(dissenting):
As to the question of the accused’s capacity to stand trial, nothing in the post-conviction material convinces me that were the material to be submitted to another court-martial, the court would likely reverse its original finding of capacity and conclude that the accused was mentally unable to understand the proceedings and to cooperate in his defense. The Clinical Record of the U. S. Disciplinary Barracks, dated March 28, 1969, indicates that the accused was admitted to the Barracks in August 1968, about two weeks after his conviction.
At his first psychiatric evaluation, it was determined that “sociopathic features predominated” in the accused’s mental makeup. Thereafter, regular “psychiatric contact” was maintained. An Evaluation and Planning Report, dated November 27, 1968, indicates that no evidence could be found of “overt psychosis, organic brain impairment, or significant mood disturbance;” it was “felt that . . . the subject [accused] suffered from a significant characterological disturbance;” he was diagnosed as “Antisocial personality.” Another evaluation report, dated January 30, 1969, specified that the November evaluation “remains entirely applicable.” It was further noted that the accused’s performance “to date has been very good.” The accused was reported to have “made an adequate adjustment for the first several months" of confinement and to have avoided disciplinary involvement. As confinement continued, however, the accused “decompensated, became acutely depressed and suicidal.” Part of the decompensation was attributed to accused’s alleged “homosexual concerns” which were “exaggerated recently” and which resulted in “loosened associations, bizarre behavior and paranoid ideation.” Although the record does not attempt to account for its effect upon the accused, during this period, the accused’s wife instituted divorce proceedings against him. In February and March 1969, the accused became “more acutely disturbed,” and he was transferred to a medical facility.
Nothing in the Barracks Clinical Record and other psychiatric evaluation reports casts doubt on the court-martial’s finding that the accused could understand the trial proceedings and cooperate in his defense. On the contrary, the finding is supported by the Clinicial Record’s description of the accused’s conduct and testimony at trial as “largely manipulative and a voluntary attempt to appear pathological;” in other words, the accused dissembled at trial. True, a summary report accompanying the psychiatric evaluations suggests that the accused “was more acutely disturbed at the time of trial . . . than the socio-pathic label would indicate,” but even this report concludes that “intensive evaluation” was required before “any statement” could be made as to accused’s mental responsibility “at the time of his court-martial.”
A board of medical officers at Fitz-simons General Hospital further *221evaluated the accused. It reported on September 20, 1969. One of its conclusions was that at the time of trial, the accused did not possess sufficient mental capacity to understand the proceedings and cooperate in his defense. No new factual justification for that conclusion appears in the supporting papers. In fact, the only reference to the accused’s condition is that at trial his “behavior . appeared to be bizarre, confused and at times incoherent;” yet, the board did not disagree with, or reject, the earlier Barracks evaluation to the effect that the accused’s trial conduct and testimony represented “a voluntary attempt to appear pathological.” Also, the board did not disagree with, or attribute a different meaning to, the Barracks observation that the accused had made adequate adjustment for the “first several months” of his confinement and had “avoided significant disciplinary action;” nor did the board attempt to explain how a person who, according to its own evaluation, was mentally able to distinguish right from wrong at the time of the commission of the offenses in 1966 and 1967 and who was able to make the cited adjustment in confinement immediately after conviction from September 1968 through December 1968, could not, in August 1968, understand the trial proceedings and could not cooperate in his defense. In my judgment, the absence of any information as to these matters casts serious doubt on the board’s conclusion. In any event, the board primarily relied upon the accused’s conduct and testimony at trial to support its opinion; that conduct and testimony were before the court-martial when it considered the defense motion for a stay of proceedings on the ground of the accused’s incapacity to understand the trial and to cooperate in his defense. The court decided the issue against the accused. The board’s report, therefore, presents nothing new that is likely to produce a different finding if the court against considered the matter.
As to the accused’s mental responsibility for the offenses, the post-conviction material demonstrates that the accused’s psychotic states were episodic. The evaluations at the Disciplinary Barracks establish that the accused was not in a psychotic state when admitted to the Barracks in August 1968. They also establish that he did not decompensate until “several months after confinement.” Even though the Barracks transferred the accused in March 1969 to Fitzsimons General Hospital “for more intensive psychiatric treatment and evaluation,” it did not change its January diagnosis of “Antisocial personality.” The Fitz-simons report indicates that the accused was, on admission and for the “first week on the ward,” “delusional, had numerous homosexual thoughts and was extremely paranoid.” But the Special Progress Report of the Medical Clinic for Federal Prisoners, Springfield, Missouri, to which the accused was later transferred, certified that by February 1971, the accused was fully able “to understand the charges against him and to cooperate with counsel and assist in his defense.” Fitzsimons itself reported that the accused had no mental condition at the time of the offense that prevented him from distinguishing right from wrong as to the offenses charged. As to that aspect of the required proof of mental responsibility, therefore, there is absolutely nothing in the post-conviction material that is inconsistent with the court-martial’s finding. Fitz-simons went on to say that the accused was not able to adhere to the right at the time of the commission of the offense. Again, no new facts about the accused were presented to support the conclusion.. Fitzsimons! acceptance of the Barracks’ report that for “several months” the accused presented no disciplinary problem while in confinement demonstrates, to me, that for significant periods of time the accused was, and is, fully able to adhere to the right. Reduced to its essentials, all that the Fitzsimons report offers on this point is opinion. Considering that the accused’s mental state apparently alternates between periods when he is completely able to function within the limits of criminal responsibility and *222periods when he suffers a psychotic episode, and considering that the Fitz-.simons report is at least opposed, if not contradicted, by the accused’s successful performance within the strictures of confinement, the unsupported Fitzsimons opinion does not impress me as being so weighty as to make it likely that if it were submitted to another court-martial, that court would overturn the earlier finding and determine that a reasonable doubt exists as to accused’s mental ability to refrain from escaping from confinement, remaining absent without authority, and assaulting another with intent to commit murder.
Measuring the post-conviction material by what we said in United States v Triplett, 21 USCMA 497, 45 CMR 271 (1972), I would affirm the decision of the Court of Military Review.