(dissenting):
I dissent.
Apparently the basis for reversal in this instance is that the staff judge advocate misinformed the convening authority of the test the latter should use in determining the sufficiency of the evidence to support the findings of guilt. I have carefully read the staff judge advocate’s advice and I am unable to find any misstatement of law or fact. After setting out the evidence in great detail and, after concluding the evidence on value was insufficient the reviewer states, “In my opinion— . . . Except as to the finding of value the competent evidence establishes that the findings of guilty are correct in law and fact.” I assume that when he says correct in fact, he means sufficient to prove all elements of the crime beyond a reasonable doubt.
In United States v Johnson, 8 USC MA 173, 23 CMR 397, the convening authority filed a certificate showing that proof beyond a reasonable doubt was the measuring rod he used in affirming the findings of guilty. We have the same situation in this instance and again we presume a convening authority failed in his statutory duty 'when we have positive evidence to the contrary. If we are to continue to reverse eases for post-trial error, we ought to provide some method by which the true facts may be ascertained. Usually when a defendant asserts he has been prejudiced by post-trial proceedings, he has the burden of establishing his assertion. Here, he not only fails to do that but, in addition, he neglects to meet the showing of the Government. Certainly, when a certificate or affidavit casting light on the issue is filed, it ought to be given some weight unless it is rebutted by the accused.
I would affirm the decision of the board of review.