Opinion of the Court
Paul W. Brosman, Judge:
_ Bell, the accused in the case before us, was charged with having committed á rape on July 12, 1953, in violation of the Uniform Code of Military Justice, Article 12Qi 50 USC § 714. On August 12-13, 1953, he was tried by a general court-martial, was found, guilty, and was sentenced to receive a dishonorable discharge, as- well as total forfeitures and confinement at hard labor for twenty-rfive years. The convening authority approved the findings and sentence, and on December 11, 1953, a board of review in the office of The Judge Advocate General, United States Army, rendered a decision which affirmed the findings, but reduced the sentence to confinement by five years.
II
The accused appears not to have been 'subjected to psychiatric examination before his trial for this capital offense, . and the question of his sanity Was in no way raised at the nisi prius hearing. Indeed, there is nothing in either the Article 32 investigation, or the record of the trial itself, which suggests a want of either mental responsibility or capacity. However, while in post-trial confinement during the following autumn the accused manifested symptoms of mental disorder, and on October 23 was transferred to Letterman Army Hospital. A medical board, which met there on March 5, 1954, found that he then suffered from "Schizophrenic reaction, catatonic type, chronic, manifested by mental retardation, somatic complaints, open hostility, auditory hallucinations, negativism, retarded psy-chomotor activity, flattened affect and catatonic posturing." Additionally, this board found that the accused had been responsible at the time of the crime's commission, and had possessed mental capacity at the time he was tried. However, its members recommended that the remainder of his sentence to confinement be remitted, and that he be discharged to a state mental institution for treatment and custodial care.
A subsequent statement from the office of The Surgeon General, United States Army, notes that "The prisoner has a chronic psychotic disorder. This will probably continue for an extended period of time but is probably not permanent." Because "prolonged hospitalization of prisoners in Army hospitals is discouraged as a matter of policy," it was recommended "that the prisoner be transferred to a federal prison system hospital if suitable arrangements can be made." It is the understanding of this Court that the accused is now confined in a mental institution under the supervision of the Federal Bureau -of Prisons.
The accused was not served personally with a decision of the board of review because of his mental condition. However, The Judge Advocate General of the service concerned designated as military appellate counsel to represent him in presenting to this Court a petition for grant of review the lawyer who had previously represented him before the board of review. On July 15, 1954, this attorney filed such a paper —which contained numerous assignments of error — but at almost the same moment moved to dismiss the charges because of the accused's insanity. This motion we denied without prejudice pending disposition of the petition for review.
Ill
The first issue which requires a decision by us relates to the effect to be accorded insanity initially discovered after completion of an accused's trial. In United States v Washington, 6 USCMA 114, 19 CMK 240, we considered whether, in a capital case, this Court possessed jurisdiction to complete appellate review. Our answer was in the clear affirmative. The reasons presented there by the majority for its determination of the question are fully applicable to sustain a conclusion that we also possess jurisdiction to complete review where the sentence does not extend to death.
The medical board's report here asserts that the accused's mental incapacity originated during October 1953— long before the decision of the board of review was handed down. Indeed, since the convening authority's action in the case did not occur until October 10th, it is unclear whether the medical board would have concluded that the onset of insanity preceded .the date of that action. Accordingly, i.t is fitting to comment on the effect the post-trial insanity of an accused should have on the power of either a convening authority or a board of review to act on a record of trial.
We believe that the rationale of the Washington case must control. To be-sure, it must be conceded that the convening authority is empowered freely to wander outside the record in the accused's behalf. United States v Massey, 5 USCMA 514, 18 CMK 138. Therefore, the situation is somewhat, different from that which obtains on this Court's level, where — save in acting on petitions for new trial — issues of law constitute the only subjects of deliberation. We are sure, however, that the inability of an insane accused to supplement the record with information which might conduce to a favor able exercise of the convening authority's discretion does not constitute a sufficient reason for holding that this official lacks power to review the former's case. Of course, if data outside the record bears on the accused's innocence, and amounts to newly-discovered evidence, which was not presented at the original hearing without fault on the accused's part, it may be the subject of a petition for new trial. As we remarked in Washington, we are confident that the right to submit such a petition does not expire during a period of insanity, and therefore will remain available to the accused once he recovers from his affliction.
Concerning action by the convening authority, yet another observation seems appropriate. If the insanity had come about before this action, we suggest that the convening authority should detail a qualified legal officer to conduct a search for information or circumstances which might produce a result favorable to the accused on review of the findings and sentence. In this way the officer who appointed the court will be enabled to accomplish a more informed exercise of his discretion.
Unlike this Court, the several boards of review do possess authority to determine issues of fact and to act on the sentence. However, generally speaking, they are limited to the evidence presented in the record of trial, and are not permitted to supplement that document. Of course, there are instances where this limitation will not apply— and thus evidence bearing on the accused's possible lack of mental responsibility and capacity, or having to do with the court-martial's jurisdiction to try him, may be weighed by the board, although not offered at the trial. See, e. g., United States v Burns, 2 USCMA 400, 9 CMR 30; United States v Garcia, 5 USCMA 88, 17 CMR 88; United States v Ferguson, 5 USCMA 68, 17 CMR 68.
As to the issue of jurisdiction with respect to an allegedly insane accused, one reply has been that the rights of such a person can never be prejudiced by his inability to present to the board evidence concerning a want of this requisite. According to this argument, there are two basic alternatives: (a) action by the board, or (b) refusal of the board to act on the record. If the latter course is adopted, the accused will remain in confinement pending completion of appellate review, which will not be accomplished until recovery of his mental health. If the former path is followed, however, then there are again two possibilities. One is that the court-martial did, in fact, possess jurisdiction over the accused, in which event his rights will not have been prejudiced. If, on the other hand, the tribunal which tried him was without jurisdiction, then all proceedings — this argument runs — are null, including the review of the case by the board. If the board discovers a lack of jurisdiction, then the accused will be released from confinement under military authority immediately, and will not be held indefinitely, as would have been the case had the alternative of denying review of the record in the first instance been accepted. If, on the other hand, the board erroneously holds that jurisdiction does exist, the accused is in no worse position than he would have been had he been held in custody until the completion of appellate review. Moreover, he will be free to attack military jurisdiction in the civilian courts, and will in no degree be bound by the board's decision on the point.
Possibly this argument may be said to overlook some of the subtleties of the problem — but we need not pass on its validity. Suffice it to say that, in the instant case, there can be no slightest doubt of the jurisdiction of the military authorities over the accused soldier, as to which question he might conceivably have been prejudiced when the board of review acted on his case.
It has been urged that an accused person, who has become insane since trial, is thereby hampered substantially in any attempt his lawyer may make to show that he lacked mental responsibility at the time of the crime or mental capacity to cooperate in this defense. This possibility of harm we believe to be chimerical — for we are sure that psychiatric examiners will meet, at the least, with as much success in discovering mental irresponsibility and want of capacity if the accused is insane after trial as they would if he were sane at that time. As a matter of fact, and in light of universally accepted psychiatric principles, the accused's position is generally more favorable in this respect when he is insane after trial. Since the etiology of most mental diseases is buried to some extent in the past — in childhood, say, perhaps even infancy — it is appreciably more difficult to reconcile present mental health with an hypothesis of past insanity than to reconcile present insanity with that same hypothesis.
For those who are unsatisfied with this response, let us pose a paradox. When an accused is brought to trial and pleads the existence of insanity which is said to deprive him of the ability to cooperate with counsel, two logical possibilities are present. The first is that he is in fact sane, and the second that he is not. But if he is insane, how— it may be asked- — can he cooperate with counsel in showing the existence of such a condition? It would seem to follow under this reasoning, therefore, that trial should proceed in no case once the defendant has pleaded mental incapacity to stand trial. This seems to us to be the identical argument which would maintain that an accused person will be prejudiced if we are to permit a board of review to pass on his mental responsibility and capacity when it is clear that he is insane at the time of the proposed board action. The argument's wholesale unacceptability is graphically demonstrated by the fact that in every jurisdiction courts do proceed to rule on pleas of mental incapacity without disturbing themselves about the "danger" that, if he is insane, the accused may not be able to cooperate with his counsel in showing that this is the situation.
When all is said, the limitations on the power of a board of review to stray beyond the record of trial in acting on findings and sentence convince us that this agency is entitled — on the basis of both theoretical and functional reasons —to review the record of trial of one who has become insane following conviction. Accordingly, we hold that in the present case, no impediment existed either as to appellate review by the board or to the earlier action of the convening authority.
IV
In the Washington case no clear showing was made that the accused was in an insane condition when the board of review affirmed the court-martial's findings — and certainly the board had no notice of any possible mental disorder. In the present case, however, the accused's disability became known long before the board's decision — in fact it necessitated his transfer to Letterman Army Hospital. For some odd reason, though, neither appellate defense counsel nor the members of the board of review appear to have been cognizant even of the accused's post-trial location — much less his mental status.
It is improbable that this circumstance affected in any degree either the care with which the record was reviewed at the board level or the ultimate determination by that tribunal's members. However, this unlikelihood does not preclude us from directing that the board reconsider the present case. Cf. United States v Strand, 6 USCMA 297, 20 CMR 13. On such a reconsideration, it is open to this agency to consider all available evidence which may conceivably shed light on the accused's mental responsibility and capacity. United States v Burns, supra. Thus, for the first time in this confused situation, there will be made available findings with respect to the accused's sanity, at the time of the crime and at that of the trial, rendered by a judicial agency with power to pass on questions of fact. Cf. United States v Washington, supra.
y
The suggestion has been voiced that this case is not properly before us in any event for the reason that there was no service of the decision of the board of review on the accused — this because he was insane at the critical time. It is clear, of course, that the Uniform Code demands that an accused be "notified of the decision" of the board of review in the proceedings involving him. Article 67 (e). See also United States v Marshall, 4 USCMA 607, 16 CMK 181. However, we do not doubt that this requirement must be interpreted realistically. For instance, if a sane accused person were to absent himself without authority prior to the rendition of the board's decision in this case, it seems clear that this eircum-stance would not deprive of power to .complete appellate review. Cf. United States v Houghtaling, 2 USCMA 230, 8 CMR 30. Similarly, we are sure that the post-trial insanity of a criminal defendant does not prevent the completion of review, and that in such a case there is at least one procedure available whereby a notification which will comply with the Code's mandate may be accomplished.
In this connection we observe that the Federal civilian practice appears to accord considerable freedom to a court with respect to the protection of the interests of incompetent persons before it. Thus, Rule 17 (c) of the Federal Rules of Civil Procedure provides that "The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person." (Emphasis supplied.) It has been held that, under the plain language of this rule, the appointment of a guardian ad litem is not mandatory. Westcott v United States Fidelity and Guaranty Co., 158 F2d 20 (CA 4th Cir).
The service of process on incompetents in Federal proceedings is dealt with "in the manner prescribed by the law of the state in which the service is made." Rule 4(d), supra. In certain jurisdictions,, therefore, the appointment of a guardian ad litem will constitute mandatory action, while in others it will not. See Zaro v Strauss, 167 F2d 218 (CA 5th Cir); Scott v United States, 190 F2d 134 (CA 5th Cir). Of course, even where the selection of such a guardian is required by local law, the failure to effect an appointment serves to make the judgment no more than voidable — following a showing that the incompetent possesses a meritorious defense and was not properly represented. Scott v United States, supra.
We are unwilling for many reasons to cause the service of a board's decision on an incompetent to hinge on the law of the locus — on occasion, indeed, a place outside the continental limits of the United States. Nor, of course, does reason exist for demanding that personal service be made on the incompetent himself — since this would often amount to no more than a meaningless gesture. Further, we find no cause to require the creation of a formal guardianship to accomplish this purpose.
Ultimately, we believe, the solution is to be found in Article 70 of the Uniform Code, 50 USC § 657 — in which Congress has provided that The Judge Advocate General of the Service concerned shall appoint appellate counsel to represent accused persons before boards of review and this Court. Indeed, these military defense counsel were genuinely meant to serve as functionaries roughly and generally in the nature of guardians or curators as to all accused persons whose cases are to be reviewed under Articles 66 and 67. Why then should they not be qualified within the present context to serve as "guardians" for the purpose of accepting service of the decision of a board of review? This procedure is believed to be both simple and fully consistent with the Code's intendment; and it meets a distinct need with respect to a problem concerning which the draftsmen of the Federal Rules of Civil Procedure declined to provide a generalized answer.
In short, when there exists doubt of an accused's competency — even in the absence of inquisition or commitment— the board's decision should be served on an official who would, for the purpose of accepting service, play the role of a guardian ad litem so frequently used in civil cases of the civilian community. Cf. Zaro v Strauss, supra. This official may be either the Chief of the Defense Appellate Division of the appropriate Armed Service or else that member of the Division's staff who represented the accused during the hearing before the board. Thereafter steps will be taken here to assure that the insane convict receives every protection in the review of his case in this Court. See United States v Washington, supra.
VI
In the instant cause there appears to have been substantial compliance with the outlined mode of service, and so— since we must remand in any event— we have not hesitated to detail our views on the more significant problems presented by this record. Of course, once the board renders its decision on reconsideration, formal service thereof may be accomplished in the manner indicated. Therefore, the record of trial is remanded to the board of review for further action in accordance with the principles enunciated herein.
Chief Judge Quinn concurs in the result.