dissenting:
I confess that it has never been clear to me why our judicial superiors have required that “the trial judge . . . secure from counsel for the accused as well as the prosecutor their assurance that . . . the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain.”1 Rule 11(e), Federal Rules of Criminal Procedure, from whence the Green inquiry appears to stem, does not have an equivalent requirement. I am inclined to agree with those who feel that the fundamental and critical purpose of the providency inquiry is to determine what the accused, rather than counsel, believes the agreement encompasses.2
While the source of the rule may be adumbral, and its purpose enigmatic, nevertheless, such an inquiry of counsel is clearly mandated by United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976). Although they concede that the trial judge failed to make the required inquiry, for the reasons they have expressed, the majority chooses not to acknowledge its prejudicial impact. Yet, the failure of another trial judge to make that same inquiry constituted one of the two bases for the reversal in United States v. King, 3 M.J. 458 (C.M.A.1977). In view of that fact, and because the King decision admonishes against adopting “. . . ‘substantial compliance’ . . . [as] our standard for review.”3,1 believe this Court has no alternative but to either determine that there has been rigid compliance with each and every provision of Green in each and every case, or reverse.
As such conformity was not present in this case, I would reverse and order a rehearing.
. United States v. Green, 24 U.S.C.M.A. 299, 301, 52 C.M.R. 10, 12, 1 M.J. 453, 456 (1976).
. Additionally, the seemingly erratic and capricious performance by our judicial superiors in granting and denying petitions during the post-King decision period invites legitimate speculation that a failure by the trial judge in this single particular is not to be treated with the same gravity as would be the case in an omission of one of the other inquiries ordered by the Green opinion.
. United States v. King, 3 M.J. 458, 459 (C.M.A. 1977).