(concurring in part):
In my opinion there is no question about the accused’s sanity at the time of the offense and at the time he was tried, convicted, and sentenced. He was examined by a board of medical officers a week before the trial, and it was determined that he was legally responsible for his act, and that he had the mental capacity to understand the proceedings against him and to cooperate in his defense. Approximately eight months later, he was examined *126by a second medical board. This board reaffirmed the findings. Then in April 1954 he was examined for a third time. The last medical board also reaffirmed the findings.
Deterioration of the accused’s mental capacity was first observed after he was served with a copy of the opinion of the board of review affirming his conviction. He then began to engage in “bizarre behavior.” He became “suspicious, extremely tense and restless” and “markedly preoccupied.” Eventually, it was determined that he was suffering from a schizophrenic reaction, paranoid type. A certificate attached to the second report notes that the accused “is oriented in all spheres and recall of past and recent events is good.” A finding of the third board, however, states that the accused is “mentally incompetent to understand the nature of these Board proceedings or to manage his own affairs.” It appears, therefore, that accused’s mental condition has steadily deteriorated and that he is now unable to adequately understand the nature of the proceedings before this Court. Does that mean that we are without power to complete the appellate process provided by Congress? In my opinion neither law nor logic requires that conclusion.
To hold that this Court is powerless to proceed as a matter of law distorts the humanities which have led to acceptance of the general principle that an insane person shall not be tried, sentenced, or executed. It should, of course, be noted at this point that the present proceeding is not concerned with any of these objectives. The consequences of such a holding are dangerous. Suppose, for example, an accused is tried, convicted, and sentenced on evidence which is entirely insufficient to legally support the conviction. Later, as in the present case, he becomes mentally unsound. Should the boy’s parents, relatives, or next friend be prohibited from engaging counsel in his behalf to petition this Court to review and reverse the conviction, and to restore the accused to all rights, privileges and benefits of which he was deprived by virtue of the conviction ? Certainly not, It is plain that Congress did not intend to deprive this Court of the power to proceed under such circumstances. If the Court could proceed in that instance, it can also, in its discretion, proceed in the present case.
Justice both to the Government and the accused requires that this appeal be completed. If the conviction cannot legally be sustained, fairness to the accused requires that it be set aside, and that he be restored to all rights and privileges of which he may be deprived by reason of the sentence of the court-martial. On the other hand, if the conviction is legally correct, the Government should have the right to proceed to the point of finality. See Article 44 (6), Uniform Code of Military Justice, 50 USC § 619. If it is deprived of that right, the accused may be inordinately enriched in financial and other benefits at the expense of the people. See Manual for Courts-Martial, United States, 1951, U. S. Army 1954 Cumulative Pocket Part, Appendix 15e, page 265. Cf. 33 Comp Gen 195. This result is neither desirable nor compatible with common sense.
I fully recognize, the right of an accused to select counsel of his own choice to represent him on appeal. An insane person cannot, of course, exercise a free choice, but then neither can an indigent accused. On pleading impecuniousness, the latter has no absolute right to select counsel from among the members of the bar. Instead, the court will appoint competent counsel for him, regardless of the accused’s individual preference. So on this appeal, if a parent, relative, or next friend of the accused does not initiate an effort to obtain individual counsel for the accused, the procedure provided by Congress for the appointment of military counsel is available. In addition, as pointed out by Judge Brosman, this Court can designate one of the members of its Bar to collaborate with military counsel to represent the accused. Certainly, as far as this case is concerned, the accused, when conced-edly sane, and during all of the proceedings already had, apparently was satisfied with his appointed military counsel. In fact, it was military counsel *127who represented him before the board of review and who filed the present suggestion of insanity. Hence, the general principle that an accused is entitled to counsel of his own choice is no real or substantial obstacle to the conclusion of the proceedings before this Court.
This Court acts only with respect to matters of law. And its consideration of the case is confined exclusively to the record, which is itself unalterable. Consequently, none of the standard reasons for staying proceedings against an insane person are applicable here. Except upon petition for a new trial, which is an entirely separate proceeding, no new matter can be presented by an accused which would affect our consideration of the record. And as far as protecting the rights of the accused is concerned, this Court has never limited itself to assignments of error raised by the accused; rather it has always independently searched the record for possible prejudicial error.
The question of executing an insane person is not before us. Completion of review of the record by this Court is for the purpose of determining the legality of the accused’s conviction. That purpose does not embrace the execution of an insane person. I am sure the Executive Department will not permit the execution of an insane man.
Finally, the opinions of my brothers suggest that this Court might be required to reinstate the death sentence if it undertook to review the case. I disagree with that conclusion. In my opinion, a board of review has power under the Uniform Code of Military Justice, to reduce a death sentence to confinement for life. See my dissent in United States v. Goodwin, 5 USCMA 647, 18 CMR 271. And I do not imply that a board of review has the power to commute, which power, in my opinion, properly rests in the Executive and not in the Judicial branch of the Government. However, I need not now elaborate on my reasons for that view. Suffice it to note simply my objection to their intimation. I would, therefore, appoint a civilian member of the Bar of this Court to act in conjunction with appointed military counsel for the accused, and direct that this case proceed to completion.