dissenting:
[T]he record of trial [in a guilty plea case] must reflect not only that the elements of *789each offense charged have been explained to the accused but also that the military trial judge .. . has questioned the accused about what he did or did not do, and what he intended (where this is pertinent), to make clear the basis for a determination by the military trial judge . . . whether the act or the omissions of the accused constitute the offense or offenses to which he is pleading guilty.
In promulgating this requirement in United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969), the Court of Military Appeals fortified the codal requirement that an accused not enter a plea of guilty “improvidently or through a lack of understanding of its meaning and effect.” Article 45, Uniform Code of Military Justice, 10 U.S.C. § 845.
In the instant case, the appellant pleaded guilty to assault consummated by a battery. A battery is the unlawful application of force to the person of another. This application of force may be accomplished intentionally or through culpable negligence with no intent to injure. See United States v. Redding, 14 U.S.C.M.A. 242, 34 C.M.R. 22 (1963).
The military judge in conducting the Care inquiry did not delineate between the two kinds of mental elements that may constitute a battery. Instead, he in effect proceeded on the theory that the battery was of the intentional variety. The appellant in explaining the incident during the Care inquiry did not admit that he intended to strike the policeman. His responses to the judge’s questions were more consistent with a theory of negligence than one of intent.1 Later, during the sentencing portion of the trial, when the appellant stated that he did not throw the rake to hit the policeman but only to accomplish his escape, he effectively denied an intent to injure and thereby set up matter inconsistent with a theory of an intentional battery.2 At this point, if not sooner, the military judge should have inquired further, first by explaining to the appellant the difference between the two types of batteries. If the appellant persisted in his denial of an intent to injure, the military judge should then have determined whether the appellant admitted sufficient facts to support guilt on the basis of culpable negligence. If the appellant would admit neither, the military judge should have rejected the plea of guilty and entered one of not guilty, as required by Article 45 of the Code. As the inconsistency was never resolved, and as the applicable theories of criminality were never explained to the appellant, his plea was improvident.3
One further matter requires comment. In footnote 3, the majority considered testimony adduced at the Article 32 investigation to bolster its conclusion that the plea was provident and to assail the bona fides of the trial defense counsel. This, in my opinion, was inappropriate. In the first place, matters outside the record may not be considered by appellate courts in determining the providence of a guilty plea. United States v. Davenport, 9 M.J. 364 (C.M.A.1980). The majority in the instant case attempts to avoid the prohibition by treating the Article 32 investigation as a part of the record. The essence of Davenport, however, is that “providence of a tendered plea of guilty is a matter to be established one way or another at trial.” Id., at 367.
The leading case on this point before Davenport was United States v. Johnson, 1 M.J. 36 (C.M.A.1975), cited by the majority. That decision, however, stands for the proposition that Article 32 proceedings may be *790examined, not directly to determine the providence of a guilty plea, but to preclude a miscarriage of justice or a fraud on the court. To the extent the other cases cited by the majority are to the contrary, they are inconsistent with Davenport.
The other use to which the majority put the Article 32 investigation is disturbing. I find nothing wrong with the defense counsel’s attempt to show that the appellant’s mental state was one of culpable negligence rather than an intent to injure. True, the effect of the question and answer (at least as I view it) was to render the plea improvident. But the fault lies not with the defense counsel but in the failure of the military judge to explain to the appellant the two theories of criminality. The harsh criticism leveled at the defense counsel in my opinion is unwarranted.
. For example: “I hit him with the rake after he told me he wanted to talk to me and that’s when I started to run and I just kind of tossed the rake.”
. Even though the intent to injure is a general intent, it is a requisite mental element. If there is no such intent, the only remaining theory of criminality is one based on culpable negligence.
. As noted by the majority, the appellant did acknowledge by an affirmative response that the striking of the policeman was done with unlawful force or violence. This, however, was no more than a statement of a legal conclusion without the benefit of an explanation of the legal principle involved.