Opinion of the Court
Robert E. Quinn, Chief Judge:This case is before us for the second time. On the first appeal, The Judge Advocate General of the Navy filed a certificate asking review of the decision by the board of review. The board dismissed the charge against the accused because the evidence was insufficient to support the conviction. Originally we could not determine whether the board *389had decided the case as a matter of law or on the basis of its fact-finding power. Therefore, we remanded the case for clarification of the grounds of its decision. United States v Moreno, 5 USCMA 500, 18 CMR 124.
The board of review reconsidered the case, and has published a second opinion. In it, the board reviews the consideration of the case during its conferences, the doubts it entertained about the weight and effect of certain evidence, and the omission from the record of trial of facts which, it considered material to the issues. Concluding its opinion, it said:
“From what we have said:
“(1) In the light of legal principles and approved cases, the evidence is not sufficient as a matter of law to sustain the findings in this case.
“(2) Even assuming that the evidence is sufficient as a matter of law to support the findings, we, as triers of fact, are not convinced beyond a reasonable doubt of the accused’s guilt from the evidence in the record. In short, sufficiency of the evidence as a matter of law permits us to draw some inferences and reach guilty findings. We are not required, however, to reach such findings, and we have not done so.
“This is what we intended to say and understood we were saying in our original opinion.”
The Judge Advocate General has again filed a certificate for review. The question, which is the same as that raised by the first certificate, is as follows:
“Whether, as a matter of law, the evidence was sufficient to support the findings of guilty of a violation of Article 119, Uniform Code of Military Justice, made by the general court-martial and approved by the convening authority?”
In due course, the accused filed a motion to dismiss the certificate. The motion is based on two grounds. First, it is contended that the certified issue relates only to a determination of fact by the board of review and, therefore, presents no question of law for decision by this Court. Second, the accused argues that the certified issue is merely hypothetical. In opposition to the motion, the Government maintains that the board of review has unreasonably, and therefore illegally, set aside the conviction, which is fully supported by the evidence. The motion and the certified question were submitted for decision without oral argument.
The motion to dismiss the certificate is denied. In its clarifying opinion, the board of review has made it unmistakably clear that its original decision to dismiss the charge was based upon an evaluation of the evidence in its capacity as a fact-finding body. There is, therefore, no question of law for review by this Court. Article 67(d), Uniform Code of Military Justice, 50 USC § 654. United States v Bunting, 6 USCMA 170, 19 CMR 296.
The decision of the board of review is affirmed.