(concurring in the result) :
I concur in the result reached in the principal opinion. I do not concur outright because I do not believe it necessary in this case to pass definitively on the broad question of whether we are required by law to review every record of trial as to which a question is certified by The Judge Advocate General of one of the Armed Forces. In the absence of an issue demanding such a determination, I prefer not to deal with the problem. Here and now, at any rate, I am unready to say that there may never be a case in which a grant by this Court of a motion to dismiss in these general premises would be proper.
II
The board of review disposed of the present case by reducing the sentence imposed by the court-martial. This disposition was based on two grounds: one involving matter of law, the other matter of fact. The board might logically have relied on the first and disregarded the second. It might also have acted on the basis of the second alone and said nothing of the first. Yet its members chose to assign both grounds. Therefore, the board’s decision “stands” for both.
This Court is without power to review one of these bases for the conclusion reached — that relating to adequacy of the sentence as matter of fact — for we are permitted to “act only with respect to the . . . sentence . . . as affirmed or set aside as incorrect in law by the board of review.” (Emphasis supplied). Uniform Code of Military Justice, Article 67 (d), 50 USC § 654. However, we labor under no such disability with respect to the other: — that holding that Prosecution Exhibits 2 and 3 were inadmissible as matter of law.
It has been urged that the question certified by The Judge Advocate General is moot in that no holding of ours concerning it can possibly affect the accused — that is, can touch the ultimate action taken by the board as to him. This latter is perfectly true. It does not follow, however, that we are without power to respond to the certified question — indeed, that we are not under *48a duty to do so. The board of review predicated its holding on matter of law, albeit in part only. It took reductive action as to the sentence adjudged on the ground that the court-martial’s consideration of previous convictions was illegal. The question of correctness of this ruling of law — which was certainly made during the course of a controversial proceeding — is before us as a Court. This is true for the reason that the board of review’s opinion is a. part of any record for the present purpose, and because the record in this case has been forwarded to us for review by The Judge Advocate General of the service concerned.
If another view were to be taken, it would be possible for a service board effectively to insulate this Court through the simple device of assigning —in addition to other reasons for its decision — one deriving from its power over facts. In doing so, it could make law safely beyond the reach of review by this Court — for its alternative pronouncements would not constitute mere dicta. Indeed, each would amount to a ratio of the case. It must be perfectly clear that Congress intended no such result. In the present instance, to be sure, the members of this Court are in agreement with the board’s conclusion on the prior convictions point. However, in the next case this happy result may not obtain — and we should be able to do something about it.
Ill
It follows from what has been said that a grant by this Court of a motion to dismiss the certificate would have been improper. Accordingly, we should have supplied an answer to The Judge Advocate General’s question — and we have done so. I would prefer to venture no further than this.