(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I agree with my brothers that, for the reasons stated in the principal opinion, the specification of Additional Charge I does not allege an offense. I cannot join, however, in their view that the convening authority did not exceed the limits of the pretrial agreement in this case. For this reason, I would return the record to the board of review with instructions to reduce the sentence appropriately or to send it back to the convening authority for another action on the record.
Prior to the trial, the accused entered into an agreement with the convening authority whereby it was stipulated, in return for a plea of guilty, that no sentence in excess of dishonorable discharge, total forfeitures, and confinement at hard labor for two years would be approved. Implicit in this agreement, of course, as in every such case, was the fact that the accused was to have the benefit of any lesser sentence adjudged by the court. In this case, the court adjudged a sentence of confinement at hard labor for four years, including neither a punitive discharge, nor forfeitures in the punishment.
As the agreement stood, therefore, the accused was entitled to have his sentence reduced to confinement at hard *342labor for two years, for that is the period involved in his pretrial agreement, and none would seriously urge the convening authority could, in light of the failure of the court to adjudge a dishonorable discharge and forfeitures, approve the entire sentence as handed down by the trial court. Yet, in my opinion, that is the ultimate result which the holding in this case would dictate, presumably on the basis of our decision in United States v Monett, 16 USCMA 179, 36 CMR 335. I participated in the Monett decision and agree with the holding therein, but I cannot accept the expansion of its principle to cover such a situation as is now presented. In my opinion, it may be safely distinguished.
In Monett, supra, the accused agreed to plead guilty in return for approval of a sentence not to exceed bad-conduct discharge and confinement at hard labor for one year. The court sentenced him to forfeiture of $50.00 per month for eighteen months, and reduction to the grade of E-3. The convening authority reduced the sentence to forfeiture of $50.00 per month for twelve months and reduction to the grade of E-3. Reversing the decision of the board of review, we upheld the action of the convening authority, pointing out that the sentence approved was lesser in amount than that adjudged by the court-martial and also lesser in degree than that to which the accused had agreed in the pretrial agreement. Such was easily demonstrated, for twelve months’ forfeitures and reduction is lesser in quantity than the adjudged eighteen months’ forfeitures and the same reduction. In like manner, twelve months’ forfeitures and reduction is lesser in amount than the twelve months’ confinement to which accused had agreed in his pretrial agreement. Indeed, we ourselves noted therein:
“. . . As Colonel Edwin W. Baron, the dissenting member of the board of review, phrased it, the question was whether ‘a forfeiture of $50 per month for one year and a reduction to the pay grade E-3 [is] a lesser punishment than a bad conduct discharge and confinement at hard labor for one year?’ To answer the question, Colonel Baron considered it fruitful to compare the two punishments in light of the decisions of this Court dealing with the substitution of punishments by either a convening authority or by the court-martial on a rehearing to determine whether the substituted penalties were, as required by law, less severe than those originally imposed. See Articles 62, 63, and 64, Code, supra, 10 USC §§ 862, 863, and 864, respectively.” [United States v Monett, supra, at page 182.]
In short, in that case, the convening authority reduced the period of adjudged forfeitures to twelve months in order to conform to the pretrial agreement. Unlike that situation, however, the convening authority herein did not merely reduce the confinement adjudged in order to accord with the two-year limitation prescribed in the pretrial agreement. He purported to do more. He took that twenty-four-month reduction, which he was bound to make under the agreement in any event; subtracted three additional months; and “commuted” the entire “reduction” to forfeiture of $86.00 per month for twenty-one months. In short, what the convening authority here has succeeded in doing is to convert an additional three-month reduction in confinement to forfeitures of two-thirds pay for twenty-one months. Yet, as we noted in Monett, supra, the question presented is whether such change accords with the familiar formulae for substitution of punishments applied at every level in military justice. Under these, one day’s forfeiture may be substituted for one day’s confinement. Table of Equivalent Punishments, Manual for Courts-Martial, United States, 1951, paragraph 127c. Thus, by the additional reduction he made outside the terms of the pretrial agreement, the convening authority was authorized only to apply three months’ forfeitures, and he exceeded that amount by some eighteen months.
Thus, I believe clearly this is not Monett, supra, wherein the convening-authority reduced the period of forfeitures involved in the sentence to the *343period of confinement authorized in the pretrial agreement. What has happened here is that the convening authority has, as he was bound to do, reduced the period of confinement to that involved in the pretrial agreement and then attempted to take the amount of sentence so set aside and convert it into an entirely different punishment. Therefore, rather than ending up with two years’ confinement as the agreement contemplated, the accused ends up with that amount less three months, but plus a large financial loss for the same period. In my opinion, such sentence approval exceeds the agreement, and the uncritical extension of our Monett decision will result in the opening of a Pandora’s box of post-trial changes in pretrial agreements, which will leave the accused totally confused as to what his agreement contains and the boards of review and this Court hearing numberless appeals on the distinction, if any, between the sentence approved and that for which the accused bargained. I can only hope that astute defense counsel will recognize the problems now presented and, in such eases, provide expressly against these new reformations. Otherwise, there will truly be no “agreement” on the approval of punishment in any sense of that word.
I would reverse the decision of the board of review and return the record of trial to the Judge Advocate General of the Army, with instructions to disapprove so much of the sentence as relates to forfeitures in excess of ninety days or to return the case to the convening authority for a new action consistent with my opinion.