(concurring in part and dissenting in part):
I agree with the Opinion of the Court that there appears to be a viable issue of fact in this case which deserves vigorous advocacy before the Court of Military Review, with its unique factfinding powers. Art. 66(c), Uniform Code of Military Justice, 10 USC § 866(c). I reserve judgment on the merits of appellant’s claim of prejudicial error; I am concerned at this point only that there has not been full litigation of an essential factual issue.
I disagree with the implication in the Opinion of the Court (35 MJ at 348) that compliance with United States v. Grostefon, 12 MJ 431 (CMA 1982), is measured by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Grostefon we established a standard of appellate advocacy higher than Strickland, based on Article 66, and Article 70, UCMJ, 10 USC § 870, rather than on the Constitution. United States v. Tyler, 34 MJ 293 (CMA 1992); United States v. Arroyo, 17 MJ 224 (CMA 1984).
I agree that we must remand this case to the Court of Military Review. Since we do not know what legal or ethical considerations may have prompted appellate counsel to submit the hearsay issue to the Court of Military Review without briefing it, we should give appellate counsel the option of briefing the issue before the Court of Military Review or explaining why they have not done so. See United States v. Tyler, supra.