An accused may plead as follows:

guilty;

not guilty of an offense as charged, but guilty of a named lesser included offense;

guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of the substitutions, if any; or

not guilty.

See paragraph 3, Part IV and Appendix 12A, concerning lesser included offenses. When the plea is to a lesser included offense without the use of exceptions and substitutions, the defense counsel should provide a written revised specification accurately reflecting the plea and request that the revised specification be included in the record as an appellate exhibit. A plea of guilty to a lesser included offense does not bar the prosecution from proceeding on the offense as charged. See also R.C.M. 910(g). A plea of guilty does not prevent the introduction of evidence, either in support of the factual basis for the plea, or, after findings are entered, in aggravation. See R.C.M. 1001(b)(4).

With the approval of the military judge and the consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused shall be allowed to withdraw the plea of guilty. The Secretary concerned may prescribe who may consent for Government; unless otherwise prescribed by the Secretary concerned, trial counsel may consent on behalf of the Government.

If an accused fails or refuses to plead, or makes an irregular plea, the military judge shall enter a plea of not guilty for the accused.

An irregular plea includes pleas such as guilty without criminality or guilty to a charge but not guilty to all specifications thereunder. When a plea is ambiguous, the military judge should have it clarified before proceeding further.

Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following:

The nature of the offense to which the plea is offered, the mandatory minimum penalty, if any, provided by law, the maximum possible penalty provided by law, and if applicable, the effect of any sentence limitation(s) provided for in a plea agreement on the minimum or maximum possible penalty that may be adjudged including the effect of any concurrent or consecutive sentence limitations;

The elements of each offense to which the accused has pleaded guilty should be described to the accused. See also R.C.M. 910(e). The term “maximum possible penalty” as used in this rule refers to the total penalty that may be adjudged for all offenses for which the accused is pleading guilty.

In a general or special court-martial, if the accused is not represented by counsel, that the accused has the right to be represented by counsel at every stage of the proceedings;

That the accused has the right to plead not guilty or to persist in that plea if already made, and that the accused has the right to be tried by a court-martial, and that at such trial the accused has the right to confront and cross-examine witnesses against the accused, and the right against self-incrimination;

That if the accused pleads guilty, there will not be a trial of any kind as to those offenses to which the accused has so pleaded, so that by pleading guilty the accused waives the rights described in paragraph (c)(3) of this rule;

That if the accused pleads guilty, the military judge will question the accused about the offenses to which the accused has pleaded guilty, and, if the accused answers these questions under oath, on the record, and in the presence of counsel, the accused’s answers may later be used against the accused in a prosecution for perjury or false statement; and

R.C.M. 910(c)(5) is inapplicable in a court-martial in which the accused is not represented by counsel.

That if an election by the accused to be tried by military judge alone has been approved, the accused will be sentenced by the military judge.

In a case in which the accused has not elected trial by military judge alone and has pleaded guilty to some offenses but not others, the case will proceed to trial on the merits on the remaining offenses before members. Following announcement of findings by the members on all offenses, the accused will be sentenced by the military judge unless the accused elects to be sentenced by members. See Articles 53(b) and 56, and R.C.M. 1002.

The military judge shall not accept a plea of guilty without first, by addressing the accused personally, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement under R.C.M. 705. The military judge shall also inquire whether the accused’s willingness to plead guilty results from prior discussions between the convening authority, a representative of the convening authority, or trial counsel, and the accused or defense counsel.

The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea. The accused shall be questioned under oath about the offenses.

A plea of guilty must be in accord with the truth. Before the plea is accepted, the accused must admit every element of the offense(s) to which the accused pleaded guilty. Ordinarily, the elements should be explained to the accused. If any potential defense is raised by the accused’s account of the offense or by other matter presented to the military judge, the military judge should explain such a defense to the accused and should not accept the plea unless the accused admits facts which negate the defense. If the statute of limitations would otherwise bar trial for the offense, the military judge should not accept a plea of guilty to it without an affirmative waiver by the accused. See R.C.M. 907(b)(2)(B). The accused need not describe from personal recollection all the circumstances necessary to establish a factual basis for the plea. Nevertheless the accused must be convinced of, and able to describe, all the facts necessary to establish guilt. For example, an accused may be unable to recall certain events in an offense, but may still be able to adequately describe the offense based on witness statements or similar sources which the accused believes to be true. The accused should remain at the counsel table during questioning by the military judge.

A plea agreement may not be accepted if it does not comply with R.C.M. 705.

The parties shall inform the military judge if a plea agreement exists.

The military judge should ask whether a plea agreement exists. See R.C.M. 910(d). Even if the military judge fails to so inquire or the accused answers incorrectly, counsel have an obligation to bring any agreements or understandings in connection with the plea to the attention of the military judge. However, the military judge may not participate in discussions between the parties concerning the prospective terms and conditions of the plea agreement. See Article 53a(a)(2).

If a plea agreement exists, the military judge shall require disclosure of the entire agreement before the plea is accepted.

The military judge shall inquire to ensure:

that the accused understands the agreement; and

that the parties agree to the terms of the agreement.

If the military judge determines that the accused does not understand the material terms of the agreement, or that the parties disagree as to such terms, the military judge shall:

conform, with the consent of the Government, the agreement to the accused’s understanding; or

permit the accused to withdraw the plea.

If the plea agreement contains any unclear or ambiguous terms, the military judge should obtain clarification from the parties. If there is doubt about the accused’s understanding of any terms in the agreement, including the maximum possible penalty that may be adjudged pursuant to any sentence limitation, the military judge should explain those terms to the accused. If the accused after entering a plea of guilty sets up a matter inconsistent with the plea, the military judge shall resolve the inconsistency or reject the plea. See Article 45.

If a plea agreement contains limitations on the punishment that may be imposed, the court-martial, subject to subparagraph (4)(B) and R.C.M. 705, shall sentence the accused in accordance with the agreement.

After the plea agreement inquiry, the military judge shall announce on the record whether the plea and the plea agreement are accepted. Upon acceptance by the military judge, a plea agreement shall bind the parties and the court-martial.

If the military judge does not accept a plea agreement, the military judge shall—

issue a statement explaining the basis for the rejection;

allow the accused to withdraw any plea; and

inform the accused that if the plea is not withdrawn the court-martial may impose any lawful punishment.

The military judge of a general or special court-martial shall reject a plea agreement that—

contains a provision that has not been accepted by both parties;

contains a provision that is not understood by the accused;

except as provided in Article 53a(c), contains a provision for a sentence that is less than the mandatory minimum sentence applicable to an offense referred to in Article 56(b)(2);

is prohibited by law; or

is contrary to, or is inconsistent with, these rules with respect to the terms, conditions, or other aspects of plea agreements.

See Article 53a and R.C.M. 705 regarding the military judge’s responsibility to review the terms and conditions of the plea agreement.

Findings based on a plea of guilty may be entered immediately upon acceptance of the plea at an Article 39(a) session unless the plea is to a lesser included offense and the prosecution intends to proceed to trial on the offense as charged.

If after acceptance of the plea but before the sentence is announced the accused requests to withdraw a plea of guilty and substitute a plea of not guilty or a plea of guilty to a lesser included offense, the military judge shall permit the accused to do so only for good cause shown.

If after findings but before the sentence is announced the accused makes a statement to the court-martial, in testimony or otherwise, or presents evidence which is inconsistent with a plea of guilty on which a finding is based, the military judge shall inquire into the providence of the plea. If, following such inquiry, it appears that the accused entered the plea improvidently or through lack of understanding of its meaning and effect a plea of not guilty shall be entered as to the affected charges and specifications.

When the accused withdraws a previously accepted plea for guilty or a plea of guilty is set aside, counsel should be given a reasonable time to prepare to proceed. In a trial by military judge alone, recusal of the military judge will ordinarily be necessary when a plea is rejected or withdrawn after findings; in trial with members, a mistrial will ordinarily be necessary.

[Reserved]

Except as provided in paragraph (a)(2) of this rule, a plea of guilty that results in a finding of guilty waives any objection, whether or not previously raised, as to the factual issue of guilt of the offense(s) to which the plea was made and any non-jurisdictional defect as to the offense(s) to which the plea was made that occurred prior to the plea.

Other errors with respect to the plea inquiry or acceptance of a plea under this rule are subject to waiver if not brought to the attention of the military judge.