(concurring in the result):
The plain error issue is not unique to military practice. The Rules for Courts-Martial (R.C.M.) are modeled after the Federal Rules of Criminal Procedure, and accordingly, we should follow the guidance provided by our superior court in applying or interpreting our rules. Specifically, we should apply Supreme Court precedent in determining whether we should correct an error not raised at trial. While I initially agreed with the “plain error” standard set forth in United States v. Powell, 49 M.J. 460 (C.A.A.F.1998), upon reflection, I have recognized my mistake and have since followed Supreme Court precedent. See, e.g., United States v. Kho, 54 M.J. 63, 65-66 (C.A.A.F.2000)(Crawford, C.J., concurring in the result). In Kho, I stated:
I see no difference between an error that “materially prejudices ... substantial rights” under Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a), or an error that “affects substantial rights” under Fed.R.Crim.P. 52(b). As the Court in Johnson [v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)] indicated, an appellate court may “notice a forfeited error.” A finding or sentence “may not be held incorrect” “unless the error materially prejudices the substantial rights of the accused.” Thus, both prong four of Johnson and Article 59(a) instruct appellate courts as to when they may set aside the findings and sentence. The appellate court then analyzes whether the error was harmless. That is, it is possible to have an error that “materially prejudices ... substantial rights,” such as a constitutional violation, i.e., a confession obtained in violation of the Fifth Amendment, but still affirm the conviction. I view the application of these four prongs *280to be the same, whether employed by a court of discretionary appeal or a court with mandatory review.
Id. at 66.
Absent articulation of a legitimate military necessity or distinction, or a legislative or executive mandate to the contrary, this Court has a duty to follow Supreme Court precedent. Sadly, this is not an isolated incident where this Court has departed from the settled law of the Supreme Court when examining a constitutional right,1 or when interpreting the same or a similar statute.2 As I recently pointed out in United States v. Martinelli, 62 M.J. 52 (C.A.A.F.2005), the “specialized society” that we serve “is populated not only by the uniformed men and women who bravely serve our Nation, but by their spouses and children, all of whom have every right to expect a measured and rational application of law by trial and appellate courts.” Id. at 86-87 (Crawford, J., dissenting). Failure to follow Supreme Court precedent not only places the jurisprudence of this Court outside the judicial mainstream, but also undermines that specialized society’s respect for, and confidence in, the military justice system.
This case should be affirmed because Appellant failed to establish that there was a plain error that affected his substantial rights. Furthermore, Appellant has failed to establish the error “seriously affect[ed] the fairness, integrity, or public reputation of [the] judicial proceedings” in his case. Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (quotation marks and citations omitted).
. See, e.g., United States v. Kreutzer, 61 M.J. 293 (C.A.A.F.2005)(failed to follow federal precedent and instead held constitutional right to a mitigation specialist); United States v. Roberts, 59 M.J. 323 (C.A.A.F.2004)(refused to follow Supreme Court’s standard of review for wrongful nondisclosure set out in cases such as Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)); United States v. Mapes, 59 M. J. 60 (C.A.A.F.2003)(failed to follow independent source rule set forth in Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)); United States v. Walters, 58 M.J. 391 (C.A.A.F.2003)(failed to allow a waiver of double jeopardy claim as provided in United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964)); United States v. Brennan, 58 M.J. 351 (C.A.A.F.2003)(failed to require the showing of "infliction of punishment [as] a deliberate act intended to chastise or deter,” indicated in Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)); United States v. Redlinski, 58 M.J. 117 (C.A.A.F. 2003)(failed to follow Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), and Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)); United States v. Quiroz, 55 M.J. 334 (C.A.A.F.2001)(refused to follow Supreme Court practice on double jeopardy and multiple punishment set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)); United States v. Kelly, 45 M.J. 259 (C.A.A.F. 1996)(failed to follow Supreme Court teachings on the right to counsel articulated in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), and Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976)); United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995)(failed to follow California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), with regard to the destruction of evidence); United States v. Kaliski, 37 M.J. 105 (C.M.A.1993)(failed to follow independent source principle set forth in Silverthorne Lumber Co., Inc.). In the past, this Court has refused to follow Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), with respect to peremptory challenges. See, e.g., United States v. Hurn, 55 M.J. 446 (C.A.A.F.2001); United States v. Chaney, 53 M.J. 383 (C.A.A.F.2000).
. See, e.g., United States v. Perron, 58 M.J. 78 (C.A.A.F.2003) (failed to follow Supreme Court precedent regarding specific performance of pretrial agreements, such as Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)); Cf. United States v. Mizgala, 61 M.J. 122 (C.A.A.F.2005)(contrasting Article 10, Uniform Code of Military Justice, 10 U.S.C. § 810 (2000), the Speedy Trial Act of 1974, Pub.L. No. 93-619, 88 Stat. 2076, and R.C.M. 707).