(concurring in part and in the result):
I concur generally in the majority opinion and in the ordered disposition of this appeal. I write only to expressly not join the language in the second paragraph of Part III that might be inferred to suggest that, so long as the Court of Military Review’s actions are in favor of an accused, its power is unbounded.
Even a court with “awesome, plenary, de novo power of review” and with “carte blanche to do justice” is not unrestricted. No court is free to act beyond the perimeter of its legal mandate, whether acting on behalf of an individual accused or on behalf of the people through the prosecution. There are some places where even “the proverbial 800-pound gorilla” is not free to roam. See, e.g., United States v. Bethea, 22 USCMA 223, 46 CMR 223 (1973). Since I believe that several questions relating to the extent of the powers of the Courts of Military Review presently are unresolved, I do not join in any verbiage that might prove to have been misleading in that regard.
The legal answer to appellant’s argument that is summarized in the opening paragraph of Part III comes at the end of that part: Whether a Court of Military Review in some case in the past has accepted documents such as the one in issue here does not translate into a legal duty to accept them. As the majority puts it, the question is not whether a Court of Military Review can accept such a document (a question I do not need to address here); rather, it is whether a court must accept it. 36 MJ at 271. Thus properly viewed, I agree with the majority that there is no legal basis to any argument that the court below here erred in refusing to do so.