(concurring in part and dissenting in part):
I
A
Hoff was convicted of being an accessory after the fact to larceny of government property (Charge I), misprision of the larceny (Charge VI), and other offenses. The Court of Military Review “conclude[d], and the Government concede[d], that Charges I and VI are multiplicious for findings, as the offenses described substantially the same misconduct in two different ways, and should be consolidated into a single specification.” (Unpub. op. at 2). The court also disapproved these words in Charge VI: “and fail to make the same known to the civil or military authorities as soon as possible.”
The final result was that the Court of Military Review consolidated some of the allegations of Charge I into Charge VI and dismissed Charge I, but left Charge VI without any allegation that Hoff had failed to inform “civil or military authorities” of the larceny which had been committed. Appellant contends that the revised Charge VI, which purports to be for misprision, now is legally insufficient for this purpose because the Court of Military Review disapproved a necessary allegation.
*74The majority opinion, as I understand it, disposes of the contention by reinstating the words that were originally in Charge VI and which were stricken by the Court of Military Review. I disagree with this solution because, in my opinion, it is beyond the power of this Court on an accused’s appeal to reinstate words in a specification which theretofore have been disapproved by a Court of Military Review. Cf. Art. 67(d), Uniform Code of Military Justice, 10 USC § 867(d). I am concerned that the Court is setting a bad precedent which may come back to haunt us.
B
Article 67(b) prescribes these three ways in which a record of trial may come before this Court for review:
(1) mandatory review of death cases; (2) all cases reviewed by a Court of Military Review which the Judge Advocate General orders sent to the Court of Military Appeals for review; and (3) all cases reviewed by a Court of Military Review in which, upon petition of the accused and on good cause shown, the Court of Military Appeals has granted a review.
Regardless of how the case arrives at this Court, we “may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Military Review.” See Art. 67(d). I have no doubt that this means that we may only act on a petition to review the findings as affirmed below or that we may review findings which have been set aside only on a certificate (a government appeal). This does not say that on a petition, this Court may review findings which have been set aside.
In cases which have reached the Court pursuant to Article 67(b)(2), we have heretofore taken the position that the case is before us for all purposes. United States v. Kelly, 14 M.J. 196, 200 (C.M.A.1982). Thus, we are not limited to consideration of specific issues certified by the Judge Advocate General, but we also may examine other issues of law pertinent to the case. Conceivably the result we reach in a case reviewed under Article 67(b)(2) may be less favorable to the Government than that which was reached in the Court of Military Review.
Indeed, in some instances, the Judge Advocate General may himself certify an issue which might be resolved in a way that would produce for the Government a result less favorable than that reached in the Court of Military Review. This is in no way anomalous, because the Judge Advocate General is not considered to be an advocate for either the prosecution or the defense. In certifying an issue for consideration by this Court, he may be primarily interested in having the law made more certain as to that issue.
When an accused petitions for review under Article 67(b)(3), this Court also has not considered itself bound by the. issues, if any, which the accused has formally assigned through his counsel. Instead, we have been willing to consider issues which the accused wished to raise and which have simply been enumerated by counsel, see United States v. Grostefon, 12 M.J. 431 (C.M.A.1982); and, in many instances, this Court has itself specified issues which it considered pertinent to the case. See 24 M.J. CXXXI n. 3; 23 M.J. CXXYII n. 3.
However, I am unaware of any case in the Court’s long history where — in the absence of issues certified by the Government under Article 67(b)(2) — this Court has taken action upon an accused’s petition for review which produced a result less favorable to him than the result reached in the Court of Military Review. We have held that, if specification A was set aside because it was included in or multiplicious with specification B and later specification B was reversed on appeal, specification A could be reinstated. See, e.g., United States v. Maxwell, 21 M.J. 229 (C.M.A.1986). However, this outcome is not unfavorable to an accused, because specification A must have been less serious than specification B, or otherwise, there would have been no basis for applying the doctrine of multiplicity. *75See United States v. Zupancic, 18 M.J. 387, 389-90 (C.M.A.1984).
For this Court to take action adverse to the accused when the Government has not certified the case under Article 67(b)(2) is contrary to the “law of the case” doctrine, which has been repeatedly recognized by this Court. For example, in United States v. Sales, 22 M.J. 305, 307 (C.M.A.1986), a decision agreed to by both judges in the majority here, we remarked:
The Government has not proceeded under Article 67(b)(2), UCMJ, 10 U.S.C. § 867(b)(2), to certify for our review the holding of the Court of Military Review that the findings of guilty were multiplicious; so this ruling constitutes the law of the case and binds the parties. Cf. United States v. Bell, 7 U.S.C.M.A. 744, 23 C.M.R. 208 (1957); United States v. Morris, 13 M.J. 297, 299 (C.M.A.1982) (Everett, C.J., concurring in the result).
Furthermore, for us to take action adverse to the accused when the Government has not appealed would be contrary to well-established appellate practice. For example, the Supreme Court observed in United States v. Karo, 468 U.S. 705, 718-19 n.5, 104 S.Ct. 3296, 3305 n.5, 82 L.Ed.2d 530 (1984): “The United States insists that if beeper monitoring is deemed a search, a showing of reasonable suspicion rather than probable cause should suffice for its execution. That issue, however, is not before us. The initial warrant was not invalidated for want of probable cause, which plainly existed, but for misleading statements in the affidavit. The Government did not appeal the invalidation of the warrant. ..” See United States v. ITT Continental Baking Co., 420 U.S. 223, 226 n.2, 95 S.Ct. 926, 929 n.2, 43 L.Ed.2d 148 (1975); United States v. Mississippi Chemical Corp., 405 U.S. 298, 307 n.11, 92 S.Ct. 908, 913 n.11, 31 L.Ed.2d 217 (1972).
Finally, to reinstate a disapproved finding in the absence of any government appeal pursuant to Article 67(b)(2) is contrary to legislative intent. As we have often emphasized, see, e.g., United States v. Grostefon, supra, Congress has intended that accused servicemembers have ready access to this Court. If, however, an accused is subject to the threat of adverse action by this Court as a result of submitting a petition for review, the effect may be to “chill” his eagerness to seek such review. Certainly, an accused will be reluctant to petition for review — and his lawyer will be reluctant to advise him to submit such a petition — if by doing so he may be penalized.
The underlying policy is analogous to that implicit in Article 63, UCMJ, 10 U.S.C. § 863, which provides that upon a rehearing, an accused may not be tried for any offense of which he was acquitted by the first court-martial or subjected to a more severe sentence.1 Obviously, Congress feared that an accused would be reluctant to seek review if, by doing so, he subjected himself to conviction of a more serious crime or to harsher punishment.2 This policy, in turn, is akin to — and even more protective than — that which undergirds the former-jeopardy guarantee of the Fifth Amendment. Cf. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
II
In my view, the words that were disapproved unconditionally by the Court of Military Review cannot now be restored by us in the consolidated specification under Charge VI. Art. 67(d). However, without these words, I do not believe the remaining *76language is sufficient to establish Hoffs guilt of misprision.
Misprision of a felony has long been recognized in military law. Thus, paragraph 213d (6) of the 1951 Manual states:
A person who has knowledge of the actual commission of a felony by another and who conceals and does not as soon as possible make known the same to the civil or military authorities is guilty of misprision of the felony____A mere failure or refusal to disclose the felony without some positive act of concealment does not make one guilty of this offense.
Accord para. 213f(6), Manual for Courts-Martial, United States, 1969 (Revised edition).
The 1984 Manual for Courts-Martial substitutes “serious offense” for “felony” but otherwise conforms to its 1969 and 1951 predecessors. See para. 95(b), Part IV, Manual for Courts-Martial, United States, 1984. Thus, under the 1984 Manual and earlier Manuals, one of the elements of misprision is that “the accused concealed the serious offense and failed to make it known to civilian or military authorities as soon as possible.” See para. 95, supra (emphasis added).
In my view, we are not free to eliminate judicially a long recognized element of the crime of misprision.3 Accordingly, the specification of Charge VI, as it stands before reinstatement of the words disapproved by the court below, is insufficient as a matter of law to allege misprision of the larceny.
However, I believe these findings are sufficient to establish a different crime— accessory after the fact to the crime of larceny. The elements of this offense are that: “(1) a larceny was committed; (2) appellant knew who the offender was; (3) thereafter he “received, comforted, or assisted the offender”; and (4) he did so “for the purpose of hindering or preventing” the “apprehension, trial, or punishment” of the offender.” Para. 157, 1969 Manual, supra.
The first two elements are explicit in the findings. In my view, wrongful concealment of the theft of government property constitutes assisting the offender. Finally, appellant’s “suggesting” that, unless certain action was taken, “the Naval Investigative Service would notice the discrepancy” is sufficient here to establish his purpose “of hindering or preventing” the “apprehension” of the persons who had stolen the government property.
According to Note 2 of the Table of Maximum Punishments, 1969 Manual, supra, a person convicted “as an accessory after the fact” is “subject to the maximum punishment authorized for the” principal offense, “except that in no case shall the death penalty be imposed nor the confinement exceed more than one-half of the maximum confinement authorized for that offense, nor shall the period of confinement in any case exceed 10 years ...” Cf. para. 3, Part IV, 1984 Manual, supra. I calculate the maximum punishment for being an accessory after the fact to larceny of government property of a value exceeding $500.00 to be a dishonorable discharge, 30 months’ confinement, and total forfeitures — only slightly less than the maximum confinement authorized for misprision of this same larceny (3 years). Obviously, in light of the sentence adjudged, this difference would be inconsequential.
On multiplicity grounds, the Court of Military Review purported to dismiss Charge I, which alleged that Hoff was guilty as an accessory, but it turned right around and consolidated the accessory and the misprision specifications. See unpub. op. at 2 (# 2). The consolidation in actuality negates the dismissal of Charge I. See United States v. Sorrell, 23 M.J. 122 n.1 (C.M.A.1986). As I interpret the findings under Charge VI (consolidated), they constitute a conviction for being an accessory after the fact.
*77III
As the majority opinion points out, the Government conceded in its oral argument that the consolidated specification of the Additional Charge of violating Article 1139 was “multiplicious for findings with the misprision offense.” 27 M.J. at 73. Even though, in my view, the affirmed findings under Charge VI should be upheld under Article 78, rather than Article 134, this difference does not seem material for purposes of the concession. Therefore, on the basis of the Government’s concession, I would dismiss the consolidated specification of the Additional Charge. Of course, this makes it unnecessary to examine self-incrimination issues, such as those discussed by the Court in United States v. Reed, 24 M.J. 80 (C.M.A.1987) — and those I addressed there in a separate opinion.
IV
I concur in the disposition of the Additional Charge and its consolidated specification, as well as of the sentence. I would affirm the decision below only as to the part of the specification of Charge VI as consolidated which alleges a violation of Article 78 of the Uniform Code. Finally, I dissent from the action setting aside the modification by the court below of the consolidated specification of Charge VI, because Article 67(d) deprives this Court of jurisdiction to take such action.
. Under Article 63, Uniform Code of Military Justice, 10 USC § 863, an accused may not receive the benefit of a pretrial agreement if, on appeal, the guilty plea is set aside and, at a rehearing, he changes his plea or otherwise does not comply with the agreement.
. Congress probably also thought that, in light of the automatic review given to court-martial findings and sentence, it would be unfair — or would be perceived as unfair — for a process designed for protecting the accused to yield results less favorable to him than those he had originally received at trial.
. In view of self-incrimination problems, I also believe there is considerable justification for the position taken by the Court of Military Review that the accused's failure to make the larceny known "as soon as possible" might be excusable.