(dissenting):
For reasons hereinafter stated, I dissent.
Appellants were tried by general court-martial military judge, in separate trials, for conspiracy to commit robbery, robbery, and kidnapping with intent to commit robbery, in violation of Articles 81, 122, and 134, UCMJ, on 24 March 1975. The military judge adjudged a sentence in both cases of dishonorable discharge, confinement at hard labor for 7 years and forfeiture of all pay and allowances. A synopsis of these offenses as taken from the court-martial order in appellant Reed’s case, haec verba, but which applies and refers to appellant Hedlund also, is as follows:
On 7 January 1975 the accused, two companions, and the wife of one of the companions wanted to go for a ride and drink beer. Having no money they conspired to find some drunks in the city of Barstow, California, and roll them. Unable to find any drunks, they decided to pick up hitchhikers for the same purpose. They effected the conspiracy by picking up two individuals (by the names of Private First Class William A. BECK and Mike MARTINSON) from Main Street near the exit to Interstate 15 to Las Vegas. They were asked by the hitchhikers where they were going and they replied that they were going to Las Vegas; whereupon, the hitchhikers got in the ear. BECK sat in the front seat between Private LYNCH1 and his wife, who was *1122driving, and MARTINSON got in the back between Privates HEDLUND and REED. They proceeded on Interstate 15 towards Las Vegas, and when they approached the Bakersfield offramp Private LYNCH’s wife stated they had to get gasoline before continuing on; whereupon, she took the Bakersfield exit off the freeway. They passed a couple of gasoline stations but did not stop. Private LYNCH then pulled out an eighteen-inch-long pipe and stated that he hated to be impolite but this was a robbery. Meanwhile, Private HEDLUND said to MARTINSON in the back seat that if he moved he would get stuck. He was wearing forks wrapped around his fists with the tines sticking out. After Private LYNCH stated it was a robbery, PFC BECK asked him not to leave them out in the desert, to take what they wanted and take them back to town. This angered Private LYNCH, who then stated he had been doing this for a long time and did not need help from anybody, and gave BECK a blow on his side with the pipe. They drove on for two or three miles and turned off onto another road in North Barstow. They went for quite a while and then stopped, where LYNCH ordered them out of the car. There LYNCH took PFC BECK to the front of the car and proceeded to rob him of a gold bracelet. HEDLUND and REED took MARTINSON to the back of the car, but MARTINSON did not have anything on his person so he was not robbed.
Pursuant to pretrial agreements, the convening authority in each case, only approved a bad conduct discharge, confinement at hard labor for 7 years and total forfeitures, however, the execution of those portions adjudging confinement and forfeitures in excess of 22 months was suspended for the period of confinement and one year.
On 17 September 1975, this Court affirmed the findings and sentence in the Hedlund case, and on 30 September 1976, took the same action in the Reed case. Appellants then petitioned the Court of Military Appeals. The petition was granted and that Court held, in United States v. Hedlund, 2 M.J. 11 (1976), that the court-martial lacked jurisdiction to try the appellants on the robbery and kidnapping charges but had jurisdiction to try the conspiracy charge. See also United States v. Reed, 2 M.J. 16 (1976). By orders dated 29 September 1976, the records of trial were transmitted to this Court for action on the sentence in accordance with the decision of the Court of Military Appeals.
The offense upon which a sentence may now be predicated in each of appellant’s cases is conspiracy to commit robbery, Article 81, Uniform Code of Military Justice. The prior disciplinary record considered by the military judge as aggravation during the sentencing portion of the trials was a 1974 summary court-martial and nonjudicial punishment in Reed’s case and a 1974 nonjudicial punishment in Hedlund’s case. As stated before, both appellant’s present sentences consist of a bad conduct discharge, confinement at hard labor for 7 years and forfeiture of all pay and allowances with confinement and forfeitures over 22 months suspended.
Appellant Reed now assigns before this Court the following:
APPELLANT’S SENTENCE MUST BE SUBSTANTIALLY REDUCED.
Appellant Reed also assigns a supplemental error:
APPELLANT’S PLEA OF GUILTY WAS IMPROVIDENT DUE TO A SUBSTANTIAL MISUNDERSTANDING ON APPELLANT’S PART AS TO THE MAXIMUM PUNISHMENT TO WHICH HE WAS SUBJECT.
Appellant Hedlund also assigned as error the latter assignment. I will treat the assignment of error dealing with alleged improvidency initially. My opinions as expressed herein make it unnecessary to discuss the initial assignment of error in Reed’s case. Resolved to its essential reali*1123ty, the basic issue before this Court in these cases is: What is the appropriate action which this Court should take to carry out the mandate of the Court of Military Appeals in a legal manner which is consistent with the existing statutory and decisional law as enunciated by the Court of Military Appeals?
Prior to treating this matter, I must note that in the companion case, cited in footnote 1 of this dissenting opinion, the High Military Court issued the following Memorandum Opinion and Order:
In accordance with his pleas, the appellant was found guilty by general court-martial of conspiracy to commit robbery, robbery, and kidnapping. His pleas of guilty to the charged offenses were offered and accepted at trial on the understanding that the maximum punishment of the charged offenses included confinement at hard labor for life. In view of this Court’s recent determination in United States v. Hedlund [2 M.J. 11] (1976), that the robbery and kidnapping offenses charged against appellant’s co-actor, one Private Mark G. Hedlund, were not service connected, the government has conceded, before this Court, that appellant’s court-martial lacked jurisdiction to try him on the robbery and kidnapping charges. Since the maximum imposable period of confinement for the remaining charge of conspiracy to commit robbery is 10 years, the government has also conceded that a substantial misunderstanding existed on the part of the appellant as to the maximum sentence in this ease and that such a misunderstanding renders the appellant’s plea of guilty to the conspiracy charge improvident.
In light of the government concessions and on consideration of appellant’s recently filed Motion for Summary Disposition, it is, by the Court, this 28th day of January 1977,
ORDERED:
That so much of the order granting the petition for review, dated December 9, 1976, as directed the filing of briefs under Rule 43 be, and the same is, hereby vacated; and
That the decision of the United States Navy Court of Military Review be, and the same is, hereby reversed. The findings and sentence are set aside and the record of trial is returned to the Judge Advocate General of the Navy. A rehearing of the conspiracy charge may be ordered. United States v. Lynch, 2 M.J. 214 (C.M.A.1976).
A plea of guilty may be improvident where, for whatever reason, it is predicated upon a substantial misunderstanding on the accused’s part as to the maximum punishment to which he is subject. United States v. Harden, 1 M.J. 258 (1976); United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974); United States v. Windham, 15 U.S.C.M.A. 523, 36 C.M.R. 21 (1965). The misunderstanding in this case was certainly “substantial,” (a possible sentence of confinement at hard labor for life, vis a vis, 10 years). Accordingly, I believe appellants’ pleas to the remaining conspiracy offense were improvident.
I not only disagree with the result reached by the majority but also with the approach used to reach that result. The majority have declined to discuss the providency issue at all. I am of the view that the providency issue in these cases will not melt away by ignoring it on the grounds that it is time to conclude this litigation and that by ignoring that issue this Court is not following the decisional law spelled out by the Court of Military Appeals. It is, of course, always desirable to conclude litigation but not when the conclusion results from failure to accord a criminal defendant his due process under applicable law.
Even Government counsel oppose the view espoused by the majority, for in their pleadings in the Hedlund case they concede:
The Government agrees with appellant that the difference between life imprisonment is substantial and that his plea may have been improvidently entered. While the opinion of the Court of Military Ap*1124peals ordering the record remanded “for action on the sentence in accordance with this decision” could be read as affirming the finding as to Charge I, it is more likely that this issue was not preceived [sic] by that Honorable Court when their opinion was written and the Government declines to argue that appellant should be foreclosed from raising an issue which, as appellant’s astute appellate defense counsel points out, “was not apparent until the High Court acted in his case.” Accordingly, the Government respectfully submits that the appropriate disposition by this Honorable Court should be to find the guilty plea to Charge I improvident and remand the record for a rehearing on the merits.
I view this concession on the part of the Government as entirely appropriate. In the light of that position by the Government one must wonder how the majority gravitated to an opposite polarity, and I attempt to analyze that position.
In this connection, however, I first note that in the footnote to the principal opinion the fact that the government conceded the improvidency of the plea in Lynch, supra, is highlighted as being the principal reason for the Court of Military Appeals’ reaching the result they did. I reject this reasoning if this is what the language is intended to mean. In the first place, as I have previously stated, I think the concession by the government is entirely appropriate. If there were ever any cases where concession on providency should be made, these two cases are prime examples. Analogous reasoning is found in the Federal Rules of Civil Procedure. Thus, for example, if a litigant fails to admit the truth of any matter, after being requested to do so under Rule 36, FRCP, and the truth of such matter is thereafter proven by the opposing party, the reasonable expenses of proving such matter, including reasonable attorney’s fees, can be assessed against such litigant. See Rule 37(c), FRCP. In the Lynch case, the government’s concession saved all concerned time, effort, and money, and was commendable appellate practice under the circumstances of this case.
In the second place I do not believe that the Court of Military Appeals would have acted upon it unless they thought it was an appropriate concession and one to which the Court gave mature deliberation before accepting and acting upon it. In short, I believe the Court of Military Appeals believed that the pleas in Lynch, supra, were in fact improvident. Indeed, the bare recitation of the factual posture of the case as contained in the Memorandum Order and Opinion is virtually enough to compel the conclusion of improvidency.
It is my view that the majority has undertaken to ignore if not attempt to overrule United States v. Harden, supra. The majority say that this Court ordinarily has no jurisdiction to further consider the convictions in the cases sub judice. But this overlooks the stated rule, namely “ordinarily.” These certainly aren’t ordinary cases. Our duty is to do justice and it is, in my mind, sacrificing substance on the altar of form to say we cannot consider the substantial question of providency because of the technicality of the convictions having become final — a proposition I am not prepared to concede.
As I view it, the Court of Military Appeals did not affirm the conspiracy conviction. Their Order was:
That the decision of the United States Navy Court of Military Review is reversed. The findings as to Charges II and III are set aside and the same are dismissed. The record is returned to The Judge Advocate General for remand to the Court of Military Review for action on the sentence in accordance with this decision. (Underscoring supplied).
This Court’s decision affirming the conviction on Charge I was overturned. Nowhere do I read where the Court of Military Appeals affirmed Charge I. In essence, our High Military Court held that the military court system had jurisdiction to try appellants on the conspiracy charge and directed action on the sentence in accordance with the determination of that Court as to jurisdiction. I would take the High Military *1125Court’s mandate to implicitly mean “appropriate” action on the sentence, and if this Court, in the exercise of its fact-finding powers, determined that the sentence action this Court could take would be predicated upon an improvident plea, then we should follow the law as enunciated by the Court of Military Appeals in United States v. Harden, supra, for such situations.
It has been judicially said of the military prosecutor, and rightly so, I think, that, “The role of trial counsel ... is not that of a partisan advocate, but, rather his primary duty as a representative of the Government, is to see that justice is done.” United States v. Johnson, 3 U.S.C.M.A. 447, 13 C.M.R. 3 (1953). Also see, United States v. Johnson, 11 U.S.C.M.A. 113, 28 C.M.R. 337 (1960), United States v. Smith, 40 C.M.R. 432 (A.B.R.1968), and United States v. Poteet, 50 C.M.R. 73 (N.C.M.R.1975). “He is the representative, not of a party to ordinary civil litigation, but of the sovereign state. It is his primary duty to see that justice is done.” United States v. Valencia, 1 U.S.C.M.A. 415, 4 C.M.R. 7 (1952).
If this is the case, it would seem to me, a fortiorari, that an appellate tribunal, whose duties, in part, include to judicially judge, guide, and oversee, the conduct of the trial adversaries, should not be held to a standard any less than one which is expected of the trial advocates, namely to insure that justice is done. To me it offends the concept of justice to finalize criminal convictions and approve sentences where there have obviously been improvident pleas.
Since the facts of the cases sub judice were identical to those in Lynch, supra, and since appellants and Lynch were all in pari delicto, it is difficult for me to understand how this Court can disagree on the providency in Hedlund and Reed’s cases in light of the Court of Military Appeals’ action in Lynch. The principles of fundamental fairness and equal protection of the laws forbid such disagreement. The reasoning of the concurring opinions to the contrary, it will not change the fact that the High Military Court has spoken on the matter. I am however, prepared to rationalize my view that the pleas in this case were improvident.
To determine whether appellants pleas were provident, I initially examine Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, (1970), relied upon by my distinguished Brother Gregory in his concurring opinion. In Brady, the appellant contended, in essence, on appeal to the Supreme Court of the United States, that his plea was improvident because he allegedly misapprehended the maximum sentence applicable for the crime to which he pleaded guilty. To me Brady is clearly distinguishable because in the case sub judice appellants were sentenced for three crimes, the two most serious of which the military judicial system had no jurisdiction over. All of the charges authorized forfeiture of all pay and allowances as well as a dishonorable discharge. As far as confinement however, the conspiracy charge permitted 10 years confinement at hard labor as did the robbery charge. The kidnapping charge permitted a sentence to confinement at hard labor for life. The record of trial shows that appellants Reed and Hedlund were 18 and 19 years old respectively, at the time of trial. With a life expectancy of over 50 years for both of these appellants,21 find a “substantial difference”3 between a possible 10 year sentence, and a life sentence. Hence, I find an improvident plea in both cases.
Brady is also distinguishable in that certiorari was granted to consider the claim that the Court of Appeals was in error in not holding Bardy’s plea was improvident in 1959 because it was coerced by the provisions of 18 U.S.C. § 1201(a), which provided for the death penalty, in the light of subsequently enunciated law by the Supreme Court of the United States in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). In the case at bar the guidelines of Relford v. Commandant, 401 *1126U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), were available to the trial judge to apply. The trial judge, as well as this Court simply misapplied Relford and the Court of Military Appeals in their decision merely demonstrated that and cast light upon that misapplication.
In Harden, supra, the appellant was under the misapprehension that the maximum sentence was 20 years confinement at hard labor. Because of multiplicity considerations, the correct maximum confinement at hard labor was 10 years. The Court of Military Appeals found that the 10 year difference between the legal maximum and the maximum sentence upon which the appellant predicated his guilty plea to be “substantial” and, under the facts of that case, that the guilty plea was improvident.
I am not unaware of the fact that merely because there exists a difference between what the actual maximum sentence is in a given case and the erroneously perceived maximum sentence, does not automatically trigger reversal under Harden since the Court in that case also stated:
In a particular case, even a substantial difference may not be material to an accused. Such a case was United States v. Kleinhans, 14 U.S.C.M.A. 496, 34 C.M.R. 276 (1964). There, the accused was charged with two offenses, each of which was believed to authorize confinement for 5 years, so that the maximum confinement was represented to be 10 years. At trial, defense counsel indicated his awareness that the offenses might not be separately punishable; still, he asserted that “regardless of the ultimate decision” as to the true, legal maximum, the accused would “stand by his negotiated plea.” As the accused had expressly taken into account the potential difference in punishment, there was no issue as to the providence of his plea of guilty. All that remained in the case was the error in the instructions on the sentence that resulted from the trial judge’s erroneous determination that the offenses were separately punishable.
Nor do I believe that a mathematical percentage nor a given term of years necessarily mandates taking Harden action.4 But if the principle in Harden has any viability, I can scarcely conceive of a case more appropriate for its applicability than one in which appellants are sentenced on the basis of the commission of three felonies, the two most serious over which the sentencing tribunal has no jurisdiction, and in which the perceived maximum sentence is life imprisonment for 18 and 19-year old accused, vis-a-vis a legal maximum sentence of 10 years. If any eases should fall under the penumbra of Harden, these two should in my view, and no hearing under United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), is required to reach that conclusion.
In his reasoning as to the providency of the pleas in these cases my distinguished Brother Dunbar, in finding providency, uses as part of his rationale the fact that government authorities made no promises or representations as to legal efficacy of the charges or as to what might develop on appeal. I must reject this approach and I believe the very assertion of this proposition demonstrates the improvidency of the pleas here. Appellants trials were not legal roulette proceedings. Provident pleas can only be grounded on conscious, informed decisions by accused persons. To say an accused must take his chances as to whether the charges will stand up on appellate review, in these circumstances, and that whether or not they do stand up or not the plea will be provident is repugnant to our sense of justice and contra legem terrae. Moreover, it could be asserted that appellants were misled by government agents in that there was an implied representation by the government that there was jurisdiction to prosecute and punish for all offenses involved. This, as we have seen, was incorrect. In the case sub judice, appellants were not advised that, if on appeal it were held that the military judicial system did not have cognizance of the two off-base offenses the conspiracy offense would re*1127main. Thus this situation was not like that in the Kleinhans case. The pretrial bargain in this case was a “package” deal.
Prom the foregoing, it follows that I believe that since there was a substantial difference in the understanding of these appellants as to the maximum sentence to which they were subject, I cannot say that the guilty pleas of the appellants were provident, particularly where the appellants were compelled to plead guilty in order to preserve their negotiated pretrial agreement. United States v. Harden, supra; United States v. Towns, supra; United States v. Windham, supra.
It seems to me that if appellants could negotiate a pretrial agreement providing for the suspension of all confinement in excess of 22 months for felonies which carried a maximum confinement at hard labor for life, they might well have bargained for, if not achieved, a more favorable agreement had they known they only faced 10 years instead of life. Had the trial judge correctly applied the Relford criteria the appellants would have been in a position to renegotiate their bargain.5
My distinguished Brother Gregory is concerned that by applying the Harden rule we would set an undesirable precedent which may indicate a providency issue is present in all guilty plea cases where some of the findings are later reversed on jurisdictional or other grounds. To my mind, the precedent has already been set. As I read United States v. Towns, supra, and United States v. Harden, supra, they stand for the proposition that whenever there is a substantial misunderstanding as to the legal maximum sentence applicable, this can lead to an improvident plea and whether or not it is improvident is determined by an elastic standard. I certainly would not hold that in every case where appellate action results in setting aside some guilty finding or findings that a providency issue is meritoriously raised. But when the issue is plainly present it cannot be sidestepped or ignored and we should not fail to give judicial recognition to clearly applicable judicial precedence on the grounds that a misreading of the decision will establish an undesirable precedent. The answer to that is to write an opinion that does not confuse, not to ignore an applicable precedent.
At this point it may be appropriate to turn to the reasoning of the majority opinion as to finality. I see no inconsistency between Article 76, UCMJ, and making a determination, at this point in these cases, that under the circumstances the pleas of guilty were improvident. See Articles 76 and 66, supra. If the pleas were improvident, then “action on the sentence in accordance with (the Court of Military Appeals) decision” in the light of the Harden ease would be implementing the mandate of the Court of Military Appeals.
In the first place, assuming arguendo that the majority were right in their basic proposition that the conspiracy convictions were final, then, if appellants pleas were in fact improvident, and I think that has been amply demonstrated, then, under the majority reasoning, appellants could file a writ of error coram nobis with the Court of Military Appeals. Since that Court has already held that the pleas of the co-conspirator Lynch, who was tried and pled guilty to the exact same charges as the appellants, was improvident, then it would seem that the High Military Court would grant the relief prayed for in such a writ. The Court of Military Appeals would then, under that theory, send the case back with a mandate similar to the one in Lynch. This, it seems to me, would be a useless act and the maxim Lex neminem cogit ad vana seu inutilia peragenda would be applicable. The law forces no one to do useless things. It would be a useless act to burden the Court of Military Appeals with a request to take action which this Court can take in order to accomplish justice.
*1128The majority opinion relies on United States v. Field, 5 U.S.C.M.A. 379, 18 C.M.R. 3 (1955). As far as that case’s applicability to the case at bar, I do not believe that old law like old wine gets better with age necessarily. Field, supra, was an entirely different situation than the one at bar. In the Field case, the appellant was convicted of forgery and unauthorized absence. By reason of errors having to do with the forgery charge only, the Court of Military Appeals reversed the finding on that charge only and returned the case after affirming the unauthorized absence charge. The mandate of the Court directed that “the decision of the Board of Review in this case be, and the same is hereby, affirmed in part and reversed in part for the reasons set forth in the following opinion.” Upon a rehearing of the case, findings of guilty were returned as to the forgery charge. A stipulation was presented to the court to the effect that the accused had been found guilty of absence without leave at a previous court-martial, that on appellate review the findings as to that conviction bad been affirmed, and that the accused stood finally convicted of that offense, although he was at that time unsentenced for the offense. Based on those facts the court members were informed, without defense objection, that they were required to sentence the accused for both offenses. Upon appeal, appellate defense counsel questioned the propriety of considering the original offense at the second trial.
The Court of Military Appeals held that the procedure employed at the rehearing was correct and stated, inter alia, that:
Clearly no final action can be taken by this Court to impose a sentence based on those findings which are untainted by error, and whereon a rehearing as to guilt or innocence cannot be justified. See Manual, supra, paragraph 92. If no further legal action may be taken at this appellate level with respect to such findings, there would seem little point in their retention here.
This is clearly distinguishable from the case sub judice where the Court of Military Appeals set aside the decision of this Court, decided the issue before them, namely, whether the military court system had jurisdiction to try appellant for any or all of the offenses, and returned the case for action on the sentence in accordance with their decision. The question of providency was never formally addressed to the High Military Court. Clearly the whole thrust of the Court of Military Appeals decision went to the jurisdictional issue for, after concluding that military jurisdiction was not present as to the robbery and kidnapping charge, in the penultimate paragraph of the decision, the Court stated:
However, as the conspiracy was formulated on post, and as the gathering of weapons — a step towards affecting the object of that conspiracy — occurred on post, the court-martial did possess jurisdiction to try the conspiracy charge. See Relford v. Commandant, supra.
Surely the High Military Court did not mean to suggest that: (1) appellants could not raise the providency issue before this Court which was inchoate until the Court of Military Appeals decision on whether there was jurisdiction as to the robbery and kidnapping charges, nor (2) that this Court should take sentence action based on a plea of guilty to a charge as to which jurisdiction had been settled but which plea was found to be improvident.
The case of United States v. Yelverton, 26 C.M.R. 586 (A.B.R.1958), pet. withdrawn, 9 U.S.C.M.A. 836, 26 C.M.R. 516 (1958), does not, in my view support the proposition for which it is cited. As the Army Board of Review said in the lead paragraph in that case:
The principal question presented by this case is whether an accused may change his plea of guilty to one of not guilty during a rehearing as to sentence only, which was ordered pursuant to the mandate of the Court of Military Appeals.
I find insufficient analogy between that issue and the one at bar to justify the case being used as authoritative precedent to decide the pertinent issue present. I fur*1129ther find it insufficient to support the proposition for which it is cited in the majority opinion.
As for the case of United States v. Fields, 26 C.M.R. 681 (A.B.R.1958), pet. den., 10 U.S.C.M.A. 663, 27 C.M.R. 512 (1958), I find little solace for the reasoning of the majority opinion therein. In that case, the Court of Military Appeals had returned the case for a new staff judge advocate’s review6 because of inadequate advice to the convening authority. A new advice was submitted and in due course the case was again before the Army Board of Review. The appellant then, for the first time assigned as error two issues, viz: that the law officer’s instructions were prejudicially erroneous, and that the law officer’s instructions illegally shifted the burden of proof by requiring the accused to explain his possession of allegedly stolen property. The Board of Review, in its opinion, inter alia, stated:
We sympathize with Government counsel’s view that the business of the courts is to bring litigation to an end and not to promote or perpetuate it. We cannot agree with his argument that the mandate of the Court of Military Appeals remanding the record for a new review to correct a specific error of omission in the initial review placed a jurisdictional limit upon the powers of the convening authority or upon this Board of Review restricting our reconsideration of the case, during the course of its second ascent through appellate channels, to the single issue on which the Court had acted.
Though we consider our jurisdiction on a second review in a case such as this unaffected by the mandate previously issued therein, and in the course of such review would not permit fine technical distinctions to thwart the correction of an error that materially prejudiced the substantial rights of the accused or would result in a miscarriage of justice, we would apply where appropriate the doctrines of waiver, res adjudicata or the law of the case when confronted with belated assignments of error. [Footnote omitted]. (Underscoring added).
The Board then went on to decide the two assignments of error but decided them against the appellant.
While I do not find that this case is supportive of the proposition propounded in the majority opinion, I do believe the above-quoted language from the case buttresses the reasoning of the dissent.
United States v. Yelverton, 8 U.S.C.M.A. 424, 24 C.M.R. 234 (1957), is not in my view applicable as supporting the proposition propounded by the concurring opinion since the sole holding there was that United States v. Rhinehart, 8 U.S.C.M.A. 402, 24 C.M.R. 212 (1957), relating to improper argument of counsel was applicable to Yelverton’s case. The Fields case, cited in Footnote 6, has already been discussed and is similarly inapplicable to the case at bar.
The concurring opinion of my distinguished Brother Gregory also cites the ease of United States v. Kepperling, 11 U.S.C.M.A. 280, 29 C.M.R. 96 (1960), for the proposition of finality. That case is not, in my opinion, applicable. In that case the accused had insulated himself with a pretrial agreement and pleaded guilty at the original trial in Japan to a larceny committed in Japan. Appellate scrutiny of the law officer’s providency inquiry disclosed that the plea was completely provident. An Army board of review however, found that the law officer’s instructions on punishment were erroneous and set aside the sentence ordering a rehearing on the sentence only. At the rehearing held in the United States the accused tried to plead not guilty. He was not permitted to do so. The Court of Military Appeals held that the accused could not change his plea at the rehearing on the sentence. The Court, inter alia, stated:
Without doubt then, the accused, prior to announcement of sentence at the initial hearing, should be permitted to withdraw his guilty plea and require the Government to prosecute the case on the *1130merits. Indeed, the law officer so advised this accused before accepting his plea. Likewise, it is clear that if the findings and sentence resulting from a trial are set aside because of jurisdictional error or an improvident guilty plea, an accused may, at a subsequent hearing, enter a plea of not guilty if he chooses. However, the defense wants to extend that doctrine by urging us to hold that the law affords this same right to an accused who comes before a second court when a board of review or this Court orders a rehearing on sentence only. To this position we cannot subscribe. (Underscoring supplied).
Again it seems to me that the authority cited supports the dissenting views more than the proposition for which it is cited.
Finally, I must note, and reject, the validity of the applicability to this situation, of the doctrine of the law of the case. It has been said that, “The decision, judgment, opinion or rulings on former appeal or writ of error become ‘law of the case. ’ ”7 The doctrine embodies the principle recognized by the courts to refuse to relitigate, in the same proceeding, issues that have been finally decided. The applicability of the doctrine to military trials has been repeatedly recognized. Basically, the doctrine, as applied to military law, recognizes the binding effect of prior rulings by the military judge, convening authority, Courts of Military Review, and the Court of Military Appeals in subsequent relitigation between the same parties (the government and the same accused) where such rulings have not been overturned by a higher appellate agency. Thus the military judge’s ruling is the law of the case unless that ruling is overturned by the convening authority, the Court of Military Review or Court of Military Appeals. Similarly, a determination by the Court of Military Review, unless overruled by the Court of Military Appeals, is the law of the case upon a rehearing or reconsideration of that case. See United States v. Beebe, 47 C.M.R. 386 (1973). The doctrine is analogous to but clearly distinguishable from the doctrine of res judicata. 5 Am. Jur.2d § 744. Also see United States v. Marks, 21 U.S.C.M.A. 281, 45 C.M.R. 55 (1972). An extensive discussion of the law of the case is contained in 5 Am.Jr.2d § 744 to 759.
As previously stated, the doctrine has been recognized as applicable to military law. United States v. Vanderpool, 4 U.S.C.M.A. 561, 16 C.M.R. 135 (1954), at page 141. “. . . this previous decision [of the board of review] must be taken to have stated the law of the case. . . .’’In speaking of the rulings by the (then) law officer the Court of Military Appeals has stated:
However, when he rules, his decision becomes the law of the case. Unless set aside on appeal, his ruling is binding on the Government as well as the accused. United States v. Strand, 6 U.S.C.M.A. 297, 20 C.M.R. 13 (1955) at page 22 of 20 C.M.R. [Underscoring supplied].
Of course the same principle is applicable as the case proceeds up the appellate ladder and is applicable to factual, as well as legal rulings by intermediate appellate authorities. United States v. Alaniz, 9 U.S.C.M.A. 533, 26 C.M.R. 313 (1958). Thus, if the military judge is reversed on a factual matter by the convening authority that becomes the law of the case unless overturned by a higher appellate tribunal. Similarly, the legal, as well as factual, conclusions of the Court of Military Review which are not reversed by the Court of Military Appeals are binding at a rehearing as the law of the case. United States v. Wallace, 27 C.M.R. 605 (A.B.R.1958). This case involved a rehearing. On page 606 of 27 C.M.R. the following language is contained:
The previous opinion of this board held that the evidence must be excluded. This is the law of the case and is binding between the parties at trial level as well as on this review, (see United States v. Watson, D.C., 146 F.Supp. 258, overruled on another ground, Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106).
*1131The distinguishing features which make the doctrine of the law of the case inapplicable to the issue in the case sub judice as to whether this Court can consider appellant’s claims of improvidency, are, initially, that the Court of Military Appeals has vacated our original decisions in these cases, and the fact that the improvidency issue was inchoate and did not spring to life until the Court of Military Appeals had rendered their decision that there was no jurisdiction in the military court system to try these appellants for the two most serious crimes to which they pleaded guilty and upon which they were sentenced. The issue having surfaced by the action of the High Military Court in correctly interpreting the Relford criteria, it is my view that appropriate action by this Court would be to consider the newly surfaced issue de novo in taking appropriate action on the sentence and, if it appeared, as it does to me, that the sentence which could be assessed at this level was for the commission of a crime as to which there was an improvident plea, that we should act accordingly. Appropriate action would be to follow the precedent and legal guidance provided by the Court of Military Appeals in United States v. Harden, supra.
With respect to my distinguished Brother Baum’s concurring opinion, I can only say that I must part company with his views for the reasons stated above and since I believe it is inappropriate for this Court to suggest that the High Military Court made a determination on improvidency without knowing what the facts were and having the matter “fully briefed and argued by both sides before deciding the issue.”
Under the circumstances I believe the pleas as they now stand, should not be accepted and the findings and sentence should not be affirmed.
My discussion of the foregoing issues and the majority’s disposition of the case makes it unnecessary to discuss the first issue.
I would set aside the findings and sentence and return the record to the convening authority, authorizing a rehearing.
. The case of this co-conspirator was decided by this Court in United States v. Lynch, No. 75 1401 (NCMR 16 Aug. 1976), pet. granted, No. 33,220 (U.S.C.M.A. 9 Dec. 1976), on the following issues:
I. Whether the court-martial lacked jurisdiction to try appellant for the robbery and kidnapping?
II. Whether appellant’s plea to the conspiracy was improvident?
A decision was rendered on 28 January 1977, by the High Military Court on this case.'
. See Am.Jur.2d Deskbook, 1976 supplement, Document 142.1.
. United States v. Harden, supra.
. See United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974).
. I am fully aware of the horrendous nature of the crime as set forth in the synopsis at the beginning of this opinion. It might well be that appellants could not have struck a better bargain had they been aware of the correct maximum punishment. But it was their right to make an informed decision on the matter.
. See United States v. Fields, 9 U.S.C.M.A. 70, 25 C.M.R. 332 (1958).
. Black’s Law Dictionary, 4th Ed. p. 1030.