concurring:
Although I concur generally with the majority, I file this separate opinion to express my somewhat differing views concerning the authority of military counsel to act for the accused in this case.
To appreciate fully the role counsel may play in the area of coram nobis, it is necessary, in my opinion, first to determine the authority of the Court of Military Review in this realm. I agree with the majority that this Court may issue extraordinary writs. This power is not derived from the Uniform Code of Military Justice. It originates in the United States Code, Title 28, Section 1651, and is an inherent attribute of this Court qua court. The practical effect of this Court’s possessing extraordinary writ authority is that in a very real sense 28 U.S.C. § 1651 becomes a part of the Uniform Code of Military Justice. Thus, Article 66, which establishes the review authority of the Court of Military Review, and Article 70 which establishes, inter alia, the right of an accused to appellate representation, must be read not only in the literal words of the articles, but also in light of the power of the Court of Military Review to issue extraordinary writs.
When counsel has been designated by The Judge Advocate General to represent an accused before the Court of Military Review, such counsel may — indeed, must — act for the accused as contemplated by Article 66. This includes not only the direct appeal obviously contemplated by Article 66 but also such other acts on behalf of the accused as may relate to that direct appeal. For example, counsel, following a decision of the Court of Military Review affirming the accused’s conviction, may without further authorization from the accused, file a motion for reconsideration. This is in accordance with Rule 19 of the Rules of Practice and Procedures before this Court. I believe counsel for the accused has the same right and authority to file a petition for writ of error coram nobis following the decision of this Court, providing of course all of the other prerequisites are met. This is particularly true in light of the Court of Military Appeals’ characterization of the writ as merely the act of a court reconsidering a previous decision. Mercer v. Dillon, 19 U.S.C.M.A. 204, 41 C.M.R. 264 (1970). See United States v. Draughon, 42 C.M.R. 447 (A.C.M.R.1970). The fact that the conviction has become final in accordance with Article 76 of the Code should not preclude counsel from filing the petition. The writ lies in those cases where the conviction has become final. See Del Prado v. United States, 23 U.S.C.M.A. 132, 48 C.M.R. 748 (1974). The fact of finality, therefore, has no bearing on whether counsel may file the petition.
As the counsel seeking to file the petition in the instant case is the same counsel who represented the accused before this Court upon initial review, it follows, in my opinion, that he may properly continue to represent the accused and may file the petition on his behalf. I have intentionally confined my conclusion to the narrow facts of this case. A decision of the ultimate limits on the authority of counsel to file a petition for writ of error coram nobis must await another case and another day.