(dissenting):
I dissent.
In United States v Care, 18 USCMA 535, 541, 40 CMR 247 (1969), this Court held:
“. . . [T]he record of trial for those courts-martial convened more than thirty days after the date of this opinion must reflect not only that the elements of each offense charged have been explained to the accused but also that the military trial judge or the president has questioned the accused about what he did or did not do, and what he intended (where this is pertinent), to make clear the basis for a determination by the military trial judge or president whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.”
Where, as here, the accused is unable to recall the events which constituted the alleged offenses, I am of the opinion that the mandate of Care requires that his offer to plead guilty be rejected. In such circumstances, how can it be said that the presiding official “questioned the accused about what he did or did not do, and what he intended”? The accused cannot tell him because he doesn’t remember. Care places on the military judge or the president of the court the burden of obtaining from the accused the necessary evidence to sustain the plea. The judgment of guilt must be based on a finding that the admissions of the accused as to his activities, his omissions, and, where pertinent, his intents, fully embrace the elements of the charged offenses.
My brothers find it sufficient, in this case, for the accused and the military judge to have relied on a stipulation of fact in order to place on the record the information necessary to substantiate the plea. The basic flaw in this approach is that, insofar as this accused is concerned, the data in the stipulation is hearsay. It consisted of the evidence which the Government, allegedly, could produce in the event the accused pleaded not guilty. Whether any or all of it would be admissible could only be determined during a trial of the case. While trial and defense counsel may agree that the facts in the stipulation are true, the accused could only base his assent thereto on what someone else told him, for the simple reason that he was unable to recall what took place.
Care does not recognize stipulations —only the facts elicited from the accused through questions propounded by the military judge. Defense counsel’s knowledge of the strength of the case for the prosecution and his explanation to the accused are, likewise, not controlling. As we said in Care, at page 541:
“. . . We believe the counsel, too, should explain the elements and determine that there is a factual basis for the plea but his having done so earlier will not relieve the military trial judge or the president of his responsibility to do so on the record.”
Particularly disturbing in this case, with regard to the stipulation and the written statements of the witness, which the accused acknowledged he had looked at, is the fact that the accused, when asked by the military judge whether he could read and write and understand English, replied, “Not too well, sir. I know enough to get me by, sir.”
My brothers contend that in light of the decision of the Supreme Court in North Carolina v Alford, 400 US 25, 27 L Ed 2d 162, 91 S Ct — (1970), an unremembering accused may providently plead guilty, despite a personal belief that he did not commit the offense, if he is convinced that the strength of the Government’s case against him is such as to make assertion of his right to trial an empty gesture. United States v Butler, 20 *478USCMA 247, 248, 43 CMR 87 (1971). I concurred only in the result in Butler because, in my opinion, Butler’s plea, under the circumstances of that case, was in accord with the affirmance by the Court of Military Review of the lesser offense of assault with intent to commit voluntary manslaughter (Butler had originally pleaded guilty to a charge of assault with intent to commit murder).
North Carolina v Alford, supra, did not establish the law of this Court, Care did, and I submit that the military rule for the acceptance of a guilty plea, set forth in Care, is stricter than that provided in Rule 11 of the Federal Rules of Criminal Procedure. See McCarthy v United States, 394 US 459, 22 L Ed 2d 418, 89 S Ct 1166 (1969), and Boykin v Alabama, 395 US 238, 23 L Ed 2d 274, 89 S Ct 1709 (1969). This is not the first time we have had occasion to apply a broader test in military cases than that required in the Federal civilian courts. Article 31, Uniform Code of Military Justice, 10 USC § 831; United States v White, 17 USCMA 211, 38 CMR 9 (1967), and cases cited at page 216. The stricter rule in military cases is a salutary one. Many of those in the military are now serving by reason of compulsory laws; many are away from home, family, and friends for the first time; and many are of an age making them responsible in some jurisdictions only as juveniles. These and other similar reasons make it desirable that the elicitation of the facts reflecting that the accused is in fact guilty of the offenses to which he is so pleading be proved under a more stringent rule.
Under the holding in Care, I believe that the military judge erred to the prejudice of the accused in accepting the pleas of guilty.
I would reverse the decision of the Court of Military Review and direct that a rehearing may be ordered.