dissenting separately:
I concur in the decision to consider the appellant’s motion en banc. As to the merits of the motion, I would grant it. The plurality opinion of Senior Judge Clause and the minority opinion of Senior Judge Fulton, clash in legalized fencing over the existence, definition, and implementation of a “general rule of abatement.” Neither, adequately addresses the impact of such a rule on the criminal justice system of the *545military services. While the ultimate issue of abatement may be one of legal policy and philosophy, it is my opinion that in this incidence of first impression, law and reason dictate a practice of this Court to abate a criminal proceeding on the death of an accused at any time prior to the termination of normal appellate processes.
The plurality opinion advocates that the general rule of abatement, as applied in civilian court practice and procedures, which would not require abatement ab initio in the case now before the Court, be applied to military appellate practice. That part of the general civilian rule relied on by the majority is that “no appeal was pending” at the time of appellant’s death. Thus to grant abatement would be an expansion of the rule of abatement in military appellate practice. The plurality finds nothing in United States v. Kuskie, 11 M.J. 253 (C.M.A.1981), nor in its own independent analysis, that requires or supports an expansion of the general rule of abatement so as to require abatement in the present case. The minority opinion, while questioning the existence of a rule of law requiring abatement, implicitly equates “finality” with “pending appeal.” It then determines that under present military appellate procedures the decision of this Court was not final, that in the appellant’s case “an appeal was pending.”
Drastic differences in the military and civilian appellate procedures dictate that finality or pendency of an appeal not be interjected into military appellate practice. The mandatory appellate reviews of Articles 65(b), 66(b), 67(b)(1) and (2), Uniform Code of Military Justice (UCMJ), have no counterpart in civilian practice. The fact finding authority of this Court under Article 66(c), the requirement that the Judge Advocate General direct final action under Article 66(e), the requirement for appellate counsel under Article 70(c) and (e), and the requirement for orders promulgating the proceedings and executing the sentence under Article 76, 10 U.S.C. § 876 are unique to military practice. The authority of this court to grant reconsideration of a case on its own motion, limited only by its own discretion, incorporates a lack of finality not found in civilian practice, particularly since the Court has no method, practice or procedure for issuing a mandate. To apply civilian concepts of pendency of appeal within the statutorily constructed scheme of the UCMJ is to graft the elephant’s nose to the camel’s hump. The plurality opinion interjects a note of finality into military appellate practice that simply does not exist. It surely would be an unwarranted anomaly for a decision of this Court to be final for purposes of abatement but inchoate for purposes of reconsideration.
As only implied in the minority opinion, I find the result of the plurality opinion to be in direct conflict with the rights of servicemembers flowing from the nature of their service. Inherent in military administrative and legal practice and procedures is the protection of the individual servicemember from the mandatory actions of the government by the requirements of notice. Generally an action mandated by law or regulation, when directed against an individual, is not effective until the individual is both notified and also given an opportunity to respond. An expansion of the abatement rule is in cognizance of this practice: the decision of a military appellate court is not effective (i.e. is still pending) until the time for notice and opportunity to respond has expired in accordance with the rules and practices of the particular court. This is the point in time to determine the servicemember’s rights and not some fleeting date arbitrarily designated under a concept of pendency of appeal or finality.
In my opinion there are other valid and logical reasons to extend any general civilian rule of abatement to apply in circumstances encompassed by the case before the Court. There are three stages under the rule when abatement ab initio is not applied: between conviction and the actual filing of an appeal of right; between issuance of the appellate court opinion and the filing of a discretionary appeal; and, during the pendency of a discretionary appeal. Decisions of this Court and the Court of Military Appeals have determined that *546abatement ab initio will apply in the first stage, contrary to civilian practice, and will apply in effect to the third stage by the determination that an appeal to the United States Court of Military Appeals is not discretionary in nature. United States v. Kuskie, supra; United States v. Marcott, 8 M.J. 531 (A.C.M.R.1979). An extension of the rule will eliminate the limbo status of the second stage resulting from the Kuskie decision i.e., the revival for possible abatement of a case that is not subject to abatement by the simple process of filing a petition for review with the Court of Military Appeals. Also eliminated is the administrative task necessitated to determine pendency of an appeal based on dates of death, notice, and court opinions, thus preventing disposition of a case on fortuity of death on the right day. The mandatory nature of appeals under Articles 66(b) and 67(b)(1) and (2), UCMJ, preserve the possibility of abatement for some but not all accused. Equal treatment is a goal of the law and equality in abatement should not depend on fortuity, particularly as Article 67(b)(2), UCMJ, may be applied.
I recognize extension of the rule will mean every case will be abated on the death of the accused at any time prior to the termination of the normal appellate process. This is not just consistent with, but is in accordance with present practices and the nature of military service. This does not require or even suggest that abatement should apply to extraordinary appellate procedures such as requests for new trials or petitions for extraordinary relief. As such actions are initiated on individual circumstances, a decision on abatement should be made based on those individualized circumstances.