(concurring):
The principal part of the accused’s complaint about the sufficiency of the post-trial review is that it is ambiguous. In my opinion there is no ambiguity. The staff judge advocate specifically informed the convening authority that two matters not in evidence at the trial were considered by the first convening authority in connection with the accused’s guilt or innocence; one of these was “favorable to the accused” and on the initial review the board of review had held that its consideration on the merits was proper. The clear implication is that the favorable matter was the psychiatric report. The convening authority, therefore, was informed that the report was a proper matter for consideration in determining whether to disapprove the findings of guilty. Cf. United States v Massey, 5 USCMA 514, 18 CMR 138.
For his second basis of attack on the review, the accused contends that the staff judge advocate’s reference to the action of the first convening authority constitutes advice to the present convening authority to follow the original action. In my opinion, the reference unmistakably constitutes nothing but a recital of the judicial history of the case. In any event, the staff judge advocate specifically informed the convening authority it was his duty to take independent action. There is, therefore, no merit in either claim of error by the accused. I join in affirming the decision of the board of review.