(dissenting):
I dissent.
While it might be argued that this particular accused was not harmed by virtue of the fact that the military judge, who alone sat in judgment on the accused, was made aware of the contents of the pretrial agreement, including the agreed-upon sentence, I believe that the practice is fraught with danger and should be discontinued. The very fact that my brothers find it necessary to discuss at length the problems involved is, in my opinion, indicative of the potential for prejudice to an accused. The Judge Advocates General of the Navy and the Army have recognized the inherent dangers and each service has issued specific instructions thereon. Manual of the Judge Advocate General, Department of the Navy, section 0114b(l)(c) (1969), provides in part:
“. . . The military judge hearing the case alone, without members, is not, prior to his adjudging sentence, authorized to examine or inquire into that portion of the pretrial agreement which sets forth the specific sentence agreed upon by the accused and the convening authority.”
The Military Judges’ Guide, chapter 3, Department of the Army Pamphlet 27-9, contains the following language:
“. . . Normally sound practice indicates that in a trial before a military judge alone, the military judge in inquiring into the providence of the plea should defer consideration of the provisions of the agreement relating to the quantum of the agreed punishment until after announcing the sentence.”1
The Coast Guard certification in this case presupposes error for it asks whether the military judge’s action constituted “prejudicial error.” (Emphasis supplied.) Since the Air Force does not sanction the use of pretrial agreements, the matter is not pertinent to Air Force courts-martial.
The military practice of pretrial agreements has no direct civilian counterpart. The practice of plea bargaining in the civil system, which frequently results in a plea of guilty to charges fewer in number or lesser in degree than originally brought, does not carry with it a previously agreed-upon sentence. While a civilian prosecutor may agree to recommend a particular sentence or clemency of some sort, including probation, the agreement has no legal effect and the ultimate determination as to sentence is made by the court alone, secure in the knowledge that the *569sentence adjudged is not an exercise in futility, that is, subject to change at the first stage of appellate review.
As my brothers note, trial before a military judge without court members is new to military law. Article 16, Uniform Code of Military Justice, 10 USC § 816. The new procedure, for determination of guilt or innocence and for imposition of sentence, is comparable to that which pertains in Federal courts. The difference lies in the predetermined sentence. While Federal judges have always decided what is an appropriate sentence, this is a unique responsibility for his military counterpart. If only because it is unique, the latter should be as unencumbered as the former in exercising his personal judgment as to sentence. But, in any event, knowledge of the terms of the previously agreed-upon sentence can only be viewed as adding a new, disturbing element to the information upon which his determination is based, a burden not faced by the Federal civilian judge. In exercising his new responsibility, the military judge should not be so taxed.
The convening authority, with whom an accused makes the pretrial agreement, is an appellate authority (United States v Boehm, 17 USCMA 530, 38 CMR 328 (1968); Lowe v Laird, 18 USCMA 131, 39 CMR 131 (1969)) with broad powers over the decisions of a court-martial. United States v Massey, 5 USCMA 514, 18 CMR 138 (1955). See also United States v Smith, 16 USCMA 274, 36 CMR 430 (1966). While he may not increase the punishment adjudged by the court-martial, nor approve a sentence in excess of that agreed upon if it is less than that adjudged, he may approve a sentence lesser than either adjudged or agreed upon or no sentence at all. In addition, he may disapprove the entire proceedings for any or for no reason. United States v Massey, supra. Cf. United States v Robbins, 18 USCMA 86, 39 CMR 86 (1969). Because of his knowledge of the military judicial system, the military judge is already aware of these realities. It is, in my opinion, asking top much to expect him to maintain an impartial disposition relative to sentence after he learns, through perusal of the pretrial agreement, that the initial appellate authority has already determined an appropriate sentence and that if he adjudges a sentence in excess thereof, the ultimate sentence must be reduced. Not infrequently, sentences returned by a court-martial are less than that agreed upon. Where this likelihood exists, perusal of the terms of the agreement undoubtedly would have an effect on the judge’s decision.
The issue before us does not concern the competence or ability of the military judge to act in accordance with his judicial oath. To the contrary, when he is unaware of the details of the agreement, he is unfettered by extraneous matter and protected from any question of influence which might arise by virtue of his having knowledge, as evidenced by the fact that this controversy is now before this Court. Nor is the maximum imposable sentence changed by virtue of the pretrial agreement; only the sentence which may be approved by the convening authority is affected.
My brothers concede the likelihood of such influence, for the principal opinion states: “The trial judge may believe that the agreed sentence is too lenient and he may be inclined to impose a more severe penalty, but it is hardly likely that he will. However strongly he might feel about the inappropriateness of the agreed sentence, he is not likely to want to impose a sentence that can have no legal effect.” I agree completely and it is for this very reason that I believe the military judge should not be aware of the contents of the pretrial agreement. When he is, his judgment as to sentence quite likely will not be his own as the law requires.
The Judge Advocate General of the Army recognized that on occasion there may be disagreement as to the meaning and scope of the sentence provision in a pretrial agreement. United States v Clark, 17 USCMA 26, *57037 CMR 290 (1967); United States v Turner, 18 USCMA 55, 39 CMR 55 (1968); United States v Veteto, 18 USCMA 64, 39 CMR 64 (1968). The Department of the Army Pamphlet referred to above states that, “If after considering the quantum provisions the military judge determines for any reason that the plea was improvident, he must take appropriate corrective action.” Handled in this manner, the judge’s responsibility under United States v Care, 18 USCMA 535, 40 CMR 247 (1969), can be met without the danger of influence upon his determination as to an appropriate sentence.
The pretrial agreement itself is an aberration in the law, peculiar to military justice alone. It has been employed in military trials since 1953. Although this Court has approved its use, such approval has not been without reservation. United States v Welker, 8 USCMA 647, 25 CMR 151 (1958); United States v Allen, 8 USCMA 504, 25 CMR 8 (1957). Utilization of the pretrial agreement is fraught with difñculties. See generally, United States v DuBay, 17 USCMA 147, 37 CMR 411 (1967); United States v Cummings, 17 USCMA 376, 38 CMR 174 (1968). As noted above, they are nonexistent within the judicial proceedings of the Air Force. Because they are an aberration and in view of the numerous difficulties entailed in their use, we should examine carefully their impact on military justice. In this regard, I agree with the Judge Advocates General of the Army and the Navy that the military judge should at least not be aware of the provisions of the agreement relating to the quantum of punishment until after announcing the sentence. Only in this manner can it be said that his judicial determination as to an appropriate sentence was unfettered.
I would answer the certified question in the affirmative, reverse the decision of the United States Coast Guard Court of Military Review as to sentence and direct that a rehearing on sentence may be ordered.
We were informed by the Government in their brief, however, that in United States v Razor, 41 CMR — (1970), a United States Army Court of Military Review held that a military judge sitting alone committed no error by examining the terms of a pretrial agreement prior to imposing sentence. That case is now before this Court and my brothers have affirmed based on their decision herein. United States v Razor, 19 USCMA 570, 42 CMR 172 (1970). It is noteworthy that in Razor, the quantum of punishment agreed upon was set forth as an appendix to the pretrial agreement. While the Court of Military Review found no indication in the record reflecting that military judge had examined the appendix to the agreement, it assumed, arguendo, that he had. However, although deciding that the examination of the quantum portion of the agreement was within the discretion of the military judge, it specifically called attention to the Military Judges’ Guide, chapter 3, Department of the Army Pamphlet 27-9, which, as noted, provides that this examination not be made until after the imposition of sentence.