Opinion of the Court
ROBERT E. Quinn, Chief Judge:A general court-martial in Japan convicted the accused of willful disobedience of an order to furnish a specimen of his urine to agents of the Office of Special Investigations, in violation of Article 90, Uniform Code of Military Justice, 10 USC § 890. He was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for one year. Intermediate appellate authorities affirmed the conviction. We granted review.
On May 9, 1955, Special Agent E. R. Lisec of the Office of Special Investigations questioned the accused on his suspected use of narcotics. The accused was asked for a specimen of his urine for the purpose of submitting it to chemical analysis to determine the absence or presence of a narcotic. The accused refused to comply with the request. Thereupon, he was taken to his squadron commander, Lieutenant Colonel Thomas. On being apprised of the accused’s refusal, Colonel Thomas gave the accused an order to the effect that “the next time he urinated he was to give the OSI a specimen of his urine.” The accused informed the Colonel that he would not comply with the order. Asked to reconsider because he could be court-martialed for disobedience, he said “No, sir.” He was then “excused.”
The accused saluted Colonel Thomas. As he left the office, he heard Colonel Thomas tell someone to prepare “charge sheets.” About five minutes later, while still in the custody of Agent Lisec, he went to the men’s room. In the presence of the agent, he passed urine. However, he did not provide the agent with a sample. Four hours later, he was taken to the dispensary. He was given a physical examination, and again asked for a specimen of his urine. Once more he refused to provide it. |
The first question for our consideration is whether Colonel Thomas’ order is legal. An order which contravenes the fundamental protections accorded to an accused by Article 31, Uniform Code of Military Justice, 10 USC § 831, is illegal. United States v Greer, 3 *454USCMA 576, 13 CMR 132; United States v Rosato, 3 USCMA 143, 11 CMR 143. In part, Article 31 provides that no person subject to the Code “may compel any person to incriminate himself.”
In several previous cases we considered the general problem of obtaining a urine specimen from a person suspected of wrongful use of narcotics. Our initial views were set out in United States v Williamson, 4 USCMA 320, 15 CMR 320. Each judge approached the problem from a different viewpoint. With the author of present opinion dissenting, Judge Latimer and the late Judge Brosman concluded that a urine specimen extracted from the body of an unconscious accused by means of a catheter was admissible as evidence. On the same day the Court decided United States v Booker, 4 USCMA 335, 15 CMR 335. There, we unanimously agreed that a urine specimen obtained from an accused with his consent and full cooperation is admissible. During the next term of Coui't, we decided United States v Barnaby, 5 USCMA 63, 17 CMR 63, and United States v Jones, 5 USCMA 537, 18 CMR 161. In the Barnaby case, the accused was arrested by a Criminal Investigation Detachment agent and taken to an Army hospital for a physical examination. A noncommissioned officer ordered the accused to urinate into a bottle which he handed to him. The accused complied. With the author of the present opinion dissenting, Judges Latimer and Bros-man agreed that the order did not violate Article 31. In the Jones case, however, Judge Brosman joined the author in setting aside the accused’s conviction. In that case the accused was asked to provide a sample of his urine. He tried, but failed. Over his protest, an Army doctor obtained a specimen by catheterization.
Here, the Government has attempted to reconcile the Barnaby decision with that in the Jones case on the ground that an order to provide a urine sample constitutes merely a “moral sanction to achieve a legitimate end.” The force of an order by a superior officer can hardly be equated to a moral sanction. On the contrary, it is a tremendously powerful force in military law. In time of war, a willful refusal to obey is punishable by death. Article 90, Uniform Code of Military Justice, 10 USC § 890. In time of peace, it carries a penalty even greater than that for desertion with the intent to remain away permanently. Manual for Courts-Martial, United States, 1951, paragraph 127c, Section A, page 220. However, we need not elaborate. Neither need we consider the Government’s attempted justification of the rationale, or the effect of Judge Brosman’s views. Suffice it to say that, in our opinion, to compel a person against his will to produce his urine for the purpose of using it, or an analysis of it, as evidence against him in a court-martial proceeding, violates Article 31 of the Uniform Code.
The use in a criminal proceeding of a urine specimen obtained from an accused against his will has received the direct attention of the Federal courts in only a few reported instances. The cases are not definitive, but they tend to support our conclusion. In Bratcher v United States, 149 F2d 742 (CA 4th Cir) (1945), cert den 323 US 885, 65 S Ct 1580, 89 L ed 2000, pursuant to his draft board’s order, the defendant was given a regular preinduction physical examination. As part of the examination, he was required to, and did, provide a sample of his urine. On analysis, it was determined that the urine contained benzedrine, a drug which has the effect of increasing the blood pressure. The defendant was then indicted for evading service under the Selective Training and Service Act by wrongfully presenting himself for induction while in an abnormal physical condition which resulted from his knowing use of the drug.
Before trial, the defendant moved to suppress the evidence of the urinalysis. He contended that his urine had been obtained under circumstances which violated his rights under the Fourth and Fifth Amendments of the United States Constitution. After a hearing at which evidence was taken, the trial court denied the motion. It held that the defendant had “totally failed” to show that the object of the physical *455examination was to secure evidence to. be used against him in a criminal prosecution. The Court of Appeals for the Fourth Circuit unanimously affirmed. It pointed out that the urine sample was obtained as part of the regular induction process under the Selective Training and Service Act and the regulations thereunder, and that “there was no evidence offered to show that the authorities intended anything other than to comply with the regulations and induct the defendant if he was found acceptable.” Ibid, page 745.
Significantly, both the trial judge and the Court of Appeals in the Bratcher case believed it was important to determine whether the urine sample had been obtained from the accused as a mere incident of the induction procedure or for the specific purpose of obtaining evidence for the use against him in a criminal proceeding. See United States v McGriff, 6 USCMA 143, 19 CMR 269. The inquiry and the ground of their decision indicate that if the defendant had succeeded in showing that the urine specimen was taken without his consent and for the purpose of using it as evidence, both tribunals would have held the urinalysis to be inadmissible.
In United States v Nesmith, 121 F Supp 758 (DC DC) (1954), the defendant also contested the admissibility of the results of an analysis of a urine specimen obtained from him by police officers. In pertinent part, District Judge Holtzoff said:
“Rochin v. People of California, 342 U. S. 165, 72 S Ct 205, 210, 96 L. Ed. 183, on which defense counsel relies, is not in point, as it dealt with an entirely different principle. The case was decided under the due process clause of the Fourteenth Amendment, and did not involve the privilege against self-incrimination under the Fifth Amendment. In that case, local deputy sheriffs receiving information that the defendant was selling narcotics, broke into his room. He immediately seized two capsules and put them in his mouth. A struggle ensued, in the course of which the officers attempted to extract them, After these efforts proved unavailing, he was immediately taken to a hospital and a stomach pump was forcibly applied to him against his will. As a result the two capsules were vomited by the defendant. . . . The principle of this case would he applicable here if force had been exerted or threats made to compel the defendant to comply with the demand for a specimen, or if some instrument had been forcibly applied to his body in order to obtain it.” [Italics supplied.]
Although the quoted part of Judge Holtzoff’s opinion is dictum, it supports the conclusion that a urine specimen obtained from a person by force or threat, or the unauthorized intrusion of an instrument in his body, for use against him in a criminal proceeding, is inadmissible. As we previously pointed out in this opinion, the force of a military order by a superior officer is one of the strongest known to military law. We hold, therefore, that the order here was illegal. To the extent that United States v Barnaby, supra, is inconsistent with this decision, I would overrule it. However, Judge Ferguson, who joins me in the result in this case, does not choose to go that far. His views are expressed in his separate opinion.
The decision of the board of review is reversed. The findings of guilty and the sentence are set aside, and. the charge is ordered dismissed.