United States v. Moreno

BROSMAN, Judge

(concurring):

I see no reason for withholding outright concurrence in the Chief Judge’s opinion in this case as he has drafted it — although I suspect that he has not receded from the heresy to which he subscribed in United States v Bunting, 6 USCMA 170, 19 CMR 296.

So far as I am concerned, the question of whether a purely factual determination by a board of review favorable to an accused is “supported by the evidence” is simply none of our business —and I lament that my brothers appear to think that it is. Were I to accept what they have to offer in this particular, I would, I am afraid, find myself in the unhappy — but undeniably amusing — situation of being required to determine which of the two had acted unreasonably in the present setting, and which the reverse. It goes without saying, I am sure, that were I required to choose here — which I am- not — I would unhesitatingly place myself in Judge Quinn’s corner.

I need not repeat in this memorandum my views having to do with the power over facts possessed by a board of review. See my separate opinion in Bunting, supra. However, I am sure *390that the present case discloses no more than a minute sampling of the perils which may be expected to attend on rulings by this Court that a board acted unreasonably in entertaining doubt respecting the guilt of a convicted accused person.