(concurring in part and dissenting in part):
I concur in part and dissent in part. The principal opinion states: “There are circumstances indicat-ing that Weiant and the accused were members of organizations subject to the same general court-martial authority who entered into the Weiant agreement, but it is not a necessary inference therefrom that the same person acted in both instances.” If we were to draw an inference either way, it would seem more reasonable to infer that the same, rather than a different, individual occupied the office of the convening authority at the time of the agreement and the review of accused’s case. However, we need not determine the case on inference. The record here has been supplemented by affidavits showing the identity of the convening authority at the time of the agreement with Weiant. Cf. United States v Roberts, 7 USCMA 322, 22 CMR 112. The record of trial, of course, reflects the identity of the convening authority who took action on accused’s case. A consideration of these documents shows different individuals occupying the position of convening authority at the two times with which we are concerned. The convening authority who acted in accused’s case was not, therefore, disqualified from so doing. Cf. United States v White, 10 USCMA 63, 27 CMR 137. Inasmuch as the identity of the person granting immunity or entering into a pretrial agreement would not ordinarily be contained in the record of trial itself, to preserve to the accused the right to raise such error, it is essential that we permit the record to be supplemented in this regard by affidavits. Thus, I concur in the result as to the finding that the convening authority who acted in the accused’s case was not disqualified.
Nor do I agree with the Chief Judge’s view that the situation is changed by the wording of Weiant’s of-fer. This was an offer: (1) to plead guilty, and (2) to testify against the accused in return for an agreement as to the maximum sentence which would be approved. The staff judge advocate approved that agreement. He thereby secured Weiant as a witness and is precluded from later reviewing the record. Cf. United States v Albright, 9 USCMA 628, 26 CMR 408. I would, therefore, return the record for a new review by a different staff judge advocate.