(concurring in the result) :
I concur in the result. I do not concur fully because I have reservations concerning the approach of the majority opinion, and prefer to base my reversal of the board of review on different grounds.
In United States v. Welch (No. 196), 1 USCMA 402, 3 CMR 136, decided May 27, 1952, a majority of this Court made clear that its members deemed the privilege against self incrimination — a Constitutional right, made applicable in the military scene through the Uniform Code of Military Justice, Article 31, 50 USC § 602 — to be a fundamentally important right. Here, the law officer, the “judge” in court-martial procedure, asked the accused if the matter contained in an offered stipulation as to the testimony of absent witnesses was in fact true. It matters not at all to me that a portion of the matter contained in the stipulation constituted evidence favorable to the accused. One of the facts contained therein was a statement that the accused — charged with desertion — was apprehended. It is familiar learning that, in such a case, this is evidence which weighs heavily against an accused. Especially is this true where, as here, the accused’s theory of defense was that he had no intention permanently to abandon the service.
The Manual for Courts-Martial, United States, 1951, paragraph 150b, in interpreting Article 31, supra, uses the following language:
“The fifth amendment to the Constitution of the United States provides that in a criminal case no person shall be compelled ‘to be a witness against himself.’ The principle embodied in this provision applies to trials by courts-martial. Also, Article 31a provides that no person subject to the code shall compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.”
The Manual, supra, goes on to say that the privilege is personal and must *579be asserted by the individual concerned. However, it is also provided that . . the court should advise an apparently uninformed witness of his right to decline to make any answer which might tend to incriminate him.” This latter rule certainly applies to the accused in this case. The Manual, supra, additionally states, at page 516, that “Unless there is an affirmative showing of record that the accused understands his rights as a witness, the court should assure itself through the LO (president of a special court-martial) by questions addressed directly to the accused that he understands his rights.”
It is clear, from this record, that the law officer — however worthy his purpose — asked the accused an incriminating question without advising him of his right to refuse to answer. See the Uniform Code, supra, Article 31(b). It is also obvious that the accused was unaware of his position in this respect. It is idle to say that there is no coercion involved in a situation such as this. Here we have an accused who is on trial for an extremely serious offense. The law officer — his superior officer — is looked upon by the accused with an admixture of respect and fear. The accused will naturally assume that none but proper questions will be addressed to him, and that he must respond to all inquiries put to him by the law officer. This is pai'tieularly true in a military court-martial setting, as distinguished from a similar one in the Civilian area. It is recognized, of course, that the accused here was not on the stand and under oath at the time he was questioned concerning the stipulation. Consequently from the point of view of strictest technicality, he may not have responded as the result of testimonial compulsion. However, the effect of his reply was in every practical way as damaging as if he had been sworn, and I am unwilling to distinguish between the two situations for the present purpose.
The privilege here involved is basic to sound concepts of American criminal justice. It is not necessary that a violation of the privilege be “flagrant” in order to require reversal, and in the usual case any violation would require prompt reversal. It is evident from the record that the law officer did not follow the specific procedures provided by the Code and the Manual. This was clear error. It requires no extended discussion to demonstrate that the direct product of this error — an explicit admission by the accused of the damaging fact of apprehension — would, under other circumstances, have .resulted in substantial prejudice to him in the court-martial’s findings of guilty of desei'tion.
However, it appears that the accused subsequently, of his own volition, took the stand as a witness in his own defense. He thereby waived his privilege against self incrimination with respect to all matters relevant to the offense of which he was then charged. The Manual for Courts-Martial, supra, paragraph 149b (1); Raffel v. United States, 271 US 494, 70 L ed 1054, 46 S Ct 566; United States ex rel. Rennie v. Brooks, 284 Fed 908. Where—as here, and under these particular circumstances— nothing indicates that the assumption of the stand by the accused was due to the earlier incriminatory admission improperly elicited from him, the error must be regarded as vitiated.
Accordingly, I concur in the view that the decision of the board of review must be. reversed.