(concurring):
In United States v. Santos, supra, this Court found it unclear whether, under the circumstances of that case, the accused would have waived his Constitutional rights and pleaded guilty had he realized he could be administratively discharged for the same misconduct which was the subject of his pleas. ' The pretrial agreement in Santos called for suspension of any punitive discharge but was silent with regard to the possibility of subsequent processing, while the conduct of Santos and his defense counsel reflected their belief that the suspension provision would assure his continued military service, absent future misconduct. When Santos’ convening authority commenced administrative discharge proceedings, it was clear that he did not share the views of Santos and his lawyer.
To preclude future uncertainty concerning whether there was a mutual manifestation of assent under facts similar to those in Santos, the Office of the Judge Advocate General of the Navy promulgated a pending modification to the Manual of the Judge Advocate General, paragraph 6 of JAGMAN appendix section A-1-e(1), and paragraph 7 of JAGMAN appendix section A1-f(1), Memorandum of Pretrial Agreement:
That my counsel has fully advised me of the meaning and effect of my guilty plea and that I fully understand and comprehend the meaning thereof and all its attendant effects and consequences, including the possibility that I may be processed for an administrative discharge, even if part or all of the sentence, including a punitive discharge, is suspended or disapproved pursuant to this agreement.
72 Off The Record 17, 13 March 1978.
The laudable modification recommended by the Judge Advocate General of the Navy was incorporated into the pretrial agreement in this case. The possible failure to reach a mutual manifestation of assent in Santos thus could not have occurred in this case because both the trial defense counsel and the accused endorsed this language within their pretrial agreement. Not unexpectedly, contrary to the situation in Santos, the record in this case fails to disclose significant evidence that appellant or his counsel believed appellant was assured continued military service in the absence of future misconduct. Beyond acknowledging familiarity with the contents of his pretrial agreement by his signature, the appellant was specifically asked at trial if he had read the entire document, discussed it thoroughly with his counsel before signing and whether he understood all its provisions. Appellant responded affirmatively. The defense counsel also indicated his awareness of the terms of the agreement, in accordance with his professional responsibilities as defense counsel. In contrast, then, to the circumstances present in the Santos case, there is no doubt in my mind that, applying ordinary contract law, there was a mutual manifestation of assent to the terms of the pretrial agreement in this case and that a valid pretrial agreement existed. We distort both contract law and criminal law by an unrealistic legalistic melding of the two, increasingly more apparent in decisions affecting not only guilty pleas, conditioned, as in this case, by application of the Elmore, Green, King line of cases, but also by the Catlow, Russo perspectives on jurisdiction. *538We also implicitly label defense counsel incompetent and an accused either a dupe or a victim of naivete under circumstances such as this — conclusions I am unwilling to concede — when an accused negotiates and subscribes his understanding to a guilty plea agreement with a convening authority, who in the usual case is a non-lawyer, albeit usually advised by a lawyer, responding to the initiative of an agreement proposed by an accused and his lawyer-counsel.
Included in the language recommended by the Judge Advocate General, and made a part of the pretrial agreement in this case, is a recitation of existing fact, i. e., that although a convening authority agrees to suspend a punitive discharge, he is not foreclosed from utilizing administrative procedures which could result in an administrative discharge. As administrative discharge procedures are a command prerogative existing independently of the military justice system, the inclusion of such a recitation of existing fact in a pretrial agreement is gratuitous and its absence generally is without legal significance, unless, as in the peculiar circumstances of the Santos case, it is revealed that the accused and his counsel bargained, in essence, for continued service, rather than the mere suspension of a punitive discharge.
It is ironic to note that, were the gratuitous recitation recommended by the Judge Advocate General, not included in the pretrial agreement in this case, my colleagues and I would be without cause to reverse this case. Reversal here, unlike in Santos, is not made necessary because there was no bargain struck, but simply because the military trial judge failed to include any mention of the added “provision” in his inquiry pursuant to United States v. Green, United States v. King and United States v. Elmore, all supra. Thus, this Court finds itself in the anomalous position of reversing the military judge below because he failed to assure on the record an accused’s understanding of a term unnecessary to the pretrial agreement and included gratuitously, in accordance with a format suggested to help assure that the accused realized the existing powers of a convening authority. I repeat again what I have said previously, mirroring the admonition of Senior Judge Ferguson of the Court of Military Appeals — a pretrial agreement should be expressed in the simplest possible operative terms- — a recitation of a plea of guilty in exchange for a limitation on sentence.
When the Court of Military Appeals mandated that the trial judge shoulder the primary responsibility for assuring on the record an accused’s understanding of the conditions of his pretrial agreement, that Court concluded that it would view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused’s plea. United States v. Green, supra, at 456. In order to minimize the risk of inadequate inquiries, this Court propounded guidelines for all military judges in United States v. Williamson, 4 M.J. 708 (N.C.M.R.1977). Those guidelines were not complied with in this case.
The language of the added “provision”, a mere recitation of existing fact, is clear and straightforward. Contained within the pretrial agreement, the appellant acknowledged having read it, discussed it with his counsel and understood it. It was the responsibility of appellant’s counsel to explain the provision fully, and there is no indication that this was not done. While this Court may be satisfied that the appellant understood this provision, however, the Court of Military Appeals mandate has not been satisfied because the military judge failed to assure the accused’s understanding of this added recitation on the record. Reluctantly, I am compelled to concur.