(concurring in the result) :
In my opinion, United States v Korzeniewski, 7 USCMA 314, 22 CMR 104, did not in any way affect the validity of the earlier decision in this case. All that Judge Brosman and I did in that decision was to return the case to the board of review for consideration of the accused’s mental responsibility and capacity, a matter which had had administrative but not judicial attention. That ruling was directly in accordance with our unanimous opinion in United States v Burns, 2 USCMA 400, 9 CMR 30, and, in fact, was supported by a reference to that case. United States v Bell, 6 USCMA 392, 397, 20 CMR 108. See also my opinion in United States v Washington, 6 USCMA 114, 19 CMR 240. Accordingly, I disagree with the implication in the principal opinion that the earlier decision in this case was “bad law.”
On reconsideration, the board of review found that the accused was sane at the time of the commission of the offense and at the time of the trial, but that he was insane at the time of its review. In United States v Korzeniew-ski, supra, the Court held that if a board of review finds the accused is insane at the time of its review, it must stay consideration of the merits of the case. Accordingly, I concur in the result.