dissenting in part:
I am satisfied beyond any doubt that none of the parties to the pretrial agreement bargained for or expected that a punitive discharge, if adjudged, would be suspended. The intent and expectations of the parties can be determined from their actions subsequent to trial as well as their post-trial affidavits. These facts are adequately set forth in the majority opinion. I am not disturbed by the confusion ex*641pressed by the appellant in his affidavit. He is clear about his having to serve five years confinement and he certainly could have no doubt but that the remainder of the confinement was to be suspended. This was the extent of what he bargained for and all he could have expected. He does not now assert that he expected more. That he might subsequently have been unsure about the meaning of the wording of the agreement as to the other elements of the sentence or what he might expect the ultimate sentence to be is neither unusual or indicative of a misunderstanding of the terms of the actual bargain between the parties.
After an oral agreement had been reached by the parties, the trial defense counsel apparently wrote the pretrial offer which he erroneously worded. The government parties to the agreement then either negligently reviewed the wording or failed to read it at all prior to signing it. Being satisfied that the plea was free and voluntary and that there were no unfilled promises or expectations, and recognizing some degree of negligence on the part of all parties to the agreement, I see no need or purpose in providing a windfall to the appellant.
While I find no military case law specifically supporting my position, I do not believe that the limited case law in this area preclude our recognizing the actual intent of the parties. Not every misunderstanding surrounding a pretrial agreement must result in an improvident plea. Cf. United States v. Partin, 7 M.J. 409 (C.M.A.1979). Were there any doubt in this case, I would agree that our only recourse would be to resolve that doubt in favor of the appellant or determine the plea to be improvident. I am satisfied that the plea in this case was provident and I would affirm.
APPENDIX
Following are the contents of affidavits obtained from persons involved in the case of United States v. James:
a. Accused (Appellant).
“When I was offered my pre-trial agreement I did not fully understand what I was agreeing to, even though I accepted it. Even after I was sent to the D.B. I still had questions about it, and even the people here didn’t quite understand it. The main reason I took the pre-trial agreement was because I knew it would be a lesser amount of time than that which I would receive. The part I understood was that I would receive five years, but as far as the part about what they were suspending baffled me, because in my pre-trial agreement it states the following:
As the Convening Authority, I agree to take the following action in return for the accused’s compliance with the terms of his offer to plead guilty:
To suspend for the period of confinement plus one year, that portion of the adjudged sentence which provides for confinement at hard labor for a period in excess of 5 years, total forfeitures of pay and allowances in excess of 5 years, reduction to the grade of Private E-l, and . a Dishonorable Discharge.
I can truly say that I didn’t know what to expect upon my release, or at the end of the 5 years.”
b. Convening Authority.
“I am the Commander, V Corps, and the General Court-Martial Convening Authority in this case.
On or about 28 February my Staff Judge Advocate, Colonel Robert B. Smith, presented me with the offer to plead guilty in this case. While I do not now recall the precise circumstances of our conversation, I know that on the facts of this case I would never have concurred in any agreement that did not include an unsuspended punitive discharge.”
c. Staff Judge Advocate.
“I am the Staff Judge Advocate, V Corps.
It is my plain recollection that in this case, as in every other guilty plea case I can recall, plea bargaining was at first oral, and *642reduced to writing only after agreement was orally reached. It was and is my unequivocal understanding, that the final agreement was to suspend so much of the sentence as exceeded a dishonorable discharge, confinement at hard labor for five years, reduction to El, and total forfeitures. Given the nature of the offense and the posture of the evidence, I would have found it unthinkable to recommend any agreement that did not include an approved un-suspended punitive discharge. I am equally certain that the convening authority would not have approved an agreement that did not include an unsuspended punitive discharge.
I would agree that the quantum portion of the offer could have been more artfully drawn, but I am entirely confident that it was intended by the defense to embody the terms of the oral bargain earlier reached. I took it as doing so, in spite of the apparent transposition of ‘in excess of’ from its rightful place. So did the Corps Commander, the convening authority, and the defense counsel, with whom I again discussed the history of the case on 7 September 1979, prior to his departure from this command. He confirmed that the only issue during plea bargaining was gaining for the accused the shortest possible confinement. There never was any question of suspending the punitive discharge.”
d. Trial Counsel.
“THAT, at the time the offer was accepted it was my understanding (and intention) that the accused offered, and the convening authority agreed, to approve the adjudged sentence, except that portion of the sentence to confinement at hard labor for any period adjudged in excess of five years and to forfeiture of pay for any period adjudged in excess of 5 years, would be suspended. The period of suspension for both forfeiture and confinement was for the actual period of confinement served plus one year thereafter.
THAT, it was not my intention or understanding that reduction and discharge be suspended; nor do I believe such was the intention or understanding of any other interested party to the agreement (SJA, Convening Authority, Defense Counsel or Accused).
THAT, since I did not meet with the convening authority regarding this matter, I cannot make a statement directly in response to your inquiry (what did the convening authority agree to suspend), other than my belief that he agreed to suspend only the sentence to confinement and forfeiture consistent with my understanding of what transpired. This belief is predicated upon my discussions at the time with the defense counsel and the SJA. Throughout such discussions a suggestion to suspend any discharge was never given favorable consideration, if indeed it was even actually proposed.”
e. Trial Defense Counsel.
“My representation of PV1 David L. James as detailed defense counsel in his General Court-Martial included several discussions with the trial counsel detailed to the case, CPT John Perrin, and with the V Corps Staff Judge Advocate, COL Robert Smith, regarding what sentence limitations the V Corps General Court-Martial Convening Authority would agree to should PV1 James make an offer to plead guilty in the form of a pre-trial agreement. My discussions with CPT Perrin and COL Smith on the quantum portion of the offer to plead and the pre-trial agreement always focused only on what limitations would possibly be placed on any confinement at hard labor. To the best of my knowledge, an agreement to suspend any forfeitures, reductions or discharges was never discussed by myself with either CPT Perrin or COL Smith.”