(concurring in part and dissenting in part):
I concur in part and dissent in part.
I agree that the accused’s conviction for possession of marihuana (Charge II) may be affirmed. I disagree, however, with the affirmance of the conviction under Charge I — willful disobedience of a lawful order.
The specification of Charge I alleges that the accused:
“. . . having received a lawful order from Commissaryman Second Class TREAT, U. S. Navy, his superior petty officer, to come into the MAA Office, ... to have his paper bag examined, did, on or about 0215, 14 September 1969, willfully disobey the same.”
A majority of the Court of Military Review, upon reviewing and analyzing the evidence relating to Charge I, held:
“We are unable to find in this record sufficient evidence showing beyond a reasonable doubt that the accused willfully disobeyed a lawful order of Commissaryman Second Class Treat, U. S. Navy, ‘. . . to come into the MAA Office ... to have his paper bag examined . . .’ as alleged in the specification of Charge I.”
Despite this finding of fact, that court, unaccountably, affirmed the conviction on the ground that the accused disobeyed some previous order by Treat to show him the contents of the bag. The difference between the specification and their ulimate finding was held to be only a minor variance. The dissenting member of the Court of Military Review found the evidence insufficient to uphold the findings of guilty of Charge I. Since he also believed that the search was illegal he would have set aside the conviction for both offenses and ordered them and the sentence dismissed.
The Court of Military Review may affirm only such findings of guilty as it finds correct in law and fact. Article 66(c), Uniform Code of Military Justice, 10 USC § 866. Where it finds the evidence insufficient, it may not order a rehearing. Article 66(d), Code, supra. The finding in this case that the accused did not disobey the order alleged in the specification was clearly one of fact — what other conclusion can be attributed to the statement “We are unable to find in this record suffi*461cient evidence showing beyond a reasonable doubt.” (Emphasis supplied.) Reasonable doubt refers to questions of fact not of law. In my opinion, the affirmance by the Court of Military Review, of the accused’s conviction of Charge I, is not legally sustainable. Article 66(c), (d), Code, supra.
This Court is similarly restrained from affirming the accused’s conviction under Charge I, by virtue of the finding of fact by the Court of Military Review. As we said in United States v Phifer, 18 USCMA 508, 510, 40 CMR 220 (1969):
“ ‘ (W) e are bound by purely factual determinations of the board of review (United States v Judd, 10 USCMA 113, 27 CMR 187 [1959]; United States v Remele, 13 USCMA 617, 33 CMR 149 [1963]), unless such conclusions are arbitrary and capricious, so as to amount to an abuse of discretion (United States v Wheatley, 10 USCMA 537, 28 CMR 103 [1959]) . . . .’ (United States v Baldwin, 17 USCMA 72, 77, 37 CMR 336 [1967].) (Emphasis supplied.)”
The finding of fact in this case is not arbitrary and capricious. Treat himself testified that after he took the accused to the MAA office, he had someone call for the Base Master-at-Arms. When the latter arrived, Treat testified:
“A. The accused was told to open up the bag. He opened up the bag himself and reached his hand in and he pulled out the contents.1
“Q. Was this pursuant to your orders ?
"A. Yes, sir.”
While Treat also testified that he had earlier requested that the accused display the contents of the bag, and that the accused did not at once comply, this is not necessarily sufficient to sustain this conviction.
In United States v Woodley, 20 USCMA 357, 43 CMR 197 (1971), that accused was given an order, by his sergeant, to report to the ammunition detail that he had worked on before. The accused replied that he did not have to do anything he did not want to do. After the sergeant repeated the order twice within a period of approximately five minutes, Woodley started back in compliance with the order. In holding Woodley’s plea of guilty, to a charge of disobedience of the order, to be improvident, we said, at page 359:
"Woodley’s testimony unmistakably shows that although he was resentful and he acted after some brief delay, he did begin to comply with Sergeant Cooper’s order. Not every order requires immediate action. Showing of a delayed compliance with some order may be enough to overturn a disobedience conviction. United States v Clowser, 16 CMR 543 (AFBR 1954); United States v McCrimmon, 15 CMR 726 (AFBR 1954).”
The accused’s ultimate compliance with Treat’s order in this case amply supports the Court of Military Review’s finding that there was insufficient evidence in the record to sustain the finding that the accused willfully disobeyed the order of Treat “to come into the MAA Office, ... to have his paper bag examined.”
I would reverse the accused’s conviction of Charge I and order the Charge and its specification dismissed. Since I believe that the accused properly stands convicted of Charge II, I would direct that the Court of Military Review reassess the sentence on the basis of that finding.
The contents of the bag formed the basis for the specification of Charge II alleging possession of marihuana.