dissenting and concurring in result:
In United States v. Green, 1 M.J. 453 (1976), the Court of Military Appeals required trial judges to inquire into certain aspects of those agreements between convening authorities and accused persons which contain any of the terms of a negotiated plea of guilty. The trial judge in this case neglected two of the required inquiries, the “openness” and “unanimity” provisions of Green, and we must decide the consequences of his neglect.1 Appellant has not asserted that there was a hidden agreement which the openness inquiry would have disclosed; nor has he posited any difference of understanding about the terms of the agreement presented to the trial court which would have fractured unanimity. Nonetheless, appellant would have us order a full rehearing because of this failure to inquire into the terms and circumstances of the agreement, arguing that the same remedy is appropriate here as for failure to inquire into the voluntariness of the plea itself, as required by United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
*997Such a disruptive remedy ought to be our last resort. Therefore, we inquire about ways to honor the mandate of our higher court with less impact on the system. This ease deals with the screens and protections typically erected by courts and legislatures around constitutional rights, but not with any such right itself. Violations of basic rights do require basic remedies. Thus, where there are substantial constitutional rights at the bottom of a requirement such as the one to establish the voluntariness of a guilty plea, McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), a failure to establish means that the plea must be rejected and a rehearing ordered. Care, supra.2 Similarly, if it appears that an accused has been denied either a constitutional or statutory right to appointed or individual counsel, a rehearing is required. United States v. Gudobba, 20 C.M.R. 864 (A.F.B.R.1955); United States v. Mathis, 6 C.M.R. 661 (A.F.B.R.1952).
Moving from the rules expressing the right itself to the rules protecting the right, a difference appears. Thus, the right to counsel was protected by the judicial rule in United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969) wherein it was stated:
“We believe the seriousness of the situation dictates that the record should contain the accused’s personal response to direct questions incorporating each of the elements of Article 38(b) [10 U.S.C. § 838(b)], as well as his understanding of his entitlement thereunder.” (Emphasis supplied.)
Id., at 152. However, if a military judge neglected to make the record required by this rule reversal was not always found necessary. Where an omission from the judge’s inquiry was discovered before the convening authority’s action, proceedings in revision were appropriate to supply the needed record. Article 62(b), UCMJ, 10 U.S.C. § 862(b), United States v. Barnes, 21 U.S.C.M.A. 169, 44 C.M.R. 223 (1972). See also United States v. Berkley, 47 C.M.R. 30 (N.C.M.R.1973).3
Although the same theory has not been applied in those cases where the omission from the record is first raised at this level, there is no reason why it could not be used. We are dealing with simple trial error, of a quantum not per se amounting to any deprivation of due process. The rule for such cases is that: “Error in the course of a prosecution resulting in conviction calls for the correction of the error, not the release of the accused.” Pollard v. United States, 352 U.S. 354, 362, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 (1957), citing Dowd v. Cook, 340 U.S. 206, 210, 71 S.Ct. 262, 95 L.Ed. 215 (1951); Article 59, UCMJ, 10 U.S.C. § 859; Rule 52(a), Fed.Rules Crim.Proc.
In Federal practice such deficiencies in the record are the occasion for remand and appropriate action below. Thus, in Brown v. United States, 314 F.2d 293 (9th Cir. 1963), the appellant complained of a court reporter’s failure to record the closing arguments of counsel as then required by 28 U.S.C. § 753 and demanded a new trial. The Court of Appeals held that in the absence of an assertion that there was error in an unrecorded summation, reversal is precluded by Rule 52(a), Fed.Rules Crim.Proc., Harmless Error. The remedy to be provided in such cases is vacation and remand to hear evidence on the content of the summation and to decide whether prejudice resulted. United States v. Selva, 546 F.2d 1173, 1175, n. 3 (5th Cir. 1977); Brown, supra.
The evidentiary hearing has also been used to supplement the record in those guilty plea cases where appellant asserted that he undertook to withdraw his plea of guilty, though the pro forma record before the appellate court reflected the contrary. The hearing was granted upon an offer of *998proof and appellant’s assertion that witnesses were available. Haacks v. Wainwright, 387 F.2d 176 (5th Cir. 1968).
In all of these cases the initial effort was to bring the record for appellate review into conformity with requirements set for that review. The similarity between Green and Donohew in this regard permits viewing the requirements flowing from them as identical. Green requires that “. . .as part of all Care inquiries” certain questions shall be put to the accused in open court. Green, supra, at 1 M.J. at 456. Care was quite clear in its mandate that “. . . the record of trial . . must reflect .” the inquiries. Care, supra, 18 U.S.C.M.A. at 541, 40 C.M.R. 253. What is the “record” for purposes such as this? Our military practice is fragmented; we have three answers because of our powers over both findings and sentence, and because of our generous views on raising issues such as sanity and jurisdiction, not to mention the providence- of guilty pleas, at all levels.
The variation in answers just referred to is a product of the various purposes for which the question is put. Where the issue on appeal involves the conduct of a trial judge with respect to a substantial right, the phrase “facts of record” is narrowly construed. Thus, where the issue was the propriety of a trial judge’s remarks to a hung jury, the version of the trial record agreed upon by counsel was rejected by the Fifth Circuit which accepted only the version certified by the trial judge. Kesley v. United States, 47 F.2d 453 (5th Cir. 1931), citing Clune v. United States, 159 U.S. 590, 16 S.Ct. 125, 40 L.Ed. 269 (1895). Clune rejected a version of the trial judge’s instructions which had been filed with the clerk as “among the papers in the case”. The Court said that the trial record consists only in that which is “. . . authenticated by the signature of the judge.” Id., at 593, 16 S.Ct. at 126.
Similarly, where the issue involves conduct of the trial jury, a bare allegation that the jury separated before rendering its verdict is ineffectual, absent supporting evidence of record. Pounds v. United States, 171 U.S. 35, 18 S.Ct. 729, 43 L.Ed. 62 (1898); Bacon v. A.B.A. Independent Oil & Gasoline Co., 111 Neb. 830, 198 N.W. 143 (1924).
Although the strictness of these early rules has been ameliorated somewhat,4 the content of an appeal and its supporting papers is still rigorously controlled. Today, the record on appeal consists of the “original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries . .” Rule 10(a), Fed.Rules App.Proc.5 The general rule which follows from this is that “. . . affidavits outside the record cannot be considered.” Scarborough v. Kellum, Sheriff, 525 F.2d 931, n.4 (5th Cir. 1976). -What, then, is outside the record? An affidavit filed in the district court after the record was closed by filing a notice of appeal is not part of the record on review. United States v. Canon, 534 F.2d 139 (9th Cir. 1976), cert. den. 425 U.S. 991, 96 S.Ct. 2202, 48 L.Ed.2d 815 (1976). Similarly, affidavits and material in a brief which offered facts for the first time to the appellate court cannot be considered because “. . . the Court of Appeals cannot go behind the record.” Smith v. United States, 343 F.2d 539, 541 (5th Cir. 1965), cert. den. 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99 (1965). The content of a record in this context is fixed by the activities at the trial level. Thus, the trial record may be supplemented • by proceedings such as on motions to reconsider or for new trial, but it must affirmatively appear that the trial judge accepted the material. Paramount Film Distributing Corp. v. Civic Center Theater, Inc., 333 F.2d 358 (10 Cir. 1964); Lemley v. Christophersen, 150 F.2d 291 (5th Cir. 1945). Our military practice is entirely consistent with *999these concepts. United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973).6 ,
The defect in the present record is not to be overlooked, yet it does not require outright reversal of the case. The defect is the absence of a mandated trial level inquiry into certain factual conditions as to which testimony remains readily available. When dealing with guilty plea procedures, that sort of inquiry cannot be duplicated by an extrajudicial proceeding.7 Smude v. State, 249 N.W.2d 876 (Minn.1976). The obvious answer is to return the case to the trial level. Pollard, supra. This procedure is common in Federal guilty plea practice, even to supply the whole of a missing voluntariness inquiry. Walters v. Harris, 460 F.2d 988 (4th Cir. 1972); Jackson v. United States, 489 F.2d 695 (1st Cir. 1974); Green v. United States, 446 F.2d 650 (6th Cir. 1970).8 It is also the only practical way to produce the “. . . total transcript of the plea inquiry for the purpose of review”, required by our military practice. United States v. Lanzer, 3 M.J. 60 (C.M.A.1977).
Thus, I dissent from the choice of procedures adopted in this case. However, I join in the result because appellant has made no offer or showing that inquiry will produce anything relevant. His attack on the trial procedure at this level can be taken only as a demand to withdraw his plea. That course is open in the post-trial context only to one who can establish the improvidence of his plea. United States v. Barfield, 25 U.S.C.M.A. 212, 54 C.M.R. 539, 2 M.J. 136 (1977). Absent such a showing his attack should be rejected and the proceedings below affirmed.
. There is evidence of record to support the conclusion that the other requirements of Green were met or mooted.
. The “right” protected by the Green inquiry is a compound of the privilege against self-incrimination, the right to confront witnesses and the right to a jury trial.
. Berkley approved proceedings in revision to supplement a Care inquiry. Contra United States v. Kaetzel, 48 C.M.R. 58 (A.F.C.M.R. 1973). Based on the Federal cases cited, infra, Berkley is better decided.
. See generally the Fed.R.App.Proc.
. Here we are not concerned with the parts of a military record engendered by the functions of the convening authority, nor do we make any rule for collateral proceedings.
. The affidavits accepted as determinative of appellate issues in United States v. Webster, 1 M.J. 216 (1975) and United States v. Maxfield, 20 U.S.C.M.A. 496, 43 C.M.R. 336 (1970) are no exception to this general rule. Those cases are to be distinguished on the grounds of a lack of opposition to the filings and to the fact that the issue did not involve something directed to be “on the record.”
. Article 39(b), 10 U.S.C. § 839(b), provides “. . . All other proceedings . . . shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel . . .
. There is a tendency toward use of a harmless error test manifest in United States v. Scharf, 551 F.2d 1124 (8th Cir. 1977).