(dissenting) :
Is the information new, and does it raise an issue concerning mental responsibility at the time of the offense?
At trial in the Republic of Vietnam the issue of mental responsibility was litigated, and the appellant was found mentally responsible for his acts. The testimony of a single psychiatrist was *504presented. He had examined the appellant twice in the stockade for brief periods of time and concluded that he was psychotic, but that such might have been induced by his use of marihuana and barbiturates over the period of an hour preceding the incident. He also testified that even “without the history of having used marihuana, I would be very suspicious of the fact that he was psychotic at the time.” (Emphasis supplied.) Based on this testimony, the military judge made a specific finding of fact that at the time of the offense the appellant was “suffering a temporary loss of reasoning caused and induced by the ingestion of marihuana and barbiturates, not amounting to legal insantiy [sic].”
The Fitzsimons Sanity Board which found “[t]hat this EM at the time of the offense was NOT so far free from mental defect disease or derangement as to be able concerning the particular act to distinguish right from wrong nor was he able to adhere to the right” diagnosed the appellant as “[s]chizo-phrenic reaction, schizoaffective type, chronic, severe.”1 While the military judge found that the appellant’s “behavior and normal condition reexisted soon after the killing,” the Board found that “[a]t the time of trial and during the appellate process, he did not possess the requisite mental capacity to reasonably or meaningfully participate in the Court Martial proceedings.”2
The Fitzsimons Sanity Board report contains a recitation of the fact that appellant smoked marihuana before committing the offense. This use having been considered, the Board, unlike the medical expert who testified at trial, nevertheless concluded that Triplett was not mentally responsible. I am impressed that the Fitzsimons report is based on a thorough examination with the advantage given by knowledge of the appellant’s mental debility which has persisted from the time of his hospitalization until the date of the report. His continued hallucinations while at Fitzsimons can hardly be said to have been induced by foreign substances.
Nothing set forth in the two short paragraphs of the Surgeon General’s report serves to age the newness that I find in the Sanity Board proceedings.3 Therefore, it is clear to me that the information in the report is sufficient new information “which raises an issue concerning mental responsibility at the time of the offense,” notwithstanding the fact that the issue of mental responsibility was litigated at trial.
The situation in this case is strikingly similar to that which we found in United States v Schick, 6 USCMA 493, 20 CMR 209 (1955). In Schick, the *505appellant had been examined by Japanese medical experts who testified at trial. During appellate review, a team of staff psychiatrists and psychologists of the Menninger Clinic examined Schick and opined that he was unable to adhere to the right at the time he committed the crime. The Menninger report also considered Schick to be permanently and incurably ill. The case was remanded to the board of review for reconsideration of the question of accused’s sanity despite the fact that the issue had already been litigated at trial. However, we cautioned in Schick that in the normal instance “the question should not be tried de novo at every appellate level.” (Id., at page 494.) The interests of justice demanded it under the particular facts of that case.
In my opinion the reliance of the Court of Military Review on Schick in denying the defense motion is misplaced, especially in light of the specific provisions of paragraph 124, Manual for Courts-Martial, United States, 1969 (Revised edition). Even though the issue has been litigated at trial, it may again be raised by the presentation of additional new information,4 aliunde the record, which may be considered by the Court of Military Review to determine whether new information warrants a new trial or a rehearing.
Is there a duty to grant a rehearing ?
The Court of Military Review’s opinion contains these conclusions about the information contained in the November 28, 1970, report of Sanity Board proceedings. First, the court stated:
“As the Government has not stipulated to the use of the Sanity Board Proceedings of 28 November 1970, this Court may not consider the above-mentioned proceedings for consideration on the merits of the case. United States v Thomas, 18 USCMA 163, 32 CMR 163 (1962).”
Later in the opinion, the court states:
“. . . We have carefully considered the Sanity Board Proceedings of 28 November 1970 to determine whether it presents any matter which would warrant a rehearing on the issue of the appellant’s sanity. We find no basis for ordering such a rehearing as, is indicated above, the appellant had the opportunity to and did have the matter fairly litigated at trial level. United States v Schick, 6 USCMA 493, 20 CMR 209 (1955).”
As I understand those conclusions, in the first instance the court held that it will not review the Sanity Board report for the purpose of deciding whether or not Triplett was mentally responsible at the time of the commission of the act for which he was convicted. Based on the advice of United States v Thomas, 13 USCMA 163, 32 CMR 163 (1962), that court appears to reason that it would be improper to make such a fact finding merely on “information” rather than “evidence” which resulted from formalized or stipulated testimony. With this thesis I agree.
Furthermore, I am persuaded that this Court’s majority conclusion that “[t]he nature of the evaluation depends upon whether the new matter is before the appellate tribunal as evidence ... or whether it is before the tribunal only for ‘the limited purpose of determining if the issue (of sanity) was raised’ so as j;o require further proceedings” is correct. My disassociation with the majority rises when we confront the “gray area” mentioned in the opinion. What standard must new information rise to in order to justify a new trial or a rehearing? The majority considers whether or not it (new information) is of such “content and weight” that “considering all the matter on the issue, a different verdict might reasonably result.” Although I can agree with such a *506standard, I would express it somewhat differently. In my view the proper test is — has new information been submitted from which a reasonable mind could find for the accused on the issue. When new information is before the court, the question becomes whether justice demands that an opportunity be afforded to allow new information never before considered to become evidence to be weighed by the finders of fact along with other evidence of record.
Presumably in the case being reviewed, the majority decides that even if the new information had been presented to the finders of fact as evidence, a reasonable mind viewing the Sanity Board report, the Surgeon General’s report, and the testimony of Major Jones, could not find reasonable doubt as to the appellant’s sanity at the time of the offense. Stated another way, the conclusion dictates that no reasonable mind could believe the Sanity Board to the extent that reasonable doubt arises regarding the issue and disbelieve Major Jones’ testimony and the Surgeon General’s review. If the Sanity Board report information had been presented at trial as evidence, I perceive no basis for determining it so valueless or so dwarfed by other evidence that it could not be a basis for a finding of a lack of mental capacity to commit the offense.
Given an opportunity to be converted into evidence, it seems clear to me that a reasonable fact finder could find from the new information that Triplett lacked mental responsibility at the time of the offense. It may be that after consideration of the new evidence the issue again may be decided against the appellant. However, he is entitled to another opportunity for litigation of the issue, not an assurance of success.
Therefore, as stated above, I agree with the Court of Military Review that in the case before us the review is for the limited purpose of determining whether or not a new trial or rehearing may be directed. I disagree with their second conclusion as set forth above.
Paragraph 124, Manual, supra, provides that when the issue of mental responsibility at the time of the offense is raised “the affected charges and specifications may be dismissed . . . or a new trial or rehearing may be directed, as may be appropriate under the circumstances of the case.” (Emphasis supplied.) In my opinion the use of the word may is intended to lodge discretion in the court in determining what action is appropriate. Therefore, in reviewing the decision of the court below in matters brought under paragraph 124, Manual, supra, I believe that it is not the function of this Court to substitute its judgment for theirs, but to disturb their decision only upon a finding of an abuse of discretion. Not all new information triggers. court responsibility to order a new trial or a rehearing. In the evaluation of such information a court properly must consider that cross-examination and confrontation have not been afforded. The court should determine its potential, if any, as evidence. However, under the facts of the instant case, and being mindful of the extraordinary shield the court has placed before the issue of mental responsibility and based upon the new information and the record, a rehearing should have been ordered. In my opinion the failure to do so renders the action of the Court of Military Review legally inappropriate. I would di» rect a rehearing.
This report dated November 28, 1970, states in part:
“. . . During the month of November, he did show some improvement in terms of socialization. He exhibited more affect and verbalization. However, he continues to be delusional and hallucinates.” [Emphasis supplied.]
The report classifies appellant as schizophrenic, rather than psychotic as concluded by the medical doctor at trial.
Other pertinent portions of the Sanity Board report are:
“5. He is considered to be potentially dangerous to others.
“6. It is expected that this EM will require approximately 3 years hospitalization.
“RECOMMENDATIONS: 1. That his sentence be remitted to allow disposition through medical channels.
“2. That he be transferred to a VA hospital or Federal Confinement Facility.”
The Surgeon General’s report states that it “concurs in the entirety of the findings and recommendations of the Sanity Board held on Specialist Triplett.” The report, which is in reality only an opinion based on an opinion, also concludes that “it was this disorder, in conjunction with, a heavy drug dose which rendered him mentally incompetent at the time of the offense.” However, by his concurrence with the Sanity Board report, the Surgeon General recommends that the sentence be remitted to allow disposition through medical channels.
It should be noted that the Sanity Board report was not solicited by defense counsel but was the result of the appellant’s extreme agitation and anxiety while in confinement. He was started on medication, hospitalized in Vietnam and Japan, and subsequently transferred to Fitzsimons General Hospital with a diagnosis of acute psychosis.