(dissenting):
I dissent.
In the instant case, the Government concedes that the specimen in question was obtained solely as a result of the order of a non-commissioned officer requiring the accused to submit it. The accused was required to obey that order or face the sanctions applicable to Article 91, 50 USC § 685, in the Far East. Yet, the only purpose of issuing the order was to procure evidence to be used against him in a criminal proceeding. Our problem, therefore, is to determine whether an accused or suspected person may be lawfully ordered to produce a urine specimen.
Prior decisions of this Court hold that such a means of obtaining evidence is illegal, and its results inadmissible in evidence.
In United States v. Rosato, 3 USCMA 143, 11 CMR 143, we were concerned with the legality of an order to an accused to print the alphabet for the purpose of assisting investigators in establishing his identity as the author of a questioned document. A unanimous court held that order invalid, declaring:
“. . . Article 31, supra, permit [s] an accused to remain absolutely silent regarding an offense of which he . . . [is] accused or suspected. It follows, therefore, that he may not be compelled, by military orders carrying the awesome sanctions of the 90th Article, supra, or otherwise to furnish a necessary evidential fact.” [Emphasis supplied.]
Upon similar grounds in United States v. Eggers, 3 USCMA 191, 11 CMR 191, we held that handwriting specimens supplied as a result of a protested military order are inadmissible in evidence.
In those decisions we distinguished eases holding that it is not a violation of the prohibition against compulsory self-incrimination to require an accused to: submit to fingerprinting, place his foot in a track, submit to an examination of his person for scars, be forcibly shaved and have his hair trimmed, grow a beard, or try on a garment to determine its fit. We, there, pointed out that such instances do not involve an affirmatively conscious act on the part of the. individual affected by the demand. A further distinguishing element is the fact that should the individual refuse to comply with the order, reasonable force only would be required to accomplish the objective. The concurring opinion of Judge Bros-man and my dissenting opinion in United States v. Williamson, 4 USCMA 320, 15 CMR 320, show that a majority of this Court would proscribe compulsory catheterization.
Because the order here actually compelled the accused to furnish evidence against himself, it violated the Fifth Amendment to the Constitution of the United States and Article 31, 50 USC *66§ 602. All evidence flowing from this source was consequently inadmissible, I would reverse the conviction and dismiss the charge.