(dissenting):
I dissent.
I do not reach the issues posed by the majority. For my opinion of the second of those issues, see United States v Young, 8 USCMA 695, 25 CMR 199, a companion case decided this day. My point of departure in this instance arises out of the principle that a judicial confession may be treated so lightly that a puffing unsworn statement in mitigation or a comment found in a staff judge advocate’s pretrial advice can be seized upon to reject a plea of guilty. Here the Court bottoms its conclusion to set aside the highest form of proof on a statement found in the pretrial advice. The difficulty with that approach is twofold. First, the comments of a reviewer are not competent evidence by any known standard. Second, my associates conclude that the accused’s plea of guilty was improvidently entered. Implicitly, therefore, they hold that the law officer abused his discretion in not setting aside the plea of guilty as being improvident. Here there is no showing that he knew of the contents of the pretrial advice and, in the light of the concepts announced by the Court in United States v Fry, 7 USCMA 682, 23 CMR 146, I wonder if now that functionary is judicially charged with notice of everything in the file. But, even assuming he is, the plea is entered subsequent to pretrial events and the law officer has some discretion to rely on the showing made before him by accused and his counsel.
As might be anticipated, the issue of improvidence was not raised until the appeal, and even then counsel for the accused never conceived the idea that improvidence might be shown by reliance on matters which were not before the court-martial or called to the attention of the law officer. While the facts are not shown with clarity, trial defense counsel concluded that they would support a conviction, for he summed up his eloquent plea for leniency in these words:
“. . . I am not contending we should be on trial for gambling or for the possession of poor judgment, but I must insist that even though the accused did in the eyes of the law and in the eyes of his fellow men and soldiers commit each and every offense, he is still not guilty of any acts of violence or sneaky acts making him such a menace to society that society should demand or expect lengthy confinement.”
Apparently at this level the Court disagrees with trial defense counsel but, if a theory can be changed on appeal, it should only be permitted in the exceptional case, for I believe we should zealously guard the verity of a plea of guilty. To sift all the ex parte statements in a record through fine mesh-work to find some inconsistency with a judicial confession in open court undermines one of the substantial supports of a judicial system.
I would affirm the decision of the board of review.