(concurring):
I agree generally with the discussion and conclusion on the instruction regarding the effect of the possible post-trial disposition of the accused. However, I prefer to approach the question of the accused’s incompetency to stand trial from a different standpoint than that adopted in the principal opinion.
It is, of course, true an accused cannot be brought to trial unless he possesses sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense. Manual *270for Courts-Martial, United States, 1951, paragraph 120c; United States v Korzeniewski, 7 USCMA 314, 22 CMR 104; United States v Jacks, 8 USCMA 574, 25 CMR 78. This question is separate from the problem of the accused’s mental capacity to commit the offenses charged. One may be put in issue without the other. The record of trial shows that occurred here. Thus, in his closing argument counsel reviewed the accused’s medical history over the years. He traced his treatment by electric shock and hospitalization for psychiatric evaluation. He also reviewed the accused’s general conduct. He pointed out that common experience indicates mental capacity is not determined by a “single isolated incident” but by a “long course of behavior and signs of sanity or insanity.” The argument plainly indicates the defense did not want a mere interlocutory1 ruling on the accused’s capacity to stand trial. Certainly, no such ruling was requested. From the trial proceedings it unmistakably appears the defense desired to go directly to the merits of the case to consider the definitive question of the accused’s mental capacity to commit the offenses charged. On this record, therefore, it was not error by the law officer (on his own initiative) to refrain from ruling on the preliminary and purely interlocutory question or to submit that question to the court-martial for consideration.2 See United States v Wolfe, 8 USCMA 247, 24 CMR 57.
Even though the accused did not raise the issue of his capacity to stand trial at the trial level, he was free to bring up the issue before the board of review. United States v Jacks, supra. While the case was before the board of review, appellate defense counsel moved for additional psychiatric examinations to determine the “mental responsibility of the accused at the time of the offense charged, at the time of trial, and at the present time.” The motion was granted and a report of the examination was duly submitted to the board of review for its consideration. The report showed that the accused possessed sufficient mental capacity to understand the trial proceedings and to cooperate in his defense. On a second motion concerned with the accused’s mental capacity, appellate defense counsel themselves submitted a later psychiatric report which indicated that while the accused was “suffering from a psychosis” he was “in all probability” able to distinguish right from wrong, adhere to the right, and able, at the time of trial, to understand the nature of “any proceedings against him and . . . intelligently . . . cooperate in his own defense.” In the face of this evidence, the accused understandably did not urge the board of review to consider his mental competency at the time of trial.
I join in affirming the conviction.
As we noted in United States v Williams, 5 USCMA 197, 17 CMR 197, incapacity to stand trial does not entitle the accused to a dismissal of the charges. At best, it will result in a continuance especially if the type of sanity is of a kind that is intermittent or transitory.
1 need not consider whether we correctly construed Article 51 in United States v Lopez-Malave, 4 USCMA 341, 15 CMR 341, and United States v Williams, 5 USCMA 197, 17 CMR 197, as subjecting the law officer’s ruling on the interlocutory question of mental capacity to stand trial to objection by the court-martial. Cf. United States v Jacks, 8 USCMA 574, 25 CMR 78.