(concurring) :
I am constrained to comment on the failure of the Court of Military Review to order the case to be tried after deciding the guilty plea to have been improvident. I appreciate that the certification of this case to us is designed to decide the sole issue and that the Government has' opted not to raise any issue regarding the matter about which I will express my concern; Therefore, I concur only because the Government has elected not to raise the issue. Nevertheless, in my view, the procedure employed in the instant case appears to abate litigation of issues properly raised at the trial level.
I agree with the decision that “[t]he Court of Military Review correctly determined that accused’s plea of guilty was improvident and that the military judge erred in accepting it without further inquiry into the accused’s activities at Fort Hamilton.” Furthermore, assuming that there was a proper finding of fact that the appellee returned to military control on January 10, 1969, I agree with the legal conclusions of the other members of the court. My view is that the Court of Military Review should have ordered the case to be retried after deciding the guilty plea to have been improvident. As a result of the judgment of the Court of Military Review, I see no way that the Government will be able to litigate the issue of Reeder’s alleged return to military custody or, at the minimum, be given the opportunity to forgo litigation of the issue.
The Court of Military Review, utilizing its authority to review on matters of law, determined the plea to be improvident. On the other hand, utilizing its fact-finding authority, can it be said that that court can decide, as a matter of fact, that Reeder returned to custody as he stated. I think not. Without a proper finding of fact of a date of return, there is no predicate for a finding of law of partial provi-dency of the plea. If so, the fact-finding authority of that court would be broader than that of trial tribunal. Keeping in mind the state of the record in the case before us, could the military judge have heard the accused’s testimony upon the plea prov-idency inquiry, determine as a matter of fact the absence ended January 10, 1969, and proceed to sentence on that basis, all without the Government’s acquiescence? What of the right to *15present evidence and cross-examine? For me the answers are clear; there is no such procedure available to the trial judge. There should be no such procedure employed by the reviewing court.
The result we reach makes the ap-pellee culpable for another absence offense. It may then be asserted that the Government is not deprived of its day in court. But why two courts-martial when one should suffice? Moreover, the second trial would not offer an opportunity to litigate the lost issue — when did appellee return to military control.
Upon finding the plea improvident, the cause should have been set for trial.