(concurring in part and dissenting in part):
I agree with the majority opinion regarding Issues II, IV, and V. Regarding Issue I, I join in Senior Judge Everett’s dissent, because I agree with him that the promises of confidentiality were an “unlawful inducement” which violated Article 31(d), Uniform Code of Military Justice, 10 USC § 831(d), and made appellant’s admissions to the intelligence agents inadmissible.
Because I am satisfied that the NIS agents gave appellant adequate cleansing warnings, however, I believe that appellant’s subsequent confessions to them and the fruits of the search conducted by them were admissible. After reviewing appellant’s comprehensive confessions to the NIS and the Government’s corroborating evidence at trial, I am satisfied that admission of appellant’s statements to Big John and Little John was harmless error. Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
Regarding appellant’s allegations that his counsel were ineffective (Issue III), I agree that a DuBay hearing is required. I write separately to elaborate on the purpose of the DuBay hearing in this case so that the parties conducting it will develop sufficient facts to permit resolution of the issue. In this case it is essential that the DuBay hearing determine, not only whether appellant was adequately advised about the possibility and desirability of negotiating a pretrial agreement, but also whether there was a reasonable probability of a pretrial agreement for a sentence less than that approved by the convening authority in this case. Unless it can be established that there was a reasonable probability of negotiating a sentence limitation less than the sentence which was approved, the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is not met.
I disagree with the majority decision to authorize a rehearing if a DuBay hearing is deemed impracticable. A rehearing in this case is akin to offering an oil change to a driver with a flat tire. It simply cannot correct the harm asserted by appellant. If counsel were ineffective in this case, we can remedy the harm only by reducing the sentence to what probably would have been agreed upon, if that can be determined. A sentence rehearing cannot determine what sentence limitation would have been negotiated if a pretrial agreement had been sought by appellant.