(concurring in the result):
After a military judge sitting as a special court-martial had convicted Roberts of unauthorized absence, a psychiatric report received by the United States Navy-Marine Corps Court of Military Review led it to conclude that further inquiry was warranted as to appellant’s mental condition. See para. 124, Manual for Courts-Martial, United States, 1969 (Revised edition). Therefore, the court entered an interlocutory order that a board of officers be convened to make findings as to appellant’s present mental capacity, his capacity at the time of trial, and his mental responsibility at the time of the offense. See paras. 121 and 124, Manual, supra. The order also required that a DuBay1 hearing be conducted, “at which hearing the full report of the board shall be considered by the military judge, who will hear the contentions of the respective parties, and enter findings and conclusions of law.”
In my view, the Court of Military Review acted quite properly in ordering the DuBay *195hearing. As we have recognized elsewhere, “disputed facts and opinions can better be tested in the crucible of examination at trial.” See United States v. Triplett, 21 U.S.C.M.A. 497, 503, 45 C.M.R. 271, 277 (1972). In the case at bar, the DuBay hearing allowed the evidence about appellant’s mental condition to be. considered by a military judge under the rules of evidence that govern at a trial. Moreover, he could evaluate the candor, demean- or, and expertise of the witnesses. Thus, by means of the DuBay hearing, the Court of Military Review was providing itself with more accurate and detailed information than if it were limited to the consideration of reports and other documentary evidence.
Under the terms of the interlocutory order, the “general court-martial convening authority” was directed to “take appropriate action, based upon the findings of fact and conclusions of law, to hold further proceedings in abeyance, dismiss the charges, or forward the record for further review by” the Court of Military Review. Thus, if the military judge had determined that Roberts lacked “mental capacity to understand the review proceedings,” para. 124, Manual, supra, then further proceedings could be held in abeyance until appellant regained his capacity. If the judge had found a lack of mental capacity at the time of trial, then the convening authority was authorized by the order to set aside the findings of guilty and either to hold further proceedings in abeyance or to dismiss the charges outright. If the judge had found that Roberts lacked mental responsibility at the time of the offense, then presumably the convening authority would have set aside the findings and dismissed the charge.
Since, instead, the judge found after the DuBay hearing that Roberts was both competent and responsible, the record was returned to the appellate court for further review. At this stage — just as at trial, cf. Article 51(b), Uniform Code of Military Justice, 10 U.S.C. § 851(b) — a distinction must be made between mental capacity and mental responsibility. As to the latter, paragraph 124 of the Manual provides that reviewing authorities may direct “a new trial or rehearing, as may be appropriate under the circumstances of the case.” On the other hand, there is no similar provision with respect to mental capacity. Therefore, I conclude that mental capacity may be finally determined by the Court of Military Review; and in making this determination it may give the same weight to the judge’s findings at the DuBay hearing that it would have given to a trial judge’s findings that the accused was competent, if the issue of mental capacity had been originally litigated at trial.
According to the Manual, reviewing authorities may either dismiss “the affected charges” or direct “a new trial or rehearing”, “[w]hen further inquiry after trial produces new information which raises an issue concerning mental responsibility at the time of the offense. ” (Emphasis added). In view of this language, the Court of Military Review is not free to decide the issue of mental responsibility — as it may do with respect to mental capacity. Instead, it may only determine whether the “new information” obtained after trial “raises an issue concerning mental responsibility”; and if that issue is raised, then that court must direct either dismissal of the charges or “a new trial or rehearing.”
The DuBay hearing ordered by the Court of Military Review was a suitable means for obtaining and evaluating “new information” about Roberts.2 However, the DuBay hearing was not itself the “rehearing” to which paragraph 124 of the Manual refers. See also para. 816, Manual, supra. A principal reason why the Du-Bay hearing ordered in this ease did not qualify as a “rehearing” under paragraph 124 is that at a “rehearing,” an accused may insist on trial by the members of the *196court-martial, even though originally he had been tried by a military judge alone. This rule, in turn, probably stems from the provision of Article 16 of the Code, 10 U.S.C. § 816, that an accused, “knowing the identity of the military judge and after consultation with defense counsel,” may request trial by judge alone. (Emphasis added.)
Perhaps an exception might be recognized if the DuBay hearing took place before the same judge who tried the case originally without members. In that instance, the accused could not complain that issues were being decided by a judge whose identity was unknown to him when he waived trial by members. Moreover, the DuBay hearing could in that event be analogized to a post-trial hearing before the judge who conducted the trial. Cf. United States v. Brickey, 16 M.J. 258 (C.M.A. 1983). However, at this time I shall not pursue further the existence of such an exception, because here the DuBay hearing did not take place before the judge who originally tried the case. Instead, I join in remanding the case to the Court of Military Review for determination whether, in light of all the information before it, an issue of mental responsibility at the time of the offense has been raised. See also United States v. Triplett, supra.
. United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).
. Perhaps the judge who conducted the DuBay hearing could have rendered an even greater service to the Court of Military Review by making a finding as to whether the issue of mental responsibility at the time of the offense was "raised.”