(concurring in the result) :
I concur in the result.
Conceding for the purposes of argument, that the writers of the Manual attempted to distinguish between a rehearing based on procedural error and “another trial” based on lack of jurisdiction, I would not perpetuate the distinction. To do so tends to confuse what can be orderly procedure for the sole purpose of asserting refined concepts of jurisdiction.
Article 63 of the Code, 50 USC § 650, provides as follows:
“(a) If the convening authority disapproves the findings and sentence of a court-martial he may, except where there is lack of sufficient evidence in the record to support the findings, order a rehearing, in which case he shall state the reasons for disapproval. If he disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges.
“(b) Every rehearing shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon such rehearing the accused shall not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence shall be imposed unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings or unless the sentence prescribed for the offense is mandatory.”
Under the provisions of the above-quoted section, the convening authority is granted the power to disapprove findings and sentence, and, while in this instance, he did not state in precise words that he was so doing, implicit in his sending the case back to be retried, is a disapproval of the previous proceedings, including findings and sentence.
As stated by Judge BROSMAN, proceedings are not left in mid-air and a *613convening authority cannot escape the legal effect of his ruling by silence. Under military legal principles, he is entitled in reviewing a case to make a determination of the question of jurisdiction of the court-martial. He may decide this question either correctly or incorrectly. If his decision is correct in law, then under the usual concepts of criminal law, the trial, findings and sentence are void. The second trial, in that event, can be designated a rehearing but it is not one in the sense of trying the issues a second time, as the first trial is a nullity and there is no carry-over to the subsequent hearing. However, if the convening authority rules incorrectly, he has committed an error in law and his ruling amounts to no more than an order granting a rehearing. Such a ruling does not render the first trial void and it remains as a part of the entire proceedings. Its legal effect has been impaired, and, it cannot be used as a basis to support findings and sentence; but under the express wording of the Code, the findings and sentence are a part of the subsequent proceedings to the extent of controlling the charges which can be tried and the punishment which can be imposed on a subsequent conviction.
In the instant case the second court-martial could legally try the issues and return a finding of guilty as to Padilla but the maximum punishment imposable was circumscribed by the sentence returned by the first court. Insofar as appellate procedure is concerned, the entire record is subject to review to determine whether the substantial rights of the accused have been impaired.