(dissenting):
Although Article 51(d), Uniform Code of Military Justice, 10 U.S.C. § 851(d), requires a military judge to make special findings of fact upon request, it does not specify the procedures to be employed for this purpose. Thus, I do not view the requirement of paragraph 74/, Manual for Courts-Martial, United States, 1969 (Revised edition), that the request for special findings be in writing when so stipulated by the trial judge, as inconsistent with the Codal provision. The President has simply prescribed orderly procedures for invoking a request for special findings, pursuant to his authority under Article 36, UCMJ, 10 U.S.C. § 836.
Here, defense counsel requested special findings; he did not specifically delineate his desires. The trial judge required, and counsel agreed, to submit the request in writing. The trial terminated on October 18,1979, but defense counsel did not submit his request until January 15, 1980, the date of the convening authority’s action and several weeks after the record of trial had been authenticated. Paragraph 74/ requires attachment of the special findings to the record of trial prior to authentication. Accordingly, in my opinion, the trial judge properly denied the defense request because it was out of time.
I also disagree with the Chief Judge’s conclusion that a mere request for special findings, without any specific delineation of counsel’s desires, requires a trial judge to make some special findings. In my opinion, this rule of procedure does not sufficiently identify those issues which must be addressed in his special findings. Paragraph 74/ also addresses this matter in the following manner:
The special findings will usually include findings as to the elements of the offenses of which accused may be found guilty, findings on the question of mental *444responsibility if raised by the evidence, and findings on special defenses reasonably in issue. A request for special findings must be made prior to the announcement of general findings by the military judge and must specify the matter to be determined.
(Emphasis supplied.) As observed by the United States Army Court of Military Review in United States v. Baker, 47 C.M.R. 506, 510 (A.C.M.R. 1973), pet. denied, 22 U.S.C.M.A. 640 (1973), any other rule would lead to constant litigation over the “corollary issue” of whether the military judge’s special findings addressed all of the required issues. In any event, the defense counsel in the present case submitted numerous questions to the trial judge. Obviously, if the trial judge here had made special findings prior to the submission of those questions, his special findings would not have answered all the questions prepared by counsel. Thus, I fear the Chief Judge’s rule imposes an impossible burden on the trial judge.
I would affirm the decision of the United States Navy Court of Military Review.