(concurring in part and dissenting in part) :
Although I agree with the result reached as to the instruction concerning post-trial disposition of the accused, I dissent from the treatment accorded the question of accused’s incompetency to stand trial. I agree with the following statement contained in the principal opinion:
“. . . [T]he instructions were not specific enough within their four corners to call the court’s attention to the necessity of returning a separate finding on the accused’s capaci-ts'' to aid his counsel at time of trial. Therefore, if that issue was raised and the findings do not embrace a *271holding that the accused was sane at that time, then he was prejudiced.”
The principal opinion then correctly finds that the issue of mental capacity was raised. But it is this Court’s weighing evidence to determine factual issues and the conclusion that the findings of the court-martial embraced a holding of mental capacity to stand trial with which I cannot agree.
The principal opinion goes to great length to show that accused was ably defended by experienced counsel, that the defense declined to make any special motions prior to the plea, did not seek to differentiate between mental responsibility and capacity, and did not refer to lack of mental capacity to stand trial in their opening statement. These represent to me nothing more than arguments which the prosecution could have presented to the court-martial for its consideration in determining whether the accused did in fact possess sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense. Further, the opinion fails to accord proper recognition to the fact that the expert testimony to the effect that the accused’s lack of mental capacity to stand trial was received after the recited events had transpired. In this regard it should be noted that the evidence is entirely consistent with the view that it was only when Dr. Evil-sizer changed his testimony that the issue of mental capacity, as distinguished from mental responsibility, was put in issue.
The opinion then goes on to discuss evidence which more properly could be considered by an appellate court were the question one of sufficiency of the evidence to support a court-martial’s findings that accused was capable of standing trial. That is not the issue before this Court.
In my view, the problem, and its solution herein, is clear. The issue of accused’s mental capacity to stand trial was clearly raised. It was therefore the duty of the law officer to rule on the question subject to the objection of any member of the court. See Articles 51 (b) and 52 (c), Uniform Code of Military Justice, 10 USC §§ 851 and 852; see also United States v Williams, 5 USCMA 197, 17 CMR 197. This procedure was not followed. At no time, therefore, was that issue resolved. The law officer did not rule on the question and I cannot agree that the court-martial’s verdict constituted a determination of that question inasmuch as it received no instructions whatsoever on the issue of the accused’s mental capacity at time of trial. Whether the facts of the case are such that the mental condition of the accused did not change from the time of the offenses until the time of trial is also a question of fact for the court-martial and is not properly for determination by this Court. No amount of rationalization can disguise the simple truth that the majority herein have assumed unto themselves the power to weigh and determine issues of fact. That power has clearly been denied us by the law. Article 67(d), Uniform Code of Military Justice, 10 USC § 867.
Nor do I find any indication that the board of review found as a fact that the accused possessed sufficient mental capacity to understand the trial proceedings and to cooperate in his defense. This case was first decided by a board of review on July 20, 1956. At that time the board of review was concerned only with the question of whether the law officer properly refused to give a requested instruction on wrongful appropriation as a lesser included offense of robbery. Its only statement concerning capacity to stand trial was as follows:
“After thorough and repeated examinations, the accused has been found sane at the time the offenses were committed and mentally capable of participating in his own defense at time of trial as well as at the present time; and no error in this regard is now urged.”
I believe the board of review’s use of “found . . . mentally capable” refers to the results of the examinations rather than to any finding by the court-martial. As pointed out above, the court-martial, in my view, did not ren*272der any findings on accused’s mental capacity. Further, the board of review said “no error in this regard is now urged.” They, therefore, did not consider that problem and I know of no doctrine which would preclude an issue being considered by this Court simply because it was not raised before a board of review.
The ease next came before a board of review on February 19, 1957. The board, relying upon a finding by a board of medical officers that accused did not then possess sufficient mental capacity to understand the nature of appellate proceedings in his case and to cooperate intelligently with this appellate defense counsel therein, concluded on the basis of United States v Korzeniewski, 7 USCMA 314, 22 CMR 104 (United States v Jacks, 8 USCMA 574, 25 CMR 78, not having yet been decided), that any further review by the board was tolled until such time as accused might regain his mental capacity. No holding that accused possessed the requisite mental capacity at the time of trial can be found in that decision.
Accused’s case was before a board of review a third and final time on April 14, 1958. While specifically upholding a finding of accused’s mental responsibility at the time of the offenses, the opinion contains nothing to show mental capacity at the time of trial. Moreover, the board of review specifically states therein:
“Accordingly, the previous findings which we made in the earlier decisions, supra, are so far as they involve factual matters, vacated;
Apparently all agree that the issue of the accused’s mental capacity to stand trial was raised in the instant case. I find the issue raised but not resolved. An accused cannot properly be tried if he does not possess sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense. I would, therefore, order a rehearing.