(concurring in the result):
Although I agree with the majority’s holding that the Court of Military Review abused its discretion in rejecting appellant’s petition for a new trial, I disagree with the majority’s use of a “legitimate dispute” test to determine whether the Court of Military Review abused its discretion.
The majority, citing United States v. Lilly, 25 MJ 403 (CMA 1988), holds that where “there is significant evidence on each side of the question, such that a legitimate dispute is presented by the evidence as a whole____the appellate tribunal may not resolve that dispute.” 38 MJ at 96. This “legitimate dispute” test is a lower standard than that of RCM 1210, Manual for Courts-Martial, United States, 1984. It is certainly possible for a legitimate dispute to arise from a battle of experts at a court-martial and for that legitimate dispute to be carried to the appellate level, supplemented by the proffer of additional, noncumulative, expert testimony for the defense. In such a case a “legitimate dispute” test would be satisfied, but the additional expert testimony might not satisfy the RCM 1210(f)(2)(C) requirement for a showing that the additional testimony “would probably produce a substantially more favorable result for the accused.”
Our decisions in Lilly, as well as United States v. Triplett, 21 USCMA 497, 45 CMR 271 (1972), on which Lilly relied, were based on paragraph 124, Manual for Courts-Martial, United States, 1969 (Revised edition). Paragraph 124 provided:
When further inquiry after trial produces new information which raises an issue concerning mental responsibility at the time of the offense, the affected charges and specifications may be dismissed and appropriate action taken on the sentence or a new trial or rehearing may be directed, as may be appropriate under the circumstances of the case.
In Triplett we observed: “Certainly disputed facts and opinions can better be tested in the crucible of examination at trial ____but we did not mandate a rehearing or new trial whenever an issue is raised. Instead, we set out a test similar to RCM 1210: “Still to be determined is whether, considering all the matter on the issue, a different verdict might reasonably result if the issue was again presented to a court-martial.” 21 USCMA at 503, 45 CMR at 277. See also United States v. Lilly, 25 MJ at 410 (Cox, J., concurring). There is no reference to a “legitimate dispute” test in either Lilly or Triplett.
In any event, this “legitimate dispute” test is not applicable to appellant’s case. Appellant’s case is controlled by the Manual for Courts-Martial, United States, 1984, which did not carry forward the language of paragraph 124 of the 1969 Manual, supra. Thus, in my view, even if there ever was a “legitimate dispute” test, it died along with paragraph 124 of the 1969 Manual.
The correct legal standard for appellant’s case is not whether there is a “legitimate dispute” regarding appellant’s sanity; the correct legal standard is whether the Court of Military Review abused its discretion by deciding that the post-trial evidence of insanity did not pass the RCM 1210 test. I conclude that the court below did abuse its discretion. Accordingly, I concur in the result.