dissenting:
I concur in Senior Judge Fulton’s disposition of this case and agree with many of the views he expresses in his opinion. Because I believe that there is a more fundamental and egregious error than that relied upon by Senior Judge Fulton, I am submitting my conclusions separately.
I
I would set aside the findings in this case and authorize a rehearing because the trial judge manifestly failed to comply with the mandate of United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976). In establishing the rule in that case, the Court stated “. . . that as part of all Care1 inquiries conducted 30 days or more after the date of this opinion,2 the trial judge shall ascertain whether a plea bargain exists . . . ”3 Id. at 302, 52 C.M.R. at 13, 1 M.J. at 456 (emphasis added). The government counsel concede that the trial judge was required to inquire about the existence of a pretrial agreement and that he failed to do so. My reading of the law and the record confirms the accuracy of that concession.
Those who would sustain this case in spite of this omission by the trial judge assert that since there was no pretrial agreement the judge’s failure to inquire after one can not be prejudicial. This contention suffers, in my view, from the same flaw contained in the argument of the majority in United States v. Crowley, 3 M.J. 988 (A.C.M.R.1977) (En Banc), reversed 4 M.J. 170 (C.M.A.1977), request for reconsideration granted 9 Feb. 1978.
As I read the Green decision, the United States Court of Military Appeals has prescribed certain areas of inquiry which must be explored by the trial judge, and “set forth on the record ”4 before he is authorized to accept a guilty plea.5 The United States Court of Military Appeals declared in Green that “. . . a plea bargain inquiry is essential to satisfy the statutory mandate that a guilty plea not be accepted unless the trial judge first determines that it has been voluntarily and providently made.” Id. at 302, 52 C.M.R. at 13, 1 M.J. at 456 (1976) (emphasis supplied). In the case of United States v. King, 3 M.J. 458 (C.M.A.1977), the trial judge failed to inquire of the counsel as to whether the written agreement encompassed all of the understanding of the parties, an inquiry also stipulated by the Green opinion. The government counsel urged the United States Court of Military Appeals that it “. . . should not, absent a showing of a sub rosa agreement, declare a plea improvident because of a failure by the trial judge to strictly follow the procedure set forth in Green.” Those facts and that argument appear to me to be analogous to those in the case sub judice.
*931In response to the government’s entreaty, the United States Court of Military Appeals said:
“This is unacceptable because it ignores the basic policies behind Green of requiring the trial judiciary to actively participate in and prepare a record for appellate authorities which satisfactorily demonstrates the absence of such agreements. .6 [W]e believe that the whole purpose of Green, as set forth earlier in this opinion, is thwarted unless its terms are strictly adhered to, . . . ” United States v. King, 3 M.J. at 459.
I believe the same observations are idoneous to the instant case and I would, therefore, reverse.
II
Even if this case did not suffer from the foregoing error, I would still be unable to approve it. I am convinced that there was in fact a pretrial agreement between the trial judge and the trial defense counsel.7 Because the terms of that agreement were not spread upon the record in open court as required by the Green opinion, I would set aside the findings and sentence in this case and authorize a rehearing.
I am persuaded of the presence of an agreement by the uncustomary conduct of counsel and the trial judge in the case sub judice, and by the unique occurrences in other guilty plea cases tried by this same trial judge in this same jurisdiction.
A
The factors present in this record of trial which I find disturbingly unusual are several. The defense counsel pled his client guilty to charges which exposed him to the imposition of a possible maximum of a dishonorable discharge and confinement at hard labor for ten years with accessory punishments. This plea was entered without the benefit and protection of a pretrial agreement.8 During the presentencing portion of the trial, which presumably is the stage at which the defense makes every effort to minimize the severity of the sentence, the accused took the stand and in response to some nine questions posed by his counsel made a very perfunctory presentation. Defense counsel’s argument on sentence consisted of 63 words and contained not a single allusion to the unusual fact that the appellant had no pretrial agreement and was therefore relying on the mercy of the court. The trial judge imposed a sentence which included inter alia a bad-conduct discharge and eight months’ confinement. Whatever other observations may be appropriate concerning counsel’s conduct in this regard,9 it evidences, to me, that the defense counsel was convinced beyond a modicum of a doubt of the maximum sentence the trial judge would impose. As this was the initial case in a series of cases I will describe later, the source of counsel’s certitude in this case had to be promises originating from the military judge himself.
*932B
While the facts in this case might be accounted for as an aberration, an examination of other guilty plea cases heard by this judge bring the picture into focus. The affidavits and other exhibits submitted to, or otherwise before, this Court persuade me that the judge in this case had informed the counsel in the jurisdiction in which this trial was conducted that in order to expedite the disposition of cases he was instituting a new practice in his court. The terms of that practice were that any accused who pled guilty at arraignment, and without a pretrial agreement with the convening authority, would not, irrespective of the seriousness of the charges against him, receive a sentence in excess of a dishonorable discharge and one year’s confinement along with accessory punishments. This policy was announced before the trial of the case sub judice on 17 January 1977, and continued into June 1977, at least. I base my conclusion largely on a statistical study which reveals that in the general court-martial guilty plea cases heard by this judge in this jurisdiction on and after 17 January 1977, there was a dramatic change from former practices.
First, the duration of the period of confinement and the severity of the punitive discharges he imposed were markedly reduced. In the 35 guilty plea cases this judge sat on immediately prior to 17 January 1977 his average sentence to confinement was five years and he imposed dishonorable discharges in 29 of them. Whereas, after that date, in the 39 cases wherein the accused pled guilty without a pretrial agreement his average sentence to confinement was only eight months and he imposed a dishonorable discharge in just four of them. He exceeded a one year sentence to confinement in such a case in only one instance, early after the policy had been activated, and that was in a case in which the accused failed to enter his guilty plea at arraignment. The judge never imposed so harsh a punishment for such a lapse in any subsequent case. However, there were five accused who appeared before the judge to plead guilty during this period who had negotiated pretrial agreements and they received an average of seven years confinement, with all but one receiving a dishonorable discharge.10
Secondly, a conspicuous change occurred in the number of pretrial agreements nego*933tiated in this command during this same period. Prior to 17 January 1977, all but one of the 35 guilty plea cases this judge heard involved pretrial agreements.11 After that date only six of 45 accused who entered guilty pleas had negotiated such agreements. In my view this is an especially incriminating fact. As we are all well aware, the negotiated plea, including as it usually does a promise by the convening authority to approve a sentence appreciably less than that prescribed by the table of maximum punishments,12 is an invaluable and almost universally used device resorted to by accused in the Army who wish to plead guilty. It is a rare instance in the military justice system when an accused pleads guilty at a general court-martial without such an agreement. Yet, suddenly, on and after 17 January 1977, such agreements almost fell into total disuse in this judge’s jurisdiction. We need not wonder why. It was obviously because the judge had guaranteed an exceedingly lenient sentence. I use the word “guaranteed” advisedly, because I do not believe so many defense counsels and clients would have entered guilty pleas, as did, in cases in which the maximum permissible confinement was 20 and 10 years without an understanding that amounted to a guarantee concerning the maximum sentence that would be imposed. I am resolved in this conclusion when I note one instance in which Mr. Bellen, an experienced criminal lawyer, foresook a pretrial agreement in a case involving a possible maximum term of confinement of 35 years. My personal experience with, and knowledge of, Mr. Bellen leads me to the inescapable conclusion that he would not have pled his client guilty unless he was assured to a moral certainty of the maximum sentence the judge intended to impose. Neither he, nor any other responsible attorney, would expose a client to the possibility of a severe sentence, especially when the shield of a pretrial agreement is readily available, unless they had secured a suitable and certain alternative. I do not believe Mr. Bellen did, nor do I believe counsel in any of the other post 17 January cases did either.
C
Having satisfied myself that the trial judge, to all intents and purposes, entered into a pretrial agreement concerning the maximum sentence he would impose, the next question to be answered is “What is the legal impact of such conduct?”
Both the Federal Rules of Criminal Procedure and the ABA Standards Relating to Pleas of Guilty13 admonish judges not to participate in such pretrial agreements. However, I do not deem it necessary to rely on such injunctions as a basis for my decision. As I noted at the outset of my discussion on this point, it is beyond cavil, in my view, that any such agreement, as I find did exist in this case, must be spread upon the record in accordance with the clear mandate of United States v. Green, supra, and United States v. King, supra. Consequently, on this ground too, I would reverse this case and order a rehearing.
. 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
. The date of the Green opinion was 13 August 1976. This case was tried and the Care inquiry conducted on 17 January 1977.
. The requirement for such an inquiry did not originate with the Green decision. See paragraph 3-1, page 304, Military Judges Guide, DA Pam 27-9, 19 May 1969, as changed by C-2, dated 14 May 1970. Nor is it unique to the military justice system. See Rule 11(d), Fed.Rules Cr.Proc., 18 U.S.C.A.
. United States v. King, 3 M.J. 458 (C.M.A. 1977) (emphasis in the original).
. This absolutist approach is not dissimilar to the one dictated by the United States Court of Military Appeals earlier in United States v. Care, supra, and the U. S. Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
. Ironically, had the trial judge in the instant case asked the required question of counsel, in the presence of the appellant, at trial, perhaps we would not have found it necessary to try to answer it on appeal. This of course, is one of the problems the Green inquiry was designed to eliminate.
. A pretrial agreement is not, in my view, defined as one limited to an agreement between an accused and a convening authority. Nor does a pretrial agreement have to be reduced to a particular stylized form. Such an agreement, as in any other factual context, may be arrived at by “an arrangement as between two or more parties as to a course of action.” Page 43, Webster’s Third New International Dictionary. Also, an agreement may be said to exist even if it is conditional in nature. A conditional agreement is one in which the agreement’s operation and effect depend upon the existence of a supposed state of facts, or the performance of a condition, or the happening of a contingency. Page 89, Black’s Law Dictionary (4th ed.).
. For an example of how this fact can be construed so as to render provident what otherwise might be an improvident plea see United States v. Castrillon-Moreno, 3 M.J. 894 (A.C.M.R.1977), a case which incidentally was tried before this same judge on 4 February 1977.
. See United States v. Welker, 3 U.S.C.M.A. 647, 25 C.M.R. 151 (1958).
. Actually there were six accused who entered guilty pleas with pretrial agreements after 17 January 1977, but, as will be noted later, one was reduced to the proportions of a regular special court-martial and thus not included with the general court-martial here under discussion. Lest it be thought that the fact that there were six such negotiations undermines the view that there was a firm understanding between the judge and counsel, as I earlier described, I submit the following observations as to those six. In four of them, civilian defense counsel was involved. In my opinion, such counsel either did not know of the arrangement or did not have faith in it. (However, Mr. Bellen, a civilian counsel, on 3 March 1977, represented three of these accused who appeared with pretrial agreements. Each was facing a maximum of ten years confinement. One received the maximum while the other two received eight years apiece. When Mr. Bellen returned on 22 April 1977, he did not negotiate a pretrial agreement for a client facing a maximum of 35 years confinement. I surmise that he had learned of the prevailing arrangement in the interim. This client received a bad-conduct discharge, 10 months confinement, total forfeitures and reduction to E-l.) Another case in which counsel opted for a pretrial agreement prior to submitting his plea was one in which he was able to get a deal with the convening authority substantially less than the ongoing agreement with the judge, i. e., the convening authority agreed to suspend all parts of the sentence in excess of a bad-conduct discharge. Thus, he had little to fear by breaching the terms of the arrangement. The sixth case was another one in which counsel was able to make an agreement substantially more favorable than the judge’s offer. The accused was charged with an aggravated assault, but was permitted to plead guilty to simple assault with the Government agreeing not to present evidence on the more serious offense. Thus the maximum sentence was limited to that of a regular special court-martial, or well below the prevailing arrangement. Nevertheless, this case presents an illustrative vehicle to establish how the arrangement actually operated. The accused in this case was sentenced by the judge to four months confinement and $150.00 per month for four months. A coaccused, who was tried later on the same day, and was charged with, and pled guilty to, the aggravated assault, without a pretrial agreement, and thus faced a maximum sentence which included a dishonorable discharge and confinement at hard labor for three years, was sentenced by *933the judge to a restriction for 30 days, forfeiture of $75.00 per month for three months and reduction.
. The last guilty plea case heard by this judge, prior to the instant case, in which the plea was entered without a pretrial agreement, was on 9 November 1976. He imposed a sentence which included a bad-conduct discharge and three years confinement. Obviously this prior precedent did not provide the assurance or inspiration for the trial defense counsel in the case sub judice to plead his client guilty without a pretrial agreement with the convening authority.
. Paragraph 127c, MCM, 1969 (Rev.).
. Rule 11(e), Fed.Rules Cr.Proc., 18 U.S.C.A.; Section 3.3(a), Standards Relating to Pleas of Guilty, ABA, the commentary to which sets out at some length the reasons why.