(concurring in the result):
I concur with the result reached by the majority. However, in my opinion, the provision in the pretrial agreement (PTA) under evaluation is not contrary to public policy or fundamentally unfair. Thus, I conclude that the trial judge erred when he so characterized the provision. My reasoning:
1. Obviously, the appellant and defense counsel had one primary mission at trial: to better the appellant’s life by obtaining a sentence that would avoid a bad-conduct discharge. They knew that a sentence to confinement was inevitable, and they actively sought to bargain away a few months in the brig in exchange for a promise for a suspended bad-conduct discharge. Frankly, that was smart thinking, and I do not fault either the defense counsel’s or appellant’s judgment. Likewise, I do not fault the convening authority for entering into such an agreement. He needed a sentence severe enough to deter similar misconduct by other members of his command. His agreement evidenced that he saw that the appellant had demonstrated that he might have some rehabilitative potential, but he simply was not content with keeping the appellant in the Navy unless he “paid his dues” by serving at least four months confinement — and sent the appropriate message to others in the command who would see what was happening to the appellant. Additionally, I suspect that the convening authority was fully aware of the appellant’s efforts to assist law enforcement personnel, and that the convening authority saw the value in providing some encouragement to any member of his command willing to assist in the war against drug dealers. Stated otherwise, the parties to the agreement had commendatory reasons for entering the agreement, and I think it unfair to label their decision regarding sentencing to be “against public policy” or “fundamentally unfair.” In particular, I would not do so under the guise that the provision at issue would have a “chilling effect” on the defense effort to mitigate punishment.
2. A judge takes a big step when he or she concludes, sua sponte, that a particular course of action is contrary to public policy or fundamentally unfair. What led this judge to that conclusion? I find neither case law, statutory law, regulatory law, or extant statement of public policy requiring such a conclusion. I suspect that the judge was miffed because he had been bamboo*767zled by trial counsel’s argument urging him to grant leniency to the appellant by adjudging only three months’ confinement. As any experienced military counsel knows, such an argument by trial counsel for a limited period of time based upon asserted helpfulness to the government normally places a de facto cap on the sentence adjudged because most judges do not want to appear Draconian.
3. I share Judge Mollison’s concern with trial counsel’s lack of candor in this case. There is but one term to define his argument: sophism. A bad-conduct discharge is recognized as the most serious punishment a special court-martial may adjudge. In essence, trial counsel represented that a sentence including three months confinement would be more lenient than one containing longer confinement, as requested by the defense counsel. This case has become problematic because of trial counsel’s gamesmanship.
4. I do not like the idea of an air controller using drugs any more than the trial judge and convening authority. However, my experience leads me to conclude that courts must be willing to assist law enforcement personnel with their tough but important task of preventing and detecting crime by giving some form of “credit” to individuals who admit their sins and provide assistance to law enforcement personnel. I also know that service personnel who become “co-operative witnesses” frequently do so under conditions that subject them and their families to personal risk and considerable stress. The convening authority, a senior commanding officer, apparently felt the same way because he entered into an agreement that would authorize the appellant to receive a second chance to serve with honor in the U.S. Navy if the appellant received a sentence to confinement in excess of four months. At trial, after reading the compete PTA, the judge was powerless to increase the term of confinement, so he made a comment in the record indicating his desire that the convening authority set matters straight. The convening authority’s action was taken by an officer who was, apparently, the successor in command of the original convening authority. For whatever reason, that officer took no action consonant with the obvious intent of the trial judge.
5. Faced with the situation described above and the lack of dispositive case law, I apply the rule of lenity in favor of the accused. While I do not second-guess the judge’s decision to adjudge a bad-conduct discharge, I do second-guess the decision not to suspend the execution of the discharge. Taking all factors into consideration, I believe this Court should take a direct route toward a just result and disapprove the bad-conduct discharge.