(concurring in the result) :
I concur in the result.
While I dissented in United States v Simpson, 10 USCMA 229, 27 CMR 303, that decision fixed the law for military tribunals and all echelons in the military judicial system should follow it mnhesitantly. I, therefore, believe the board of review erred when it sought to create a legal conflict in military law by taking judicial notice of a ruling by the Comptroller General. If, under •conditions known to it, a board of review concludes that the sentence confirmed by a convening authority is inappropriate as a matter of fact, it has the power under Article 66, Uniform Code of Military Justice, 10 USC § 866, to reduce the sentence to a level which it deems fair and just. However, it commits legal error which can be reviewed by us if it bases its reduction on a mistake of law, and that is the situation which confronts us in this case.
I part company with my associates on the failure to answer the other certified questions. I make this observation for they only hold that the failure of the law officer to instruct the court-martial sua sponte on the effect of the Comptroller General’s ruling was not error. I go further and contend that the board of review committed original errors at its own level when it supported its other conclusions by the same ruling. Unless we so indicate we do not fix the law for appellate agencies. For that reason, I would answer all the certified questions in the negative.
While ordinarily my determination of the certified issues would require that the case be remanded for reconsideration by the board of review, I agree that under the circumstances of this case such action would not change the result and is therefore unnecessary. Accordingly, I join my associates in affirming the board’s decision.