concurring:
I agree that the new insanity standard adopted in United States v. Frederick, 3 M.J. 230 (CMA 1977), must be applied to this case. An examination of the record indicates “there is a fair risk of prejudice to the appellant from the use of the rejected standard.” Thus the necessity for a rehearing.
The standard, drafted by the American Law Institute (ALI), and included in its Model Penal Code, provides:
“4.01 Mental Disease or Defect Excluding Responsibility.
“(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
“(2) As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”
One aspect of the new standard was not discussed in Frederick, namely, what is meant by the term “mental disease or defect.” I believe a discussion of that phrase would be helpful.
The term “mental disease or defect” is not defined in the Model Penal Code. The second paragraph of the standard states what is excluded, “an abnormality manifested only by repeated criminal or otherwise antisocial conduct”, but does not affirmatively state what is included.
One observer, in commenting on the American Law Institute standard, stated that a “precise definition of insanity is impossible”, and “it is entirely sensible to leave ‘mental disease’ undefined . ” 1 The Court of Military Appeals is among the Courts that have followed the latter approach, i. e., leaving the term undefined. Other courts, including two cases cited approvingly in Frederick,2 have adopted the following definition from McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962):
“A mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” 114 U.S.App.D.C. at 124, 312 F.2d at 851.
The Manual for Courts-Martial, United States, 1969 (Revised edition), at paragraph 120b, states that “[t]he phrase ‘mental defect, disease, or derangement’ comprehends those irrational states of mind which are the result of deterioration, destruction, or malfunction of the mental, as distinguished from the moral, faculties. . . . ” That provision has been interpreted by the United States Court of Military Appeals and by this Court to exclude personality defects and character and behavior disorders. United States v. Hernandez, 20 U.S.C.M.A. 219, 43 C.M.R. 59 (1970); United States v. Smith, 5 U.S.C.M.A. 314, 17 C.M.R. 314 (1954); United States v. Hood, 47 C.M.R. 356 (A.C.M.R.1973).
When the Court of Military Appeals rejected the Manual test for insanity and adopted the ALI test, I believe it also adopted a new meaning for the term “mental disease or defect”, at least to the extent that it rejected the prior interpretations which had excluded personality defects and character and behavior disorders. The facts of the Frederick case bear this out. Frederick was diagnosed as having a personality disorder. Under the Manual test, *897that condition would not qualify as a mental defect, disease, or derangement. However, as the lower court’s decision in Frederick was reversed when examined in the light of the new standard, I can only conclude that under the new standard personality, character, and behavior disorders could be included in the term “mental disease or defect.”
There is the exception, of course, found in the second paragraph of the standard which as stated above excludes from the term “. .an abnormality manifested only be repeated criminal or otherwise antisocial conduct.” This exclusion removes the “psychopathic personality” from the concept of mental disease or defect. Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association, The Problem of Responsibility (1962).
I would urge the Court of Military Appeals in future decisions either to adopt the definition of the term “mental disease or defect" appearing in McDonald or to fashion its own definition.
. A. Goldstein, The Insanity Defense (1967).
. Bethea v. United States, 365 A.2d 64 (D.C.App.1975); United States v. Frazier, 458 F.2d 911 (8th Cir. 1972).