(dissenting):
I would dismiss this petition as untimely. Petitioner essentially advances an otherwise ordinary petition for review of an instructional matter that occurred on the record, in open court, at his court-martial rehearing over 10 years ago. He did not raise the issue before this Court when we resolved his appeal over 6 years ago. 24 MJ 413, 419 (1987).
Our rules in effect at the time of that decision specified that petitions for reconsideration of decisions of this Court “be filed no later than 10 days after the date of any order, decision, or opinion by the Court.” Rule 31(a), Rules of Practice and Procedure (effective July 1, 1983), 15 MJ CXLIII. I conclude that the petition herein is untimely.
I would not necessarily stand on form, however, if this petition was not so patently frivolous. He was convicted by a panel of Marine officers and enlisted members for his role in attempting to rob, and murdering, a fellow Marine. Inasmuch as a death penalty was not adjudged,* petitioner’s sentence to life imprisonment was mandated by the overriding act of Congress. Art. 118(4), Uniform Code of Military Justice, 10 USC § 918(4). In my view, the chances that three-fourths of the court members then sitting might not have adjudged a dishonorable discharge, reduction to E-l, and total forfeitures are sufficiently infinitesimal as to not warrant the *298wholesale abrogation of finality of courts-martial. See Art. 76, UCMJ, 10 USC § 876.
Moreover, after establishing the voting percentages required for death and life imprisonment in Article 52(b)(1) and (2), UCMJ, 10 USC § 852(b)(1) and (2), Congress specified:
All other sentences shall be determined by the concurrence of two-thirds of the members present at the time the vote is taken.
Art. 52(b)(3). It is not obvious to me that the various Manual and judicial attempts to revise the plain language of this statute are not ultra vires. If so, the military judge’s instructions with respect to these challenged sentence elements would have been correct.
Accordingly, I dissent.
The papers submitted in conjunction with this petition do not indicate whether the convening authority referred the charges to the original court-martial as a capital case. The life sentence imposed in the first trial precluded referral of the rehearing as a capital case, absent additional charges alleging a capital offense. RCM 810(d)(1), Manual for Courts-Martial, United States, 1984.