(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I agree with my brothers that the military judge’s error, with regard to whether the accused surrendered or was apprehended in connection with a prior absence without leave, was cured at the convening authority level. However, I disagree with their holdings on the principal issue in this case.
In United States v Care, 18 USCMA 535, 40 CMR 247 (1969), this Court, concerned with the perfunctory manner in which pleas of guilty were being accepted in trials by courts-martial, and the “less than satisfactory implementation” of our prior recommendation on this issue in United States v Chancelor, 16 USCMA 297, 36 CMR 453 (1966), set forth in specific terms the procedure to be followed, on the record, by the military judge (president of a special court-martial without a military judge) in determining “whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.” In light of the then very recent decision of the Supreme Court in Boykin v Alabama, 395 US 238, 23 L Ed 2d 274, 89 S Ct 1709 (1969), we added the following requirement :
“Further, the record must also demonstrate the military trial judge or president personally addressed the accused, advised him that his plea waives his right against self-incrimination, his right to a trial of the facts by a court-martial, and his right to be confronted by the witnesses against him; and that he waives such rights by his plea. Boykin v Alabama, supra. Based upon the foregoing inquiries and such additional interrogation as he deems necessary, the military trial judge or president must make a finding that there is a knowing, intelligent, and conscious waiver in order to accept the plea.” [Emphasis supplied.] [Care, supra at pages 541, 542.]
In the case at bar, while the military judge complied with the requirements of Care, to the extent that he informed the accused that by his plea of guilty he waived his right against self-incrimination, his right to a trial of the facts by a court-martial, and his right to be confronted by the witnesses against him, and secured the accused’s acknowledgment that he understood, he did not make a specific finding on the record that the accused knowingly, intelligently, and consciously waived these rights. My brothers hold, for the reasons set forth in their opinion, that this finding need not be articulated on the record. I disagree.
My brothers contend that the reference in Care to a finding by the judge as to the accused’s waiver of his trial rights was predicated upon the Manual provision (paragraph 70a, Manual for Courts-Martial, United States, 1969) that the court should not accept the plea without first determining that it is made voluntarily with understanding of the nature of the charge. Since this language is almost identical with that provided in Rule 11, Federal Rules of Criminal Procedure, they look to Federal civilian court decisions on Rule 11 for guidance.
While the Manual provision refers generally to the matter of pleas of guilty, it was precisely because the Manual and the Manual’s Trial Procedure Guide (Appendix 8) contained no suggestion for an explanation of the elements of the offenses and no suggestions for questions eliciting the facts leading to a guilty plea that this Court established the requirement in Care for a searching inquiry in this area. That requirement in Care, under consideration in this case, is in addition thereto and was, as noted, based on the holding in Boykin v Alabama, supra, and McCarthy v United States, 394 US 459, 22 L Ed 2d 418, 89 S Ct 1166 (1969), both of which gave a new interpretation to Rule 11. As we stated in Care, at page 538:
“. . . Of a guilty plea, the court said in McCarthy:
'. . . A defendant who enters such a plea simultaneously waives *111several 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.’ (394 US, at page 466.)
“From a constitutional standpoint, the McCarthy opinion reiterates that the objective of Rule 11 is to assure a defendant’s guilty plea is truly voluntary. [Citations omitted.]
“In a later case, Halliday v United States, 394 US 831, 833, 23 L Ed 2d 16, 89 S Ct 1498 (1969), the court declined to apply McCarthy retroactively ‘in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11.’ ”
The importance of McCarthy and Boykin1 to a proper understanding of the application of Rule 11 to cases where the guilty plea was accepted after April 2, 1969, the date of the McCarthy decision, was highlighted by the Supreme Court in Brady v United States, 397 US 742, 747, 748, 25 L Ed 2d 747, 756, 90 S Ct 1463 (1970), footnote 4:
“The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6, infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded quilty entered his plea under standingly and voluntarily. This Court has not yet passed on the question of the retroactivity of this new requirement.” [Emphasis partially supplied.]
My brothers’ reliance on Federal civilian decisions involving interpretation of Rule 11 in cases where the guilty plea was accepted prior to April 2, 1969, is, in my opinion, seriously misplaced. McCarthy v United States, Boykin v Alabama, and Brady v United States, all supra. Cf. Barber v United States, 427 F2d 70 (CA 10th Cir) (1970). Both Kress v United States, 411 F2d 16 (CA 8th Cir) (1969), and United States v Sternman, 415 F2d 1165 (CA 6th Cir) (1969), certiorari denied, 397 US 907, 25 L Ed 2d 88, 90 S Ct 903 (1970), referred to by my brothers, involved cases in which the plea was entered prior to the effective date of McCarthy and each cited Halliday v United States, 394 US 831, 23 L Ed 2d 16, 89 S Ct 1498 (1969), as the reason for declining to give retroactive effect to McCarthy. In Burton v United States, 307 F Supp 448 (D Ariz) (1970), also cited by the majority, the date of the guilty plea is not set forth. However, the case was heard in the Federal District Court and the opinion was rendered on January 7, 1970, only nine months after McCarthy. Since it involved an action under 28 USC § 2255, to vacate a prior judgment and sentence, it is not unlikely that the original plea was made prior to April 2, 1969. In any event, the court, without reference to either McCarthy or Halliday, simply found from the reporter’s notes on the proceedings in court when the plea was received that Rule 11 had been fully complied with.
But regardless of how the Supreme Court or other Federal civilian courts *112might in the future rule with regard to Rule 11 and the form of compliance which would be considered as acceptable in light of “the new element ... in Boykin,” the plain fact of the matter is that this Court has already delineated the procedure to be followed in trials by courts-martial with regard to the acceptance of a plea of guilty. Rules of evidence and procedure in military trials are not always in accord with those which pertain in civilian trials. Cf. United States v White, 17 USCMA 211, 38 CMR 9 (1967); United States v Smith, 13 USCMA 105, 32 CMR 105 (1962).
The language of Care is clear. The record of each case must set forth verbatim all of the proceedings. Article 54, Uniform Code of Military Justice, 10 USC § 854; paragraph 826, Manual, supra; United States v Whitman, 3 USCMA 179, 11 CMR 179 (1953). Therefore, the record, of necessity; must affirmatively show every ruling of the military judge. This record does not reflect the ruling required in Care. Insofar as this record is concerned, the military judge was unaware of his responsibility to make a finding, on the record, that the accused knowingly, intelligently, and consciously waived those constitutional rights explicated in Care. The issue involves due process of law (United States v McCarthy, supra) and may not be tampered with. As Boykin itself notes, reversible error is present when such record showing is absent.
The procedural requirement in Care, for a finding on the record, is, in my opinion, at least if not more important than the requirement laid down by this Court in United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969), that an accused’s understanding of his entitlement to the advice and services of counsel as provided by Article 38(b), Code, supra, 10 USC § 838, be specifically reflected on the record. In United States v Fortier, 19 USCMA 149, 41 CMR 149 (1969), we did not hesitate to summarily reverse for failure to follow Donohew, despite the fact that Fortier was represented by certified counsel and specifically informed the president of the court that she was satisfied with the defense counsel then representing her. In light of our refusal to depart from the strict procedural requirements of Donohew, or to rationalize its meaning as my brothers do in this case, we should not do so here.
Rules are made to be followed and not merely honored in the breach. Their purpose is to insure orderly and legal process and to enhance appellate review. Failure to insist on strict compliance is to invite that blizzard of affidavits this Court sought to avoid in Care.
I would reverse the decision of the Court of Military Review and direct that a rehearing may be ordered.
Although Boykin pleaded guilty prior to April 2, 1969, his conviction, following a plea of guilty, was reversed because so far as the record disclosed, the trial judge asked no questions of Boykin concerning his plea and Boykin did not address the court.