(dissenting):
I dissent.
In my view, the rationale and decision in this case misses the point of our holdings in United States v Zemartis, 10 USCMA 353, 27 CMR 427; United States v Downing, 11 USCMA 650, 29 CMR 466; and United States v Jumpe, 11 USCMA 798. The result is that we now affirm this accused’s conviction on the basis of our speculation concerning whether he knew he might receive a bad-conduct discharge when he pleaded guilty whereas, in the cited cases, we reversed under precisely the *366same circumstances. Moreover, with this decision, we render uncertain an area of the law which had heretofore been deemed settled and extend an invitation to lower appellate bodies either to affirm or reverse on the same facts as they see fit. This will not provide equal justice under law.
The accused was tried by special court-martial and pleaded guilty to an absence without leave of twelve days, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886. At the time of his plea, he was informed of his right to plead not guilty and that, if he persisted in his plea of guilty, he might be awarded the “maximum sentence” authorized for his offense. Accused persisted in his plea, and the court-martial returned findings of guilty. After matters in mitigation and extenuation had been presented as well as evidence of three previous convictions, the president of the court-martial advised the members that, because of the prior convictions, accused might be sentenced to a bad-conduct discharge as a permissible additional punishment. He then asked defense counsel, a nonlawyer, if he desired to argue the issue of appropriateness of punishment. Counsel replied that he did and made a two-sentence statement in which he simply requested the court members not to impose a punitive discharge for “twelve days UA.”
Nevertheless, the court sentenced the accused to bad-conduct discharge, partial forfeitures of pay for six months, and confinement at hard labor for six months. He petitioned the convening authority for suspension of his sentence and restoration to duty. That officer took such action with the exception of the approval and ordering into execution of confinement at hard labor for two months and forfeiture of pay for a like period. As thus modified, the sentence was affirmed by the supervisory authority and the board of review. We granted accused’s petition on the question whether the president erred to his prejudice by failing to afford him an opportunity to withdraw his plea after receiving evidence of three previous convictions.
In United States v Zemartis, supra, the accused also pleaded guilty to a charge of absence without leave and was informed by the president of the court-martial that, on the basis of his plea, he might be sentenced to confinement at hard labor for six months, forfeiture of two-thirds’ pay for six months, and reduction to the lowest enlisted grade. After findings of guilty were announced, evidence of three previous convictions was received, and the president advised the court-martial that the sentence might also involve a bad-conduct discharge. The court thereafter included that punishment in his sentence. We reversed, stating that the failure of the president to advise the accused of the effect of possible previous convictions upon his sentence either at the time of the plea or when evidence of such convictions was introduced “and ‘permitting him [an opportunity] to withdraw his plea . . . clearly constitutes error.” (Emphasis supplied.) United States v Zemartis, supra, at page 355. Moreover, we there stated:
“. . . Where, as here, the court-martial imposes a sentence more severe than that which the accused was led to believe was authorized, prejudice clearly follows.
“The error was not cured nor was its prejudicial effect lessened by the failure of the accused to change his plea after the president instructed the court-martial that the maximum allowable punishment included a punitive discharge.” [Emphasis supplied.]
In United States v Downing, supra, we were again confronted with the same issue. In that case, the accused also pleaded guilty to an unauthorized absence and was informed that the plea could lead to the imposition of the maximum authorized sentence. After findings were announced, evidence of four convictions was received. Evidence in extenuation and mitigation was introduced, and the president announced that a bad-conduct discharge was authorized. The court included a bad-conduct discharge in its sentence. We sustained the action of the board *367of review in eliminating the bad-eon-duct discharge from the sentence in a per curiam opinion, authored by Judge Latimer, stating at page 651:
“It is to be noted that when he announced the maximum sentence which could be imposed, the president did not inform the accused of the increased penalty permitted by Section B of the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1951, and again interrogate him about withdrawing or permitting his plea to stand. . . .
“In the recent case of United States v Zemartis, 10 USCMA 353, 27 CMR 427, a majority of the Court held that a president of a special court-martial erred when he failed to inform the accused that evidence of two or more previous offenses would subject him to a bad-conduct discharge and that, because of the increase in punishment, he was at liberty to withdraw his plea of guilty. While the Government seeks to differentiate the instant case from Zemartis, we believe they are sufficiently analogous to be governed by the same principle. Therefore, on the authority of that case, the certified question is answered favorably to the board of review’s ruling.” [Emphasis partially supplied.]
No opinion was written by the Court in United States v Jumpe, supra, as we granted the petition for review and reversed the decision of the board of review in a single order. However, the docket on file in the Clerk’s office of this Court reflects that the case involved facts similar to those in the record now before us and, in addition, that the defense counsel specifically concurred in the president’s instructions to the court-martial that a bad-conduct discharge might be imposed.
The principle involved in the foregoing cases is crystal clear. The president must either inform the accused at the time of his plea that he may receive the additional punishment of a bad-conduct discharge if evidence of two or more previous convictions is received or, when such proof is introduced, he must advise him of the permitted increase in the sentence and afford him an opportunity to withdraw his plea. One of the two courses must be followed. Neither occurred here, and there is nothing to indicate that the accused, represented only by a non-lawyer, was aware of his right so to act or that he was subject to a sentence including a punitive discharge when he entered his plea. True it is accused sought another chance in his testimony and that defense counsel argued that a discharge should not be imposed and that the president of the court instructed the members in accused’s presence that such a penalty was permissible, but, in each of the three cases cited above, we refused to hold that these circumstances operated to purge the prejudice flowing from the president’s failure to afford him a chance to withdraw his plea. This is particularly true in the Jumpe case where the defense counsel expressly concurred in the president’s instructions and in Zemartis where we specifically held that the failure of the accused to change his plea when evidence of previous convictions was received did not remove the prejudicial effect of the error. In short, the essence of those cases is the rule that the accused must be aware of the possibility of receiving a bad-conduct discharge when he pleads guilty or afforded an opportunity to change his plea when the increased punishment finally is brought to his attention. If that does not appear in the record, reversal must follow. United States v Zemartis; United States v Downing; United States v Jumpe, all supra.
Turning to the principal opinion, one finds that our previous cases are held to be “distinguishable in important particulars.” The subsequent discussion, however, does not indicate a single factor which supports that conclusion. Thus, it is said that, in this case, the accused’s sworn testimony and defense counsel’s argument indicate all were aware a bad-conduct discharge could be imposed. I call attention to the fact that, in United States v Jumpe, supra, counsel was so aware of that fact that he concurred in the president’s *368advice to that effect and that the same consideration was present in both the Downing and Zemartis cases. That, however, is not the issue, for these factors have no bearing on whether accused or his counsel knew he could withdraw his plea.
Finally, it is contended the accused would not have made a post-trial application for probation had he not been aware of the possibility of receiving a bad-conduct discharge. The logic involved in this argument simply escapes me. I suspect that accused’s request for the suspension of his sentence was based upon the fact that he received a bad-conduct discharge rather than upon any knowledge during the trial that he might receive such a punishment.
In sum, then, I believe the distinctions said to exist between this case and our prior holdings are either irrelevant or nonexistent. Had we been concerned there solely with the question of accused’s knowledge concerning the possible maximum sentence, we would not have reversed those cases. What the Chief Judge has, for some reason, chosen to overlook is the fact that Zemartis, Downing, and Jumpe, all supra, deal principally with the making of an informed plea of guilty and the opportunity to withdraw it when it appeared that a changed situation is present. I believe those cases represent good law and I would adhere to the principle for which they stand. Otherwise, we apply a philosophy which permits some accused to be punished under one set of rules while others receive their sentences under a different set of standards. This may provide “justice” in the eyes of some individuals, but it is not and never will be the application of the rule of law as we understand it in this Nation.
I would reverse the decision of the board of review and return the record of trial with instructions either to disapprove the bad-conduct discharge or to order a rehearing on the sentence, at which time the accused can be afforded a proper opportunity to change his plea.