(concurring in part and dissenting in part).
I concur with Chief Judge Baum that the military judge erred in not allowing evidence of the appellant's mental condition to be considered by the members as bearing on the elements of the offenses involving specific intent. I concur in the finding as to the lesser offense, but, although it is legally appropriate, I do not concur in the final disposition because there is a more appropriate resolution available.
It is very clear from the record that appellant was a man with serious mental problems. His bizarre background includes a knife attack in which he seriously wounded a man in 1979. For this attack, which he could not recall, appellant received only minor punishment and no psychiatric or medical treatment. He had a history of ever more frequent episodes of anger and rage, for which he would often have no subsequent memory. His problems increased over many months prior to the shotgun assault from which these charges emanate. There is no remaining issue as to whether the evidence of mental impairment amounts to a defense — it does not. However, there is a substantial issue raised whether the accused formed the specific intent — or was even able to form the specific intent — set forth in the charged offenses.
One must wonder about the effect of requiring all the parties to retry the case and to again recall and recount the details of this tragedy. I see no benefit to the parties, and no substantial gain either to the government or the appellant by a rehearing. Indeed, the multiple costs of such a rehearing seem enormous with little likelihood of achieving a result substantially more favorable to the government than that which can be achieved by the action I would propose. Nor, it seems, does our duty require that we authorize a rehearing of the case. In every controversy, including those in the criminal sphere, there *1175comes a point where the matter should be finally resolved, even though further litigation is legally available. Both as a matter of judicial economy, and as a matter of reaching a result consistent with justice, I believe we have reached that point in this case. We can resolve the issues and close the case by simply affirming the finding not containing a specific intent element (as does the majority), and reassessing the sentence. Such a resolution is within the purview of this Court. U.S. v. Roa, 12 M.J. 210, 213 (CMA 1982). I deem such action appropriate in this case. See generally, U.S. v. Sales, 22 M.J. 305 (CMA 1986).
I concur in affirming a single finding of guilty of assault with a dangerous weapon, a loaded shotgun. I would reassess the sentence to an appropriate level that is not greater than I am convinced would have been awarded by the court under proper instructions for the approved offense.