(dissenting):
I dissent.
I sincerely regret I am unable to join with either of my brothers in their separate opinions, which have the effect of affirming accused’s conviction on Charge I and its specifications. The result of our differing approaches is that no guidance is furnished to those charged with the administration of military justice and no great advantage is gained by either side, for, even though his sentence is affirmed, this accused has been returned to inactive duty with a probationally suspended punitive discharge, the execution of which must be remitted with the delivery of our mandate. However, I cannot in good conscience conclude that accused’s post-trial statement is not in conflict with his earlier plea of guilty, and, under the circumstances which I hereinafter set forth, I believe the inconsistency demands that we reverse and remand.
Tried by special court-martial, the accused, among other offenses, pleaded guilty to three specifications of larceny, in violation of the Uniform Code of Military Justice, Article 121, 10 USC § 921. He was found guilty as charged, and sentenced to bad-conduct discharge, partial forfeitures, and confinement at hard labor for six months. Intermediate appellate authorities affirmed, although the board of review deemed accused’s plea partially improvident and reduced the findings concerning one specification of larceny to wrongful appropriation. We granted review on the issue of the providence of accused’s plea of guilty to the three specifications of larceny.
The three offenses alleged are, respectively, that accused stole a car coat, a radio, and a camera. No evidence was adduced at the trial, the Government choosing to rely upon accused’s plea. Following receipt of the latter, the president of the court advised the accused as follows:
“PRES: Sergeant Joseph A. Brown, you have pleaded guilty to all charges and specifications. By so doing, you have admitted every act or omission charged and every element of those offenses. Your plea subjects you to a finding of guilty without further proof of those offenses, in which event you may be sentenced by the court to the maximum punishment authorized for it. Has the accused been advised by the defense counsel of the maximum punishment authorized in this case for which he has pleaded guilty?
“DC: Yes, sir.
“PRES: You are legally entitled to plead not guilty and place the burden upon the prosecution of proving your guilt of those offenses. Your plea will not be accepted unless you understand its meaning and effect. Do you understand?
“ACCUSED: Yes, sir.
“PRES: Understanding this, do you persist in your plea of guilty?
“ACCUSED: Yes, sir.”
After the trial, the convening au*213thority took his action upon the record. In that document he set forth the following :
“The accused pleaded guilty to three specifications of larceny. Acting Corporal William L. Weekly, U. S. Marine Corps, reported the theft of a National Transistor portable radio from his foot locker to the Investigation Section, Marine Corps Air Facility on 4 February 1959. Two days later, Acting Corporal Joseph W. Bourland, U. S. Marine Corps, reported the theft of a Polariod Land Camera from his wall locker. During the interview with the investigator, Weekly stated that the Japanese houseboys had observed the accused in the vicinity of his foot locker with a pair of long pliers on the date of the theft of his radio. The accused, after being properly warned under the provisions of Article 31, stated that he had taken the radio and camera but had given them to two friends to be held for him until he arrived at Treasure Island, California. The camera and radio were recovered and indentified by the owners. Acting Staff Sergeant Thomas M. Ereth, U. S. Marine Corps, reported to the Investigator that he had reason to believe that the accused had stolen his car coat and described it. The accused admitted having a coat of that description but stated that he had purchased it from a man who had since returned to the United States. The accused agreed voluntarily to a search of his personal effects. A car coat was recovered which was identified by Acting Staff Sergent Ereth as being his.”
Three days later, the accused submitted a statement in rebuttal to the above remarks of the convening authority:
“In rebuttal of the synopsis of offenses as outlined by the convening authority I wish to state that at the time the search of my personal effects was made I owned a carcoat, but I ■do not know its present whereabouts. As regards the camera in question, it was at one time in pawn to me for ten dollars and Sgt Amos came to me and said he wanted to borrow the camera to take pictures with it. After he borrowed the camera he never returned it to me. He never paid me the ten dollars he owed me on it either. I had the pliers out making a ring at the time. Also, I did not give the radio to any person to return to me when I got back to the States. I took the radio but never intended to keep it. The locker was open and I was listening to the radio while working on a ring I was making. But I remember I borrowed a field jacket from a friend on the other side of the base. At the time I didn’t know that the radio was in the field jacket when I picked the field jacket up to return it. I ask [sic] my friend could I leave [it] in his wall locker while I played a few games of pool. On returning to my barracks I hadn’t realized I left the radio behind.”
The convening authority’s comments and the accused’s statement in rebuttal were made known to the supervisory authority in his staff legal officer’s review. However, that advisor omitted any discussion of the conflicts between the two documents and apparently did not consider the effect of the post-trial statement upon accused’s plea. The board of review considered that issue but found the accused’s declaration was only inconsistent with his plea insofar as it affected the specification alleging accused’s theft of the radio. It accordingly sought to cure the improvidence of reducing that offense to wrongful appropriation.
At the outset, my brothers contfend that accused’s statement is not inconsistent with his plea of guilty of stealing the radio, camera, and car coat. I am simply unable to reach that conclusion. The convening authority’s action spoke of Corporal Weekly’s radio, Corporal Bourland’s camera, and Sergeant Ereth’s car coat. Accused’s statement is in rebuttal to the comments relating to these items. Initially, it relates that accused owned a car coat at the time his persona] effects were searched but which had since disappeared. Surely, it is ridiculous to conclude he was so scatter-brained that he referred in his rebuttal, statement to a coat entirely *214unconnected with the case. I find it absurd to attribute any such intent to him. Accordingly, I believe we must necessarily find that he was claiming ownership of the coat alleged to have been stolen. With regard to the camera, it is equally clear that accused was disclaiming any knowledge of its presence in his effects, for he states that his original, legitimate control over it had ended with the loan to Sergeant Amos. Finally, with respect to the radio, accused specifically admits its taking, but, just as strongly, denies any intent to keep it, temporarily or permanently. In short, with respect to all the items allegedly stolen, accused has, albeit in nontechnical language, denied that he acted animo furandi or with intent temporarily to deprive the respective owners of their various properties. This is an indispensable requisite to proof of guilt of either larceny or wrongful appropriation. United States v Sicley, 6 USCMA 402, 20 CMR 118. Thus, it is clear to me that my brothers err when they find nothing incongruous between accused’s statement and his plea.
Having concluded that accused’s post-trial declaration is indeed an impeachment of his plea of guilty, it is necessary to investigate the assertion that inconsistent statements must be made during the trial proceedings in order to form a basis for holding a plea improvident. Judge Latimer’s view that declarations so made cannot be considered on appeal as indicating improvidence is contrary to our holding in United States v Lemieux, 10 USCMA 10, 27 CMR 84. There, we said, at page 12:
“In its brief the Government argues that a question of improvidence may not properly be considered unless some matter inconsistent with a plea of guilty appears prior to the termination of the trial. We do not agree. In our opinion, the staff judge advocate’s post-trial review may be utilized for this purpose. See United States v Hood, 8 USCMA 473, 24 CMR 283.”
For my purpose, that case is disposi-tive of the claim that we may not consider the statement which this accused made in rebuttal to assertions in the convening authority’s action. Moreover, it is a rule which accords with the proper administration of justice. We have held that inconsistent comments made during the course of the trial ipso facto require a change in the plea unless they are withdrawn by the accused upon proper explanation. United States v Epperson, 10 USCMA 582, 28 CMR 148. From the Government’s standpoint, a more liberal rule may exist after the trial’s end, see United States v Lemieux, supra, but the fact remains that we should not close our eyes to the-possibility of a complete miscarriage of justice simply on the basis that sentence has been pronounced. This is-particularly true in the case of special courts-martial wherein the accused is not entitled to representation by legally qualified counsel and his plea is not received by an officer qualified within the-meaning of Code, supra, Article 26, 10-USC § 826. In short, I am of the view that post-trial statements by an accused which are inconsistent with his-plea of guilty may be utilized to find his plea was improvidently entered and to require a rehearing. At the very least, they demand that the convening-authority investigate the differences between the statement and plea with a view to finding whether the latter was properly made.
Finally, I am not impressed with the-argument that consideration of an ex-parte post-trial denial of guilt gives the accused an automatic right to have his-, sentence reduced by another court-martial in view of our decisions in United States v Jones, 10 USCMA 532, 28 CMR 98, and United States v Skelton, 10 USCMA 622, 28 CMR 188. Initially, I point out that this argument is-based upon the faulty premise that every post-trial comment by an accused necessarily indicates improvidence. Our-affirmance in United States v Lemieux, supra, is a ready example to the contrary. Indeed, these continual controversies over whether pleas are provident would be almost entirely eliminated’ if the presidents of special courts-martial and the law officers of general courts-martial would abandon their-*215rigid adherence to the formula advice concerning the meaning and effect of guilty pleas and seek to find if the accused, in truth, is actually guilty of the offenses charged and realizes the admissions inherent in his plea. That is what Congress intended to be done when it enacted Code, supra, Article 45, 10 USC § 845. Thus, House Report No. 491, 81st Congress, 1st Session, states, at pages 23 and 24:
“The provisions of this article will be supplemented by regulations issued by the President. It is contemplated that the recommendations of the Keeffe Board as to the procedure to be followed by a court martial when a plea of quilty is entered will •be adopted. The proposed procedure is as follows (see Keeffe report, p. 142) :
“(2) In every case the meaning and effect of a plea of guilty should be explained to the accused (by the law ■officer of a general court martial; by the president of a special court martial; by the summary court), such ■explanation to include the following:
“(a) That the plea admits the offense as charged (or in a lesser degree, if so pleaded) and makes conviction mandatory.
“(b) The sentence which may be imposed.
“(c) That unless the accused admits doing the acts charged, a plea of guilty will not he accepted.” [Emphasis supplied.]
While the Manual for Courts-Martial, "United States, 1951, purports to implement the Congressional purpose by providing advice to be used in the event of a plea of guilty, see Manual, supra, Appendix 8, page 509, I believe it fails to achieve the desired result. Accordingly, I suggest that the officers charged with that duty in courts-martial interrogate the accused upon his plea in simple, nontechnical language and determine if he understands it in fact admits the allegations involved in the specifications and that he is pleading guilty because he is in fact guilty. An extended examination of the accused along these lines insures providence upon the record and gives the lie to his later claims of impropriety. Indeed, I am informed that such an examination is standard in the United States District Courts. I need hardly add that its adoption in the armed forces will substantially eliminate any basis for Judge Latimer’s fear that accused’s post-trial claims will serve to gain him an unwarranted rehearing.
In sum, I am convinced that this accused’s statement in rebuttal to the matter contained in the convening authority’s action is totally inconsistent with his earlier plea. As the former was made in a special court-martial wherein he was not represented by qualified counsel, I would hold that a substantial showing of improvidence, unrebutted by the record or review, has been made. Accordingly, I disagree with the majority’s affirmance of the case.
I would reverse the decision of the board of review concerning Charge I and its specifications and return the record of trial for reassessment of the sentence upon the remaining findings of guilty and either a rehearing upon, or dismissal of, the larceny charges.