(dissenting):
The issue in this case comes down to a matter of form versus substance. Appellant was not entitled to a sanity-board hearing under RCM 706, Manual for Courts-Martial, United States (1995 ed.). Even assuming that appellant was entitled to an RCM 706 *220hearing, the mental examinations of appellant by Doctor Hammer and Lieutenant (Lt) Rogers were an adequate substitute. In any event, non-privileged information is not made privileged by virtue of the substitution. Appellant’s statements during his mental examinations were not privileged when made. The fact that appellant later requested an RCM 706 hearing does not retroactively render those statements privileged. The purposes of the RCM 706 sanity board and the confidentiality privilege which accompanies it were well met by the rulings of the two military judges detailed to appellant’s case. Appellant suffered no prejudice as a result of their decisions on these matters. To hold otherwise would be to exalt form over substance; and it is for this reason that I dissent.
FACTS
Between January and May 1993, appellant tried many ways to feign both mental and physical afflictions for the purpose of being discharged from the Marine Corps.
In mid-January, appellant told Private First Class (PFC) Torres that he no longer wanted to be in the Marine Corps.
On January 25, 1993, appellant was transferred to the Holding Platoon for Student Administration Company at the School of Infantry. Again he told fellow Marines he wanted to get out of the Marines because of his knee injury. On January 27, appellant told PFC Torres that if his knee did not give him that ticket to get out, he would “get out on a psyche evaluation.” On February 4, appellant told another Marine that if his knee did not get him out, he would get out “somehow” and that he “would do anything to get out.” At the Holding Platoon, there had been five or six suicide attempts.
On January 29, appellant swallowed a number of pills as a suicide gesture. Appellant told Staff Sergeant Voegtlin that he had proven his point and would not have to play any more games. That point was to be discharged one way or another.
On May 11, appellant was on light duty following an appendectomy on April 30. He told Field Corpman McGinnis that he wanted to be put on bed rest. Appellant did not look like he was in pain, and McGinnis informed appellant that he could not just be put on bed rest but needed to see a doctor if he was ill. Appellant left without seeing the doctor. Although appellant was not given a chit for bed rest, when he reported to Sergeant Conran, his duty handler, the chit had been checked for bed rest. The investigation showed no authorized person had checked his chit.
After appellant made complaints concerning depression and thoughts of suicide, he was referred to the psychiatry clinic at Naval Hospital, Camp Pendleton. As part of this treatment, he had been seen three times by Doctor Hammer, a Navy psychiatrist. Between his second and third visits, appellant made a suicidal gesture.
Doctor Hammer diagnosed him with a narcissistic personality disorder. Doctor Hammer concluded that this personality disorder was not serious enough to warrant a discharge. Doctor Hammer said in his report that the suicide attempt on the 29th of January was “manipulative in nature” and was not done because of the existence of “a major mental illness.” Doctor Hammer believed appellant was malingering and feigning symptoms for his own personal gain. Doctor Hammer based his diagnosis on appellant’s “vague and ill-defined” symptoms, including any inconsistent statements and admissions during the final session concerning the suicidal gesture. In fact, appellant told Doctor Hammer that his purpose was to get out of the Marine Corps. Doctor Hammer ultimately recommended appellant’s separation.
Following Doctor Hammer’s diagnosis, appellant was referred to a follow-up separation group. During interaction with the separation group and conducting individual testing, Lt PA. Rogers, a clinical psychologist, concluded appellant was exaggerating symptoms of depression to obtain a discharge. Lt Rogers noted that appellant showed signs of unhappiness; however, she testified that unhappiness was not a sign of mental illness.
On April 5, 1993, after appellant was charged with feigning illness, the defense requested a psychiatric board under RCM *221706. The Government opposed this request on the grounds that Doctor Hammer and Lt Rogers had already evaluated appellant’s mental status, and their examinations were the equivalent of an RCM 706 evaluation. Appellant, in response, claimed those examinations were insufficient because appellant had not reported that he was molested as a child during his sessions with Doctor Hammer.
Doctor Hammer testified that knowing appellant had suffered child abuse would not change any of his previous answers if given as part of an RCM 706 board. He noted that this knowledge might contribute to a different diagnosis of post-traumatic stress disorder. He would not have run any tests, although he would have read appellant his rights. Questioned by the judge, Doctor Hammer indicated that the RCM 706 boards were done by only one doctor at Camp Pen-dleton where appellant was stationed.
Lt Rogers also testified that she would not have gathered any additional information if she was part of an RCM 706 board. She said she would have asked different questions and maybe would have done a brief interview or talked to Doctor Hammer because she would feel it was her responsibility to do the initial interviews. However, based on her interview, she would say appellant had sufficient mental capacity to understand the nature of the proceedings and cooperate in his defense. She responded that she would not have done any more testing as part of a 706 board. Again, Lt Rogers repeated, in response to a defense cross-examination question, that she would have re-asked questions because she did not do the initial interviews. On re-direct she again reiterated she would not have needed any more answers to do an RCM 706 board to answer the requisite questions.
The defense argument at trial was that because the doctors did not know of child abuse, there should be a new examination. There was no proffer of additional information and no proffer as to what another person in the mental-health field would have done in this situation. Instead, the defense argued that since appellant was not in the brig, he did not have to have a guard on him. Therefore, they could easily do another examination. There was no allegation that the defense could not talk to other people in the mental-health field and get an additional opinion to make a proffer to the judge.
DISCUSSION
I
On the first issue, there was no clear abuse of discretion when the military judge found appellant’s situation an appropriate circumstance for a substitute sanity board. In fact, there is much to support her decision.
As the lower court properly noted, the language of RCM 706 “implies that some discretion is given to the trial judge. However, ... [the Drafter’s Analysis] offers no insight as to how much discretion, if any, is given to a trial judge when such a request is made.” 44 MJ 612, 614.
This Court set the standard for deciding whether a sanity board is proper in United States v. Nix, 15 USCMA 578, 36 CMR 76 (1965). There, we stated that “the motion should be granted if it is not frivolous and is made in good faith.” 15 USCMA at 582, 36 CMR at 80. Despite changes in the Manual, this approach has remained intact. See United States v. Kish, 20 MJ 652, 655 (ACMR1 1985), and United States v. Janearrek, 22 MJ 600, 601 n. 1 (ACMR 1986).
Appellant reminds us that the military judge ruled that the motion was made in good faith. Appellant asks us to infer that the military judge found the motion not frivolous because she did not deny it outright. But appellant reads the word “frivolous” too narrowly. “Frivolous” can mean that, given the circumstances, a sanity board would offer the court little of weight or importance. See United States v. Lesueur (ACM 27181), 1989 WL 80865 (AFCMR June 13, 1989)(holding that where “the functional substitute of any evaluation which a sanity board might undertake” had been performed, military judge did *222not abuse his discretion in ruling that “ ‘Considering the law, and the facts of record, ordering a sanity board in this case would be frivolous.’ ”). Unpub. op. at 1 (see appendix for full text of this opinion, omitting caption and counsel — 47 MJ at 225).
Here, the military judge found that the substance of a sanity-board evaluation had been performed during the several weeks just prior to the trial by a psychiatrist (Doctor Hammer) and a clinical psychologist (Lt Rogers) whom appellant saw voluntarily on several occasions. The judge properly found that to order a new sanity-board evaluation would be redundant and would add little weight or importance to the determinations which these doctors could already provide.
Such a substitute sanity board is innovative, but not novel. When courts have examined the propriety of a substitute sanity board, they have begun with an inquiry into the purpose of the sanity board. In Janear rek, 22 MJ at 603, the then-Army Court of Military Review2 defined the board’s purpose as providing a method for detecting mental disorders not apparent to the layman to determine if the accused is fit to stand trial. That court also noted the specific form of the board detailed in RCM 706 and reasons for that form. But the conclusion of the court was unmistakable:
The point is that we do not believe that the drafters selected the sanity board format because they had determined that no other procedure was capable of detecting mental disorders or determining an accused person’s mental capacity or responsibility. That being the case, we believe we should look to the substance of the evaluation performed on the accused rather than its form.
22 MJ at 603.
That court listed several factors which distinguish a sanity board and which may indicate that a particular evaluation is the functional equivalent of a sanity board. They are:
• “participation of a psychiatrist or someone with ‘similar expertise’
• performance “of a forensic mental examination”;
• knowledge by the performing doctor(s) “of the reasons for doubting” the subject’s “mental capacity”;
• determination whether the subject is capable of standing trial;
• ability to examine and cross-examine the performing doetor(s) about the evaluation; and
• the opinion of the performing doctor(s) that no further evaluation would be needed to answer the questions required by RCM 706.
22 MJ at 603-04. In a later case, the Army Court of Criminal Appeals reaffirmed and expanded on that list of factors by including “a description of the examiner’s familiarity with forensic evaluation or participation in previous sanity boards.” United States v. Collins, 41 MJ 610, 613 (1994).
Appellant’s case is replete with examples supporting the military judge’s determination that this was an appropriate case for a substitute sanity board. (1) The evaluations were performed by a psychiatrist and a clinical psychologist, independently of each other. (2) Doctor Hammer and Lt Rogers testified that their examinations were substantively equivalent to the forensic mental evaluations contemplated by RCM 706 and answered the required questions on the stand. When the military judge ordered Hammer and Rogers to provide written reports of their evaluations as required by RCM 706, they knew of the pending court-martial and thus were able to provide their substitute sanity-board review with both (3) an understanding of the reasons for doubting appellant’s mental capacity and (4) an answer to the question whether he possessed the capacity to stand trial. (5) Both Hammer and Rogers were examined and cross-examined by trial counsel, defense counsel, and the military judge under oath. (6) Both testified that there was no additional information needed to prepare a report conforming to RCM 706. (7) Both had conducted sanity boards in the past.
*223In addition, the military judge made a specific finding that at the time both Hammer and Rogers interviewed and tested appellant, they were neutral. And the military judge attached all the confidentiality protections of Mil.R.Evid. 302, Manual, swpra, and RCM 706 to the reports which they would be providing to defense counsel — but not trial counsel — per her order.
Furthermore, the military judge invited defense counsel to proffer evidence that confidentiality could not be ensured because the Government already knew more than it should or that there was some change in appellant’s behavior since he was last seen by Hammer and Rogers which would warrant further evaluation. Additionally, the military judge reminded defense counsel of the language of RCM 706(c)(2) and (c)(4) which provides the opportunity for additional questions to be answered by the sanity board in their report and for additional examinations to be requested. Other than referring to appellant’s new adult recall of episodes of childhood molestation, defense counsel offered nothing. Interestingly, the defense motion was based on medical reports by Doctor Hammer and Lt Rogers indicating their full awareness of this “new” information when they evaluated him previously.
Given these circumstances, I cannot conclude that the military judge abused her discretion in finding the evaluations of Doctor Hammer and Lt Rogers to be an adequate substitute for a sanity board.
II
I move now to the second issue in this case, whether the testimony of Doctor Hammer and Lt Rogers on the merits violated the confidentiality privilege afforded in a sanity board. Again, I conclude there was no clear abuse of discretion by the military judge.
The Rules for Courts-Martial limit the psychotherapist-patient privilege3 to the statements of the accused and derivative evidence obtained through a sanity board. Mil. R.Evid. 302(a). The testimony elicited by the Government from Doctor Hammer and Lt Rogers was limited to that which was discoverable through appellant’s medical records and from Hammer and Rogers prior to appellant’s request for a sanity board. Both the initial military judge and her successor precluded the Government from questioning Hammer and Rogers on anything contained within the reports provided to defense counsel pursuant to the RCM 706 request, other than the final conclusions. The limited privilege provided by the Military Rules of Evidence for that report cannot be applied back to that which was not protected before the request.
The privilege is a narrow one meant to encourage the accused to speak openly with the persons performing a sanity-board review. The Rule arises from the “tension between the right against self-incrimination and the favored position occupied by the insanity defense.” Mil.R.Evid. 302, Drafters’ Analysis, Manual, supra at A22-7. If the accused wants to assert that he lacks the mental capacity either to stand trial or to have appreciated the wrongfulness of the alleged criminal conduct, the Government and the court have the right to seek psychiatric counsel rather than rely solely upon the accused’s naked assertion. As the lower court correctly noted, “[Tjhe essential pur*224pose of RCM 706 ... is to detect those individuals who may lack mental responsibility or capaeityt,] • • • not to provide a privileged communication forum for an accused.” 44 MJ at 615.
It should be remembered that the persons performing that review are tasked only with determining whether the accused had a “severe mental disease or defect” at the time of the charged misconduct; if so, whether the accused was at that time “unable to appreciate the nature and quality or wrongfulness” of that conduct; whether the accused has “sufficient mental capacity” to understand the court-martial and to cooperate meaningfully in his defense; and what the “clinical psychiatric diagnosis” would be. RCM 706(c)(2). Since only these conclusions are required by both trial and defense counsel to determine the mental capacity of the accused to stand trial, any statements by the accused, and derivative evidence thereof, are merely incidental to the inquiries. For this reason, though they may be helpful to the Government’s case, those extraneous remarks are not made available to trial counsel.
Here, however, appellant sought the counsel of Doctor Hammer and Lt Rogers on his own accord and voluntarily made all statements used by the prosecution during its case-in-chief. The medical records describing the interviews and testing which Hammer and Rogers conducted were available to both trial and defense counsel. In fact, these records formed the basis for both the charge of malingering by feigning mental derangement and the defense motion for a sanity board.
Nothing in the language of RCM 706, Mil. R.Evid. 302, or our precedents, gives defense counsel his choice of doctor(s) for the sanity board or places any proscriptions on who can perform the sanity board — with the exception of the professional qualifications. Both Hammer and Rogers were frequently called upon to perform sanity-board reviews, and, in the practice of this clinic, to perform them alone. Either Doctor Hammer or Lt Rogers easily could have been chosen randomly for assignment of the sanity board.
Due to the unusual nature of the charges preferred against appellant, the same psychiatric evaluations and diagnoses formed the basis of the determination of appellant’s mental health, the charges themselves, and appellant’s capacity to stand trial. There is no smooth division of the statements which were made to the doctors because the underlying issue of appellant’s mental state was relevant to all three determinations. They are intertwined and, absent clear error, we must trust the fact-finder to sort them out for their proper purposes.
In United States v. Parker, 15 MJ 146 (1983), this Court was faced with a similar matter of intertwining testimony on mental-health issues, though not specifically relating to a sanity board. We noted that “[civilian courts have attempted to avoid the difficulties in a variety of ways ranging from complete exclusion of any statements of the accused, bifurcated proceedings, sequential proceedings, and limiting instructions from the judge.” 15 MJ at 152 (footnotes omitted). We found that there was no prejudicial error in Parker because of the procedures followed by the court-martial, including
• that the accused had been read his rights before the evaluation;
• that the Government’s evaluation results were available to the defense;
• that the statements elicited in testimony were not “an obvious attempt to put the statements qua statements before the members as admissions or a confession”;
• that “there was ample evidence” otherwise upon which the accused could have been found guilty beyond a reasonable doubt; and
• that “the military judge twice gave limiting, curative instructions to the members as to the proper usage of the statements.”
Id. at 152-53. The Court found that final point to be the most significant. Id. Here, appellant was before a military judge alone, so no instructions need be verbalized. Art. 51(c) and (d), Uniform Code of Military Justice, 10 USC § 851(c) and (d). Additionally, statements offered as testimony by Doctor Hammer and Lt Rogers were generally not offered for the truth of the matter asserted *225and where they were, the judge excluded them as hearsay. Finally, there was ample evidence to support the verdict, even had Doctor Hammer and Lt Rogers only testified as to the four explicit questions of RCM 706.
Ill
Assuming, arguendo, that the military judge had either granted a new sanity board or excluded Doctor Hammer’s and Lt Rogers’ testimony on the merits, there would be no different outcome.
Only had appellant made false statements to either Doctor Hammer or Lt Rogers or to some new third person performing a sanity board would there have been a disparity between the information before the various professionals — and, therefore, a disparity in the information available to the opposing counsel — on these various questions. Appellant’s sole challenge to the testimony of Hammer and Rogers was that the sanity board had to be separate to protect his confidentiality. Despite ample opportunity to proffer some evidence in support of this allegation, appellant never did so — at trial, at the Court of Criminal Appeals, or before this Court. Interestingly, though the Government presented 14 witnesses with corroborating and convincing evidence against appellant, appellant did not present a defense in his case. He did not even call on the testimony of a defense psychiatric expert witness, despite being encouraged to do so by the military judge and despite the presence at the defense counsel table during the trial of Dr. Sarachene — another doctor who had seen appellant at the time he was seeing Doctor Hammer and Lt Rogers.
Essentially, what we see here are two separate reviews: first by Doctor Hammer and Lt Rogers in treating appellant and then by those same persons in determining his mental capacity pursuant to RCM 706. In the absence of any evidence — in fact, of any allegation — that the evaluations or testimony of the psychiatrist or the psychologist on either review were biased or false or otherwise malicious, there is no reason to have required the perfunctory review of yet another psychiatrist only to satisfy the preferred format of RCM 706.
APPENDIX
Before FORAY, MICHALSKI and MUR-DOCK, Appellate Military Judges.
DECISION
PER CURIAM:A general court martial consisting of members found the appellant guilty, contrary to his pleas, of two specifications of committing indecent acts with females under 16 years old. He now invites our attention to three errors. United States v. Grostefon, 12 MJ 431 (CMA 1982). We find them all to be without merit, and affirm.
Appellant contends first that the military judge erred when he denied the defense request for a psychiatric examination of the appellant. In his well drafted essential findings, which we adopt, the trial judge stated that the “thorough screening and observation given the accused on entry and during his participation in the alcohol rehabilitation program was in the standard of Jancarek the functional substitute of any evaluation which a sanity board might undertake.” The judge stated that he also based his denial on his “own interaction with and observation of the accused in court.” See RCM 706(a) and (b)(2). He concluded that “[considering the law, and the facts of record, ordering a sanity board in this case would be frivolous.”
The Army Court of Military Review held in United States v. Jancarek, 22 MJ 600 (ACMR 1986) that “in a proper case there can be a substitute for a sanity board____” We agree. For the reasons articulated by the trial judge, we hold that the present case is such a case. We are convinced, as was the trial judge, that the functions of a sanity inquiry discussed in RCM 706 were properly fulfilled by the screening and observation of the appellant performed by Dr (Lt Col) Lenora, a board certified child and adult psychiatrist assigned to the Clark Air Base Medical Center. She testified that she had participated in sanity boards in the past. She agreed with the military judge’s question *226that convening a separate sanity board to consider the appellant’s condition would be “just a frivolous act, ... just wasting time.” The trial judge did not abuse his discretion in refusing to order the sanity board.
The appellant next asserts a combined issue of sentence appropriateness and ineffectiveness of counsel. Appellate Government counsel has provided a thorough affidavit from the civilian defense counsel which addresses these issues. We are convinced that the appellant was well represented by his civilian defense counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We have conducted an independent review of the appropriateness of the sentence. The approved sentence is entirely appropriate for the offenses of which the appellant was convicted. Article 66(c), UCMJ.
We have examined the record of trial, the assignment of errors, and the government’s reply thereto and have concluded that the findings and sentence are correct in law and fact and that no error prejudicial to the substantial rights of the accused was committed. Accordingly, the findings of guilty and sentence are
AFFIRMED.
. See 41 MJ 213, 229 n. * (1994).
. See n. 1, supra.
. It should be noted that this Court has not yet had occasion to determine whether the Supreme Court’s creation of a privilege for confidential communications between a psychotherapist and a patient under Fed.R.Evid. 501 is applicable to the armed forces. See Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). Though the language of Mil.R.Evid. 501, Manual for Courts-Martial, United States (1995 ed.), does not expressly preclude adoption of such a privilege, the drafters’ analysis accompanying the Rule appears to counsel against it. "Rule 501(d) prevents the application of a doctor-patient privilege. Such a privilege was considered to be totally incompatible with the clear interest of the armed forces in ensuring the health and fitness for duty of personnel. The privilege expressed in Rule 302 and its conforming Manual change in Para. 121, is not a doctor-patient privilege and is not affected by Rule 501(d).” Mil. R.Evid. 501, Drafters’ Analysis, Manual, supra at A22-37 (citation omitted). Regardless, Jaffee's applicability to the military is not at issue in this case and need not be decided today.