(dissenting):
The underlying issue in this case revolves around the credibility of the victim and appellant. Specifically, it centers on the defense’s cross-examination of the victim.
IDC: Angela, did you tell the OSI that you and Sergeant Taylor never kissed before the 24th?
WIT: (The witness shook her head in a negative response.)
Q: I’m sorry, could you—
A: I don’t remember.
Q: Did you tell the OSI that you and Sergeant Taylor did not have any kind of physical contact before the 24th?
A: No.
* * *
IDC: Angela, I’m going to offer you, and I’ll have this later marked as Defense Exhibit for Identification “D”. And I’ll ask you to read the last sentence where it starts on “victim stated.” And tell me when you’re done.
(The witness read the statement.)
Have you finished reading that sentence?
WIT: Yes.
*328Q: Angela, do you recall telling the OSI that?
A: No, I don’t remember.
* * *
IDC: Did you tell the OSI that you did not know before the 24th of January that Sergeant Taylor was married because it was Officer Ledbetter who told you that he was married?
WIT: I remember I told them I didn’t— that he didn’t tell me that he was married, but I don’t remember the other part.
* * *
IDC: I’m retrieving the document from Angela. Does this in fact refresh your memory as to what you told the OSI? WIT: I remember — I don’t remember what I said to the OSI, that was over 9 months ago.
* * *
IDC: Did you in fact tell the OSI that Sergeant Taylor had never kissed you before the 24th?
WIT: I don’t remember what I told the OSI.
Based on the above, the prosecutor argued:
Now the defense in this case questioned her on, well, didn’t you tell the OSI this, didn’t you tell the OSI that, didn’t you tell the OSI this, and she said, I don’t remember, I don’t know, I don’t remember. Well, their words, their questions aren’t testimony. Where’s the witness? If she was so vitally contradicted don’t you think that these people who brought [a friend of the victim who contradicted her] before you would have brought an OSI agent in here—
After defense counsel’s objection was overruled, the prosecutor continued:
Don’t you think, ladies and gentlemen, that if there was a witness out here, having brought these other witnesses, they would have brought this OSI agent here to say that’s not what [the victim] told me, she made up a different story. But there is no evidence of this on this record. No evidence.
During post-trial proceedings, the defense in a brief to the convening authority contended that this argument was improper. The Staff Judge Advocate (SJA) agreed and so advised the convening authority. The convening authority then reduced the findings and sentence in the case in accordance with the recommendation of the SJA.
DISCUSSION
When the factfinders can draw reasonable inferences from the evidence, these inferences may be considered during deliberations and argued by the parties provided there is no violation of the Constitution, a Military Rule of Evidence, or Procedural Rule. The cases cited by the majority do not hold otherwise. The majority, relying upon the “law-of-the-case” doctrine1 states, “We need not decide, however, whether trial counsel was entitled to argue the ‘missing-witness rule.’ The Government has not disputed the SJA’s conclusion that trial counsel’s argument was improper, either in the court below or before this Court.” 47 MJ 322, 324.
In effect the SJA’s action in this case is a concession. It is understandable why the SJA conceded error. This is a complex area that has bedeviled the courts. But this Court is not bound by government concessions. See United States v. Emmons, 31 MJ 108, 110 (CMA 1990); United States v. Hand, 11 MJ 321 (CMA 1981); United States v. Wille, 9 USCMA 623, 627, 26 CMR 403, 407 (1958).
Many times the temptation toward an easy answer or an attempt to avoid an appellate issue creates new issues.2 As the highest *329court of review prior to direct review by the Supreme Court, this Court should ensure that reported decisions which enunciate an improper rule of law, such as the lower court’s opinion in this case,3 are corrected.4
In facing a similar issue Judge Learned Hand stated:
When both sides fail to call a witness who knows something of the facts, their conduct, like anything else they do, is a circumstance which a jury may use. If both can call him and he is impartial, ordinarily it will have little weight; if it appear tha., he would naturally side with one party, it is reasonable to expect that he does not use him for good reason; and that is fair argument for the other. More so, if he is only available to one who alone knows the facts, and there is no other evidence on the issue. Perhaps, as Professor Wigmore puts it (section 288), an inference is, strictly speaking, always proper against each side, but of different weight. Mitchell v. Boston & M.R.R., 68 N.H. 96, 116, 34 A. 674. A judge is not required to intervene here any more than in any other issue of fact. He must indeed, as he always must, keep the prosecution in a criminal case within bounds; he must not allow it by implication to invoke unsound legal doctrines (Graves v. U.S., 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021); just as he must keep passion out of the debate and hold the parties to the issues.[5]
Or as stated in McCormick on Evidence:
A web of rules also can develop by tightly controlling counsel’s argument on the inference. It is wiser to hold that if an argument on failure to produce proof is fallacious, the remedy is the answering argument and the jury’s good sense. Thus, the judge should be required to intervene only when the argument, under the general standard, can be said to be not merely weak or unfounded, but unfair and prejudiciai.[6]
The law in this area is complex, and it does not appear that the SJA took the time to research this issue. Had he done so, he would have reached the conclusion, as did Judge Learned Hand and the editors of McCormick, that there was no underlying error. Any relief obtained was thus a windfall. Appellant is not entitled to any additional relief on the issue before this Court.
. For a discussion of the "law-of-the-case” doctrine, see United States v. Williams, 41 MJ 134, 135 n. 2 (CMA 1994)(majority rejecting law of the case); United States v. Grooters, 39 MJ 269, 274-75 (CMA 1994)(Crawford, J., concurring in the result).
. See, e.g., United States v. English, 47 MJ 215 (1997)(judge moves beyond question of entitle*329ment to RCM 706 board to determine whether there was an adequate substitute); United States v. Britton, 47 MJ 195 (1997); United States v. Boyle, 36 MJ 326, 328 (CMA 1993)(Crawford, J., concurring in the result),
. 1996 WL 354883 (June 20, 1996).
. See also United States v. Garcia, 44 MJ 27, 28 n. 3 (1996)(declining to answer specified issue of whether Court could review underlying issue not raised on appeal).
5. United States v. Cotter, 60 F.2d 689, 692 (2d Cir.1932).
6. McCormick on Evidence § 264 at 189 (4th ed.1992) (footnotes omitted).