(concurring in part, dissenting in part):
I quite agree with my Brothers that appointment of a “121” 1 board and a Du-Bay 2 hearing were appropriate vehicles for the Court of Military Review to inquire further into the mental condition of appellant. Authority for these actions may be found in paragraph 124, Manual for Courts-Martial, United States, 1969 (Revised edition), entitled “Action by Convening or Higher Authority,” which provides:
After consideration of the record as a whole, if it appears to the convening or appropriate higher authority that a reasonable doubt exists as to the sanity of the accused, the findings of guilty affected by that doubt should be disapproved and appropriate action taken with respect to the sentence. If the doubt relates to mental capacity at the time of trial, a rehearing may be directed when the incapacity no longer exists.
Convening or higher authorities will take the action prescribed in 121 before taking action on the record of trial when it appears from the record or otherwise that further inquiry as to the mental condition of the accused is warranted in the interest of justice, regardless of whether the question was raised at the trial or how it was determined if raised. When further inquiry results in a determination that the accused lacks the mental capacity to understand the review proceedings, a conviction may not be approved or affirmed under Articles 64, 65, or 66 until the accused regains the requisite mental capacity. However, this should not cause a delay in making a determination in favor of an accused which will result in the setting aside of a conviction. When further inquiry after trial produces new information which raises an issue concerning mental responsibility at the time of the offense, the affected charges and specifications may be dismissed and appropriate action taken on the sentence or a new trial or rehearing may be directed, as may be appropriate under the circumstances of the case.
(Emphasis added.)
As is apparent, that paragraph also dictates the options available when new information is presented “which raises an issue concerning [the] mental responsibility” of an accused “at the time of the offense.” Id. Those options include: dismissal, new trial, or rehearing. Conspicuously absent from the list is affirmance. The President’s authority to establish such a procedure can *197scarcely be doubted. Article 36, Uniform Code of Military Justice, 10 U.S.C. § 836.
Knowing what to do once a mental-responsibility issue has been raised is much easier than knowing when it has been raised. See United States v. Triplett, 21 U.S.C.M.A. 497, 503, 47 C.M.R. 271, 277 (1972). However in this case, at the Du-Bay hearing, a psychiatrist testified that appellant was insane at the time of the commission of the offense. This opinion was seconded by appellant’s father, a medical doctor, who had earned both a bachelor’s and master’s degree in abnormal psychology. Other members of appellant’s family also catalogued appellant’s bizarre behavior spanning several years prior to the charged offense.
I do not suggest that a rational fact-finder could never find appellant sane on the basis of the evidence presented at the Du-Bay hearing; rather I suggest that the issue of appellant’s mental responsibility was certainly raised. That being the case, appellant is entitled to a rehearing or new trial by court-martial, or else to have the charges dismissed. Accordingly, I would set aside the findings of guilty and return the record of trial to the Judge Advocate General of the Navy for either dismissal of the charges, or referral of the record to an appropriate convening authority for a rehearing or new trial.
. Paragraph 121, Manual for Courts-Martial, United States, 1969 (Revised edition) — appointment of one or more physicians to observe an accused and report on his sanity.
. United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).