with whom Judge DRIBBEN joins, concurring in the result:
I agree with Judge Cook that the military judge failed to comply in three regards with the requirements set forth in United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976). Judge Cook’s opinion sets forth the requirements of that case.
Here, the military trial judge failed (1) to inquire of counsel and the accused with regard to whether the terms of pretrial agreement with the convening authority were all inclusive; (2) he did not inquire of the accused and counsel that the agreement comported with his understanding thereof; and, (3) he did not inquire as to the accused’s understanding of the specific provisions of the sentence limitations approved by the convening authority. With regard to the military judge’s second and third errors as enumerated above, I consider the judge’s errors to be de minimus because he did review the quantum portion of the pretrial agreement after imposing sentence and ascertained to his own satisfaction that the plea bargain did not contain any matter which violated appellate case law or public policy. He did inquire of both counsel and the accused concerning their understanding of the conditions of the agreement and the sentence limitation and received on the record, their assurances that they understood the limitation on sentence, although not specifically inquiring into the actual limitation itself (suspension of confinement and forfeitures). The actual sentence limitation agreed upon by the parties is sufficiently simple that it is highly doubtful it could have been misunderstood under any circumstances.
With regard to the first enumerated error, I note that the so called “sub rosa” agreements not specifically enumerated in pretrial agreements are a rare exception rather than the rule in the cases that come before us. Nevertheless, they do occasionally occur. Where, as here, there is a procedural error, I believe the accused should have the burden of establishing that the error resulted in some form of prejudice to him before he can hope to receive any judicial benefit arising therefrom. In the case before us, counsel has not demonstrated any prejudice flowing from this error and I would normally be inclined to view this error as harmless but for the language used by the author judge in United States v. Green, supra, to wit: “We will view a failure to conduct a plea bargain inquiry as a matter affecting providency of the accused’s plea after the implementation date of this opinion.”
In view of the foregoing statement, I must reluctantly concur in the results reached by Judge Cook. However, I believe the Court of Military Appeals should reconsider the language quoted above and apply an approach similar to that which we suggested above.*
Appellate courts must be arbiters of real issues. Prejudice should be readily ascertainable and tangible not fanciful or illusory.