(concurring in the result) :
I concur in the result.
I would concur outright if it were not for the attempt of my associates to perpetuate the rule of United States v Roland, 9 USCMA 401, 26 CMR 181, Aside from my disagreement with the principle therein announced, I encounter great difficulty in ascertaining either why or how it is being applied in this ease.
As I view our present problem, the accused has filed a motion to dismiss, and it is supported by an official report of The Surgeon General. The Government opposes the motion on the ground *285that this Court has lost jurisdiction, and the writ of coram nobis is not available to the accused. With the pleadings in that posture, the facts made part of the motion are not in dispute. We, therefore, must accept them as true. But even when we give them full faith and credit, the accused is not entitled to the relief he seeks. When the entire record is considered, including the conclusion of The Surgeon General, we are merely confronted with a belated attempt of an accused to use a post-trial disagreement of psychiatrists touching on his mental condition at the times of the offense and trial as a springboard for an extraordinary writ. His insanity was an issue which was available to him at the time of the original hearing on the merits but was eliminated by a stipulation that he was mentally responsible and competent to stand trial. The reason for that concession will be readily understood when I relate his medical history. The crime was committed on October 21, 1956, and accused was tried on January 8, 1957. He had been examined by a psychiatrist during September, October, and November of 1956 and found to be legally sane. Accordingly, when he was tried all of the available evidence established that he was sane. However, at that time he was diagnosed by the psychiatrist as having a schizoid personality, and his condition was the subject of extensive exploitation on sentence. It was psychiatric evaluations thereafter which frame the issue with which we are now concerned. Accused was next medically examined at Fitz-simons General Hospital during February 1958. The examining psychiatrist there recommended his return to the United States Disciplinary Barracks at Fort Leavenworth, as he concluded the accused’s symptoms had improved to the extent that he could be incarcerated. It was his opinion that the accused was sane at the time of the offense and trial although his ability to adhere to the right was partially impaired. On June 80, 1958, a board of three medical officers reached the same conclusion. Some two weeks later the records in the case were reviewed by The Surgeon General of the Army, and he was of the opinion the accused was legally insane during the period of time in which the offense was committed and the trial was held.
From the foregoing, it is abundantly clear that the accused seeks an extraordinary writ on the sole basis that one medical expert — whose opinion was latest in point of time and who, being without the opportunity of firsthand observation, apparently relied entirely on the case record — reaches a conclusion contrary to that of the other experts and the facts stipulated by the defense at trial. That sort of showing does not entitle the accused to the relief he prays we grant.
Accordingly, his motion should be denied.