Opinion of the Court
HomeR Ferguson, Judge:
The accused was convicted of desertion in violation of the 58th Article of War, 10 USC § 1530. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for fifteen years. The convening authority approved the findings but reduced the confinement at hard labor to three years. An Army board of review, after affirming the findings, further reduced the confinement to one year. Korzeniewski was rotated back to the States after combat duty in Europe. Upon arrival in this country, he was given thirty days’ leave, after the expiration of which, on August 25, 1945, he failed to return to his duty station. He was apprehended in his home town on December 1, 1954, approximately nine and one-half years later. ¡
On December 29, 1954, the charge sheet was signed and the charge was [316]*316ordered investigated. Next, the appointed defense counsel requested a neuropsychiatric evaluation of the accused. The latter was examined and a psychiatric report was submitted on February 7, 1955. The report does not specifically answer the questions prescribed by paragraph 121 of the Manual for Courts-Martial, United States, 1951; nevertheless, it does state that initially the accused attributed his failure to return to the fact that he was upset emotionally as a result of his combat experience and afterward he became increasingly fearful of returning to face the punishment for the offense. Although relatives urged him to return and he was often hopeful that the Military Police would pick him up and remove his apprehensiveness, he felt “impelled” to stay away until he was forcibly returned. In addition the following comments are found in the report:
“The patient co-operated well during the psychiatric examination. He was obviously under a great deal of emotional tension, cried occasionally, and appeared to be distraught over his present plight. In spite of the great tension he was under the patient showed no particular thoughts or mannerisms that could be construed as of psychotic form ....
“The patient was given a standard battery of psychological tests which revealed him to be of low normal intelligence but with poor controls against his deeper impulses. There was some indication that this individual might break down if stresses were too great.
“. . . Emotional Instability Reaction, chronic, severe. Predisposition is unknown ....
“. . . Psychiatric clearance is given for court-martial; however, there is some question of whether this individual can participate intelligently in his defense if he gets too upset in the procedure.”
Shortly after submission of this report, the convening authority ordered the charge treated as noncapital, and the accused was tried. He pleaded guilty and was sentenced to total forfeitures, dishonorable discharge, and fifteen years’ confinement at hard labor, which confinement was reduced as heretofore described. The case was acted upon by the convening authority on February 14, 1955, and the Branch United States Disciplinary Barracks, New Cumberland, Pennsylvania, was designated as the place of confinement.
A document dated April 27, 1955, entitled “Admission Classification Summary” reveals that the accused was received at the Disciplinary Barracks on March 29, 1955. According to this document, the accused attributed his prolonged absence to a fear that if he returned to duty, he would be “committed to a mental hospital.” He remained absent “because of this chronic fear of hospitalization.” The report concluded that the patient was “quite emotional” and some form of therapy would be needed to assist him in overcoming the nervous condition and fear of hospitalization.
A week later Korzeniewski was sent to the Valley Forge Hospital for further treatment and evaluation. A report dated May 10, 1955, from the hospital Clinical Psychology Section, contains a statement to the effect that Korzeniew-ski “gives history of schizophrenic symptoms for past 7 or 8 years.” This report recorded the further information that a thorough psychological examination could not be accomplished because “In spite of encouragement and reassurances on the part of the examiner, tension continued to mount in the patient.” He broke his pencil, tore up his paper, and terminated the examination by “casting his head in his arms refusing to respond to or even speak to the examiner.” Following this episode, the accused commenced receiving treatment for his mental condition. A medical certificate bearing the date of June 6, 1955, executed by the Assistant Chief of the Neuropsychiatry Department, announces that the accused was suffering from “a chronic psychosis” and was receiving “specialized treatments” which consisted of electro-con-vulsive therapy.
While Korzeniewski was at the Valley [317]*317Forge Hospital, his case came on before a board of review. This tribunal requested a psychiatric examination by a medical board. Such a board met and concluded that the accused was legally sane at the time of the commission of the offense and at his trial; however, he did not possess sufficient mental capacity to understand the nature of the appellate proceedings and to cooperate intelligently in that sphere of his defense. A clinical abstract of the report contains the following information:
. . At the present time, he is at the end of a course of 17 treatments which will end on 8 July 1955
“This patient has suffered from a neurotic depressive reaction, acute, severe, manifested by feelings of depression, tearfulness, tremulousness, sleeplessness, and ideas of losing control. At the present time, the patient has partially responded to a course of 17 electro-shock treatments, but is not ready for return to duty as he is slightly impaired, tremulousness remains, and patient is unable to participate actively at • the present time in ward activities ....
“Condition: Improved. Maximum or optimal hospitalization- has not been reached at the present time. Patient ... is considered to be incompetent and not able to manage his own affairs.”
Apparently this report was forwarded to the board of review, and that agency, on August 17, 1955, approved the findings and reduced the confinement to one year.
According to the Government’s brief, on September 1, 1955, after a further medical examination, the accused was considered fit for duty. He completed his confinement and was restored to duty pending a completion of appellate review. Since December 12, 1955, he has been home on emergency leave.
The board of review acted on the case when the accused was mentally irresponsible. The first question then is whether such action was legal. The late Judge Brosman, in United States v Bell, 6 USCMA 392, 20 CMR 108, indicated that a board of review may complete an appellate review of an insane accused. But, Chief Judge Quinn, in United States v Washington, 6 USCMA 114, 19 CMB 240, would limit the power to proceed in such a case to this Court, which is concerned only with questions of law. Judge Latimer, in Washington, supra, was of the opinion that insanity should toll the proceedings at any stage of the appellate process. The present Court therefore is in agreement that a board of review, with its fact-finding powers, cannot proceed with the review of a case of an insane accused. The appellate review of such a case is tolled.
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Opinion of the Court
HomeR Ferguson, Judge:
The accused was convicted of desertion in violation of the 58th Article of War, 10 USC § 1530. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for fifteen years. The convening authority approved the findings but reduced the confinement at hard labor to three years. An Army board of review, after affirming the findings, further reduced the confinement to one year. Korzeniewski was rotated back to the States after combat duty in Europe. Upon arrival in this country, he was given thirty days’ leave, after the expiration of which, on August 25, 1945, he failed to return to his duty station. He was apprehended in his home town on December 1, 1954, approximately nine and one-half years later. ¡
On December 29, 1954, the charge sheet was signed and the charge was [316]*316ordered investigated. Next, the appointed defense counsel requested a neuropsychiatric evaluation of the accused. The latter was examined and a psychiatric report was submitted on February 7, 1955. The report does not specifically answer the questions prescribed by paragraph 121 of the Manual for Courts-Martial, United States, 1951; nevertheless, it does state that initially the accused attributed his failure to return to the fact that he was upset emotionally as a result of his combat experience and afterward he became increasingly fearful of returning to face the punishment for the offense. Although relatives urged him to return and he was often hopeful that the Military Police would pick him up and remove his apprehensiveness, he felt “impelled” to stay away until he was forcibly returned. In addition the following comments are found in the report:
“The patient co-operated well during the psychiatric examination. He was obviously under a great deal of emotional tension, cried occasionally, and appeared to be distraught over his present plight. In spite of the great tension he was under the patient showed no particular thoughts or mannerisms that could be construed as of psychotic form ....
“The patient was given a standard battery of psychological tests which revealed him to be of low normal intelligence but with poor controls against his deeper impulses. There was some indication that this individual might break down if stresses were too great.
“. . . Emotional Instability Reaction, chronic, severe. Predisposition is unknown ....
“. . . Psychiatric clearance is given for court-martial; however, there is some question of whether this individual can participate intelligently in his defense if he gets too upset in the procedure.”
Shortly after submission of this report, the convening authority ordered the charge treated as noncapital, and the accused was tried. He pleaded guilty and was sentenced to total forfeitures, dishonorable discharge, and fifteen years’ confinement at hard labor, which confinement was reduced as heretofore described. The case was acted upon by the convening authority on February 14, 1955, and the Branch United States Disciplinary Barracks, New Cumberland, Pennsylvania, was designated as the place of confinement.
A document dated April 27, 1955, entitled “Admission Classification Summary” reveals that the accused was received at the Disciplinary Barracks on March 29, 1955. According to this document, the accused attributed his prolonged absence to a fear that if he returned to duty, he would be “committed to a mental hospital.” He remained absent “because of this chronic fear of hospitalization.” The report concluded that the patient was “quite emotional” and some form of therapy would be needed to assist him in overcoming the nervous condition and fear of hospitalization.
A week later Korzeniewski was sent to the Valley Forge Hospital for further treatment and evaluation. A report dated May 10, 1955, from the hospital Clinical Psychology Section, contains a statement to the effect that Korzeniew-ski “gives history of schizophrenic symptoms for past 7 or 8 years.” This report recorded the further information that a thorough psychological examination could not be accomplished because “In spite of encouragement and reassurances on the part of the examiner, tension continued to mount in the patient.” He broke his pencil, tore up his paper, and terminated the examination by “casting his head in his arms refusing to respond to or even speak to the examiner.” Following this episode, the accused commenced receiving treatment for his mental condition. A medical certificate bearing the date of June 6, 1955, executed by the Assistant Chief of the Neuropsychiatry Department, announces that the accused was suffering from “a chronic psychosis” and was receiving “specialized treatments” which consisted of electro-con-vulsive therapy.
While Korzeniewski was at the Valley [317]*317Forge Hospital, his case came on before a board of review. This tribunal requested a psychiatric examination by a medical board. Such a board met and concluded that the accused was legally sane at the time of the commission of the offense and at his trial; however, he did not possess sufficient mental capacity to understand the nature of the appellate proceedings and to cooperate intelligently in that sphere of his defense. A clinical abstract of the report contains the following information:
. . At the present time, he is at the end of a course of 17 treatments which will end on 8 July 1955
“This patient has suffered from a neurotic depressive reaction, acute, severe, manifested by feelings of depression, tearfulness, tremulousness, sleeplessness, and ideas of losing control. At the present time, the patient has partially responded to a course of 17 electro-shock treatments, but is not ready for return to duty as he is slightly impaired, tremulousness remains, and patient is unable to participate actively at • the present time in ward activities ....
“Condition: Improved. Maximum or optimal hospitalization- has not been reached at the present time. Patient ... is considered to be incompetent and not able to manage his own affairs.”
Apparently this report was forwarded to the board of review, and that agency, on August 17, 1955, approved the findings and reduced the confinement to one year.
According to the Government’s brief, on September 1, 1955, after a further medical examination, the accused was considered fit for duty. He completed his confinement and was restored to duty pending a completion of appellate review. Since December 12, 1955, he has been home on emergency leave.
The board of review acted on the case when the accused was mentally irresponsible. The first question then is whether such action was legal. The late Judge Brosman, in United States v Bell, 6 USCMA 392, 20 CMR 108, indicated that a board of review may complete an appellate review of an insane accused. But, Chief Judge Quinn, in United States v Washington, 6 USCMA 114, 19 CMB 240, would limit the power to proceed in such a case to this Court, which is concerned only with questions of law. Judge Latimer, in Washington, supra, was of the opinion that insanity should toll the proceedings at any stage of the appellate process. The present Court therefore is in agreement that a board of review, with its fact-finding powers, cannot proceed with the review of a case of an insane accused. The appellate review of such a case is tolled. If sanity is subsequently restored, review at that level may then be completed.
Before finally disposing of this ease on that ground, however, we feel that some attention must be given to the argument advanced by the accused with respect to the. issue of insanity. Because of the long interval of time which elapsed from the accused’s desertion in July 1945, until he was examined by a psychiatrist in January 1955, the principle of mental capacity at trial time is distinctly separated from mental responsibility at the time the offense was committed. Other than the statement that Korzeniewski “gives history of schizophrenic symptoms for past 7 or 8 years” contained in a report of May 10, 1955, from the Valley Forge Hospital Psychiatric Section, there is nothing to indicate any mental aberrations on the part of the accused anywhere near the time of the commission of the offense. Giving the accused every benefit of the doubt, seven or eight years from May 1955 would fall considerably short of mental irresponsibility during August 1945, when the accused absented himself from the military. Moreover, Korzeniewski’s mode of living during the nine intervening years, between the commencement of his absence and his apprehension, overwhelmingly suggests that he was mentally responsible during this period of time. He was a respected member of his community, was married and maintained a satisfactory home life. No doubt he was nervous [318]*318and worried as he must have realized that the day of reckoning would inevitably dawn. Very probably this long period of tension contributed ultimately to his mental derangement, which happened some three or four months after his trial, while he was serving his confinement. We can find nothing, however, in the record to indicate that the accused was mentally irresponsible at the time of the commission of the offense or was incapable of forming a specific intent to desert during this period of unauthorized absence from the military.
When we turn to the accused’s mental capacity to stand trial, we find our answer in the pretrial psy chiatric report dated Feb ruary 7, 1955, four days prior to the trial. Although the report advised caution lest the accused become overly excited, it clearly stated that the accused was mentally competent to stand trial.
In summary, a careful review of the entire record leaves us with no alternative but to conclude that the accused was sane both at the time of the commission of the offense and at the time of trial. On February 7, 1955, he was found mentally competent, and four days later, he pleaded guilty to the charge. Thereafter, a medical board examined the accused while he was in confinement. The board submitted a report on July 28, 1955, which recited as of that date the accused was unable to manage his affairs; however, he had been sane at the time of the commission of the offense and at the time of trial. He was regarded as mentally competent and was released from the hospital during September 1955. Since December 1955, he has been home on leave. Nothing is contained in the record to overcome the presumption of the accused’s mental responsibility for the offense or mental capacity to stand trial. Paragraph 122a, Manual for Courts-Martial, supra, pages 201-202. The disorders and derangements of the accused appear after his apprehension. From that time on, the record establishes that the accused’s mind gradually^ deteriorated until a number of months after his trial he became temporarily deranged. He appears initially to have been a nervous individual, and guilt feelings and fear of punishment undoubtedly gnawed away at his mental responsibility. When these apprehensions became reality, he began to deteriorate; however, he had not progressed to the point of incompetency by trial time. He became incompetent some three or four months after incarceration, and before his confinement had been served he had been mentally restored. He is presently sane and carrying on again in a civilian community.
Since the board of review acted in this case when the accused was mentally irresponsible, the case is returned to that body for further consideration in view of this decision.
Judge LatimeR concurs.