(dissenting):
I dissent.
I
Three years ago, this Court decided United States v Chancelor, 16 USCMA 297, 36 CMR 463. In it, we held specifically that Uniform Code of Military Justice, Article 45, 10 USC § 845, as well as Presidential regulations having the force and effect of law, required a proper inquiry to be made into an accused’s guilty plea. Regarding the scope of such inquiry, we pointed out, at page 300:
“. . . Unfortunately, an attempt was also made to codify the necessary inquiry into a pro forma advice to the accused in the Manual’s Trial Procedure Guide. See Manual . . . [for Courts-Martial, United States, 1951], Appendix 8a, page 509. The result has been that, as in this case, accused is not advised of the elements of the offense and his guilt in fact is not always established on the record. In consequence, after the trial is concluded, the Government is faced with appellate avowals of innocence and the boards of review and this Court with the necessity to make important and binding determinations on the basis of a veritable blizzard of conflicting affidavits. If, however, the procedure understood by the Congress to be instituted and adopted by the President in the Manual, supra, paragraph 70b, had been followed, there would have been a delineation of the elements of the offense and an express admission of factual guilt on the record. . . . Such regulations by the President — here so clearly recommended by the Congress — have the force and effect of law. United States v Smith, 13 USCMA 105, 32 CMR 105.” [Emphasis supplied.]
Having thus squarely laid down the principle, we sought to avoid future controversy in this area by strongly urging “the services to take remedial action and insure compliance with the statutory and regulatory inquiry to be made into guilt in fact.” (Emphasis supplied.) As the procedure was not followed in that case, we reversed and remanded for a trial on the merits.
Since that decision, the Supreme Court has adopted a similar construction of Rule 11, Federal Rules of Criminal Procedure. In so holding, it remarked in McCarthy v United States, 394 US 459, 466, 22 L Ed 2d 418, 425, 89 S Ct 1166 (1969) :
"... A defendant who enters such a plea [of guilty] simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v Zerbst, 304 US 458, 464, 82 L Ed 1461, 1466, 58 S Ct 1019, 146 ALR 357 (1938). Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” [Emphasis supplied.]
McCarthy, supra, thus clearly placed the duty on Federal judges to make inquiry into accused’s understanding of the nature and effect of his plea, ascertaining he knew the law regarding the offense with which he was charged, and that he, based on such knowledge, factually admitted his guilt. While this decision was in construction of Rule 11, and was made only prospective in application by the subsequent holding in Halliday v United States, 394 *543US 831, 23 L Ed 2d 16, 89 S Ct 1498 (1969), the problem has even more recently been pronounced to be one of constitutional dimensions. Thus, in Boykin v Alabama, 395 US 238, 23 L Ed 2d 274, 89 S Ct 1709 (1969), the Court reviewed a State conviction of robbery, based on a plea of guilty, as to which no inquiry was made but concerning the providence of which accused made no complaint on appeal, the Alabama Supreme Court on its own motion discussing the adequacy of the record to show that petitioner had intelligently and knowingly pleaded guilty. Its affirmance over the dissent of three judges went to the Supreme Court on another issue, but that body determined the question of the plea was properly before it and based reversal solely thereon.
Reiterating that a plea of guilty necessarily involves waiver of the several constitutional rights mentioned in McCarthy, supra, and pointing out that presuming waiver of such rights from a silent record is clearly impermissible, the Supreme Court, in language hauntingly familiar to any reader of Chancelor, supra, unequivocally laid down the rule that, absent a showing on the record that the accused intelligently and knowingly waived his rights by entering his plea, the conviction based thereon cannot stand. With unmistakable clarity, it said:
“What is at stake for an accused facing death or imprisonment demands utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (Garner v Louisiana, 368 US 157, 173, 7 L Ed 2d 207, 219, 82 S Ct 248; Specht v Patterson, 386 US 605, 610, 18 L Ed 2d 326, 330, 87 S Ct 1209), and forestalls the spin-off of collateral proceedings that seek to probe murky memories.
“The three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error ‘because the record does not disclose that the defendant voluntarily and under standingly entered his fleas of guilty.’” [Boykin v Alabama, supra, at page 280.] [Emphasis supplied.]
What started three years ago in Chancelor, supra, as a positive requirement of statute and Presidential regulation for the military courts has now metamorphosed into a matter of due process — the positive constitutional command that the record show an adequate inquiry into the accused’s understanding of his plea, i.e., that such effectively waived his constitutional rights; that he understood the elements of the offense; that he understood his plea established such elements; and that the facts accorded with them. Boykin v Alabama, supra; McCarthy v United States, supra. As Boykin itself notes, reversible error is present when such record showing is absent ■ — -and even if the accused does not complain or indicate in any way the improvidence of his plea.
II
Turning to the instant record, it is apparent the law officer’s perfunctory inquiries.do not make out a conscious and knowing waiver of the accused’s constitutional rights or an understanding of the meaning and effect of his plea. The questions posed to the accused elicited no factual basis for understanding, and, at best, established accused freely made the plea, without at the time understanding the nature of the charges, the punishment to which he subjected himself, or the fact that he thereby waived his rights against self-incrimination, to a trial by the military counterpart of a jury, or to confront his accusers.
Even my brothers concede there was no compliance with Chancelor, supra, and that to inquire of an untutored layman whether he understands the elements of the offense is inadequate, as is the failure on the law officer’s part also to establish the factual basis for the plea. Lacking such inquiries, how then can it be said there is on this *544record the knowing and conscious waiver required to be made out as a matter of constitutional due process or the eongressionally-commanded inquiry which we declared necessitated by Code, supra, Article 45, and paragraph 706 of the Manual, supra ? I hold that such a conclusion cannot be reached and, as in Boykin and Chancelor, both supra, the inevitable result should be reversal. I would so order.
My brothers, however, go beyond the record to find a provident plea on the basis of inferences from factors which are clearly irrelevant to the issue before us. Thus, they look to accused’s previous convictions; characterize him as a sort of expert in absence without leave; and find he must have known the need to have permission to be absent. They likewise infer such information on his part from service of the charges and, finally, conclude he knew the requisite intent from his post-trial affidavit that counsel asked him whether he intended to remain absent permanently, an inquiry to which he replied in the negative.
This last bit of evidence with which the majority overcome the deficiency of the law officer exemplifies the weakness of their arguments. Not only is this post-trial affidavit not a part of the record and, hence, not properly considered as curative under Boykin, supra, but it serves to establish, not that accused knew the elements of the offense, but that his counsel did. The accused’s unrebutted and unqualified denial of the requisite intent merely establishes the improvidence of his plea — not knowledge of the law sufficient to sustain a voluntary and knowing waiver.
So, too, do his prior convictions weigh not at all in determining the extent of his legal knowledge — that which the Supreme Court called “an understanding of the law in relation to the facts.” McCarthy v United States, supra, at page 466. Factually, they indicate only that he went absent without leave before, not that he understood anything regarding the law relative thereto, or even that he then or now believed himself guilty. In short, what the majority do here is to search the record and accompanying documents in order to infer knowledge on the part of the accused which we three years ago said the record itself must establish and which, more recently, the Supreme Court said must demonstrate as a matter of constitutional due process. Chancelor, supra; Boykin v Alabama, supra. I prefer not to join in what can only be denominated as either the very sort of “spin-off of collateral proceedings that seek to probe murky memories” forestalled by Boykin’s principle or as resolution of the blizzard of affidavits we sought to avoid with Chancelor’s iteration of the statutory and Presidential rule.
I would reverse the board of review and remand the case for a rehearing.
APPENDIX A OUT-OF-COURT HEARING
“The out-of-court hearing was called to order at 1411 hours, 16 October 1968.
“Present at the out-of-court hearing were the law officer, counsel for both sides, the accused, and the reporter.
“LO: Private Care, there is no intent on my part to reflect adversely upon your counsel or the advice he has given you. I must, however, determine personally the providency and voluntariness of your plea of guilty. Therefore, I am going to ask you some questions concerning your plea of guilty.
“Do you know that the burden of proof to establish your guilt beyond a reasonable doubt rests upon the Government ?
“ACCUSED: Yes, sir.
“LO: Do you know you are entitled to plead not guilty?
“ACCUSED: Yes, sir.
“LO: Do you understand the meaning and effect of your plea?
“ACCUSED: Yes, sir.
“LO: Do you know that your plea subjects you to a finding of guilty without further proof?
*545“ACCUSED: Yes, sir.
“LO: And do you know that based on your plea of guilty you may be sentenced by the court to the maximum punishment authorized for it?
“ACCUSED: Yes, sir.
“LO: Do you know the elements of the offense to which you have pleaded guilty?
“ACCUSED: Yes, sir.
“LO: Now, have you had adequate opportunity to consult with your counsel prior to the date of trial and go into any matters which you feel were necessary prior to coming to trial?
“ACCUSED: Yes, sir.
“LO: Are you satisfied with your counsel ?
“ACCUSED: Yes, sir.
“LO: Has your counsel advised you of the maximum punishment to which you may be sentenced?
“ACCUSED: Yes, sir.
“LO: Is there a pretrial agreement in this case?
“TC: Yes, sir, there is.
“LO: Let me see it, please.
“The trial counsel handed a document to the law officer for his examination.
“LO: Did the decision to negotiate a plea originate with you and your counsel?
“ACCUSED: Yes, sir.
“LO: Have you given your pleas of guilty voluntarily?
“ACCUSED: Yes, sir.
“LO: Was any force or coercion used upon you in an effort to get you to enter a plea of guilty?
“ACCUSED: No, sir.
“LO: Do you believe that it is in your best interest to plead guilty?
“ACCUSED: Yes, sir.
“LO: Are your pleas the product of your own free will and a desire to confess your guilt?
“ACCUSED: Yes, sir.
“LO: Are you aware that you may withdraw your plea at any time prior to the time the court announces your sentence in the case?
“ACCUSED: Yes, sir.
“LO: And you persist in your plea of guilty?
“ACCUSED: Yes, sir.
“LO: Very well, the plea will be accepted.”