concurring in part and dissenting in part:
As noted in the majority opinion, I agree that the offenses of which the appellant was convicted were multiplicious for sentencing purposes for the reasons set forth in that opinion. However, I am unable to concur with the majority’s view that the appellant’s plea of guilty was based upon a “substantial” misunderstanding of the maximum punishment and therefore improvident.
The operative facts with which we are concerned are that the appellant was assigned the duty of mail clerk in her unit. In performing her duties she was required to handle incoming mail for members of her unit. Some mail requires accountability and DD Form 434, Record of Accountable Mail is maintained on such items. Addressees are required to receipt for this type of mail. The appellant took a small box addressed to one Dennis Brown classified as accountable mail, and forged his name in the signature block of DD Form 434 (Record of Accountable Mail).
Following discovery of the loss of the accountable item of mail, an investigation was instituted. During that investigation the appellant was interrogated and after appropriate warnings, she made a pretrial confession which admitted her wrongdoing with regard to the offenses charged.
The appellant negotiated a pretrial agreement in which she agreed to plead guilty to the charges in return for the convening authority not approving a sentence in excess of a dishonorable discharge, confinement at hard labor for one year, total forfeitures, and reduction to the lowest enlisted grade. After an appropriate inquiry, the military judge found the appellant’s pleas provident and a jury was impanelled to determine the appellant’s sentence.
The court sentenced the appellant to be discharged from the service with a bad-con*1000duct discharge, to forfeit all pay and allowances, and to be reduced to the grade of Private E-l. Since the sentence adjudged was considerably less than that agreed upon in the pretrial agreement, the convening authority approved the sentence but deferred application of the forfeitures until such time as the sentence was ordered executed.
The military judge advised the appellant during the providency inquiry that the maximum punishment included confinement for ten years. The parties voiced no objection to this pronouncement therefore we must assume that all were of the belief that the judge’s statement was correct, (our decision concerning the multiplicity issue reduced the confinement portion of the maximum sentence from ten years to five years and creates the difficult problem with which we are faced).
It has been established that a plea of guilty may be improvident if it is predicated upon a “substantial” misunderstanding on the accused’s part as to the maximum punishment which he or she may be subject.1
The primary responsibility for ascertaining the legal limits of punishment rests upon the trial judge.2 However, an accused’s misunderstanding of the correct maximum punishment does not automatically result in a plea of guilty being improvident.3
The United States Court of Military Appeals has not prescribed a fixed formula by which the magnitude of difference between the incorrect maximum punishment and the correct maximum punishment can be readily ascertained.4 That Court has stated that the standard as to what is a “substantial” misunderstanding of the maximum punishment must be elastic and cannot be defined with mathematical certainty.5
Therefore, the inquiry focuses on determining whether the appellant’s misunderstanding of a fact or condition upon which the plea of guilty was based was sufficiently “substantial” that she would not have entered that plea had she known the true fact or condition.
Many years of practice before civil and military courts convinces me that there are several factors which must be considered and cumulatively weighed in determining whether an accused’s misunderstanding as to the correct maximum punishment is in fact “substantial”. I do not believe that any single factor can clearly be dispositive of the issue.
The factors which appear to me to be important are (1) does the quality and quantum of the pretrial evidence dictate that an accused take a given course of action?; (2) what significance did trial defense counsel’s experience in similar type cases at the place of trial or within the judicial circuit have on the terms of a negotiated plea?; (3) what significance if any did counsel’s knowledge of the inclinations of the convening authority and his staff judge advocate in similar type cases have upon the determination to offer a given proposal?; (4) what was the degree of error in the misunderstanding of the maximum punishment?; (5) what relationship exists between the terms of the pretrial agreement and the correct maximum punishment?; (6) where there is a negotiated plea and the basis of that plea is grounded upon improper understanding of an element or aspect thereof, does that agreement rep*1001resent a fair agreement and was the bargain struck realistic in light of the totality of circumstances of the case?; and finally, (7) what was the actual impact of the misunderstood element of the plea in light of the actual sentence imposed at trial?
Applying the foregoing principles to the facts of this case, I find that the pretrial evidence from a practical viewpoint, dictated that it would be in the best interests of this appellant to negotiate a plea in an effort to gain the most acceptable terms possible under the circumstances.
Counsel’s understanding of the limits of the convening authority’s discretion with regard to his judgment concerning acceptance of proposed pretrial agreements, their understanding of the past history of previous court judgments and or judge’s decisions in similar type cases require a subjective review. Seldom if ever, are facts contained in the record of trial which would aid an appellate court in this area. However, I believe these factors are significant in determining what offer is submitted to a convening authority in a given case.
The appellant’s offer to plead guilty was based upon a misunderstanding as to the maximum confinement. She believed that she was faced with a maximum of ten years confinement when in fact it was five years. The degree of error amounted to 100 percent. The confinement portion of the pretrial agreement when compared with the correct maximum punishment represented only 20 percent of the potential maximum.
The appellant was charged with the theft of accountable US mail and forgery of official records pertaining to that mail. The offenses were of a serious character and are normally considered felonies. The security of the US mail has long been considered a matter of high interest to those charged with its responsibility and to the public at large. The terms of the pretrial agreement proposed were imminently fair and represented a realistic balance between the conflicting interests of the parties based upon the circumstances of this case. When compared against the true maximum confinement, the agreed one year confinement as set forth in the pretrial agreement meets the same standards.
With regard to the impact of the court’s sentence, the jury in its discretion did not see fit to adjudge any confinement. Obviously, the military judge’s incorrect pronouncement of the maximum imposable confinement had no impact upon the jury.
Cumulatively, weighing the foregoing factors I believe the appellant’s misunderstanding as to the maximum imposable confinement was not “substantial”. I believe that she would have negotiated the same pretrial agreement regardless of whether she was aware that the maximum imposable confinement was ten years or five years. I would hold that the appellant’s plea was entirely provident. Accordingly, I respectfully dissent.
. United States v. Harden, 24 U.S.C.M.A. 76, 51 C.M.R. 249, 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).
. United States v. Harden, supra.
. See United States v. Kilgore, 22 U.S.C.M.A. 67, 46 C.M.R. 67 (1972); United States v. Kleinhans, 14 U.S.C.M.A. 496, 34 C.M.R. 276 (1964); United States v. Sproles, 48 C.M.R. 278 (A.C.M. R.1974); United States v. DuPuis, 48 C.M.R. 49 (A.C.M.R.1973).
. United States v. Harden, supra, 51 C.M.R. at page 251, 1 M.J. at page 260. However, Judge Fletcher concurring separately in Harden, supra, stated that he viewed a miscalculation of the period of imposable confinement which approaches 100 percent as “substantial”.
. Id.