(concurring in part and dissenting in part):
I concur in part and dissent in part.
I agree that the evidence in this record is sufficient in law to support the conspiracy charges of which this accused has been found guilty. United States v Wilson, 13 USCMA 670, 33 CMR 202; United States v Guerra, 13 USCMA 463, 32 CMR 463; United States v Reid, 12 USCMA 497, 31 CMR 83. I am of the view, however, that it was prejudicial for the staff judge advocate again to omit from his post-trial review the fact that the principal witness against the accused had been convicted of assault with intent to commit sodomy. The case in the main turns upon that witness’ testimony, and it is only fair and proper that the convening authority be allowed to judge his credibility in light of all important factors affecting it. Moreover, this is the second occasion on which this matter was omitted from the review and, in our previous opinion, we specifically pointed up the failure of the staff judge advocate to mention the matter. United States v Cash, 12 USCMA 708, 31 CMR 294. Under the circumstances, I am left to wonder at the motivation for the omission of such a significant factor on two occasions.
In United States v Blackwell, 12 USCMA 20, 30 CMR 20, we pointed out, at page 22:
“. . . [W]e suggest that a substantial question existed concerning whether accused was factually guilty and that the convening authority should, have been afforded an ade*103quate rationalization concerning the review’s ultimate conclusion, including advice as to applicable legal principles, in order that he might reach an informed decision on the record. . . . We need hardly add that it is not whether accused testifies that is the controlling consideration, but merely whether the evidence creates, a factual issue concerning his guilt or innocence.”
In the Blackwell case, it was specifically noted that the review “stated nothing to the convening authority of the possible effect of the witness’ impeachment upon cross-examination, nor did it seek to rationalize the probability of . . . [the witness’] truthfulness in light of the attack upon his credibility.” In this case, the principal attack upon the witness’ credibility— his conviction of a major felony — was not even made known to the convening authority. In light of this record, there is more than a fair risk that concealment of such knowledge affected the course of appellate review, for the evidence in the transcript “creates a factual issue concerning . . . [accused’s] guilt or innocence.” United States v Blackwell, supra, at page 22.
My brothers seek to avoid the effect of our decision in Blackwell, supra, by relating the evidence and stating, in effect, that the convening authority’s action on the record would not have .differed had he known of Geiger’s conviction. To me, that is a gross usurpation of that officer’s function. It is he, -■hot we, who is empowered to judge the credibility of the witnesses, decide controverted questions of fact, and determine within his sole discretion, whether to approve the findings of guilty. United States v Grice, 8 USCMA 166, 23 CMR 390; United States v Fields, 9 USCMA 70, 25 CMR 332. Indeed, .“He must be satisfied in his action that the accused is guilty beyond a reasonable doubt.” United States v Grice, supra, at page 169. We need only be satisfied there is competent evidence in the record to support that conclusion by the court-martial. United States v Wilson, supra; United States v Guerra, supra. And I am unwilling, under our present charter of authority, see Code, supra, Article 67, 10 USC § 867, to indulge in a guessing game concerning what his decision might have been had the review called his attention to the witness’ conviction.
I would reverse the decision of the board of review and remand the case for a new post-trial review.