(dissenting) :
I dissent.
I believe that my brothers err when they so lightly treat an instruction setting forth an important factor in determining an appropriate sentence for this accused and hold that the law officer did not abuse his discretion in denying the instruction requested by the defense counsel.
The accused pleaded guilty to desertion, in violation of Uniform Code of Military Justice, Article 85, 10 USC § 885, two specifications of absence without leave, in violation of Code, supra, Article 86, 10 USC § 886, and escape from confinement, in violation of Code, supra, Article 95,10 USC § 895. He was found guilty in accordance with his plea and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year.
Accused’s voluntary and provident plea of guilty involved a pretrial arrangement whereby the convening authority agreed not to approve any sentence which exceeded dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. Following the findings of guilty, accused set forth the reasons for his repeated absences and his escape. His counsel presented an excellent argument in mitigation and extenuation in which he pointed out the desire of the accused to be retained in the service and the latter’s belief that he could now pursue a course of conduct which conformed to the standards required of members of the armed forces. Upon completion of a rebuttal argument by trial counsel, the defense counsel requested that the law officer instruct the court-martial concerning the procedures to be followed during their voting in closed session and that the members also be advised that:
“A plea of guilty is a matter in mitigation. It may indicate a step toward rehabilitation.”
The law officer granted the instructions with respect to voting procedures, but denied the requested advice concerning the effect of accused’s plea.
Initially, the author of the principal opinion seems to believe that the instruction was correctly denied as it involved “ ‘the emphasizing of particular facts by special instructions.’ ” United States v Harris, 6 USCMA 736, *16221 CMR 58. But see United States v Amie, 7 USCMA 514, 22 CMR 304. On the other hand, he indicates that “an instruction to the effect that the accused’s plea of guilty may be regarded [as] a mitigating circumstance is not inappropriate.” With the latter statement, I agree unreservedly. United States v Friborg, 8 USCMA 515, 25 CMR 19; United States v Mamaluy, 10 USCMA 102, 27 CMR 176. In United States v Friborg, supra, at page 516, we noted with approval that “the law officer instructed the court-martial that it could consider the plea of guilty itself ‘as a matter in extenuation and mitigation.’ ” However, the principal opinion subsequently expresses doubt that the plea is in fact a step toward rehabilitation. Common sense alone requires rejection of this assertion for any trial judge or probation officer knows that successful redemption of an individual is initially premised upon his personal recognition of fault. A guilty plea is no more than a solemnly entered confession to that effect. Indeed, the Army itself recognizes the value of the plea as a possible opening step in returning an offender to a useful position in military society. Thus, the suggested instructions on determining an appropriate sentence, contained in Department of the Army Pamphlet No. 27-9, April 1958, Appendix XXXIII, contain the following advice:
“(A plea of guilty is a matter in mitigation which may be considered along with all the other facts and circumstances in the case. Time, effort, and expense to the Government usually are saved by a plea of guilty. Such a plea also may be a manifestation of repentance and a first step toward rehabilitation.)” [Emphasis supplied.]
Moreover, the same belief was expressed by the Acting The Judge Advocate General of the Army in his policy letter suggesting the use of the negotiated plea program within that service.1
Finally, the principal opinion asserts that, in any event, the giving of the requested instruction was within the-sound discretion of the law officer and that he did not err in refusing to grant it. In my opinion, this position ignores-the fact that the members of the court-martial were furnished with no guidance, other than the maximum punishment which must be adjudged,, concerning factors to be considered in determining an appropriate sentence. Indeed, they were not even informed that the question of punishment to bead judged was one solely within their discretion. While it is true the trial defense counsel adverted to accused’s plea as a matter in mitigation, it is equally certain that the court members-know that defense counsel speaks as an advocate. In order properly to perform his duty, he must present all circumstances in the light most favorable to his client. On the other hand, the law officer is looked upon by the court as an impartial source. Thus, when he advises the members that they should give consideration to accused’s plea, they will consider it appropriately. Their own observations of the accused and the evidence of his delicts will lead them to accord it such weight as it deserves, but, at least, they will not dismiss it as mere-puffing. In sum, then, the law officer had no reason to refuse the instruction and its delivery to the court-martial would have assisted it in reaching a proper sentence. Hence, I would hold he abused his discretion in failing to comply with the defense request or to substitute for it advice which embodied the same concept.
I suppose that much of the reluctance-to inform courts-martial of mitigating and extenuating factors at the trial level is engendered by a fear on the part of' some law officers that the accused will receive a sentence less than that for which he bargained in the pretrial agreement. If this is a factor affecting' the failure appropriately to guide court members, it is to be hoped that it will disappear with the employment of the mature and responsible personnel as*163signed to the Army’s new Law Officer Program. If it does not, it is my belief that the Court should re-examine the use of “bargain justice” and determine whether its evils outweigh its advantages.
I would reverse the decision of the board of review and order a rehearing on the accused’s sentence,
“. . . For a guilty person to admit his offense represents some progress along the road to rehabilitation, even if he bargained for it.” Letter, dated April 23, 1953, JAGM, Department of the Army, to All Staff Judge Advocates,, subject: Pleas of Guilty.