(dissenting):
The challenged instruction refers to a purely hypothetical situation entirely unrelated to the evidence in the case. Whatever its deficiency, therefore, it could not have harmed the accused. United States v Moynihan, 1 USCMA 333, 335, 3 CMR 67.
So far as the refusal of the board of review to order another psychiatric examination is concerned, the record shows that since the board of review’s decision, the accused was examined by a medical board at Fitzsimons General Hospital, Denver, Colorado. The board noted that when it probed into the details of the accused’s claim of delusional influence he “promptly changed his story . . . and admitted to frank prevarication.” They found no evidence of mental incompetency of the kind which would legally exonerate the accused from responsibility for his act. I see no need whatever for a further psychiatric examination.
I would affirm the decision of the board of review.