekend — the appellant had planned to commit suicide and was surprised that he had not done so. Mr. Wallrich also described for the first sergeant at least one of the appellant’s plans — the appellant intended to take his medication and drive off. Apparently, the first sergeant understood Mr. Wallrich to say that the appellant would flee from prosecution.
Based on his discussions with Dr. Bradshaw and Mr. Wallrich, the first sergeant recommended to Lieutenant Colonel (Lt Col) Jackson, the commander, that she order the appellant into pretrial confinement. Lt Col [980]*980Jackson ordered the appellant into pretrial confinement on that date.
On 4 March 1998, in a memorandum to the wing commander, Lt Col Jackson reviewed the probable cause to order the appellant into pretrial confinement. See Rule for Courts-Martial (R.C.M.) 305(h)(2) and (i)(l). She claimed that pretrial confinement was necessary “because it is foreseeable that MSgt Doane will commit suicide or make a suicidal gesture, or he will flee, and thus not appear at trial.” She concluded that pretrial confinement was still appropriate because the appellant “continues to express thoughts of suicide and flight.” Lt Col Jackson attached a memorandum from Dr. Bradshaw to her memorandum for the wing commander.
In his memorandum, Dr. Bradshaw noted that “there exist[s] a high probability [the appellant] will either make an attempt or gesture at suicide in order to avoid the impending trial,” but the appellant did not meet the criteria for psychiatric hospitalization against his will. Dr. Bradshaw had seen the appellant once or twice a week from October to December 1997 and then twice weekly after the appellant was discharged from the civilian mental health facility in December. In the memorandum, he described his meeting with the appellant on 2 March.
On 6 March, a pretrial confinement hearing was held pursuant to R.C.M. 305(i)(2) and Air Force Instruction 51-201, Administration of Military Justice, Chapter 3 (3 Oct 1997). Dr. Bradshaw testified before the Pretrial Confinement Reviewing Officer (PCRO) that he did not believe the appellant intended to flee. He thought the appellant’s comments about driving away were directly related to his suicidal ideation and more likely related to him driving off into freezing water to kill himself — one of the methods of killing himself the appellant had described during one of his previous hospitalizations. Dr. Bradshaw noted that under Alaska law, a person could be involuntarily committed if he were an imminent risk to himself. However, in order to satisfy that test, he would have to be able to state that the appellant had a “given plan and that he’s going to go and act on it at that point.” He admitted that the appellant did not meet that criteria when he was placed in pretrial confinement. But, he further testified, as follows:
I think either in a gesture or an attempted suicide the accused would be unavailable for trial. I think there’s a high risk. I don’t believe there’s any lesser form of restraint to ensure that he’s not going to make this suicidal gesture. My lesser form of restraint is outpatient management. Unfortunately, someone can’t be with him 24 hours a day. Occasionally we use family to make a commitment about watching a suicidal patient, but even that becomes difficult. It’s especially difficult, if they have no real connection, like his roommate, because they become responsible for someone’s life. So, that’s not a call we’re comfortable making usually.
I believe pretrial confinement would provide the accused protection from acting-out. The risk factors that were there on Monday have not changed at all.
The stressors that the accused is under are the same as the ones on 27 February. In my opinion, I believe he’s at a high risk for either a suicide gesture or attempt before the trial on 16 March.
Dr. Bradshaw testified that his preferred “route” for the appellant was hospitalization, however, the appellant did not meet the criteria for involuntary commitment and refused to voluntarily hospitalize himself.
Mr. Wallrich testified that, on 2 March, the appellant told him that it was a miracle that he was here anymore as he had planned on committing suicide during the previous weekend.
The PCRO recommended the appellant’s continued pretrial confinement. He wrote,
It was the clear testimony of Dr. Bradshaw that, if not confined, there is a high risk that MSgt Doane will not present himself for trial. Others testified that they believed MSgt Doane would appear.
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OPINION
YOUNG, Chief Judge:
May a military accused lawfully be ordered into pretrial confinement while awaiting trial solely to prevent him from committing suicide? We hold that he may not.
The appellant pled guilty to, and was convicted of, committing indecent acts on his daughter, who was under 16 years of age. Article 134, UCMJ, 10 U.S.C. § 934. The approved sentence consists of confinement for 12 months and reduction to E-4. The appellant claims the military judge erred by denying his motion for appropriate relief for illegal pretrial confinement, the sole purpose of which was to prevent him from committing suicide. We find error, but affirm the findings and sentence.
I. Facts
On 17 September 1997, Air Force authorities learned that the appellant had been committing indecent acts on his daughter. The acts occurred over a four-year period while the daughter was between 12 and 15 years of age. On 19 September, the appellant voluntarily admitted himself to a civilian mental health facility because of suicidal ideation. He was released on 30 September because he was no longer “actively suicidal,” but continued to receive treatment from Major (Doctor) Bradshaw, the Chief, Outpatient Mental Health Services at Elmendorf Air Force Base (AFB), Alaska.
During December, the appellant was permitted to go on emergency leave to New York. He returned as scheduled. He voluntarily admitted himself to a mental health facility again because of suicidal ideation, but was later released. During the first week of January 1998, the appellant was sent to David Grant Medical Center at Travis AFB, California, for psychiatric evaluation. As the appellant was not imminently suicidal, he was returned to duty at Elmendorf AFB. On 10 February 1998, the appellant was informed that a specification had been preferred against him under Article 134, UCMJ, alleging he committed indecent acts with his daughter.
On 2 March, during a routine appointment, the appellant told Dr. Bradshaw that he had lied the previous Friday when he said he was not considering suicide. He admitted that he had in fact considered two plans. He described one of the plans to Dr. Bradshaw. The appellant told Dr. Bradshaw that he felt better as the weekend progressed and he became determined to make it to the next day. The appellant explained to Dr. Bradshaw that he was not then suicidal. Dr. Bradshaw telephoned the appellant’s first sergeant expressing his concern that the appellant might commit suicide.
The first sergeant took Dr. Bradshaw’s call after he had just finished speaking with Mr. Wallrich, one of the appellant’s coworkers. Mr. Wallrich reported to the first sergeant that the appellant had claimed to have had a difficult weekend — the appellant had planned to commit suicide and was surprised that he had not done so. Mr. Wallrich also described for the first sergeant at least one of the appellant’s plans — the appellant intended to take his medication and drive off. Apparently, the first sergeant understood Mr. Wallrich to say that the appellant would flee from prosecution.
Based on his discussions with Dr. Bradshaw and Mr. Wallrich, the first sergeant recommended to Lieutenant Colonel (Lt Col) Jackson, the commander, that she order the appellant into pretrial confinement. Lt Col [980]*980Jackson ordered the appellant into pretrial confinement on that date.
On 4 March 1998, in a memorandum to the wing commander, Lt Col Jackson reviewed the probable cause to order the appellant into pretrial confinement. See Rule for Courts-Martial (R.C.M.) 305(h)(2) and (i)(l). She claimed that pretrial confinement was necessary “because it is foreseeable that MSgt Doane will commit suicide or make a suicidal gesture, or he will flee, and thus not appear at trial.” She concluded that pretrial confinement was still appropriate because the appellant “continues to express thoughts of suicide and flight.” Lt Col Jackson attached a memorandum from Dr. Bradshaw to her memorandum for the wing commander.
In his memorandum, Dr. Bradshaw noted that “there exist[s] a high probability [the appellant] will either make an attempt or gesture at suicide in order to avoid the impending trial,” but the appellant did not meet the criteria for psychiatric hospitalization against his will. Dr. Bradshaw had seen the appellant once or twice a week from October to December 1997 and then twice weekly after the appellant was discharged from the civilian mental health facility in December. In the memorandum, he described his meeting with the appellant on 2 March.
On 6 March, a pretrial confinement hearing was held pursuant to R.C.M. 305(i)(2) and Air Force Instruction 51-201, Administration of Military Justice, Chapter 3 (3 Oct 1997). Dr. Bradshaw testified before the Pretrial Confinement Reviewing Officer (PCRO) that he did not believe the appellant intended to flee. He thought the appellant’s comments about driving away were directly related to his suicidal ideation and more likely related to him driving off into freezing water to kill himself — one of the methods of killing himself the appellant had described during one of his previous hospitalizations. Dr. Bradshaw noted that under Alaska law, a person could be involuntarily committed if he were an imminent risk to himself. However, in order to satisfy that test, he would have to be able to state that the appellant had a “given plan and that he’s going to go and act on it at that point.” He admitted that the appellant did not meet that criteria when he was placed in pretrial confinement. But, he further testified, as follows:
I think either in a gesture or an attempted suicide the accused would be unavailable for trial. I think there’s a high risk. I don’t believe there’s any lesser form of restraint to ensure that he’s not going to make this suicidal gesture. My lesser form of restraint is outpatient management. Unfortunately, someone can’t be with him 24 hours a day. Occasionally we use family to make a commitment about watching a suicidal patient, but even that becomes difficult. It’s especially difficult, if they have no real connection, like his roommate, because they become responsible for someone’s life. So, that’s not a call we’re comfortable making usually.
I believe pretrial confinement would provide the accused protection from acting-out. The risk factors that were there on Monday have not changed at all.
The stressors that the accused is under are the same as the ones on 27 February. In my opinion, I believe he’s at a high risk for either a suicide gesture or attempt before the trial on 16 March.
Dr. Bradshaw testified that his preferred “route” for the appellant was hospitalization, however, the appellant did not meet the criteria for involuntary commitment and refused to voluntarily hospitalize himself.
Mr. Wallrich testified that, on 2 March, the appellant told him that it was a miracle that he was here anymore as he had planned on committing suicide during the previous weekend.
The PCRO recommended the appellant’s continued pretrial confinement. He wrote,
It was the clear testimony of Dr. Bradshaw that, if not confined, there is a high risk that MSgt Doane will not present himself for trial. Others testified that they believed MSgt Doane would appear. The weight given to their testimony has to be less than that given to Doctor Bradshaw, a mental health expert who has worked with MSgt Doane over the last several months. Much was made by MSgt Doane’s counsel that it is inappropriate to use confinement [981]*981to prevent suicide. This preventative aspect is a serendipitous outcome of using confinement to assure his appearance at trial, not the reason for the confinement. Confinement is appropriate.
At trial, the appellant made a motion for three-for-one administrative credit for illegal pretrial confinement. R.C.M. 305(k). The basis of the motion was that the evidence did not support the PCRO’s findings; the evidence did not support a finding that pretrial confinement was appropriate under the UCMJ; the conditions of confinement were more severe than they needed to be; and the wing commander and the legal office discussed the likelihood that three-for-one credit would be given if the confinement was found to be illegal.
The military judge found that the PCRO did not abuse his discretion when he recommended the appellant’s continuation in pretrial confinement. He reviewed the “factual basis” considered by the PCRO and found it “adequate to support [the PCRO’s] conclusions.”
II. Law
Any military person charged with an offense under the UCMJ “shall be ordered into arrest or confinement, as circumstances may require.” Article 10, UCMJ, 10 U.S.C. § 810. Any commissioned officer may order an enlisted person into pretrial confinement. R.C.M. 304(b)(2). To do so, the officer must have reasonable grounds to believe the appellant committed an offense triable by court-martial and that pretrial confinement is required by the circumstances. R.C.M. 304(c). Whether pretrial confinement is required by the circumstances involves two separate determinations: (1) whether there is an adequate basis for ordering the confinement; and (2) whether there is a need for the confinement as opposed to some lesser form of restraint. United States v. Heard, 3 M.J. 14, 20-21 (C.M.A.1977). Our superior court has recognized an adequate basis exists for pretrial confinement “to assure the presence of an accused at his trial” and to avoid “foreseeable future serious criminal misconduct of the accused, including any efforts at obstructing justice.” Id. at 20. See R.C.M. 305(h)(2)(B).
Based on Heard, and other decisions of our superior court, the President determined that pretrial confinement is necessary when it is foreseeable that the servicemember would not appear at trial, pretrial hearing, or investigation, or the prisoner would engage in serious criminal misconduct. R.C.M. 305(h)(2)(B)(iii). See Manual for Courts-Martial, United States (MCM), A21-16 (1995 ed.). The accused’s character and mental condition are among factors to be considered in determining the issue. R.C.M. 305(h)(2)(B) Discussion.
We review questions related to the legality of pretrial confinement for an abuse of discretion based on the facts that were before the deciding official. United States v. Gaither, 45 M.J. 349, 351-52 (1996).
III. Discussion
An accused is presumed innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt. Heard, 3 M.J. at 20. See Article 51, UCMJ, 10 U.S.C. § 851. The presumption of innocence is a fundamental component of due process, and the liberty of an accused prior to trial is inherent in that presumption. Courtney v. Williams, 1 M.J. 267, 271 (C.M.A.1976) (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). “If a person may arbitrarily be confined before his trial, then in truth punishment precedes conviction and the presumption of innocence avails defendant little.” Id. (quoting DeChamplain v. Lovelace, 510 F.2d 419, 424 (8th Cir.), judgment vacated as moot, 421 U.S. 996, 95 S.Ct. 2392, 44 L.Ed.2d 664 (1975)). Furthermore, pretrial confinement imposes physical and psychological deprivations on an accused and hampers his ability to prepare his defense. Id. Therefore, unless pretrial confinement “is compelled by a legitimate and pressing social need sufficient to overwhelm the individual’s right to freedom ... restrictions unnecessary to meet that need are in the nature of intolerable, unlawful punishment.” Heard, 3 M.J. at 20.
[982]*982In the National Defense Authorization Act for Fiscal Year 1993, Pub.L. 102-484 § 546, 106 Stat. 2315 (1992), Congress and the President required the Secretary of Defense to revise applicable regulations concerning mental health evaluations of military members. Inpatient mental health evaluations were to be used “only if and when such an evaluation cannot appropriately or reasonably be conducted on an outpatient basis, in accordance with the least restrictive alternative principle.” Id. at § 546(b)(2)(A). If compliance with any of the procedures of the statute is impractical, “the commanding officer seeking the referral shall prepare a memorandum setting forth the reasons for the inability to comply with such procedures.” Id. at § 546(c)(5).
The term “least restrictive alternative principle” means a principle under which a member of the Armed Forces committed for hospitalization and treatment shall be placed in the most appropriate and therapeutic available setting (A) that is no more restrictive than is conducive to the most effective form of treatment, and (B) in which treatment is available and the risks of physical injury or property damage posed by such placement are warranted by the proposed plan of treatment.
Id. at § 546(g)(5).
The Department of Defense implemented the statute. See Department of Defense Directive (DoDD) 6490.1, Mental Health Evaluations of Members of the Armed Forces (1 Oct 1997); Department of Defense Instruction 6490.4, Requirements for Mental Health Evaluations of Members of the Armed Forces (28 Aug 1997). These directives balance the needs of the commander to protect the welfare of her troops against the interests of the individual in maintaining his freedom. We found no mention of these directives or the statute in the record.
DoDD 6490.1 provides that a servicemember shall be admitted to a psychiatric unit for inpatient evaluation or treatment only if such evaluation or treatment is clinically indicated. The final decision to admit the member “rests solely with a mental healthcare provider granted hospital admitting privileges.” DoDD 6490.1, ¶ 4.2.5. A servicemember shall not be involuntarily admitted unless a healthcare provider,
privileged to admit psychiatric patients, makes a reasoned, good faith clinical judgment that the Service member has, or likely has, a severe mental disorder and poses a danger to himself, herself and/or others, such that the evaluation or treatment cannot reasonably be provided by a less restrictive level of care or when less intensive treatments would result in inadequate medical care. Hospitalization is appropriate only when consistent with the least restrictive alternative principle under the American Psychiatric Association’s guidelines....
Id. at ¶ 4.5.2.
The appellant claims he was ordered into pretrial confinement solely to prevent him from committing suicide, and therefore, his pretrial confinement was unlawful. The appellee does not specifically disagree with the first part of that claim. Instead, the United States argues that an accused’s mental condition is a factor to consider in determining whether to order pretrial confinement, an accused who commits suicide will not be present for trial and, therefore, the appellant’s incarceration was lawful. Based on Dr. Bradshaw’s testimony, the United States is confident that the commander and PCRO’s findings are supported by a preponderance of the evidence.
Although, an accused’s mental condition is an appropriate consideration in deciding whether to place or maintain an accused in pretrial confinement, it must be relevant to the two basic criteria for pretrial confinement: (1) whether the accused will be present for trial; and, (2) whether the accused is a threat to commit other acts of serious misconduct. The United States has not cited, nor have we been able to find, any cases, including those cited in Judge Breslin’s dissent, in which a court, either military or civilian, has approved pretrial confinement based on the probability of the accused committing suicide. We believe there is good reason for the lack of such cases.
There is a fundamental difference between how we treat an accused who is a threat to himself and an accused who is either a threat [983]*983to flee the jurisdiction to avoid prosecution or to commit other serious offenses. The latter we put in pretrial confinement. The former we refer to mental health practitioners for evaluation and treatment and, if necessary, involuntary commitment in a mental health facility. We do not put an accused in pretrial confinement solely to protect against the risk that an accused might kill himself.
Although perhaps not as rigorous as confinement of a sentenced prisoner, an accused in pretrial confinement is no less a prisoner, subject to all the deprivations inherent in prison life. To suggest that the government can order an accused into pretrial confinement solely because of a mental condition that would not qualify him for involuntary hospitalization seems incongruous to us. The health and welfare of military personnel is a command responsibility. Ordering or continuing an accused in pretrial confinement solely because he is suicidal is not a proper command response. We hold that preventing an accused from committing suicide is not a valid basis for ordering that accused into pretrial confinement. Cf. Berta v. United States, 9 M.J. 390 (C.M.A.1980) (mem.) (holding pretrial confinement is not appropriate to protect an accused from injury by others); New York ex rel. Bryce v. Infante, 144 A.D.2d 898, 535 N.Y.S.2d 215, 216 (1988) (“a suicidal tendency cannot be equated with an intent to abscond or flee in the context of a bail application”).
We reject the dissent’s view that the intent to commit suicide amounts to serious misconduct warranting pretrial confinement. Judge Breslin is correct in asserting that a member who intentionally injures himself commits a serious offense under the UCMJ. MCM, Part IV, ¶ 103a (as a violation of Article 134, 10 U.S.C. § 934); Article 115, UCMJ, 10 U.S.C. § 915(2) (for the purpose of avoiding work, duty, or service). But, the Department of Defense, reacting to legislation enacted by Congress and signed by the President, specifically established the manner in which persons with mental health problems would be treated. Military personnel will not be involuntarily hospitalized because of suicidal ideation unless they meet certain criteria — the military member “has, or likely has, a severe mental disorder and poses a danger to himself,” and such hospitalization is “consistent with the least restrictive alternative principle under the American Psychiatric Association’s guidelines.” DoDD 6490.1 at ¶ 4.5.2.
In evaluating the appellant, Dr. Bradshaw was clear — the appellant’s condition did not meet Alaska’s standards for involuntary hospitalization. We are unable to discern from the record of trial whether Alaska’s standards complied with the criteria in DoDD 6490.1, or whether the appellant could have been involuntarily hospitalized under the DoD criteria. We believe such questions are unimportant in resolving this issue. The appellant was not involuntarily hospitalized; he was incarcerated in a confinement facility where he received absolutely no mental health treatment. Even if the record established that the appellant’s condition was serious enough to warrant involuntary hospitalization, it does not establish the appropriateness of pretrial confinement. Pretrial confinement is not an appropriate substitute for such treatment.
Despite the fact that the appellant’s incarceration was objectively inappropriate to a reasonable person knowing all of the facts, we review the legality of pretrial confinement for an abuse of discretion based on the facts that were before the deciding official. Gaither, 45 M.J. at 351-52. Lt Col Jackson’s decision to order the appellant into pretrial confinement was apparently based on the pending charges and the first sergeant’s summary of his discussions with Mr. Wallrich and Dr. Bradshaw. The first sergeant understood Mr. Wallrich to say that the appellant might flee to avoid prosecution — Mi’. Wallrich said the appellant had considered just driving away and not returning. Dr. Bradshaw told him the appellant would likely attempt suicide. In good faith, the first sergeant relayed this information to the commander. Based on the evidence that was before her, Lt Col Jackson’s finding, by a preponderance of the evidence, that the appellant would flee to avoid prosecution was not clearly erroneous. Therefore, she did not abuse her discretion in ordering him into pretrial confinement.
[984]*984It appears from the matters adduced at the pretrial confinement hearing that Lt Col Jackson’s finding that the appellant would flee was based on a misunderstanding between the first sergeant and Mr. Wallrich. Although not a model of clarity, Mr. Wall-rich’s testimony before the PCRO does not support a conclusion that the appellant would flee to avoid prosecution. Mr. Wallrich knew the appellant had been hospitalized in the past and gone through the suicide prevention program. Mr. Wallrich believed the appellant was happy about making it through the weekend because he had been contemplating suicide.
The PCRO placed considerable stock in Dr. Bradshaw’s testimony. Dr. Bradshaw explained that the appellant’s statements to Mr. Wallrich about taking medications and driving off somewhere related to a plan the appellant revealed during his second hospitalization to drive off into the cold, Alaskan water and freeze to death. Thus, Mr. Wall-rich, Dr. Bradshaw, and a few others testified that the appellant represented no risk of flight to avoid prosecution. There was no evidence to suggest that the appellant might be a flight risk. The PCRO’s conclusion that continued pretrial confinement was appropriate because there was “a high risk” the appellant would “not present himself for trial” could only be based on the possibility that the appellant would commit suicide. Under these circumstances, the PCRO’s decision to continue the appellant in pretrial confinement was error. Suicide prevention is not an adequate basis for placing or maintaining an accused in pretrial confinement.
IY. The Remedy
Having found that the PCRO erred, we must determine the relief to which the appellant is entitled. The appellant was confined on 2 March, the PCRO’s report is dated 6 March, and the sentence was adjudged on 17 March 1998. At trial the parties determined that 16 days had been served in pretrial confinement. Our Army brethren have held that “any part of a day in pretrial confinement must be calculated as a full day for purposes of pretrial confinement credit ... except where a day of pretrial confinement is also the day the sentence is imposed.” United States v. DeLeon, 53 M.J. 658, 660 (Army Ct.Crim.App.2000). We find DeLeon is the correct standard and adopt it for Air Force practice. Using that standard, the appellant should have been awarded credit for 15, not 16, days of pretrial confinement. The appellant is entitled to additional credit for the 11 days of pretrial confinement which were illegal — from the date of the PCRO’s report until the date sentence was announced. Taking into consideration the conditions of the appellant’s pretrial confinement, we order he be granted two days of additional credit for each day of illegal pretrial confinement — 22 additional days.
The final issue is how to apply those 22 additional days of confinement credit against the appellant’s sentence. Congress delegated authority to the President to make procedural rules (Article 36, UCMJ, 10 U.S.C. § 836), and set maximum punishments (Article 56, UCMJ, 10 U.S.C. § 856). The President decided that the credit should be applied against the confinement adjudged. R.C.M. 305(k).
In United States v. Rock, 52 M.J. 154 (1999), the United States Court of Appeals for the Armed Forces seemed to establish a different rule for applying confinement credit. If the credit is administrative — i.e., credit for time actually served in pretrial confinement (United States v. Allen, 17 M.J. 126 (C.M.A.1984)) or time under conditions on liberty tantamount to confinement (United States v. Mason, 19 M.J. 274 (C.M.A.1985))— an accused is entitled to day-for-day credit applied against the lesser of the adjudged sentence or the sentence stipulated to in the pretrial agreement. If the credit is awarded by a military judge — e.g., for illegal pretrial punishment (Article 13, UCMJ, 10 U.S.C. § 813), or for periods of illegal pretrial confinement (United States v. Suzuki, 14 M.J. 491 (C.M.A.1983), aff'd in part and rev’d in part on reh’g, 20 M.J. 248 (1985)), or for violations of R.C.M. 305(f), (h), (i), or (j) — the credit is applied against the adjudged sentence, unless the accused has a pretrial agreement that provides such credit is to be applied against the sentence cap.
[985]*985In this case, it does not matter whether we apply R.C.M. 305(k) or Rock, the result is the same. The court members adjudged a sentence that included confinement for 3 years. If the military judge had concluded that the appellant’s pretrial confinement was illegal, he would have been required to apply the additional credit against the adjudged sentence, as the pretrial agreement does not indicate otherwise. See Rock, 52 M.J. at 156-57. Rock does not explain how an appellate court should apply any credit it awards because the military judge failed to do so. We will apply the credit as if we were sitting in the role of the military judge. Therefore, the 22 days of additional credit are applied against the adjudged sentence. As the sentence approved by the convening authority pursuant to the pretrial agreement is less than the adjudged sentence minus the 22 days of additional credit, the appellant is not entitled to any relief.
V. Conclusion
The findings and sentence are correct in law and fact and on the basis of the entire record are
AFFIRMED.
Senior Judge SCHLEGEL concurs.