dissenting:
I dissent, for I regard the practice adopted by the military trial judge as inherently prejudicial.
Presumably, every defendant who pleads guilty has some expectation, even without a plea agreement, concerning the outcome, whether based on the known or assumed predilictions of the judge or on other factors. If there is no plea agreement, the law does not require that the defendant’s expectation be inquired into (although that would seem necessary if the goal is to assure that the plea is truly provident). This ease, however, is not one in which an attorney’s empirical observation of judicial behavior led him to counsel his client to a particular course of action. Instead, the trial judge made what was tantamount to an announcement that was calculated to, and did, arouse specific expectations on the part of the defense even though there was no plea agreement in the usual sense of that term.1
*929In the conversations evidenced by the affidavits filed before this Court, the trial judge came perilously close to involving himself in plea discussions in a manner frowned upon by the American Bar Association.2 Also, discussions of the type involved appear to constitute the “ex parte communications concerning a pending or impending proceeding”, condemned in the Code of Judicial Conduct.3
There are, however, more definite reasons why the practice adopted bears the seeds of prejudice to an accused. One of them stems from limitations on the powers of military trial judges. Only convening authorities, not military judges, may suspend sentences and place convicted persons in a probationary status.4 Therefore, if an accused wants a plea agreement that includes suspending all or any part of the sentence, the negotiations necessarily must be with the convening authority.5 In my view, canting the military judicial process so as to deter negotiating with the convening authority, thereby foreclosing those options that are only within the latter’s power, is error. I would order a rehearing to preserve the integrity of the military justice system and to purge the proceedings of any potential prejudice.6
Second, the practice announced and plainly followed7 by the military judge gives rise to doubts about the fairness of the sentencing process. It often is urged that an accused who spares the Government and its witnesses the time and expense of a contested trial (which also expedites the trial of others) is entitled to some leniency for that reason.8 It is not appropriate, however, that expediting the trial should be made to loom larger in the sentencing process than those factors relating to the individual accused and the circumstances surrounding his offense.9 That practice clearly is inconsistent with the goal of individualized sentencing.10
*930Accordingly, I would set aside the findings and the sentence, and would authorize a rehearing before a court to which a different military judge has been appointed.
. The Court has chosen to exercise its fact-finding authority through the use of affidavits rather than by means of an adversary evidentiary hearing. Even supposing a tendency of affiants to be self-serving, however, I agree that there was no plea agreement within the meaning of United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976). Also, I do not believe that the accused thought that the *929judge was legally limited to any particular sentence.
. ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 3.3(a) with commentary at 72-74 (Approved Draft, 1968); ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge, § 4.1 with commentary at 52-60 (Approved Draft, 1972).
. ABA Special Committee on Standards of Judicial Conduct, Code of Judicial Conduct, Canon 3, Standard A(4) (1972). For Army adoption of the Code and some ABA standards, see Army Regulation 27-10, para. 2-32 (26 Nov. 1968, as changed).
. See United States v. Occhi, 25 U.S.C.M.A. 93, 54 C.M.R. 93, 2 M.J. 60 (1976).
. The convening authority may also retain an enlisted person in a higher pay grade when otherwise the approved sentence would by operation of law reduce the accused to the lowest pay grade. Army Regulation 600-200, para. 7-64a (4) (24 Mar. 1965, as changed).
. As the majority opinion states, the defense initially intended to negotiate a plea agreement with the convening authority. There is no way for us to know what the result might have been. (Neither do we know what the prosecution’s position might have been, for the judge’s practice effectively eliminated any advisory role for either the prosecution or the staff judge advocate.)
. The uniformity of sentences over the ensuing six months confirms the practice. Beginning with the appellant’s trial, the average sentence imposed by the judge on accused pleading guilty at the arraignment session without having negotiated an agreement included a bad-conduct discharge and 8.8 months’ confinement. Indeed, more than one-half of such accused (17 of 33) received exactly 9 months’ confinement.
. It also is said that admitting guilt, as by pleading guilty, is a significant step towards rehabilitation and deserves consideration in sentencing. Perhaps so, but it is possible to make a guilty plea so attractive on other grounds that contriteness cannot be assumed.
. The evident uniformity of sentences was mentioned in note 7, supra. The affidavits of counsel indicate that there was no pretrial discussion of extenuating or mitigating matters.
. See United States v. Varacalle, 4 M.J. 181 (C.M.A.1978), over-ruling United States v. Mosely, 24 U.S.C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976), but affirming the principle of individualized sentencing. As the majority opinion notes, some possibly favorable evidence concerning the appellant was not introduced in the presentencing proceedings. We do not know why. Neither do we know whether any other evidence might have been introduced had there been a full and individualized sentence consideration. Only a rehearing on the sentence can cure this deficiency.