(concurring):
I am sure that I can concur outright in the principal opinion — despite the presence of two dicta to which I prefer not to commit myself at this time.
II
The first takes the form of a statement that “if all reasonable men would conclude that the Government had established sanity beyond a reasonable doubt, then as a matter of law the board of review erred.” Of course, this Court has decided that its jurisdiction to review on certificate is not limited by a board’s characterization of its determination as one of fact. United States v. Benson, 3 USCMA 351, 12 CMR 107. However, we have held repeatedly that we were not empowered by Congress to review genuine factual determinations . made by a board of review, regardless of our disagreement with them. See United States v. Thompson, 2 USCMA 460, 9 CMR 90; United States v. Sell, 3 USCMA 202, 11 CMR 202. As Judge Latimer observed in the latter opinion, “We cannot determine wherein lies the weight of the evidence nor determine the credibility of witnesses and we cannot overturn a finding of fact made by a board of review, if it is no more than that.” This rule must be applied as well when the issue is one of sanity. See United States v. Smith, 5 USCMA 314, 17 CMR 314.
It is conceivable — although little more — that a board of review may capriciously and arbitrarily disregard or disbelieve compelling Government evidence of the accused’s guilt. But the same can be said of the court-martial which initially makes findings on the charges. Yet it is clear that Congress did not intend that a court-martial’s findings of not guilty be reviewable by any agency, however unreasonable they may appear to be. See, e.g., Uniform Code of Military Justice, Articles 37, 44, 62, 63, 50 USC §§ 612, 619, 649, 650. If the danger arising from the nonreviewability of captious acquittals by the trial court did not disturb the Congress, I can hardly be expected to feel upset about the infinitely more remote risk that boards of review — composed as they are of experienced lawyers — will make wholly unsupported findings of fact in favor of accused persons. In short, I can find no pressing need to erect a distortion of what was the clear purport of the Code *179—namely, that this Court should refrain from entering into matters which have to do with no more than the weight of the evidence and the credibility of witnesses.
Ill
The principal opinion also suggests that an accused person must be warned of his right to remain silent before examination by a psychiatrist who may later testify at his trial. Quite possibly this conclusion is compelled by the language of the Code. Moreover, its acceptance may be appropriate for the reason that military law recognizes no# rule permitting a patient to prevent his physician from testifying to communications made by the former. See Manual for Courts-Martial, United States, 1951, paragraph 151c (2). However, I feel that it would be precipitate to pass on the question at this time — for it is in no way presented by the certified questions, nor is it required for a fair disposition of the present case. Moreover, the Government has had no opportunity to present arguments in support of a contrary conclusion.
It should be noted that this latter area is an especially complex and difficult one. Several courts have held that the privilege against self-incrimination does not apply to efforts to examine an accused for the purpose of ascertaining his mental responsibility and capacity. See Guttmacher and Weihofen, Psychiatry and the Law (1952), pages 284-287. Naturally enough, concern has been expressed with respect to “the incongruity that would result from forbidding the state to obtain a psychiatric examination of a defendant in a criminal case who offers the defense of irresponsibility by reason of insanity.” Id. at page 286. Such aspects of the problem should receive the full and thoughtful attention of this Court before the announcement of a rule to the effect that Article 31(6) of the Code, 50 USC § 602, is applicable to pretrial interviews of accused persons by psychiatric examiners.