(concurring in part and in the result):
I agree with the result and most of the rationale of the majority opinion. I write separately to comment on the standard of review articulated by the majority. 44 MJ at 398-399. I agree that in most cases we must pierce the Court of Criminal Appeals’ decision and examine the military judge’s ruling, but I am concerned with the majority’s apparent lack of deference to the court below where it has exercised its independent fact-finding power.
Unlike an intermediate appellate court in the civilian judicial system, the Court of Criminal Appeals has unique powers under Article 66(c), Uniform Code of Military Justice, 10 USC'§ 866(c), to engage in independent factfinding. United States v. Jones, 39 MJ 315, 318 (CMA 1994) (lower court did not abuse discretion by not reducing sentence upon reassessment); United States v. Johanns, 20 MJ 155, 160 (CMA 1985) (deferring to lower court’s factual determination “that no custom of that service prohibited” accused’s conduct); see also United States v. Manuel, 43 MJ 282, 289 (1995) (lower court did not abuse discretion by suppressing evidence to remedy Government’s loss of urine sample).
The Court of Criminal Appeals observed that “the military judge made no express findings of fact concerning J’s expectation” of “promoting her well-being.” The court then held that “[t]o the extent [the military judge] may have intended his T rule to the contrary’ comment to be such a finding, it is clearly erroneous.” 42 MJ 707, 713 (1995).
Unlike United States v. Faciane, 40 MJ 399 (CMA 1994), and United States v. Ureta, 44 MJ 290 (1996), cited by the majority, 44 MJ at 399, this case is before us on certification from the Acting Judge Advocate General, not a petition for review. The certified question asks whether the Court of Criminal Appeals erred when it overruled the military judge based on its independent finding of a preliminary question of fact not specifically addressed by the military judge. In this appellate posture, we should look at the decision of the Court of Criminal Appeals and ask if its decision is clearly erroneous. I am satisfied that the decision of the Court of Criminal Appeals was not clearly erroneous; thus I join the majority in answering the certified question in the negative.