(concurring in part and dissenting in part):
I do not write on a clean slate concerning the first granted issue. See United States v. Rockwood, 52 MJ 98, 114 (1999); United States v. Olinger, 50 MJ 365, 367 (1999)(Sullivan, J., concurring in the result); United States v. Rankins, 34 MJ 326, 331 (CMA 1992)(Sullivan, J., dissenting). However, in this case, appellant conceded that the order to take the anthrax shot was lawful. In addition, it was uncontroverted that he had previously taken five of six required anthrax shots without serious incident. Under these circumstances, the judge’s decision to deny admission of evidence of possible effects of an anthrax shot in general, if error, was clearly harmless beyond a reasonable doubt. See United States v. Garcia, 44 MJ 27, 31-32 (1996)(exelusion of defense evidence which did not have value in particular case was harmless error).
The second issue granted review is more difficult. It asks:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN ITS APPLICATION OF ARTICLE 66(c) WHEN IT CONCLUDED THAT APPELLANT WAS NOT ENTITLED TO A PRESUMPTION OF INNOCENCE
In my view, the Court of Criminal Appeals clearly erred. United States v. Troutt, 8 USCMA 436, 439, 24 CMR 246, 249 (1957), See also United States v. Sills, 56 MJ 239, 240-11 (2002)(holding that the Air Force Court of Criminal Appeals erred in not applying a beyond a reasonable doubt standard when exercising its factual sufficiency power under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(e)). Nevertheless, I further conclude that this error did not prejudice appellant. See Article 59(a), UCMJ, 10 USC § 859(a).
Article 66(c) UCMJ states:
In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in the law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
This statute does not expressly provide a standard of review for a service appellate court to use in exercising its fact-finding power. See also Jackson v. Taylor, 353 U.S. 569, 575-76, 77 S.Ct. 1027, 1 L.Ed.2d 1045 (1957). However, as noted above, in United States v. Sills, 56 MJ at 241 this Court held that a service appellate court should employ the traditional criminal trial standard of “beyond a reasonable doubt” in conducting “a de novo review” of the facts. See generally Bose Corp. v. Consumers Union of United States Inc., 466 U.S. 485, 514 n. 31, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)(defining de novo *406review as an “original appraisal of all the evidence”). Our holding reflected well-established military law. See United States v. Boland, 1 MJ 241, 241 (1975)(per curiam); United States v. McCrary, 1 USCMA 1, 3, 1 CMR 1, 3 (1951)(Board of Military Review (now Court of Criminal Appeals) is a trier of fact which must apply a beyond a reasonable doubt standard); See generally Homer E. Moyer, Procedural Rights of the Military Accused: Advantages over a Civilian Defendant, 51 Mil.L.Rev. 1, 28-29 (1971).
Article 66(c), UCMJ, also does not expressly provide that the Court of Criminal Appeals afford a military accused a presumption of innocence in conducting its fact-finding. Cf J. Powers, Fact Finding in the Courts of Military Review, 44 Baylor L.Rev., 457, 465-68 (1992)(suggesting that structure of Article 66(c), UCMJ, presumes error by trial court until affirmed by Court of Military Review). However, a presumption of innocence is clearly applicable to fact-finding by a court of members at a court-martial. Article 51(c), UCMJ, 10 USC § 851(c), states:
Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them—
(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;
(2) that in the case being considered, if there is a reasonable doubt as to the accused, the doubt must be resolved in favor of the accused and he must be acquitted;
(3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
(4) that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States.
Moreover, as the above statute indicates, the presumption of innocence is inextricably woven within the traditional criminal law standard of proof beyond a reasonable doubt. See generally Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978). Finally, decisions from this Court and the Court of Criminal Appeals hold that the presumption of innocence is applicable to the factual review of the Court of Criminal Appeals.1 See United States v. Pettiford, 9 USCMA 648, 651, 26 CMR 428, 431 (1958); United States v. Troutt, 8 USCMA 436, 439, 24 CMR 246, 249 (1957); see e.g., United States v. Powell, 29 CMR, 688, 701 (N.B.R. 1959); United States v. Walker, 10 CMR 773, 784-85 (A.F.B.R.1952).
My conclusion that this presumption should be applied by the' Courts of Criminal Appeals is amply supported by the unanimous decision of this Court in United States v. Crider, 22 USCMA 108, 46 CMR 108 (1973). There, this Court clearly recognized that Congress had uniquely provided service appellate courts with the same fact finding powers as a trial court.
Of greater importance is that Courts of Military Review possess far-reaching powers that are not normally attributes of appellate bodies. Article 66(c), UCMJ, 10 USC § 866(c), provides that such courts
“... may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in the law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of the witnesses, and determine controverted questions of fact....”
Factual determinations by Courts of Military Review are binding on this Court. United States v. Baldwin, 17 USCMA 72, 37 CMR 336 (1967); United States v. Remele, 13 USCMA 617, 33 CMR 149 (1963); United States v. Moreno, 5 USCMA 500, 18 CMR 124 (1955).
*407Essentially, the Court of Military Review provides a de novo trial on the record at appellate level, with full authority to disbelieve the witnesses, determine issues of fact, approve or disapprove findings of guilty, and, within the limits set by the sentence approved below, to judge the appropriateness of the accused’s punishment. We believe such a court’s exercise of its fact-finding powers in determining the degree of guilt to be found on the record is more apposite to the action of a trial court than to that of an appellate body.
Crider, 22 USCMA at 110-11, 46 CMR at 110-11 (emphasis added). See also United States v. Sikorski, 21 USCMA 345, 348, 45 CMR 119, 122 (1972); McCrary, 1 USCMA at 4, 1 CMR at 4. Fifty years of military precedent and practice upholding this broad appellate fact-finding power should not be lightly discarded.2 See generally United States v. Tualla, 52 MJ 228, 231 (2000) (upholding the doctrine of stare decisis); see generally, Lester B. Orfield, Criminal Appeals in America 79-91 (1939)(“[p]erhaps the greatest step in the development of the scope of review in modern times has been that of allowing the [appellate] court ... to review the facts”).
In any event, a new argument against applying the presumption of innocence at the Court of Criminal Appeals was accepted by the service appellate court in this case. It cited the Supreme Court decision in Herrera v. Collins, 506 U.S. 390, 399, 113 S.Ct. 853 (1993). There, the Supreme Court said,
[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (“The purpose of the trial stage from the state’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt”). Here it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is “innocent", but, on the contrary, as one who has been convicted by due process of law of two brutal murders.
Id. (emphasis added).
The Court of Criminal Appeals below likewise concluded that the presumption of innocence disappears for a service member who comes before the Court of Criminal Appeals after being found guilty by a court-martial. United States v. Washington, 54 MJ 936, 941 (A.F.Ct.Crim.App.2001). I disagree.
Herrera, supra, concerns a Supreme Court review of a federal habeas corpus petition of a state court criminal conviction. That petitioner had already unsuccessfully challenged his conviction on direct review, in collateral state proceedings in the state court, and in a prior federal habeas petition. The Supreme Court affirmed the Circuit Court of Appeals denial of this petition on the basis that, absent a constitutional violation, a claim of actual innocence based on post-trial affidavits is not cognizable on such a habeas petition. Appellant, unlike Herrera, however, is on direct appeal of his court-martial conviction under Article 66, UCMJ.
More importantly, Herrera, supra, does not hold or reasonably imply that a presumption of innocence can never be afforded an appellant on the appeal of a criminal case. The existence of such presumption on appeal is not a constitutional or common law question, but a question of statutory law. See generally Martinez v. Court of Appeal of California, 528 U.S. 152, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (quoting Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)(“the right of *408appeal, as we presently know it in criminal cases, is purely a creature of statute”)). The Supreme Court’s pronouncement in Herrera on the status of a criminal defendant before an appellate court was no more than a general statement of the law. Indeed, the federal civilian criminal justice system, and most state jurisdictions, do not provide for appellate review of findings of guilty of a trial court for factual sufficiency. However, a small minority of jurisdictions, like the military justice system, do provide for a factual review by statute, and thus, present a different appellate scenario not addressed in Herrera. See People of Virgin Islands v. Price, 181 F.2d 394 (3rd Cir.1950); People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 (1987); Commonwealth v. Cadwell, 374 Mass. 308, 372 N.E.2d 246 (1978); Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996); see generally Lester B. Orfield, Appellate Review of the Facts in Criminal Cases, 12 F.R.D. 311, 315-16 (1952)(noting six states had statutes permitting review of facts in criminal cases in 1930).
Of course, even in this appellate scenario, most of the jurisdictions which provide for some appellate factual review of findings of guilty, employ a weight of the evidence standard of review which might not require application of the presumption of innocence. See Bleakley, 515 N.Y.S.2d 761, 508 N.E.2d at 675. But see Price, supra. Nevertheless, there is a long established tradition in military law providing for de novo post-trial review of court-martial verdicts by reviewing authorities and confirming authorities using a beyond a reasonable doubt standard of review. See Runkle v. United States, 122 U.S. 543, 557, 22 Ct.Cl. 487, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887); William F. Fratcher Appellate Review in American Military Law, 14 Mo. L.Rev. 15, 25, 30-40, 48, 51-52, 60, 66 (1949); William M. Connor, Reviewing Authority Action in Courtr-Martial Proceedings, 12 Va. L.Rev. 43, 54-60 (1926); cf. William M. Con-nor, Legal Aspects of the Determinative ^Review of General Courtr-Martial Cases and Article of War 50 1/2, 31 Va. L.Rev. 119 (1944). Moreover, the overwhelming demand for drastic reform in military justice after World War II strongly suggests that Congress intended this same type of appellate review of the facts (including a presumption of innocence) be conducted by these newly constructed service appellate courts pursuant to the UCMJ. See generally 1 Jonathan Lurie, Arming Military Justice, 130-50 (1992); J. Powers, Fact Finding in the Courts of Military Review, supra; cf. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 567-68, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)(recognizing Supreme Court’s authority for independent appellate review of constitutional facts without deference to trial courts). See generally Adam Hoffman, Note, Corralling Constitutional Fact: De Novo Fact Review in the Federal Appellate Courts, 50 Duke L.J. 1427, 1430-31 (2001).
A final question remains whether certain language in Article 66(c), UCMJ, itself precludes or is inconsistent with a presumption of innocence being applied by the Courts of Criminal Appeals in their review of the verdicts of courts-martial. Article 66(c), UCMJ, states in pertinent part
In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted question of fact, recognizing that the trial court saw and heard the witnesses.
(Emphasis added.)
An argument is made that the clean slate afforded an accused at the beginning of a court-martial, see Article 51, UCMJ, can not be maintained on appeal, once that accused is convicted and the Court of Criminal Appeals is required to give that verdict deference. See Washington, 54 MJ at 941. Again, I am not persuaded that this Court should change course. See also Hoffman, Note, supra, at 1441-45.
I would first note that the recognition language noted above does not stand alone in Article 66(c), UCMJ. This statute broadly says that the Courts of Criminal Appeals “may affirm only such findings of guilty ... as it finds correct ... in fact.” It additionally delineates specific fact-finding powers for that appellate court which normally are associated only with a trial court where the presumption of innocence usually operates. *409Second, our Court has not attached undue significance to this language in this statute; rather we generally have considered it a simple admonition or caution. See United States v. Doctor, 7 USCMA 126, 137, 21 CMR 252, 263 (1956); United States v. Hendon, 7 USCMA 429, 432, 22 CMR 219, 222 (1956)(“subject only to the limitations that they bear in mind that the trial forum saw and heard the witnesses____”). Third, this Court’s construction of this language is justified in that the statutory predecessor of Article 66(c), UCMJ, Article of War 50(g), did not contain this language, and no explanation of its meaning or purpose is provided in the legislative history of the UCMJ.3 Finally, as noted above, the Courts of Criminal Appeals and their predecessors (the Boards of Military Review and the Courts of Military Review) have historically conducted their Article 66 de novo review of the facts using a presumption of innocence. See Powell, supra; Walker, supra.
Although I conclude that the Court of Criminal Appeals erred in rejecting a presumption of innocence, I still must vote to affirm appellant’s conviction. The Court of Criminal Appeals alternatively decided this case on the basis of our precedent, not Herrera, supra, which required it to find proof of guilt beyond a reasonable doubt in its review of the evidence under Article 66(c), UCMJ. 54 MJ at 941 (citing United States v. Turner, 25 MJ 324, 325 (CMA 1987)). While the presumption of innocence and the traditional criminal law standard of proof beyond a reasonable doubt are not synonymous, they overlap to the extent that they both require the prosecution to prove beyond a reasonable doubt each and every element of the offense. See 9 John H. Wigmore, Evidence in Trials at Common Law § 2511 (Chadbourne rev. 1981). Admittedly, the presumption of innocence also protects against conviction of the accused based on the fact of his arrest, his being charged with a crime, or his presence in the courtroom as a defendant. However, the Court of Criminal Appeals, composed of professionally trained and qualified judges, need no reminder of this law. Accordingly, the lower appellate court’s disavowal of the presumption of innocence was harmless error in this case. See United States v. Velez-Vasquez, 116 F.3d 58, 62 (2nd Cir.1997); see also Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979).4
. Trial burdens and appellate standards of review are not necessarily unrelated, especially where a unique appellate statute like Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), is involved. See Steven A. Childress & Martha S. Davis, 1 Federal Standards of Review § 6.03 at 6-21. (3rd ed.1999).
. In my view the majority opinion reaffirms the prior decision of this court in United States v. Troutt, 8 USCMA 436, 24 CMR 246 (1957) and effectively requires application of the presumption of innocence by the Court of Criminal Appeals during its factual review of the evidence under Article 66, UCMJ. It does so to the extent that it implicitly recognizes that for purposes of this review the burden of proof or persuasion beyond a reasonable doubt is on the government and it cannot be shifted to the military accused. In my view this is not a "level playing field.” See generally Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930 (1978).
. See Articles of War, as amended by the act of June 24, 1948, reprinted in Manual for Courts-Martial, United States Army 1949. The words "recognizing that the trial court saw and heard the witnesses” are not unique to Article 66(c), UCMJ. Since 1938, Federal Rule of Civil Procedure 52 has contained similar language. See 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2571 at 481 (1997); G.K.T., Jr., Note, Rule 52(a): Appellate Review of Findings of Fact Based on Documentary or Undisputed Evidence, 49 Va. Rev. 506, 510-16 (1963). That is a civil law rule, however, and it additionally provides for a clearly erroneous standard of review placing the burden of persuasion on the appellant. Id. at 2585-87. Similar language was also used before 1938 with respect to appeals in equity to describe a judicially created limit on the traditionally broad scope of appeal in equity which extended even to the facts of a case. See Lester B. Orfield, Appellate Procedure in Equity Cases: A Guide For Appeals at Law, 90 U. Pa. L.Rev. 563, 580, 593 (1942); Henry L. McClintock, Handbook of the Principle of Equity 40 (2nd ed.1948); cf. William M. Connor, Legal Aspects of the Determinative Review of General Court-Martial Cases and Articles of War 50 1/2, 31 Va. L.Rev. 119, 152-56 (1944). United States v. Calder, 27 BR 365, 382-83 (A.B.R.1944). Neither situation is particularly analogous to the broad de novo review of the facts provided by Congress after World War II as an innovative response to widely demanded reform of our military justice system. See 1 Jonathan Lurie, Arming Military Justice 130-50 (1992).
. Concerning the third granted'issue in this case, I agree with its resolution by the majority.