(dissenting):
I dissent.
My views on this subject may be found set out in United States v Williamson, 4 USCMA 320, 15 CMR 320; United States v Barnaby, 5 USCMA 63, 17 CMR 63, and allied cases, and they need not be repeated here. However, they no longer speak the law for the military service, for the doctrine announced therein is overruled by the holding here, regardless of the reservations found in the present opinions.
One of the reasons advanced for overturning those principles seems to be founded on the notion that some sort of obscure distinction may be drawn between this case, which involves the legality of an order, and a case where the question concerns the admissibility of evidence. I fail to see the refinement, for Article 31 has been interpreted to prohibit the introduction of evidence which is obtained in violation of any of its provisions, and it is difficult to support an argument that an enlisted man who furnishes a urine sample under threat of punishment for violating an order has not been coerced. A person placed in a situation where he must comply with an order or face prosecution for a serious offense is not left with a free choice, and one need not be unusually discerning to sense a great deal of pressure in this situation. The sole question in this case, then, is the legality of the means of coercion employed, which, in turn, depends upon whether the order given violated the terms of Article 31. It is true that in Barnaby, the accused obeyed the order given to him and furnished a urine specimen. The specimen was tested and the test result was offered by the prosecution as evidence. But as. I understand the law, the accused must claim his constitutional or statutory right against self-incrimination or it is waived, and the appropriate time to raise the issue'is when the evidence is first offered. In Barnaby,/the issue was not waived, and. was raised *459when the evidence was first offered. Once raised, the question of whether this evidence was admissible depended upon the lawfulness of the order which brought forth the sample; once again the ultimate issue was whether Article 31 had been violated by the giving of the order. Therefore, the conclusion is inescapable that, at the very least, the principles announced in United States v Barnaby, supra, are no longer the law.
Orders given by military superiors are presumed to be legal and anyone who refuses to obey a command does so at his peril. Here the accused was ordered to furnish a urine specimen and the burden was cast upon him to overcome the presumption of legality. That burden would be carried in this case if compliance with the order would have compelled him to incriminate himself as that term is understood in law. However, if the order did not require him to do that, then it was proper and the conviction must stand. Hence the fundamental issue in this case is the scope of the phrase “compel any person to incriminate himself.” Some consideration must be given to the meaning of each word, including the last.
The reported cases bear evidence that the question is not without difficulty, but I had thought we laid down a good working rule in United States v Rosato, 3 USCMA 143, 11 CMR 143, United States v Eggers, 3 USCMA 191, 11 CMR 191, and United States v Greer, 3 USCMA 576, 13 CMR 132. In those cases we held that an accused could not be required to perform an act which required active participation and affirmative conduct in the production of incriminating evidence. It is apparent from our holding in those cases that we did not then believe that such acts as compelling a person to submit his body for physical examination, to furnish blood samples, to submit to fingerprinting, to deliver up contraband property, or to surrender the tools of the crime, fell within the proscription of either the Constitution or Article 31, because the evidence could be obtained with only passive cooperation on the part of the accused. Later, in Barnaby, supra, we held that compelling an accused to furnish a urine sample was akin to the enumerated classes and, therefore, not in contravention of law. To illustrate the distinction, I can do no better than quote from the late Judge Brosman’s concurring opinion in United States v Williamson, 4 USCMA 320, 15 CMR 320. There he stated (page 329):
“Both handwriting samples and spoken words — the evidentiary items involved in Rosato, Eggers, and Greer, cited by my brothers — involve a creative performance on the part of the accused. Without his conscious affirmative action, they can never exist; they could not possibly be — apart from a positive exercise of will by him. Conceivably the accused might live out the remainder of his life without either speaking or writing — although admittedly the prospect would not be happy. The creation of urine, on the other hand, eventuates apart from any sort of effort of will, and involves only involuntary and unavoidable physiological functions. In this sense, therefore, no ‘creativeness’ is essential to the formation or discharge of this fluid. The conscious mind controls only the time and place of essential disposal. Accordingly, I am sure that — unlike the rule in the situations involving handwriting and voice exemplars — a person suspected on reasonable grounds may lawfully be required by an order from superior authority to furnish urine samples for chemical analysis.” .
The rationale therein expressed may be further highlighted by suggesting a slightly different version of the order given here. If we assume that the officer had ordered the accused to use a certain receptacle when it became necessary to void his urine, would that order be illegal because it compelled him to incriminate himself? If so, then ordering a person to channel his blood sample into a test tube would also be illegal. I could go on ad infinitum, but I believe my point is clear.
I agree that experience has taught us that retention of the guarantees found in the Constitution and the Code *460is essential. But I do question an extension of the law to cover a situation not within the contemplation of the framers of the Constitution or the members of Congress who enacted the Uniform Code of Military Justice. Moreover, I am certain that the Judges of the Supreme Court of the United States, the judges of the other courts referred to in our previous decisions, and the framers of the American Law Institute’s Model Code of Evidence were well aware of those guarantees when they concluded that the compulsory performance of certain acts fell without the purview of constitutional guarantees. Being faced with a choice, I prefer their reasoning and the results they reach to the conclusion of my associates. In addition, I mention that while Congress and most forward-thinking persons are striving valiantly to control the traffic in habit-forming drugs, we appear to be taking a step backward in denying to the Services a valuable and legal means of controlling a most despicable offense. Most important of all, if the sweep of the concurring opinion is as broad as it appears to me, then crime detection in the Services will be unnecessarily stifled.