concurring:
Based on the reservations expressed by the United States Court of Military Appeals in United States v. Zelenski, 24 M.J. 1 (C.M.A.1987), as well as those expressed by this court, defense counsel have been put on notice to use extreme caution in advising their clients to waive a forum option as part of an offer to plead guilty. Furthermore, military judges now have a *711sua sponte duty to determine on the record whether a forum-option waiver is a “freely conceived defense product.” If such a waiver provision is to be included in an offer to plead guilty, defense counsel should annotate their case files indicating the provision’s origin and the benefit that will be realized by the accused from its inclusion. By so doing, defense counsel will be prepared, and will have prepared their clients, to respond fully and candidly to the military judge’s questions about a forum-option waiver during the providence inquiry.
APPENDIX
Extracted from United States v. Flores, ACMR 8600439 (A.C.M.R. 18 Mar.1987)
RABY, Senior Judge, concurring in the result:I am compelled to concur with the result of my brother’s opinion; however, I remain concerned about the future effects of this practice on our system of military justice. See generally United States v. Baumgart, [23 M.J. 888], ACMR 8600548 (A.C.M.R. 6 Mar.1987). In addition to the concerns expressed in Baumgart, I wish to muse whether we gatekeepers of military law are not inadvertently finding more and more novel ways in which gradually to ease line officers and commanders out of the military justice system — moving it ever closer to the civilian justice model. Quaere: If this trend continues, could we reach a point, in futuro, where the military justice system is no longer unique, and thus is no longer necessary? Secondly, the unfettered election given to an accused to choose trial either by members (officer or officer and enlisted) or by judge alone, constitutes an important right. Statistics in the Army show that military judges impose both punitive discharges and confinement in a greater percentage of cases than do courts-martial with members. Further, even military judges are not totally immune from attempts at unlawful command influence, and preserving this unfettered trial-forum election right helps dispel public distrust of our courts-martial. Thus, I find that strong public policy arguments can be made against this practice, although current law condones this type of waiver. Incidentally, I find this case clearly distinguishable from United States v. Jones, 23 M.J. 305 (C.M.A.1987), a case with which I am in total agreement.