Opinion of the Court
Quinn, Chief Judge:
A general court-martial convicted the accused of unauthorized absence of approximately nine and one-half months and willful disobedience of an order to participate in a work detail, in violation of Articles 86 and 90, Uniform Code of Military Justice, 10 USC §§ 886 and 890, respectively. It sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for eighteen months. Intermediate authorities affirmed, and the accused brought the case to this Court alleging that the order to participate in the work detail was illegal.
Pending determination of a charge predicated upon his unauthorized absence, the accused was confined in the stockade at Fort Dix, New Jersey. On the night of the incident that gave rise to the disobedience charge, he was quartered in Cellblock 79, a “troop barracks type of building.” About 8:30 p.m., Major Wilbur E. Ford, Junior, the confinement officer, accompanied by the Provost Sergeant, George G. McCarthy, and the Assistant Provost Sergeant, Jerry E. Smith, went to the cellblock to investigate a report that prisoners were constructing a tunnel in the stockade. Surveillance during the day had proved fruitless, and it was decided to make a direct search. Smith and McCarthy crawled into a space under the building, and, after some searching, discovered the tunnel entrance under a cover of sand and boards. They entered the tunnel. According to their observations, the tunnel was about three feet in diameter, with the floor approximately nine feet below ground level. The tunnel extended outward about twenty feet, toward “the wire,” but there was a substantial distance “to go before they would have been outside the fence.” The soil was “sandy,” and McCarthy “did not want to take a chance of having it cave in,” so they did not explore the full limits of the tunnel.
On receiving a report from the Sergeants, Major Ford entered the cellblock and had all the prisoners assembled and formed into two ranks. It was about the hour for holding bedtime head count, for which there were no dress regulations, so the prisoners appeared in various stages of undress. There were about sixty. Major Ford announced that the tunnel had been found. He described it as a “safety hazard.” He thought there was “a very good possibility of a cave in,” so he deemed it essential to fill in the tunnel “immediately.” He asked those who had participated in digging the tunnel to volunteer to fill it. No one volunteered. As a result, he ordered the “first eight men in the first rank, on the left” to fill the tunnel. Government and defense witnesses disagree as to what transpired from this point. For purposes of this appeal, it is sufficient to note that, from the evidence, the court-martial [233]*233could conclude beyond a reasonable doubt that the accused was directly and personally ordered by Major Ford to get dressed and help fill the tunnel, and the accused willfully refused.1
Although not precisely worded, a stipulation admitted in evidence indicates that at least three of the prisoners on the tunnel detail were sentenced prisoners. Judicial notice was taken of the provisions of an Army regulation prohibiting the commingling of sentenced and detained prisoners on the same work details. Pertinent parts of the regulation, AR 210-181, captioned “Installations, Stockades and Hospital Prisoner Wards,” are set out in the Appendix. Major Ford testified he knew that, under the regulation, sentenced and detained prisoners were not to perform “the same work details together.” He further testified that, in practice, the regulation was construed to apply only to “customary work . . . outside” the stockade, for details formed “from work call formations in the morning and afternoon.” He maintained he did not regard the tunnel as presenting a “normal” work situation; he acknowledged that it did not represent an “emergency,” but he insisted it was “unusual.” He admitted he did not know, and he made no inquire to determine, the custody status of the persons he ordered to fill the tunnel.
A person in confinement awaiting disposition of charges against him cannot be “subjected to punishment or penalty,” other than the confinement, except “minor punishment . . . for infractions of discipline.” Article 13, Code, supra, 10 USC § 813. A prisoner awaiting trial who is required to perform work assigned to sentenced prisoners, as execution of their sentences, is subjected to punishment in violation of Article 13. United States v Bayhand, 6 USCMA 762, 21 CMR 84, and United States v Nelson, 18 USCMA 177, 39 CMR 177. Consequently, a prisoner does not violate Article 90 of the Uniform Code if he refuses to obey an order to work with sentenced prisoners on a detail to which they have been assigned as execution of their respective sentences to hard labor. United States v Bayhand, supra. However, a prisoner in confinement, who has not been discharged, is still a member of the armed services and is still subject to lawful orders, whether he is sentenced or unsen-tenced.
At trial, defense counsel argued that, “as a matter of law,” the assignment of a detained prisoner to “the same work detail” as sentenced prisoners for performance of work “under the same conditions” as the sentenced prisoners “punishes a detained prisoner” and is illegal under the provisions of Article 13, Code, supra. On that basis he moved to dismiss the disobedience charge. The motion was denied. Appellate defense counsel contend the law officer misconstrued the defense argument in that it went beyond Article 13 to include the separate and categorical prohibition against commingling detained and sentenced prisoners contained in AR 210-181. The regulation, say appellate defense counsel, is broader than Article 13 in that it forbids assignment of unsentenced prisoners to any work detail containing sentenced prisoners, regardless of whether the work is contemplated as hard labor in execution of a sentence. We need not determine the scope of defense counsel’s trial argument. The regulation is part of the record of trial, and it speaks for itself. We consider, first, therefore, the present contention that the regulation categorically forbids assignment of sentenced and unsentenced prisoners to perform any activity involving manual labor, regardless of the nature and the purpose of the activity.
From Major Ford’s testimony, it is apparent that the confinement officials construed the regulation as applying only to “customary work,” for which [234]*234details were formed from regular work call formations. The practical construction accorded a regulation by those charged with its administration is not necessarily determinative of its legal meaning, but it is entitled to great weight. United States v Robinson, 6 USCMA 347, 20 CMR 63. The administrative construction is especially creditable when the statute or regulation is primarily concerned with procedures for the organization and management of the administrative body. Thus, one of the provisions regarding work assignments is that the assignments be made “by specifying daily certain types of work for detained and adjudged prisoners and a different type for sentenced prisoners.” (Emphasis supplied.) AR 210-181, paragraph 357i(l).
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Opinion of the Court
Quinn, Chief Judge:
A general court-martial convicted the accused of unauthorized absence of approximately nine and one-half months and willful disobedience of an order to participate in a work detail, in violation of Articles 86 and 90, Uniform Code of Military Justice, 10 USC §§ 886 and 890, respectively. It sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for eighteen months. Intermediate authorities affirmed, and the accused brought the case to this Court alleging that the order to participate in the work detail was illegal.
Pending determination of a charge predicated upon his unauthorized absence, the accused was confined in the stockade at Fort Dix, New Jersey. On the night of the incident that gave rise to the disobedience charge, he was quartered in Cellblock 79, a “troop barracks type of building.” About 8:30 p.m., Major Wilbur E. Ford, Junior, the confinement officer, accompanied by the Provost Sergeant, George G. McCarthy, and the Assistant Provost Sergeant, Jerry E. Smith, went to the cellblock to investigate a report that prisoners were constructing a tunnel in the stockade. Surveillance during the day had proved fruitless, and it was decided to make a direct search. Smith and McCarthy crawled into a space under the building, and, after some searching, discovered the tunnel entrance under a cover of sand and boards. They entered the tunnel. According to their observations, the tunnel was about three feet in diameter, with the floor approximately nine feet below ground level. The tunnel extended outward about twenty feet, toward “the wire,” but there was a substantial distance “to go before they would have been outside the fence.” The soil was “sandy,” and McCarthy “did not want to take a chance of having it cave in,” so they did not explore the full limits of the tunnel.
On receiving a report from the Sergeants, Major Ford entered the cellblock and had all the prisoners assembled and formed into two ranks. It was about the hour for holding bedtime head count, for which there were no dress regulations, so the prisoners appeared in various stages of undress. There were about sixty. Major Ford announced that the tunnel had been found. He described it as a “safety hazard.” He thought there was “a very good possibility of a cave in,” so he deemed it essential to fill in the tunnel “immediately.” He asked those who had participated in digging the tunnel to volunteer to fill it. No one volunteered. As a result, he ordered the “first eight men in the first rank, on the left” to fill the tunnel. Government and defense witnesses disagree as to what transpired from this point. For purposes of this appeal, it is sufficient to note that, from the evidence, the court-martial [233]*233could conclude beyond a reasonable doubt that the accused was directly and personally ordered by Major Ford to get dressed and help fill the tunnel, and the accused willfully refused.1
Although not precisely worded, a stipulation admitted in evidence indicates that at least three of the prisoners on the tunnel detail were sentenced prisoners. Judicial notice was taken of the provisions of an Army regulation prohibiting the commingling of sentenced and detained prisoners on the same work details. Pertinent parts of the regulation, AR 210-181, captioned “Installations, Stockades and Hospital Prisoner Wards,” are set out in the Appendix. Major Ford testified he knew that, under the regulation, sentenced and detained prisoners were not to perform “the same work details together.” He further testified that, in practice, the regulation was construed to apply only to “customary work . . . outside” the stockade, for details formed “from work call formations in the morning and afternoon.” He maintained he did not regard the tunnel as presenting a “normal” work situation; he acknowledged that it did not represent an “emergency,” but he insisted it was “unusual.” He admitted he did not know, and he made no inquire to determine, the custody status of the persons he ordered to fill the tunnel.
A person in confinement awaiting disposition of charges against him cannot be “subjected to punishment or penalty,” other than the confinement, except “minor punishment . . . for infractions of discipline.” Article 13, Code, supra, 10 USC § 813. A prisoner awaiting trial who is required to perform work assigned to sentenced prisoners, as execution of their sentences, is subjected to punishment in violation of Article 13. United States v Bayhand, 6 USCMA 762, 21 CMR 84, and United States v Nelson, 18 USCMA 177, 39 CMR 177. Consequently, a prisoner does not violate Article 90 of the Uniform Code if he refuses to obey an order to work with sentenced prisoners on a detail to which they have been assigned as execution of their respective sentences to hard labor. United States v Bayhand, supra. However, a prisoner in confinement, who has not been discharged, is still a member of the armed services and is still subject to lawful orders, whether he is sentenced or unsen-tenced.
At trial, defense counsel argued that, “as a matter of law,” the assignment of a detained prisoner to “the same work detail” as sentenced prisoners for performance of work “under the same conditions” as the sentenced prisoners “punishes a detained prisoner” and is illegal under the provisions of Article 13, Code, supra. On that basis he moved to dismiss the disobedience charge. The motion was denied. Appellate defense counsel contend the law officer misconstrued the defense argument in that it went beyond Article 13 to include the separate and categorical prohibition against commingling detained and sentenced prisoners contained in AR 210-181. The regulation, say appellate defense counsel, is broader than Article 13 in that it forbids assignment of unsentenced prisoners to any work detail containing sentenced prisoners, regardless of whether the work is contemplated as hard labor in execution of a sentence. We need not determine the scope of defense counsel’s trial argument. The regulation is part of the record of trial, and it speaks for itself. We consider, first, therefore, the present contention that the regulation categorically forbids assignment of sentenced and unsentenced prisoners to perform any activity involving manual labor, regardless of the nature and the purpose of the activity.
From Major Ford’s testimony, it is apparent that the confinement officials construed the regulation as applying only to “customary work,” for which [234]*234details were formed from regular work call formations. The practical construction accorded a regulation by those charged with its administration is not necessarily determinative of its legal meaning, but it is entitled to great weight. United States v Robinson, 6 USCMA 347, 20 CMR 63. The administrative construction is especially creditable when the statute or regulation is primarily concerned with procedures for the organization and management of the administrative body. Thus, one of the provisions regarding work assignments is that the assignments be made “by specifying daily certain types of work for detained and adjudged prisoners and a different type for sentenced prisoners.” (Emphasis supplied.) AR 210-181, paragraph 357i(l). Does this statement mean that every prisoner can refuse to work if the work assignment was made on a biweekly, rather than a daily, basis? The provision appears to be no more than an instruction to confinement personnel, which, if not carried out, would subject those charged with preparation of work assignments to the disapprobation of their superiors, but would not invalidate the work assignments and relieve the prisoners from the obligation to comply with work orders. See United States v White, 17 USCMA 211, 214, 38 CMR 9. We have analyzed the regulation, and we are convinced that the administrative construction accords with its language and purpose.
The regulation directs development of work programs that would be “most beneficial” to the prisoners and “consistent with the labor needs of the installation.” One of the anticipated results of such “constructive programs” is minimization of the “loss of services” which occurs when persons are confined. The work designated as appropriate for the work program is described as “support-type functions.” The phrase is not specifically defined, but the general purposes of the regulation indicate it is intended to apply to tasks helpful to the usual routine and needs of the post. What the regulation contemplates, therefore, is a planned program of work, involving a variety of jobs designated on separate “work assignment rosters” for different categories of prisoners. AR 210-181, paragraph 35g, h( 1). Plainly, emergency situations were not envisaged by the draftsmen of the regulation. Neither the language nor the purposes of the work provisions even suggest, for example, that if an explosion destroyed part of the stockade, and men were needed to pull apart debris to reach persons trapped in the wreckage, that an order to all prisoners to work together to remove the debris would violate the prohibition against commingling. Tacitly, appellate defense counsel appear to acknowledge the inapplicability of the regulation to emergency work situations, but they contend there was no urgency in the tunnel project. We need not decide that question. As we read it, the regulation was intended, as it has been administratively construed, to apply only to the “customary” work program of the stockade. Extraordinary or unusual work situations, whether or not describable as emergencies, are not within its reach.
Appellate defense counsel contend that the question whether a particular task is routine or extraordinary, so as to be within or outside the purview of the regulation, should have been submitted to the court members as a question of fact for their determination. The argument misconceives the nature of the question. What is involved in a construction of the regulation, which is a question of law. In United States v Carson, 15 USCMA 407, 408, 35 CMR 379, we said: “Whether an act comports with law, that is, whether it is legal or illegal, is a question of law, not an issue of fact for determination by the triers of fact.” In the absence of any evidence to indicate that the job was treated as a routine assignment in the standard work program, the task of filling in a tunnel secretly constructed by prisoners for the purpose of escape is not, in our opinion, the kind of work contemplated by the regulation to re[235]*235quire separate assignments of sentenced and unsentenced prisoners. We conclude, therefore, that no question of fact involving the regulation was raised at trial which required submission to the court members for their determination. Cf. United States v Penn, 18 USCMA 194, 39 CMR 194.
We turn now to the prohibition against punishment of an unsentenced prisoner in confinement. The character of work as punishment does not depend upon whether it is part of a customary work program or is extraordinary and singular. Unusual and nonrecurrent work may be assigned to a sentenced prisoner as hard labor in execution of his sentence, just as common and long-continued tasks may be given to him. The assignment of tasks in execution of a sentence rests largely within the discretion of the confinement officials.2 See United States v Dunn, 9 USCMA 388, 390, 26 CMR 168; United States v Bayhand, supra, at pages 772-773. In Bayhand, at page 771, we indicated that work “performed by sentenced prisoners under armed guard” is presumptively work “in compliance with the sentence imposed” upon them, that is, the work is punishment. We further indicated that to require an unsentenced prisoner to perform the same work as sentenced prisoners, in their company and subject to the same conditions, justifies the conclusion that the work is also punishment for the unsen-tenced prisoner. Such punishment is a violation of Article 13. United States v Nelson, supra. In Bayhand, the nature of the tasks and the conditions under which they were performed compellingly indicated the work was punishment; we, therefore, concluded that the orders directing the accused, an unsenteneed prisoner, to perform the work were illegal. No such certainty of proof is present in this case.
Major Ford’s testimony indicates that the assignment to fill in the tunnel was not devised as work in execution of a sentence, but to eliminate as speedily as possible a safety hazard within the walls of the stockade. He regarded the situation as “unusual” and not part of the regular work program. Since the hazard had apparently been created by the prisoners housed in Cellbloek 79, he thought it appropriate that the same persons remove the hazard. Unlike the jobs assigned to the accused in Bayhand, the work was not of a kind commonly associated with the execution of a sentence at hard labor. These factors are strong counterweights to the inference that the work was assigned as punishment because sentenced prisoners were included in the work detail. The ultimate question, that is, whether the work was punishment, depended upon the weight assigned to different aspects of the evidence. A question of fact, therefore, was present for the court members’ consideration. See United States v Ornelas, 2 USCMA 96, 6 CMR 96. The law officer recognized the issue and submitted it to the court members, with appropriate instructions. They resolved the question against the accused, and there is ample evidence to support their verdict.
The decision of the board of review is affirmed.
Judge Darden concurs.