(dissenting):
The majority holds that: (A) this Court’s decision in United States v. Kuskie, 11 MJ 253 (CMA 1981), is controlling in this case; (B) abatement of the proceedings, ab initio, is appropriate because the accused’s conviction was not final as set forth in Article 71, Uniform Code of Military Justice, 10 USC § 871; and (C) the practice in the United States Courts of Appeals “is more analogous” than a petition for certiorari in the Supreme Court to what this Court’s practice ought to be regarding the issue of abatement ab initio of a criminal proceeding on appeal due to the death of an accused. I respectfully disagree on all three points.
A
First, there is a significant factual distinction between this case and Kuskie. In Kuskie, this Court declined to follow Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976),* and abated proceedings where a supplemental petition for review was filed with this Court and Kuskie died before any action was taken on the petition. 11 MJ at 254. Here, at the time of his death, the accused had not filed a petition for review with this Court. Thus it appears that the majority would extend the doctrine of abatement ab initio to a case based on the mere possibility that this Court might have granted review of a petition that might have been filed.
The review posture of this case is particularly significant when viewed in light of these additional facts: (1) the accused pleaded guilty to the charged offenses at trial; (2) his case was submitted on its merits to the Court of Military Review with assertions pursuant to United States v. Grostefon, 12 MJ 431 (CMA 1982); (3) the Court of Military Review affirmed the findings and sentence without opinion; (4) the accused filed no petition for reconsideration with the Court of Military Review; and (5) he was served with a copy of the Court of Military Review decision but died 54 days later, 6 days before expiration of the 60-day period for filing a petition for review by this Court, without any indication from him or his counsel that he intended to file a petition for review.
I believe that procedurally this case is easily distinguishable from Kuskie and lends itself to an analysis of the theory of abatement ab initio as well as the pros and cons of applying this theory to situations further and further removed from an actual grant of review by this Court.
*163B
The appellate jurisdiction of this Court is governed by Article 67(a), UCMJ, 10 USC § 867(a)(1989), which provides:
The Court of Military Appeals shall review the record in—
(1) all cases in which the sentence, as affirmed by a Court of Military Review, extends to death;
(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.
Noticeably absent from this articulation is any mention of a right extending the time for the accused to file a petition for review.
The appellate jurisdiction of this Court is similar to that of the Supreme Court of the United States.
The appellate jurisdiction of the Supreme Court of the United States is subject to the regulation of Congress, which has provided three methods of review. The first is by appeal, which is a matter of right where a lower federal court has held a state statute invalid as repugnant to the Constitution, treaties, or law of the United States. Appeal as a matter of right may also be used where the highest court of a state has rendered a decision in which there was drawn in question the validity of a treaty or statute of the United States and the decision was in favor of its validity. The second method of review is by the writ of certiorari, which is not a matter of right, but which the Supreme Court can grant in its discretion if it feels that there is an important federal question involved in a case. The third method of review is by certification of any question of law by a U.S. Court of Appeals requesting instructions on the legal issues in a particular ease.
F. Klein, Federal and State Court Systems—A Guide 171 (1977). See also U.S. Const., art. III, § 2, and 28 USC §§ 1254, 1257, and 1259.
The principal opinion erroneously relies upon Article 71 for its argument that the accused is entitled to have his case abated ab initio. Article 71 sets forth what is required for a judgment to be final “as to legality of the proceedings.” Art. 71 (quoted in principal opinion — 37 MJ at 159-160). The question whether a judgment is final is of administrative importance with respect to jurisdiction and issuing a mandate in a particular case. See generally L. Griffin, Federal Criminal Appeals §§ 7.8 and 8.2 at 7-30 and 8-7 (1992) and Rule 43, Rules of Practice and Procedure, United States Court of Military Appeals. However, whether a judgment is final has nothing at all to do with determining whether an appeal is of right or discretionary. If that were so, it would then follow that an appeal to the Supreme Court should also be treated as an appeal of right under Article 71(c) (quoted, 37 MJ at 159-60).
Thus the remaining question is not whether the accused is entitled to have his ease abated ab initio but, rather, whether this is an additional area in which we desire to grant servieemembers rights beyond those which are afforded to civilians by the Constitution and other federal civilian courts. As we have previously discussed in United States v. Lopez, 35 MJ 35, 41 n.2 (CMA 1992):
[SJervicemembers enjoy numerous rights that are not available to defendants in the state or federal criminal justice system. For example, they are entitled to be notified of the nature of the offense before there can be a valid waiver under Article 31(b), Uniform Code of Military Justice and Miranda v. Arizona [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ]. They also are entitled to counsel at the very early stages of the criminal process and throughout the appellate process, regardless of indigency. Finally, they are generally entitled to verba*164tim records of trial, regardless of indigency.
(Citations omitted.)
If in fact this Court chooses to grant servicemembers a right to abatement ab initio beyond that accorded by the Supreme Court or mandated by Article 67, for whatever reason, then we should simply say so.
C
Finally, the practice of the United States Courts of Appeals is not “more analogous” than that of the Supreme Court of the United States to what this Court’s practice ought to be regarding the issue of abatement of a criminal proceeding ab initio on appeal due to the death of an accused. The United States Courts of Appeals are courts of first appeal, and appeals to them are of right. 28 USC §§ 1291-1293. Therefore, it is no surprise that the circuits which have considered the question have determined that Dove does not apply to them but is limited to discretionary appeals. United States v. Davis, 953 F.2d 1482, 1486 (10th Cir.), cert. denied, — U.S.-, 112 S.Ct. 2286, 119 L.Ed.2d 210 (1992); United States v. Williams, 874 F.2d 968, 970 (5th Cir.1989); United States v. Schumann, 861 F.2d 1234, 1236 (11th Cir.1988); United States v. Mollica, 849 F.2d 723, 725-26 (2d Cir.1988); United States v. Oberlin, 718 F.2d 894 (9th Cir.1983); United States v. Pauline, 625 F.2d 684 (5th Cir.1980); United States v. Littlefield, 594 F.2d 682, 683 (8th Cir.1979); United States, v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.1977); United States v. Bechtel, 547 F.2d 1379, 1380 (9th Cir.1977).
By contrast, the reaction to Dove by a sampling of state courts, which are similarly positioned to this Court as secondary courts of appeal, is illuminating. In Jones v. State, 302 Md. 153, 486 A.2d 184 (1985), an accused sought a writ of certiorari from affirmance of his conviction by the state’s intermediate appellate court (the Court of Special Appeals), but died before a decision on the merits of his case was reached in the state’s highest court (the Court of Appeals of Maryland). The Jones court held:
Where the deceased criminal defendant has not had the one appeal to which he is statutorily entitled, it may not be fair to let his conviction stand. But, on the other hand, where the right of appeal has been accorded and the Court of Special Appeals has decided that there was no reversible error, no unfairness results in leaving the conviction intact even though an application for further review has not been resolved when the defendant dies. The mere possibility that this Court might have reversed the conviction is not sufficient ground to order dismissal of the entire indictment.
486 A.2d at 187.
Likewise, the Supreme Court of Illinois in People v. Mazzone, 74 Ill.2d 44, 23 Ill. Dec. 76, 383 N.E.2d 947 (1978), distinguished between an appeal of right and a second appeal to a higher appellate court. The Mazzone court noted that, where the higher court has exercised its discretion and affirmatively granted the second appeal, the situation then becomes “analogous to initial appeals as of right, and the reasons justifying abatement ab initio ... apply____” 23 Ill.Dec. at 79, 383 N.E.2d at 950. The Supreme Courts of Indiana and Mississippi have determined dismissal of the appeal, leaving judgments intact, rather than abatement ab initio, to be fair both to the State and the defendant after analyzing the reasons justifying abatement ab initio. Whitehouse v. State, 266 Ind. 527, 364 N.E.2d 1015 (Ind.1977); Haines v. Mississippi, 428 So.2d 590 (Miss.1983). See also Perry v. State, 575 A.2d 1154 (Del. 1990); State v. Griffin, 121 Ariz. 538, 592 P.2d 372 (1979).
I believe that the more logical approach would be to abate proceedings where this Court has granted review on a discretionary petition thereby rendering the procedural posture of that case analogous to an initial appeal as of right. In any event, we should refrain from departing any further from the ruling of the Supreme Court by abating ab initio those cases founded on *165the mere, and sometimes remote, possibility that this Court may have granted review of a petition that might have been filed. Certainly this would apply to the procedural posture of the case at bar.
In Dove the Supreme Court dismissed a "petition for a writ of certiorari where the petitioner died before any action was taken on the petition.” 80 ALR Fed 449 (1986).