concurs in part and dissents in part:
I join in the decision with respect to the assignment of error involving service of charges. I also concur that the military judge erred by failing to explain each element of the pretrial agreement, but apply a different analysis from that of Chief Judge Baum in concluding that such error was harmless. I disagree with the determination that Appellant’s plea of guilty to watching child pornography was provident, and I would disapprove that finding on that basis. I also believe that a lesser sentence would not have been adjudged at trial if Appellant had not been convicted of that offense, and I join in affirming the sentence as approved and partially suspended below. However, I do not join in the majority’s action to void the sexual treatment provision of the pretrial agreement and bar the Convening Authority from taking any action for a failure to comply with that provision.
In United States v. Felder, the Court of Appeals for the Armed Forces recently held that failure to explain a provision in a pretrial agreement was harmless error when an appellant failed to demonstrate material prejudice to a substantial right. United States v. Felder, 59 M.J. 444 (2004). I agree that it is extremely unlikely that any misconception that Appellant may have had about the effect of an automatic reduction in rate played a role in inducing him to enter into a pretrial agreement or to plead guilty at trial, or that he would have changed his pleas if the non-applicability of that provision had been explained to him at trial. However, I do not believe the principal opinion properly analyzes the effect of the military judge’s failure to explain the terms of the requirement for him to enroll in a sexual treatment program, and I do not join with the majority in holding that provision to be unenforceable. Appellant did not allege any prejudice as a result of any misunderstanding of the sexual treatment program provision within the pretrial agreement. To our knowledge, based on the record, Appellant has not sought to withdraw from the treatment program, nor has the Convening Authority sought to vacate the suspension based upon any violation of that provision. Not only has Appellant not alleged any prejudice, the record demonstrates to me that Appellant fully understood the terms of his bargain.
Appellant faced possible confinement for over twenty years for his offenses. Under the pretrial agreement, the Convening Authority agreed to suspend any confinement in excess of ten months for a period of eighteen months after sentence was announced. The military judge imposed a sentence that included confinement for eighteen months. The Convening Authority complied with the pretrial agreement when taking action on the sentence.
*508At trial, Appellant indicated that he fully-understood the terms of the pretrial agreement before he signed it. The military judge explained a number of provisions from the pretrial agreement, including waiver of the right to an administrative discharge board, waiver of an investigation under Article 32, UCMJ, and the requirement to enter into a stipulation of fact. For unknown reasons, the military judge failed to explain the provision requiring Appellant to participate in a sexual treatment program. However, I believe the record demonstrates Appellant’s understanding of that term.
Participation in the pre-approved treatment program was a key element of Appellant’s sentencing case at trial. In addition to introducing a detailed “psyehosexual evaluation” that concluded that Appellant was in need of treatment to assist him in overcoming an addiction to pornography, his counsel introduced a nine-page exhibit that described the specific program addressed in the pretrial agreement. It not only described the program’s treatment goals, but it included detailed rules for participation. With the exception of a goal addressing restitution, the remaining goals were restated verbatim in the pretrial agreement. During direct examination during the defense sentencing presentation, Appellant’s mother acknowledged her awareness that participation in a sexual treatment program was a condition of the pretrial agreement. In an unsworn statement, Appellant repeatedly referred to the counseling program. He indicated that he was “eager” to begin treatment following release from confinement, and that it was his “understanding that the treatment program will hold me highly accountable for my actions through polygraph testing.” He intended to relocate to an area that was “within a short driving distance of the counseling I will be attending every week.” He said that “I am going to be spending a large amount of my income on the treatment I am so eager to begin,” and asked the military judge to consider his desire to quickly begin treatment when imposing sentence.
I believe the majority’s action in essentially setting aside this provision is similar to the Court’s unsuccessful efforts to reform a pretrial agreement in United States v. Perron, 57 M.J. 597 (C.G.Ct.Crim.App.2001), rev’d, 58 M.J. 78 (2003). It is not necessary for a military judge to explain every possible type of misconduct that could potentially lead to vacation of a suspension. Similarly, I do not believe it would have been necessary for the military judge in this case to explain every possible manner in which the Appellant could fail to comply with the treatment provision. Far from not giving “a clue” as to Appellant’s understanding, the record clearly demonstrates to me that Appellant fully understood his obligations under the pretrial agreement, and I do not believe that the military judge’s error provides a basis to hold that this otherwise permissible provision is unenforceable. However, to ensure Appellant is not prejudiced, I would encourage the Convening Authority to interpret this provision in the light most favorable to the Appellant in any vacation proceeding, should one occur, and not seek to vacate the suspension based on a technical failure if Appellant otherwise satisfies his obligations to participate in an approved treatment program.
I would set aside the finding of guilty for the offense of “watching pornography” in violation of Article 134, UCMJ. Clearly, I do not condone watching child pornography or other inappropriate material while on duty at a Coast Guard station. However, the record fails to establish that Appellant should be held criminally responsible for his conduct. To me, it establishes only that Appellant failed to avert his eyes while someone else displayed pornographic images on a computer. The stipulation of fact indicates only that Appellant “viewed” several pornographic images, and that he “continued to watch the computer screen as [a fellow crewmember] opened and closed at least five adult and child pornographic images in succession and did not take action to stop such conduct.” I note that Appellant was not charged with dereliction of duty for failing to stop the other crewmember from displaying pornographic images, and there is no indication in the record that he had any responsibility to prevent a fellow nonrate from engaging in illegal activity. The record also fails to show that he aided, abetted, or encouraged those illegal acts in any way. I am concerned that *509the majority has allowed the other child pornography offenses, for which Appellant was properly convicted, to improperly taint its view of this offense. I do not believe this Court would reach the same conclusion about Appellant’s guilt of “watching” if there were no similar offenses on the charge sheet. Therefore, I would set aside the finding of guilty to this specification. I join in affirming the remaining charges and specifications, and, as I am convinced that the military judge would not have imposed a lesser sentence absent this specification and that the sentence should be approved, I join in affirming the sentence as approved and partially suspended below. However, for the reasons discussed above, I would not hold the sexual treatment provision of the pretrial agreement to be unenforceable and would not bar the Convening Authority from taking action pursuant to that provision.