Opinion of the Court
Robert E. Quinn, Chief Judge:The accused, a sixty-three-year-old colonel, was first convicted in June 1954 on two charges alleging indécent conduct in regard to a child under the age of sixteen years. The conviction was reversed and a rehearing was ordered by the board of review because of error in the exclusion of certain evidence proffered by the defense. Before the second trial, a number of additional charges of a different kind were laid against the accused. At the second trial, which was completed in December 1955, the accused was convicted of one of the original charges and six of the additional charges.
At neither of the accused’s trials was any issue raised with respect to his mental competency to stand trial. However, he was later subjected to a psychiatric evaluation at the United States Air Force Hospital, Lackland Air Force Base. A board of medical officers reported that the accused was suffering from a “severe personality defect secondary to chronic brain disease” which “grossly impairs his ability to cooperate or participate in proceedings concerning himself.” When the case reached the board of review, a further psychiatric report was obtained. A second board of medical officers examined the accused. Its diagnosis of the accused’s mental condition was substantially like that of the first board. The second board also reported that, in its opinion, the accused could not, during November and December 1955, adhere to the right and could not understand the nature of the proceedings against him. On the basis of these reports and other psychiatric information, the board of review found that the accused did not possess sufficient mental capacity to understand the appellate proceedings.
Although urged by appellate defense counsel to consider the mental capacity of the accused at the time of his retrial, the board of review held that it had no power to proceed with any aspect of the case once it determines that the accused lacks the necessary mental capacity at the time of its hearing. Accordingly, the board of review entered an order staying the proceedings. Since the order can have the effect of a final disposition of the case, we granted review to consider its correctness. See United States v Papciak, 7 USCMA 224, 22 CMR 14.
When a board of review determines that the accused in a case before it for review does not possess sufficient mental capacity to understand the nature of the appellate proceedings against him, and to cooperate intelligently in his defense, it cannot proceed to a consideration of the merits, but must instead stay the review until such time as the accused possesses the requisite mental capacity. United States v Bell, 7 USCMA 744, 23 CMR 208. This rule is founded upon considerations of humanity and is intended to protect the accused in a situation where he is unable to do so himself. However, both the purpose and justice of the rule are perverted when it is turned into a barrier to prevent consideration of the accused’s mental competence to stand trial. That is a question separate from, and preliminary to, the accused’s guilt or innocence, and *576one which, we believe, can appropriately be inquired into by the board of review.
Under the Federal criminal practice, a convicted accused is entitled to a separate post-trial hearing into his mental competency at the time of trial when “there is probable cause to believe” that he was mentally incompetent at the time of trial, and that issue was not raised and determined before or during the trial. 18 USC § 4245. In military law, “insanity is given a preferred rating.” United States v Burns, 2 USCMA 400, 405, 9 CMR 80. The Manual for Courts-Martial, United States, 1951, provides that further inquiry can be made into the sanity of the accused when “warranted in the interest of justice, regardless of whether any such question was raised at the trial or how it was determined if raised.” Paragraph 124. This provision certainly seems to be broader than that in the Federal practice, but even if it is not, it manifestly does not prohibit inquiry into the accused’s mental capacity at the time of trial.
We have held that the Federal practice should be followed in the military unless it is contrary to, or incompatible with, military law. United States v Fisher, 4 USCMA 152, 15 CMR 152. Consequently, either under military law directly or in accordance with the Federal practice, post-conviction inquiry can be made into the mental capacity of the accused at the time of the trial.
Our conclusion here is not inconsistent with our decision in United States v Korzeniewski, 7 USCMA 314, 22 CMR 104, and in United States v Bell, 7 USCMA 744, 23 CMR 208. All that we decided in those cases was that post-trial insanity of the accused tolls the appellate consideration of the merits by the board of review. In Korzeniewski the Court took pains to analyze the evidence pertaining to the accused’s pretrial mental condition. It pointed out that the “entire record leaves us no alternative but to conclude [as a matter of law] that the accused was sane both at the time of the commission of the offense and at the time- of trial” (page 318), but that the record also clearly showed that the accused could not understand the nature of the appellate proceedings and could not cooperate in that “sphere of his defense” (page 317). On that showing, the Court held that the board of review “with its fact-finding powers” could not proceed further with the case. Similarly, in the Bell case the accused’s pretrial sanity was established, and the only question was whether the board of review could proceed to make findings on the merits despite the accused’s inability to understand and to cooperate in the appellate proceedings because of the post-trial deterioration of his mental condition. We held that the board of review could not proceed. We have a different situation in this case.
We are concerned with the accused’s competency to stand trial. That is a legal question. Its nature was clearly highlighted by the United States Court of Appeals for the District of Columbia Circuit in Lyles v United States, — F2d — (October 25, 1957). The court there said:
“The jury has no' concern with the accused’s competency to stand trial. That question is solely for the judge. . . . What we are here saying is that the competency of the accused at the time of trial to understand the charges against him and to assist in his defense is a legal question for the judge, not for the jury. . . .”
Military law has modified the above rule to the extent of subjecting the law officer’s ruling on the accused’s mental competency to stand trial to the approval of the court-martial, but the modification does not change the fundamental nature of the ruling. See Article 51, Uniform Code of Military Justice, 10 USC § 851. It is still interlocutory and legal, not factual. This Court also has noted that the determination of the accused’s mental capacity to stand trial is an interlocutory question, which at most entitles the accused to a continuance, in the absence of withdrawal of the charges by the convening authority. United States v Lopez-Malave, 4 USCMA 341, 15 CMR 341; United States v Williams, 5 USCMA 197, 201, *57717 CMR 197. See also United States v Knudson, 4 USCMA 587, 16 CMR 161, on the legal nature of a ruling on a motion for a continuance. We can best summarize the limited effect of Kor-zenieiuski and Bell by referring back to our early decision in United States v Burns, 2 USCMA 400, 9 CMR 30. We there pointed out, as we have in this opinion, that in military law “insanity is given a preferred rating.” We specifically held that a board of review could consider evidence as to the accused’s mental condition, even though that evidence was obtained after the trial. Indeed, the “preferred” position given insanity is intended as a benefit to the accused. That benefit is seriously diluted if the board of review must defer for an uncertain period its consideration of the relationship between the accused’s mental condition during the appeal and his mental competency at the time of trial. The lapse of time can make it exceedingly difficult — if not impossible — to obtain competent testimony on the subject. See Wright v United States, — F2d — (CA DC Cir) (October 30, 1957).
We return the record of trial to the board of i-eview for consideration of the accused’s mental capacity at the time of his trial. In so doing, we express no opinion whatever as to the accused’s mental condition at the time of trial, and the board of review is entirely free to make its own finding on that issue.
Judge FERGUSON concurs.