(dissenting):
This is another case in which the convening authority failed to comply with his promised action on the sentence after the accused had pled guilty in reliance on that promise. Again, the basis for this action is a clause in the pretrial agreement which permits avoidance of the sentence terms upon commission of misconduct by the accused after trial. I have previously condemned such provisions as fundamentally unfair and against public policy. Among other things, they permit contravention of the U. S. Supreme Court’s mandate in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), establish an indefinite probation not authorized by law, and, when suspension of the discharge has been agreed upon, can be utilized to abrogate Constitutional rights guaranteed in revocation proceedings. United States v. French, No. 77 2025, 5 M.J. 655 (N.C.M.R. 26 May 1978) (dissenting opinion); United States v. Jacox, 5 M.J. 537, 540 (N.C.M.R. 1978) (dissenting opinion); United States v. Rankin, 3 M.J. 1043, 1044 (N.C.M.R.1977) (dissenting opinion); United States v. Dugger, 54 C.M.R. 657, 658 (Interim), 1 M.J. 1069, 1070 (N.C.M.R.1976) (dissenting opinion); United States v. Johnson, 54 C.M.R. 435 (Interim), 2 M.J. 600 (N.C.M.R.1976). I reaffirm all of my objections to such clauses. Additionally, I agree with the majority’s determination that the convening authority committed error by failing to refer adverse matter from outside the record to appellant for comment. I must, however, disagree with their remedial action because of my views concerning these “misconduct” clauses and the requirement of United States v. Santobello, supra. Here, as in Jacox, and Dugger, supra, the appellant was forced to undergo confinement that should have been suspended in accordance with the sentence terms of the pretrial agreement. As stated in those cases this sentence promise should have been fulfilled in accordance with Santobello. Since that promise cannot now be met, the plea of guilty is rendered improvident and the findings and sentence should be set aside.
As a further matter, I find that the trial judge in this case, just as in United States v. French and United States v. Jacox, supra, failed to conduct an adequate inquiry with respect to the “post-trial misconduct” provision. Here, the judge made no effort whatsoever to explain the ramifications of the provision or the means by which it could be invoked. He made no attempt to address the question of whether or not appellant was entitled to a hearing because of United States v. Bingham, 3 M.J. 119 (C.M. A.1977) and United States v. Rozycki, 3 M.J. 127 (C.M.A.1977). If he thought no hearing was required, no effort was made to ensure that appellant understood this interpretation. He did not even explain that purported offenses prompting invocation of the “misconduct” clause had to be “. . . evidenced by official records of misconduct . . . ” and shown to appellant for possible rebuttal, as the convening *684authority subsequently failed to do. As in United States v. French, supra, it is impossible to determine whether the appellant, at the time the pleas of guilty were accepted, fully understood that the convening authority could void the agreement, without a hearing, on the basis of controverted allegations of violations of confinement regulations not shown to appellant — the situation presented in this case. Without an understanding that the “post-trial misconduct” condition of the pretrial agreement permitted such action by the convening authority, it cannot be said that appellant fully understood the effect of this condition, and thus entered his pleas of guilty with full knowledge of their meaning and effect. Since the record is deficient in this regard, the judge failed to meet the responsibilities imposed upon him by United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976) of “assuring on the record that an accused understands the meaning and effect of each condition . . ..” It cannot be concluded from this record that the pleas of guilty were in fact, provident. Accordingly, on this basis also, the findings and sentence should be set aside and a rehearing ordered as required by United States v. King, 3 M.J. 458 (C.M.A.1977).