(concurring in the result):
As the principal opinion acknowledges, Article 67(f), Uniform Code of Military Justice, does not require reference to the original convening authority as a categorical imperative in every case in which rehearing is ordered by an appellate tribunal. Circumstances may require that further proceedings be taken by a convening authority different from the one who originally reviewed the case. If the necessity is apparent on the record, the Court’s mandate will expressly provide that the case be referred to a different convening authority. See United States v Hicks, 18 USCMA 38, 39 CMR 38; United States v DuBay, 17 USCMA 147, 149, 37 CMR 411. Sometimes, however, the necessity of taking a case from the original convening authority may not be obvious; as a result, the mandate of the Court may leave the Judge Advocate General free to take “action not inconsistent” with the decision. See United States v Houston, 17 USCMA 280, 283, 38 CMR 78. The principal opinion suggests that the provisions of Article 67(f) limit the Judge Advocate General either to submitting the record to the original convening authority or applying to the Court for change of the mandate. United States v Kepperling, 11 USCMA 280, 29 CMR 96, is opposed to that suggestion.
In Kepperling, the accused was tried in Japan. A board of review directed a rehearing on the sentence. Between *91conviction and completion of appellate review, the accused had been transferred to the continental United States and had obtained a civilian lawyer to represent him. Under the circumstances, rather than resubmitting the case to the original convening authority in Japan, the Judge Advocate General referred it to the convening authority in the United States who then had jurisdiction over the accused. No question was raised as to the legality of the reference, and we did not comment on the matter in our opinion. Of course our silence cannot be construed as a determination of the issue, but Kepperling implies a practical construction of Article 67 (f) which apparently recognizes a degree of discretion in the Judge Advocate General when the mandate in the case authorizes him to take action consistent with the opinion. The facts in this case do not require determination of the matter, but since the principal opinion has singled it out for comment, I am constrained to enter a caveat and note that, while agreeing generally with the principal opinion, I have not considered, and do not now decide, how far the Judge Advocate General can promulgate rules for remand of cases in which the mandate of the Court leaves him free to take “action not inconsistent” with the decision. United States v Gordon, 1 USCMA 265, 262, 2 CME 161.
Judge DARDEN did not participate in the decision in this case.