(dissenting):
The majority opinion enlarges the scope of Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867, which provides that “[t]he Court of Military Appeals shall take action only with respect to matters of law.” (Emphasis added.) I read the word “shall” as a mandatory codal direction, not a permissive one. Preceding the sentence quoted above is language providing that “[i]n any case reviewed by it, the Court of Military Appeals may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the” Court of Military Review. (Emphasis added.)
As the author judge here said when speaking for a unanimous court in United States v. Lowry, 25 U.S.C.M.A. 85, 89, 54 C.M.R. 85, 89, 2 M.J. 55, 58 (1976):
In any event, to the extent the United States Supreme Court chooses to review a question of fact within its independent examination of the record, this authority is specifically granted by the United States Constitution, Article III, § 2. Because Article 67(d) limits our authority to matters of law, the practice of the United States Supreme Court is not controlling and we have no authority to review questions of fact.1
In the present case the majority might find support for their disposition were the question a mixed one of fact and law. However, the question of identity is singularly a question of fact, and thus outside our jurisdictional scope. While the logic embodied in the majority opinion might have successful influence in presentation to *405a jury, it cannot bring into existence relief from an appellate court only empowered to review questions of law. Indeed, the proposition that this Court has a vision superior to the trier of fact at the trial level or the reviewers of facts — the Courts of Military Review,2 can only be regarded as chimerical. Since there is no legislative support for the mechanism employed by the majority, I would affirm.
. See United States v. Chase, 1 M.J. 275, 278 (1976) and United States v. Collier, 1 M.J. 358, 366 (1976).
. Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c).