(concurring):
The accused is convicted of a 14-day unauthorized absence and missing the movement of his ship through neglect to commence that absence. Arts. 86 and 87, UCMJ, 10 U.S.C. §§ 886 and 887. His sentence for the multiplicious offenses, as approved prior hereto, consists of 3 months confinement, forfeiture of $200 pay per month for 3 months, and a bad-conduct discharge, the latter suspended until 6 May 1978.
The accused contends on appeal that a valid pretrial agreement limiting the sentence provisions to be approved by the convening authority was in effect at the time of trial and that the convening authority did not comply with the terms of the agreement.
Post-trial investigation of the noted matter by the staff judge advocate responsible for reviewing this case shows the following:
The defense counsel and convening authority discussed a possible pretrial agreement and thought they had agreed as to its provisions. Defense counsel prepared a written agreement which provided that all sentence provisions awarded by the court would be approved except that any bad-conduct discharge awarded would not be approved. The convening authority signed that agreement, as had the accused and his counsel, and gave it to the ship’s legal officer for delivery to trial counsel for use at trial. Upon learning of the agreement, trial counsel contacted the convening authority and discussed the terms of the agreement with him. As a result, and on the advice of trial counsel, the convening authority withdrew the agreement. At trial it was announced by the trial counsel that no pretrial agreement existed. That announcement was accepted by the defense counsel and the accused by their silence.
There is no issue as to the providency of the pleas of guilty entered in this case since all parties at trial functioned under the assumption that no pretrial agreement existed. However, application of the theory set out in United States v. Shulthise, 14 U.S.C.M.A. 31, 33 C.M.R. 243 (1963), to the facts showing delivery of the signed pretrial agreement to the ship’s legal officer, for further delivery to the trial counsel and later the trial judge, shows effective publication of the convening authority’s acceptance of the agreement and binds him. He did not abide therewith. Consequently, we set aside the punitive discharge as required by the agreement.
Such action effectively nullifies any other error which may appear in this record.
In passing, counsel are cautioned that compliance with the provisions of the JAG Manual as they relate to pretrial agreements would have obviated the error assigned.
*595The findings and only so much of the sentence as provides for 3 months confinement at hard labor and forfeiture of $200 pay each month for 3 months are affirmed.