En Banc.
DECISION
BARRY, Judge:
Appellant was charged with disobedience of an order by a superior commissioned officer, in violation of Article 90, Uniform Code of Military Justice, 10 U.S.C. § 890; damaging government property, in violation of Article 108, Uniform Code of Military Justice, 10 U.S.C. § 908; willfully hazarding a vessel, in violation of Article 110, Uniform Code of Military Justice, 10 U.S.C. § 910; and arson, in violation of Article 126, Uniform Code of Military Justice, 10 U.S.C. § 926. Appellant pled guilty to the violations of Articles 90 and 110 of the Uniform Code of Military Justice. Pursuant to a pre-trial agreement the charges of violations of Articles 108 and 126, Uniform Code of Military Justice were withdrawn with prejudice. Appellant was sentenced by the military judge to a bad conduct discharge, confinement for thirty months, total forfeitures, and reduction to pay grade E-l. The convening authority approved the findings and, pursuant to the pre-trial agreement, approved only so much of the sentence as provides for a bad conduct discharge, confinement for sixteen months, total forfeitures, and reduction to pay grade E-l. The convening authority also ratified the understanding expressed in the accused’s offer to plead guilty, that pretrial confinement would be credited day for day against the sentence. On the day sentence was adjudged, the accused had been in pretrial confinement 92 days.
Before this Court, five errors have been assigned:
I
APPELLANT’S PLEA OF GUILTY TO VIOLATING ARTICLE 90, UCMJ, WAS IMPROVIDENT BECAUSE THE COMMAND “TO NOT CONSUME ALCOHOLIC BEVERAGES” IS NOT A LAWFUL ORDER,
II
IF THIS COURT DEPARTS FROM PRECEDENT AND FINDS THAT THE ORDER WAS LAWFUL IT SHOULD NOT APPLY THAT FINDING RETROSPECTIVELY TO APPELLANT BECAUSE THAT WOULD DEPRIVE APPELLANT OF DUE PROCESS,
III
APPELLANT’S PLEA OF GUILTY TO VIOLATING ARTICLE 110, UCMJ, WAS IMPROVIDENT BECAUSE SETTING A FIRE ON A VESSEL AT BERTH DOES NOT CONSTITUTE AN OFFENSE UNDER THAT STATUTE,
IV
THE MILITARY JUDGE’S FAILURE TO ADEQUATELY QUESTION APPELLANT AND HIS COUNSEL CONCERNING A STATEMENT CONTAINED IN THE PRETRIAL AGREEMENT THAT APPELLANT REQUESTED TRIAL BY MILITARY JUDGE ALONE RENDERED HIS PLEAS OF GUILTY IMPROVIDENT, [AND THAT]
V
A PUNITIVE DISCHARGE IS AN INAPPROPRIATELY SEVERE PUNISHMENT FOR APPELLANT.1
STATEMENT OF FACTS
Seaman Roach had been a crew member of the USCGC DEPENDABLE (WMEC [861]*861626) from October 1984. In early 1985 he was counselled on at least three occasions resulting from his returning to the ship in an intoxicated condition. A service record entry (Page 7 Administrative Remarks entry) in February 1985 advised him that his conduct to date was considered to be his first alcohol related incident, and advised Seaman Roach that a second incident would be grounds for separation under the provisions of Chapter 20 of the Coast Guard Personnel Manual. In April of 1985 he was screened by the Counseling and Assistance Center (CAAC) at the Naval Air Station Pensacola, Florida to evaluate the extent of his alcohol abuse. As a result, it was recommended that he attend mandatory Alcoholics Anonymous meetings (which, as far as can be ascertained by the record, he did not attend). He was placed on a supervised antabuse program, and he subsequently attended Level II Substance Abuse counseling from 3 to 28 June, which reportedly resulted in improvement in his performance and attitude (page 7 Service Record entry on 17 July 1985). In August of 1985, while the DEPENDABLE was in Key West, Florida, Seaman Roach was arrested by civil authorities in connection with his consumption of alcohol, an incident which involved Roach’s assault on a police officer. Another page 7, Service Record entry on 17 August advised him that his actions in Key West violated his Alcohol Abuse Aftercare Plan, were considered his second “alcohol incident”, and that because he had not shown he was “making a sincere effort to overcome ... [his] alcohol abuse problem” he was therefore being recommended for discharge.
Seaman Roach subsequently absented himself from the ship without authority from 13 September 1985 until 17 September 1985. He returned to the ship after a telephone conversation between the commanding officer and Seaman Roach’s father. He accompanied the vessel on its next patrol. It was anticipated that a message authorizing his discharge would be received during the course of that patrol. On 30 September 1985, while on patrol, the commanding officer awarded Seaman Roach 30 days restriction, and 5 days extra duty for the above mentioned absence without leave. The commanding officer suspended the restriction for 3 months, and told Seaman Roach that he would be permitted to go on liberty during the forthcoming one night patrol layover in Key West, Florida, but that he was not to consume alcohol. The record is not clear whether this order was given during the Mast Proceedings or some time thereafter. The DEPENDABLE arrived in Key West on 8 October 1985. Seaman Roach went on liberty and consumed alcohol during the afternoon and evening. He returned to the ship shortly after midnight on 9 October 1985 and set fire to the paint locker which contained numerous inflammable contents. Within minutes Seaman Roach inquired of another crew member whether the latter smelled smoke. They then proceeded to alert the persons on board and sounded the alarm. The fire was eventually extinguished with relatively minor damage (approximately $1100) having been incurred. DEPENDABLE’S resumption of patrol was slightly delayed. The message authorizing Seaman Roach’s administrative discharge was received by the commanding officer later on the same day the fire was set, 9 October 1985.
LEGALITY OF THE ORDER
Appellant challenges the legality of the order “not to consume alcoholic beverages.” While an order from a superior commissioned officer requiring the performance of a military duty or act may be inferred to be lawful, such an inference does not apply to a patently illegal order, or to an order which does not relate to a military duty. [Para. 14c(2)(a), Part IV, Manual for Courts-Martial, 1984].
An order to refrain from consuming alcoholic beverages is not patently illegal, and may be legal. United States v. Wahl, 4 G.M.R. 767, 771 (A.B.R.1952). Other opinions of military courts and boards dealing with orders to abstain from drinking alcohol have, however, found such orders illegal and unenforceable. United States v. Wilson, 12 U.S.C.M.A. 165, 30 C.M.R. 165 (1961); Wahl, supra. In Wilson, the order [862]*862from the appellant’s squadron commander was “not to drink liquor”. Appellant had confessed to stealing a tape recorder while under the influence of alcohol. He was then restricted to his place of duty and the barracks. The squadron commander testified that the order not to drink was given “for his own good ... for his protection and the best interests of the service,” and to “prevent something similar ... happening again” (30 C.M.R. at 166). The court found the order was not limited to refrain from drinking while on duty and in the barracks, but rather applied in all places and on all occasions. Judge Quinn wrote “[i]n the absence of circumstances tending to show its connection to military needs, an order which is so broadly restrictive of a private right of an individual is arbitrary and illegal.” Id. at 166,167. Judge Latimer, dissenting in part but concurring that the order was illegal, wrote, “While the commander who ordered accused to abstain from consumption of alcoholic beverages apparently did so out of paternalism, nevertheless the order was so broad so to be illegal.” Id. at 167.
The same result was reached in United States v. Wahl, supra, where the order to a restricted officer was that “[d]uring the period of this restriction you are not to indulge in alcoholic beverages.” 4 C.M.R. at 770. Appellant was convicted of drinking at the base Officer’s Club (which was within the bounds of the restriction) in violation of this order. The Army Board of Review stated, “... the accused, in company with others of officer rank, was in a recognized base activity after normal duty hours. It was obvious ... that no military duty or act was involved. In the opinion of the Board the presumption of legality of the order was overcome.” 4 CMR at 771. In reaching this conclusion, the Board did note that “the order must relate to a military duty____ What constitutes a military duty is dependent upon the circumstances of each case. An order prohibiting drinking of intoxicating beverages while on duty is certainly legal (CM 302885, Payne, 59 BR 133) and there are many other situations in which such an order would be legal.” 4 C.M.R. at 770, 771. However, this was not such a situation, for “[i]t appears that the order, in effect, directed accused not to commit an offense (drunkenness in public), or, at least directed him not to place himself in a position where he would be tempted to commit that offense or a similar one. Under the circumstances of this case, the Board is of the opinion that such an order is illegal.” Id.
The legality of the order in the case at bar must be analyzed in terms of the particular and peculiar circumstances. In addition to the facts set forth above, several other facts should be noted. Seaman Roach was, of course, an alcoholic, well known by the command to do irrational things when intoxicated (although all witnesses agreed he would never do such irrational things — including the offenses charged — if not drinking). He was also known to have had more than the usual amount of difficulty adjusting to the ship, and had been subjected to some more than normal degree of hazing or joke playing by the crew, and indeed, perhaps had been the victim of some inadvertent comments by the wardroom as well (CO’s testimony, R. 316).
While he was AWOL, a telephone conversation concerning his return took place between his father and the Commanding Officer. During the telephone conversation, Seaman Roach’s father indicated to the CO that his son had talked of suicide. They discussed the need for professional counsel-ling and assistance to address Seaman Roach’s “longstanding problem”, and the CO indicated that he would arrange for “him to be seen by some professional counsellors and doctors if necessary” (CO’s testimony, R. 314). The father’s stipulated testimony is more certain. He stated:
He [my son] told me he hated the ship and would commit suicide before he would go back. I took this quite seriously, since my older son had once attempted suicide. I personally telephoned the DEPENDABLE's Commanding Officer, ... and spoke with him for over one hour. I remember the conversation vividly. We discussed Tim’s mental state and possible solutions to the AWOL and [863]*863Tim’s fears about returning to the ship. [The Commanding Officer] ... verbally assured me that if Tim returned to the ship he would receive only captain’s mast. He also promised that if Tim returned, he would not go on another patrol and that Tim would get an immediate psychiatric evaluation.
Defense Exhibit “A”.
Seaman Roach did return; however, he did not receive a psychiatric evaluation, and he did make the next patrol. It was during this patrol that he received the captain’s mast, the restriction was awarded and suspended, and the incident occurred.
The amount of attention paid to alcohol awareness in the Coast Guard has been on the increase, and norms for Command awareness and involvement have been increasing while the willingness to tolerate alcohol abuse by members has been decreasing. The Personnel Manual, COMD-TINST M1000.6, which we judicially note, has reflected a changing norm. The policy promulgated when the manual was first published (5 May 1982) addressed the subject of alcohol abuse, and imposed requirements on commanding officers to educate all personnel, particularly supervisors, concerning alcoholism, with a view toward self identification or medical referral (Article 20-A-4b). It contained discussions on rehabilitation and treatment (Article 20-A-5), pointing out that alcoholism is an “extremely complicated illness”, with no known cure, but one which can be treated and arrested with “multifaceted” treatment, “encompassing the physical, sociological and psychological aspects of the disease” (Article 20-A-5a). It, however, addressed post-treatment observation and disposition only in general terms (which did not address either aftercare plans or the command’s responsibility to cooperate or assist in the member’s efforts to remain sober, which appeared in the next revision).
Less than a year later, on 18 January 1983, in Change 3 to the Personnel Manual, this policy section of the Manual was completely rewritten. The definition of alcoholism was amended to include the phrase “[a] diagnosable disease” (Exhibit 20-A-ld), and the concept of a “Recovering Alcoholic” was set forth (Exhibit 20-A-lr), in place of the term “Recovered Alcoholic” (former Article 20-A-2m), without any change to the definition, which stated “a person whose alcoholism has been arrested through abstinence and whose sobriety is maintained through a continuing personal program of recovery”. It imposed specific duties on commands. It introduced the concept of “Aftercare” (Article 20-A-2a), and required that “[f]or those members who will be retained, the command shall implement an aftercare plan.” (Article 20-C-7d). The required plan had certain minimum mandatory requirements:
(1) A minimum one year evaluation of performance of duty____
(2) The member is to abstain from all use of illegal drugs and/or alcohol
(3) The member must attend Alcoholics Anonymous ... meetings____
(4) The member must be placed on a supervised antabuse program____
(Article 20-C-7d)
Finally, this change included, in an exposition of available resources, a discussion of Alcoholics Anonymous, and noted special contacts available for members stationed aboard ship or on isolated duty. (Article 20-D-4g). It was this 18 January 1983 change and these procedures which were in effect during the period in question.2
In this case, Seaman Roach was, after completing the Level II Substance Abuse counselling, placed on an aftercare program with supervised antabuse treatments, pursuant to the above Personnel Manual provision. These antabuse treatments lasted from July to October, according to the ship’s corpsman responsible for administering the program. The corpsman also testified concerning his administration of the program, which could categorize as somewhat “relaxed”, and that he often did not observe whether Seaman Roach actually [864]*864consumed the antabuse pills. He testified he believed Seaman Roach drank during the period. (R. 217-220). He also testified Roach was required, as part of the written aftercare program, to attend AA meetings. It appears, however, that no such meetings were ever attended, and that this portion of the mandatory aftercare program was not monitored by the command. When the incident involving alcohol and an assault on a policeman occurred in Key West on August 17, 1985, the response of the command was to initiate discharge procedures. There was no apparent change to the aftercare program or to the command’s handling of that program, and, as noted in the testimony of the corpsman, it appears that no part of the aftercare program was carried out after this date except possibly the antabuse program, but the effectiveness of this part seems limited in view of the events reflected in the charges.
When Seaman Roach returned from being AWOL (after the above mentioned phone call), the commanding officer indicated he “had planned to have him seen”, but that Tyndall Air Force Base “could not accommodate us” (R. 328, 329). He apparently ruled out two other options, Bay Medical and Eglin Air Force Base, (R. 315) and elected to “do nothing and provide some counselling and observation, wait and see kind of an approach once he was on board”. (R. 329) Ultimately he counselled Roach and advised him that he would not be severely punished at captain’s mast, and laid the matter in his (Roach’s) hands: “We ... [have] this facility in town, Bay Medical Center, they can handle this under an emergency basis. I told your father we could make that available to you. What do you think, what do you want to do”? (R. 330). Some “counselling” between Roach and the CO and XO then transpired, culminating as follows:
He seemed comfortable with the idea of being on the ship, making the shortened version of the patrol, or basically the three, four weeks maximum. He felt comfortable with the fact particularly after I pointed out to him at sea you don’t have access to alcohol, you do have access to people who have experience of the counselling of people, and he seemed comfortable at that time, and I asked him very pointedly “Do you feel as though you have to go to Bay Medical Center today or tomorrow or this week before we sail,” and he said no. He said he felt he could handle it.
(R. 331, 332 Emphasis supplied).
Roach did stay on the ship and made the patrol. During the trip the mast was held and he was awarded 30 days restriction, but the restriction was suspended and Roach was authorized liberty in Key West, with an admonition (order), in terms not altogether clear, given either at the mast or sometime within a few days thereafter, not to consume alcoholic beverages while in Key West.
We have gone to some lengths to set forth the detailed facts and circumstances which bear on the question of the legality of this order not to consume alcoholic beverages. We are convinced, under all the facts and circumstances, that the order cannot and should not be enforced.
We believe the order cannot be enforced, because, like Judge Quinn in Wilson, we are unable to find an adequate connection to a military duty to justify our enforcement of this order. The government contends the connection is adequately provided by virtue of the CARE inquiry. The military judge was aware of the potential defense of unlawful order. He queried the defense counsel as to whether there was an issue as to the lawfulness of the order on two occasions (R. 23, 49). On the second occasion, the questioning related to the appellant’s abuse of alcohol, his treatment, and the aftercare program. The comments between defense counsel and the military judge seem to imply that the absence of an issue concerning lawfulness of the order hinges on the existence or requirements of the aftercare program (R. 48 and 49). Nevertheless, the military judge inquired further of the appellant as follows:
Q. What justification if any do you see in the order for not drinking in Key West?
[865]*865A. I got arrested in August of 1984 by assaulting a police officer for being drunk and disorderly. Later it was brought down to simple battery. This was in Key West before he issued these orders so he knew that the next time I was in Key West the last patrol I was there he wanted to make sure I would not get in trouble again in Key West, Your Honor.
Q. And that would be a concern for you personally then in relation to the civil authorities in Key West?
A. I think it also could be a case for the Coast Guard also because it also puts a blemish mark on the Coast Guard with the civilian authorities. So the Coast Guard Cutter DEPENDABLE has sort of a bad name in Key West and he wanted to make sure it didn’t have another bad name again.
(R. 50).
Paragraph 14c(2)(a)(iii), Part IV, Manual for Courts-Martial, 1984 provides:
“(iii) Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs.”
Even in this era of heightened awareness of society’s need to address alcoholism and the abuse of alcohol, most would still consider that an order “not to consume ‘alcohol’ ” interferes with private rights or personal affairs. Nevertheless, such an order may still be lawful if it serves a valid military purpose. The issue is whether one or more of those reasons stated in the first sentence of the above-quoted provision of the Manual for Courts-Martial, or any other valid purpose, is served here. We think not. The purpose intended to be served here is remarkably similar, though perhaps somewhat less paternalistic, than the purpose intended to be served in Wilson, supra, which was “for his own good ... for his protection and the best interests of the service.” and to “prevent something similar ... happening again” (30 C.M.R. at 166, emphasis supplied), and in which Judge Quinn found an absence of circumstances tending to show a connection to a military need. Under all the circumstances set forth above, we find a similar absence here.
Even if we were not able to find the lack of a valid military purpose, we would be generally troubled by this order. The Personnel Manual provisions, particularly the aftercare program, are designed to assist the member toward rehabilitation. Here the requirements of that program were partly ignored, with the administration of the remainder lax, at best. The incident in Key West occurred, soon followed by the AWOL and the return of Roach. Thereafter, the commanding officer (1) induced Roach to make the next patrol violating his assurance to the father, and (2) chose to do his own “counselling” rather than obtaining professional counselling and evaluation in violation of his assurance to the father and the clear need for professional assistance stated in the Personnel Manual. When the commanding officer induced Roach to make the patrol, he did so by noting that he would not have access to alcohol. Then he suspended the restriction and granted Roach liberty in a port where he had a history of becoming drunk and disorderly. As Roach recalled during the plea providence inquiry, “he told me I should not consume alcoholic beverages, that he was going to let me go on liberty in Key West to have the full temptations as everybody else aboard the ship but he did not want me to drink.” (Emphasis supplied). It should have been no surprise that Roach drank on this occasion — indeed, it was probably clearly forseeable. We conclude that the use of a direct order not to drink alcohol is an unjust and unreasonable mechanism to achieve the commanding officer’s goals in circumstances such as these where patently legal and decidedly more effective methods were available to the commanding officer and were specifi[866]*866cally rejected {e.g., those provided for in the Personnel Manual, and the simple remedy of not suspending the restriction in Key West, thus making good on his promise that while on patrol, liquor would not be available).
For all these stated reasons we are unable to affirm that this finding is “correct in law and fact and ... should be approved.” Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c). Based on all the above, we also conclude that the plea of Guilty to violation of Article 90 was improvidently entered and accepted. The finding to this charge and specification must be set aside and the sentence reassessed.
REMAINING ASSIGNMENTS
Chief Judge Baum, in his concurring opinion, has addressed the question of the legality of charging arson aboard a vessel as “hazarding” in violation of Article 110, and we concur with his conclusion that such a charge remains valid. As is he, we are troubled with the result which is reached in a case such as this. Even when such a case is referred as non-capital, the accused is forced to defend against an offense carrying the maximum punishment short of death — life imprisonment. This fact will influence both the accused and his counsel in any efforts to achieve a pre-trial agreement. The maximum sentence will also influence the finder of fact in reaching a sentence to award. In both aspects, the high maximum sentence works to the detriment of the accused. As Chief Judge Everett recently noted in a general court-martial where there was a pre-trial agreement for a sentence which could have been awarded by a special court-martial:
In the first place, the very fact that a case has been referred to a general court-martial tends to elevate the sentence that will be imposed in the event of conviction, because logically the sentencing authority will consider the maximum punishment in deciding what sentence to adjudge. If the charges against Murray had been referred to a special court-martial, which could have imposed no more than a bad-conduct discharge, 6 months’ confinement, partial forfeitures, and reduction to pay grade E-l, the sentence adjudged might have been much less than was rendered by the general court-martial — where the maximum punishment authorized was a dishonorable discharge, 5 years’ confinement, total forfeitures, reduction to E-l, and a fine. In short, sentencing authorities — whether, as here, a military judge or, as in other cases, members — tend to take into account the maximum sentence imposable in deciding what sentence actually should be adjudged.
United States v. Murray, 25 M.J. 445, 455, 456 (C.M.A.1988) (Everett, C.J., concurring in part and dissenting in part) (Footnote omitted).
The reasoning seems to be applicable to cases such as this where an accused faces more serious punishment. No one would dispute the seriousness of setting a fire aboard a vessel. There were available, however, lesser offenses such as aggravated arson under Article 126, which was charged, but then withdrawn pursuant to the pre-trial agreement. Such a charge, with a 20 year maximum sentence, appears more than adequate to address a situation such as this where the vessel is moored, where there are no personnel casualties, where material damage is under $1200, and where the mission of the vessel is not affected except for a very slight delay in departure. The record in this case does not disclose any clear basis either to confirm or deny our concern regarding the question of the possible effect of the more serious punishment on both pre-trial negotiations and on sentencing. We conclude, however, that further proceedings to resolve such issues would be inappropriate, and in the interest of justice, we resolve our concern by an appropriate reassessment of the sentence.
In reviewing the assignment of errors, we have agreed with the first, thus mooting the second and have rejected the third and fourth. We agree with the last assignment. Accordingly, the findings of guilty to Charge I, violation of Article 90, Uniform Code of Military Justice, and the [867]*867specification thereunder are set aside and dismissed. The findings of guilty to Charge II, violation of Article 110, Uniform Code of Military Justice, and the specification thereunder are affirmed. The sentence has been reassessed and upon reassessment only so much of the sentence as provides for confinement for sixteen months is affirmed. That portion of the sentence not affirmed is set aside. All rights, privileges and property of which the accused has been deprived by virtue of that portion of the sentence set aside shall be restored.