(Dissenting):
Appellant contends that his guilty pleas in this case were improvident, and remain so despite the corrective action taken by the convening authority pursuant to this Court’s prior decision. I agree.
Not long ago, the law seemed clear that an appellant who had not received the benefit of his bargain was entitled either to have the material terms of the agreement conformed to his understanding or to withdraw his guilty plea. United States v. Olson, 25 M.J. 293, 296-97 (CMA 1987). Recently, however, our superior court has recognized the authority of the Courts of Criminal Appeals “under Article 66, UCMJ, 10 USC § 866(1994), to provide such additional relief—e.g., with respect to the reduction in grade—as may be necessary” to provide an appellant “with the benefit of his bargain.” United States v. Mitchell, 50 M.J. 79, 83 (1999). Fashioning such “appropriate alternative relief,” id., however, may be easier said than done.
Chief Judge Crawford provided her view of appropriate alternative relief in cases such as the one before us in her concurring opinions in United States v. Williams, 53 M.J. 293 (2000), and United States v. Hardcastle, 53 M.J. 299 (2000). Each of those cases involved an issue identical to the one before us—a plea alleged to be improvident because the appellant’s enlistment expired, resulting in a no-pay status during confinement and essentially nullifying the convening authority’s agreement to waive automatic forfeitures in favor of the appellant’s dependents. In each of those cases, Judge Crawford eon*600curred in the result, but only because the Government had conceded before the Court of Appeals of the Armed Forces that the pleas were improvident, and had recommended that the findings be set aside. Judge Crawford argued that the Government should have exercised “the option of making appellant whole in lieu of treating the plea as improvident,” and that this could be accomplished “by paying him.” Williams, 53 M.J. at 298.
In Hardcastle, Judge Crawford expounded on this proposal:
Both Olson and its purported progeny, Mitchell, are grounded on the precept that if or when an appellant does not receive the benefit of his bargain, the plea will be treated as improvident. Nothing in these decisions prohibits the Government fi-om belatedly compensating an appellant to make him whole. Furthermore, nothing prohibits a lower court from ordering specific performance by the Government to ensure a service member gets that to which he or she is entitled.
When the misunderstanding in a pretrial agreement involves fiscal considerations, the better practice is to allow the Government the option of placing both parties in the respective positions for which they bargained. In this case, the Government could have paid appellant $400 per month for the number of months agreed upon, plus interest, and restored appellant to the position for which he freely and voluntarily bargained.
53 M.J. at 304 (emphasis in original).
In our prior review of the instant case, this Court adopted this reasoning (except that we did not add interest). We held that by disapproving all confinement (which Appellant had already served), after first ascertaining that this action would result in full pay for the period of confinement, the convening authority could “remedy the failure of the agreement.” United States v. Perron, 53 M.J. 774, 777 (2000).
The problem with this approach is that it is founded in contract-law principles. See Hardcastle, 53 M.J. at 304. Analogies to contract law are entirely appropriate “when interpreting pretrial agreements.” United States v. Acevedo, 50 M.J. 169, 172 (1999) (emphasis added). However, I have found no authority, other than the Hardcastle and Williams concurring opinions, to suggest that contract law principles apply when fashioning a remedy designed to salvage a plea that must otherwise be held to be improvident. “The defendant is entitled to withdraw his plea any time ... if it was not entered voluntarily and knowingly. This obviously is as it should be, since constitutional standards require more than contract principles.” Gov’t of the Virgin Islands v. Scotland, 614 F.2d 360, 364 (3d Cir.1980).
Terminology such as “making appellant whole” and “giving appellant the benefit of his bargain” is perhaps appropriate when it is possible to conform the agreement to an appellant’s understanding or order specific performance by the Government. In cases such as the one before us, however, it is obviously impossible at this late date to fulfill the appellant’s understanding of his bargain. We simply cannot now arrange to provide financial support to appellant’s dependents during a period of confinement that has been served in the past.
Improvidence of a guilty plea cannot be cured by payment of damages. A court attempting to provide “appropriate alternative relief’ must focus on the fact that it is not providing compensation to the appellant, but attempting retroactively to render provident a plea that would otherwise be improvident. Thus, the proper question for a court to ask is not, “Will this remedy make the appellant whole?” The proper question is, “Would the appellant have pled guilty if he had been offered, at that time, the remedy we now propose, in lieu of the failed provision as he understood it?”
Furthermore, it appears that this question must be answered affirmatively beyond a reasonable doubt before a guilty plea pursuant to a pretrial agreement may be upheld. See United States v. Albert, 30 M.J. 331, 333 (CMA 1990), cert. denied, 498 U.S. 1028, 111 S.Ct. 681, 112 L.Ed.2d 672 (1991) (“Even making allowance for [the appellant’s] desire to assure that his family would receive support during any period of confinement, we *601are convinced beyond any reasonable doubt that, if he had been fully apprised of his pay status as it existed at the time and had been offered a pretrial agreement which limited confinement but included no reference to forfeitures, he would have accepted it and entered the same pleas of guilty.” (emphasis added)).
The issue, after all, is the voluntariness of Appellant’s agreement to plead guilty, judicially confess, and waive some of his most basic Constitutional rights. “A plea of guilty is a judicial confession. Perhaps even more than a pretrial confession, therefore, it must appear that the plea is made voluntarily.” United States v. Griffin, 15 U.S.C.MA. 135, 137, 35 C.M.R. 107, 109, 1964 WL 4934 (1964). “Once an issue is raised, therefore, concerning the voluntariness of a confession, [the Government] must affirmatively overcome the evidence of involuntariness and ... must so persuade the members beyond a reasonable doubt____ Voluntariness, like trustworthiness, is a factual question.... It is such an important factor in evidence that the basis for its consideration should be measured by the same standard applicable to other factual determinations in criminal cases ... for this reason, the Federal courts have adopted the sound rule that the United States must prove voluntariness beyond a reasonable doubt.” United States v. Odenweller, 13 U.S.C.M.A. 71, 74-75, 32 C.M.R. 71, 74-75, 1962 WL 4454 (1962) (citations omitted).
Indeed, in the only other reported case in which an appellate court has actually fashioned an alternative remedy in order to salvage an otherwise failed plea agreement, the court justified the minor difference between its proposed remedy and the plea agreement provision by stating that “in light of the seriousness of the offenses involved, it seems inconceivable that this difference would have affected appellant’s decision to plead guilty.” Olson, 25 M.J. at 298 (emphasis added).2
In Appellant’s assignment of errors for this Court’s prior review of his case, he asked that his BCD be set aside or, in the alternative, that the findings and sentence be set aside and a rehearing ordered. We returned the record to the convening authority, instructing him that either alternative would constitute adequate remedial action. If either of those actions had been taken, this particular issue would not now be before us.3 However, this Court espied a third alternative, and advised the convening authority that if he ascertained that disapproval of all confinement would result in full pay for the period of Appellant’s confinement, then such action would cure the failure of the pretrial agreement. The convening authority adopted this approach. Appellant now complains that this approach was inadequate.
The pretrial agreement provision at issue in this case was crafted pursuant to Article 58b(b), UCMJ, 10 USC § 858b(b). The purpose of that Article is “to provide transitional compensation for the dependents of the accused.” H.R. Conf. Rep. No. 104-450, at 853 (1996), reprinted in 1996 U.S.C.C.A.N. 238, 379. That purpose was clearly not fulfilled in this case.
*602The Appellant stated at trial that “the two most important things in [his] life” were his wife and daughter. His clemency request, submitted while he was still in confinement, stated that his “main concern throughout the negotiations of the pretrial agreement was the welfare of his family,” and he requested “relief from the pay provisions [that caused the invalidation of his ‘bargained for benefits’] or immediate release from jail in order to gain immediate employment ... for the financial relief his family desperately needs.”
On this record, I cannot find beyond a reasonable doubt that the Appellant would have pled the same had he been offered $4,157.60 (before tax withholding), some two-plus years in the future, in lieu of payment of pay and allowances to his dependents during his confinement.
I would return the record to the convening authority, advising him either to set aside the BCD or to set aside the findings and sentence and order a rehearing if he so wishes.
. In United States v. Olson, 25 M.J. 293 (CMA 1987), the appellant had entered into an agreement to make restitution to the United States of any monies owed by him as a result of the charges against him. The record of the providence inquiry revealed that the appellant thought he had satisfied the requirement by previously paying $646.50. When the Government later sought to collect an additional $1,107.07 administratively, the appellant challenged the providence of his plea. The Court of Military Appeals agreed that a meeting of the minds had not occurred with respect to the agreement's restitution provision. The Court then "carr[ied] out the intent of the pretrial agreement” by setting aside the fine that had been adjudged ($1,000.00), an amount "almost equivalent to the $1,107.07 which was collected administratively from the accused.” Id. at 298. In United States v. Mitchell, 50 M.J. 79, 83 (1999), CAAF instructed the Secretary of the Air Force and the Air Force Court of Criminal Appeals to "provide appropriate alternative relief,” but as of the date of this writing, the Air Force has apparently been unable to devise such relief. See United States v. Mitchell, 54 M.J. 457 (2001).
. The grant of an appellant's request for specific relief can be viewed either as his affirmation that he would have pled guilty if the proposed remedy had been offered to him at the time, or as his current agreement to accept the proposed relief in resolution of his improvidence claim. In either case, Appellant has characterized his request as "appropriate alternative relief,” and cannot later complain if his request is granted.