(dissenting):
I dissent.
In this case, as ■ in United States v Grice, 8 USCMA 166, 23 CMR 390, decided this date, the petitioner urges that statements by the staff judge advocate in his post-trial review precluded proper review of the case by the convening authority. That part of the field review relied upon as the basis for this appeal is as follows:
“The conflict of evidence presented to the court was a factual matter to be resolved by them as triers of the facts. The court under the proper instructions given by the law officer was fully competent to evaluate the conflicting admissible evidence, and to determine the credibility of the witnesses. It was for the court to decide, and where as here there is sufficient legally admissible evidence to support their findings, it should not be disturbed (United States v McCrary (No. 4), 1 CMR 1).”
My views on this matter can be found in United States v Grice, supra, and, for the reasons I there set out, I am unable to find that the review received by this accused is infested with any error. However, there is one *178additional factor in the case at bar which seriously undercuts the conclusions of the Court. This case is in that class which involves post-■trial errors, and the Court, in its opinion, presumes the convening authority was mislead by improper legal advice. When the action of that officer was questioned, he filed an affidavit setting out the basis upon which he affirmed the findings, and particularly that he was personally convinced beyond a reasonable doubt of the accused’s guilt. He could have done that at the time he originally acted, and his reasons would have been a necessary part of the record. Now it is said by the author Judge that he cannot supplement the record by filing a certificate, but that is substantially what we said could be done in United States v Schuller, 5 USCMA 101, 17 CMR 101. The Chief Judge lends support to that holding by his decision that the accused has not directly or indirectly conceded the truthfulness of the affidavit, and, therefore, he will not give it consideration. Aside from that being a means by which an accused can do nothing and thereby defeat a correction of the record, I say this accused has acknowledged the truth of the matters contained in the certificate in two ways. First, he moved to strike it, and for that purpose he concedes the facts set out. Second, he has filed no counter-affidavit disputing the facts, and that is a tacit admission as to their verity. But, assuming arguendo that the failure to dispute the contents of the affidavit can be ignored, a record can be corrected by certificate without a concession by the accused.
The net of my views is that I prefer to support a procedure of the following sort. If an issue depending on facts arises after trial and is raised for the first time on appeal, the court or agency which is hearing the appeal should follow a recognized procedure whereby facts can be gathered, reconciled, and weighed. If the error is raised before us and supported by an initiatory affidavit, a well-recognized method is available. If the facts are sworn to under oath or by certificate and not challenged, they may be accepted as true. For the most part, the facts in the original affidavit will not be controverted. However, if they are disputed by counter-affidavit, then we can have the facts heard by a court-appointed referee, or we can return the proceedings to an appropriate reviewing agency which has fact-finding powers. • In the event the matter is raised before the convening authority or the board of review, they can determine the facts as an original matter. Under some type of proceedings such as suggested, we would have some assurance that we know whereof we speak. Under our present muddled appellate procedure, contrary to the rule prevalent in most jurisdictions, we presume prejudicial error instead of placing the burden on the moving party and finding out the true facts.