(concurring in the result):
I agree with the majority opinion that this Court should deny appellant relief. However, I disagree with the rationale which the majority opinion uses to reach this conclusion.
The majority opinion resolves Issue I by means of the following pronouncement: “Certainly, allowing appellant to receive back pay would be a windfall and would discourage corrective action.” 53 MJ at 391 (no legal authority cited). I would resolve this case based on law, not equity.
Regarding specified Issue II, as a matter of law, there was no “conviction” until the time of the second convening authority action on August 13, 1998. See United States v. Foecking, 22 USCMA 46, 50, 46 CMR 46, 50 (1972).
Nevertheless, I doubt that Article 57(a)(1), Uniform Code of Military Justice, is dispositive. See Dock v. United States, 46 F.3d 1083 (Fed.Cir.1995). Our case law concerning Article 75, UCMJ, suggests the opposite. See Keys v. Cole, 31 MJ 228 (CMA 1990). In any event, appellant’s claim to restored pay should be brought before the United States Court of Federal Claims. Id.; see United States v. Allen, 33 MJ 209, 215 (CMA 1991), cert. denied, 503 U.S. 936, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992).