Appellant was convicted, pursuant to his pleas, of unauthorized absence and missing movement through neglect. The convening authority approved the sentence of a bad-conduct discharge, confinement and forfeitures, but suspended execution of the discharge. Appellant contends that the convening authority violated the terms of a pretrial agreement when he approved the discharge. We agree.
The staff judge advocate elicited post-trial affidavits, which are included in the record of trial. They reflect that trial defense counsel and the convening authority discussed terms for a negotiated plea and thought they had struck an agreement. Government counsel was not privy to these negotiations. Defense counsel reduced his conception of the agreement to writing, witnessed appellant’s signature thereon, and forward it to the convening authority for his signature. The written agreement contained a provision that, “No Bad Conduct Discharge shall be approved.”
It is uncontroverted that the convening authority signed the agreement. He reconsidered, however, and did not return it to defense counsel. Trial counsel advised defense counsel before trial that there was no pretrial agreement and the convening authority was no longer interested in negotiating for a guilty plea.
At trial, the prosecutor advised the court that there was no pretrial agreement. Defense counsel, unaware that the convening authority had signed the agreement, did not contradict the statement. Appellant thereafter pleaded guilty.
The motivation for the convening authority’s withdrawal from the pretrial agreement is unclear. The affidavits submitting by defense counsel, the prosecutor and the convening authority are contradictory.
While we find no controlling legal precedent on the issue here presented, we are convinced that the terms of the pretrial agreement must be honored in this case, and that the sentence to a bad-conduct discharge cannot be affirmed. Our holding is predicated upon the conclusions expressed infra.
The convening authority may unilaterally withdraw from a pretrial agreement, for any proper reason, at any time prior to arraignment, so long as the accused has taken no action in reliance upon the pretrial agreement that might prejudice his defense.
Once a pretrial agreement is made, however, it should not be modified except by judicial order. United States v. Lanzer, 3 M.J. 60 (C.M.A.1977). Consequently, when the convening authority chooses to withdraw from a pretrial agreement, the matter must be presented to the military judge prior to arraignment, and the judge must inquire into the attendant circumstances and rule on the viability of the agreement.
An agreement is “made” when both parties, i. e., the accused, as witnessed by his trial defense counsel, and the convening authority, have signed the written pretrial agreement. We are aware that this conclusion is not completely harmonious with recognized principles of contract law. See, e. g., 17 C.J.S. Contracts § 64 (1963). Strict contract principles cannot be applied to pretrial agreements, however. See United States v. Lanzer, supra; United States v. Cox, 22 U.S.C.M.A. 69, 46 C.M.R. 69 (1972). Suffice it to say that the Court of Military Appeals demands maximum clarity in all matters related to pretrial agreements, United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976); United States v. Cox, supra, and it follows that any executed pretrial agreement should be a matter of record.
The convening authority may well have had a proper reason for withdrawing from the pretrial agreement in this case. The matter was not raised at trial, however. The agreement having been made, and not having been declared void by judicial order, it remained viable at the time of trial. See United States v. Lanzer, supra. It must therefore be honored.
*594We urge adherence to the procedures set forth in the JAG Manual, section 0114. Trial counsel should be involved in all plea negotiations. One reason is that, in order to make a well-informed decision and avoid problems such as we encounter here, the convening authority should hear both the opposing counsel. Another reason is that when trial counsel is privy to negotiations between the convening authority and the accused, he is better able to assure the court that the written agreement encompasses all the understandings between the parties and that the convening authority’s interpretation of the agreement comports with that of the court and the accused. See United States v. Green, supra.
There is no issue as to the providency of appellant’s guilty pleas. His pleas were in no manner' predicated upon any pretrial agreement. He and all other parties to the trial believed there was no agreement. Reversal of appellant’s conviction is not required. The error discussed above can be cured by reassessment of the sentence.
The findings and only so much of the sentence as provides for 3 months confinement at hard labor and forfeiture of $200 pay per month for 3 months are affirmed.
Judge GLADIS concurs.