(concurring in part and dissenting in part):
I concur with the author Judge insofar as he takes reversive action with respect to the decision of the board of review, but I dissent as to what may be done thereafter. Because I am unable to ascertain the areas of agreement between my associates, I record my opposition to some of the views expressed by the author Judge. The concepts expressed here supplement the principles I relied on in my dissent in United States v Washington, 6 USCMA 114, 19 CMR 240.
There is no showing in this entire record that the accused was insane at the time the convening authority acted, and 1 would not mention that facet of this case had the author Judge not dwelt in that area. In my view, neither the convening authority, nor the board of review, nor this Court can proceed with the review of a case, if the accused becomes insane after his trial by court-martial, but before the convening authority takes action. The proceedings should be stayed at the level where insanity is proven, to await further consideration when, and if, the accused regains his mental health. See my dissenting opinion in United States v Washington, supra.
The convening authority is relatively unfettered in the action which he may take to benefit an accused, but he is limited if his action is otherwise. While an accused is not entitled to representation before him, his action is a necessary part of appellate review. United States v Sonnenschein, 1 USCMA 64, 1 CMR 64. He has the power to weigh evidence and to disapprove findings and sentence for any reason, United States v Massey, 5 USCMA 514, 18 CMR 138, and to entertain various motions, United States v Stringer, 5 USCMA 122, 17 CMR 122. But if it is judicially called to his attention that the accused is insane, he ought not to take any action which will foreclose the accused from presenting fully all matters touching on both findings and sentence when sanity is regained. Certainly, the reviewing, officer is charged with knowledge that, the accused cannot assist himself or his counsel in presenting many matters which might influence a favorable ruling, and, from my point of view, he abuses his discretion if he affirms a finding or sentence after it is shown to his satisfaction that an accused became insane prior to the time when the record was reviewed. It is suggested that counsel could be appointed to carry on for an accused during the period between finding and affirmance and that an adequate review can be guaranteed in that way. Apparently the view is taken that a lawyer is a substitute for sanity, but I have grave doubts that that is a fair trade. But more important and more to the point is the fact that once an accused becomes legally insane, counsel has no client with whom he can deal intelligently. I wonder if sufficient consideration has been given to the difficulties encountered by a lawyer who is called upon to represent a person who is not in his right mind. It can hardly be contended that his most important source of information has not dried up, or that counsel is not handicapped by a lack of effective coopera-' *400tion. Even when dealing with property rights, civil courts guard jealously the rights of insane persons, and require court approval before important decisions can be made, but here life and liberty is bandied about by saying, in effect, “assign counsel to an incompetent and all will be protected.” Such should not follow, and I point out one valid reason for that conclusion. Under the majority rule, the convening authority is required to act, and his action initiates the running of the time for filing a petition for new trial. The loss of that benefit is redressed by offering the gratuitous advice that we can toll that period. I suggest that if appellate processes are permitted to continue, for us to isolate that one right and protect it alone without Congressional sanction, is judicial legislation of the most flagrant sort. Certainly, it would appear to me that if there is any justification in law or logic to stay one part of the appellate judicial processes, all should be stayed. Instead of a clear-cut holding that a bar has been erected, a filter is constructed by which it is proposed to block the 'flow of certain rights and remedies while the balance runs out to sea. That concept makes this Court a super legislature, breeds confusion and uncertainty, makes administration most difficult, and leaves counsel with the unhappy choice of binding an insane person without prior judicial sanction. From all of this, it is my considered conclusion that if a lawyer is the alter ego of an accused for all other purposes, he must be so for the purpose of initiating a petition for new trial.
Now as to the authority of the board of review to proceed. That agency has fact-finding powers and this Court has permitted it to wander factually far afield from the record of trial. More than matters of law can be presented to that tribunal, and while a trial de novo is not contemplated, factual issues not raised at trial may be decided. The issue of insanity can be raised for the first time at that level and the evidence shows clearly that this accused was insane at the time the board heard his case. The record does not show that appointed appellate defense counsel was apprised of the fact that he was dealing with an insane client, and it would appear certain that had he been so informed, efforts would have been expended to raise properly the issue of mental responsibility and mental capacity. Contact between military appellate counsel and client is usually by mail, and I believe it is expecting too much to anticipate that an insane person would notify his counsel of his lack of mental capacity. Therefore, it should be apparent to the observing that this case demonstrates why appellate processes should be stopped once insanity is found to exist. The only counsel with a fair opportunity to observe the mental condition of the accused was defending counsel at the trial level, and if, as the experts say, the accused was sane at that time, that attorney would not be put on notice of the incompetency. He would have no occasion to alert appellate defense counsel of the mental condition of the accused. Yet, all of the post-trial rights to which an accused is entitled have been adjudicated against him, while his counsel was uninformed that a mental defect made the bare record of trial the sole source of matters which could be asserted before the board of review. Perhaps the rejoinder of my associates will be that they are willing to allow the board of review to start all over again. But that is no answer. The handicap under which both accused and counsel will operate cannot be removed by judicial fiat and no amount of professional skill will make up for the unavailability of the mind of the person who should know the true facts and the avenues of reaching them. It may well be that in this particular instance this accused might not be able to save himself, but he should not be denied the opportunity to do so.
Before proceeding to our power to act in the present proceedings, I pause to answer the argument advanced by the author Judge that to follow my reasoning would prevent the court-martial from hearing any case once insanity was asserted. The argument sounds much like the platitudes of those *401who argue that a court does not have jurisdiction to determine whether it has jurisdiction. Obviously, a man is presumed sane and if an issue is raised to the. contrary, a court can vhear evidence to determine that question. If it finds him insane at the time of the offense, it must return a finding of not guilty, not because he did not commit the offense, but because he was not responsible mentally. If it finds the man sane at the time of the offense and at the time of trial, implicit in that finding is another finding that he can assist in his own defense and the trial goes on. There is no stalemate in that situation. Again, if the court finds the man insane at the time of trial, then it follows that he cannot be of assistance to his counsel and the proceedings must, by specific direction of the Manual, be stayed. I ask, why does anyone contend that those principles prevent a court from reaching the very heart of the question of sanity? The contention, at best, is merely a strawman which clouds the main issue. We are not here concerned with the power to determine a controverted question of fact and— conditioned on that finding — the authority or lack of authority to continue with the judicial processes. Everyone concedes this accused became insane shortly after trial and his mental condition has not improved. Our problem is hypothecated firmly on that conceded mental state.
If comparisons are in order, the most egregious misconception I find in the author’s opinion is based on the holding that we have the authority to proceed. The Code provides in Article 67(c), 50 USC § 654: “The accused shall have thirty days from the time he is notified of the decision of a board of review to petition the Court of Military Appeals for a grant of review.” The Judge Advocate General of the Army apparently realized that he could not serve notice on an insane person and no service has been effected. In an abortive attempt to have this Court act, counsel was appointed to take over. He appreciated his dilemma, filed a petition, and then moved to dismiss. The appointment of counsel is not a substitute for service on an accused, and I am truly concerned about a concept which permits a third and unrelated party to assume authority to act for one who is incompetent. I am certain that we could not obtain jurisdiction by that method if the accused was sane, and yet both of my associates agree that an insane man need not be served personally because he could not help himself and his assistance to his counsel would be of no value. I have heard of guardians, after notice and héaring, being authorized by courts to accept service in civil cases but this is my first experience with a constructive appointment in a criminal case. In this instance, it is interesting to note the author Judge relies entirely on civil cases and he gives no heed to the rights of any interested party. He merely suggests obscurely that appellate defense counsel shall be a guardian ad litem, or curator, for the purpose of dealing with the rights of an accused. What an innovation that is to criminal law. Without petition, hearing, or notice to the interested parties, he says that because The Judge Advocate General of the Army has detailed an officer to represent the accused, this Court will now clothe him with the powers of accepting service. It is not surprising that neither the members of Congress nor the Manual draftsmen provided for such a procedure as this. They never conceived of such a novel theory. I can at least agree that such a short cut is simple, but it does violence to my understanding of criminal law and procedure. However, if simplicity is to be the touchstone, why not legislate without trying to pervert legal principles applicable only to civil cases? If this Court must become a legislative body — and the results of this indicate it is — it ought to enact a provision which has some logic to recommend it. Were I to join my associates in their avid desire to process cases of this type, I would do away with incomprehensible expedients and proclaim boldly that an insane accused is entitled to an automatic review. That, to say the least, offers a method which does no violence to well-understood *402principles of criminal law even though it, too, becomes judicial legislation.
Although some arguments have been advanced to suggest several theoretical benefits which might accrue to an accused if appellate review is permitted to run its course, I regard them as lacking merit. According to the medical experts, recovery is doubtful, and at the present time the accused reposes in a mental installation for Federal prisoners. The maximum benefit which he could derive from appellate review would be a- reversal of his conviction, and so long as he remains insane he could not be retried. That would only mean confinement in another mental institution under other supervision. At the present time, he is an unsentenced prisoner, and — because of his condition —no less strict supervision would be required in the event of favorable action by us.
If I understand the author’s opinion, I read it to say that this accused might be benefited because his insanity developed during appellate review. It is said there that it will be easier for appellate defense counsel to show the board of review that the accused was mentally irresponsible at the time of the offenge, or the time of trial, because he is now hopelessly insane. I do not choose to pit my knowledge of psychiatry against the skill and wisdom of the medical experts and they all agree that the accused was mentally sound, both at the time of the offense and at the time of trial. Furthermore, that opinion was expressed by the same experts who concluded the accused was insane when examined some eight months after the offense was committed. No lay witnesses offered evidence which in any way weakens the conclusions of the doctors, and the sworn testimony of the accused at trial discloses that he was mentally capable of distinguishing right from wrong and adhering to the right. Such being the case, and pretermitting any other legal irregularities, because they have once been ruled on, what can a board of review do conscientiously but affirm the findings and sentence?