(dissenting):
The majority opinion disadvantages the accused by depriving him of the benefit of the relatively modest sentence provided for in a pretrial agreement and penalizes the Government for a promise originating in the accused’s own offer to plead guilty.
Recently, we denied review of a case in which the law officer determined at trial, during an inquiry into the voluntariness of the accused’s plea of guilty, that the accused waived “any pretrial motions for speedy trial.” United States v Dudley, Docket No. 20,688, December 20, 1967. In my opinion, the provision in the accused’s offer to plead guilty is nothing more than a similar representation to the convening authority that he proposes to waive any speedy trial issue. This is how the parties understood the provision when the agreement was consummated. The Base Legal Officer has certified to us that there was no policy or effort by the Command to obtain waiver of any pretrial right, as a condition to acceptance of an accused’s offer to plead guilty. The Chief of the Defense Section, Base Legal Office, Marine Corps Base, Camp Pendleton, California, avers that a speedy trial waiver provision was included in offers to plead guilty to apprise the Staff Legal Office that the defense had decided to waive the speedy trial issue and to indicate that the accused knew he had a right to a speedy trial. The Defense Section viewed the provision as “protection” for the accused and his counsel. Finally, the statement by trial defense counsel, which was filed with us, specifically indicates there was an affirmative “defense decision not to raise the speedy trial issue.” Not one of these representa*382tions is disputed on this appeal. In my opinion, they demonstrate there was no evil purpose in the provision, and no evil consequence resulted from it.
Apart from demonstrating that the waiver provision had a beneficent, rather than evil, purpose and effect, the evidence also demonstrates there is no speedy trial issue present in this case. The period of confinement from October 11, 1966, to January 13, 1967, reflected in the stipulated chronology of events, was patently justified under the terms of a previous conviction. The accused had been tried and convicted on September 30, 1966, for two counts of unauthorized absence, and was sentenced to confinement for four months. The convening authority approved and ordered the sentence executed, with provision for suspension of two months’ confinement. However, ten days after his conviction, the accused escaped from confinement. The suspension was vacated, and the accused was required to serve the entire sentence. Similarly, the chronology of the proceedings from February 7, 1967, when the accused was returned to military control, until the case came on for trial, reflects no period of unreasonable or oppressive delay. From the stipulated facts, it is obvious the accused and his lawyer were fully aware of all the circumstances before the offer to plead guilty, and for reasons best known to themselves included the waiver clause in the offer. In any event, even if the facts are twisted to raise the possibility of an issue, we cannot close our eyes to the obvious “probability that the accused and his counsel weighed the evidence and determined that it was inadequate for an effective legal defense” and, therefore, chose “to disregard the evidence in favor of the possible advantage of a guilty plea.” United States v Hinton, 8 USCMA 39, 41, 23 CMR 263.
Before trial, the accused repeatedly rej'ected entreaties by his counsel for permission to seek mitigation of the charges, and “specifically precluded” counsel from advancing any argument which might result in his retention in the Marine Corps. At trial, the accused assured the law officer that “no pressure, or influence” of any kind was “brought to bear” to persuade him to plead guilty. Again, he insisted that his counsel present nothing during the sentence proceedings, except two letters. The accused does not now deny his guilt; he does not now repudiate his trial contention that he freely determined to plead guilty; he does not now say that he did not voluntarily include the waiver provision in his offer to plead guilty; and he does not now contend he was influenced or pressured into waiving his right to a speedy trial. In fact, there is nothing in his arguments to indicate that given another opportunity, he would challenge the validity of the pretrial proceedings. In these circumstances, it is indeed a “ ‘hollow gesture’ ” to invalidate the pretrial agreement, set aside the plea of guilty, and order a rehearing, at which the accused might be subj'ect to punishment greater than provided in the agreement. See United States v Hinton, supra, at page 43.
I would affirm the decision of the board of review.