Opinion of the Court
ROBERT E. Quinn, Chief Judge:A special court-martial convicted the accused of assault upon Warrant Officer Wood, in violation of Article 91, Uniform Code of Military Justice, 10 USC § 891. It adjudged a sentence which includes a bad-conduct discharge.
Two related issues are presented for our consideration. The first concerns the admissibility of certain testimony; the second is whether trial counsel prejudiced the accused by referring to that testimony in his closing argument.
Two prosecution witnesses described the assault by the accused upon Warrant Officer Wood. They testified that the accused threw a metal card file at Wood and hit him in the chin. Wood also testified for the prosecution. He said that Sergeant Rossler, the accused, and he argued over whether a medical excuse from KP confined the accused to quarters or obliged him to perform light duty in the squadron area. The talk turned to the accused’s unairman-like appearance. The accused “became violent” and began “cursing.” Wood called the commanding officer, but he was absent. He therefore talked to Captain Boyce, the Adjutant. He reported the accused’s conduct and requested that the Captain “call the air police to come and apprehend” the accused. The accused then “started cursing” Wood. Captain Boyce, who was still on the telephone, was informed of that. The accused began “beating” the walls with his fist until they “were all bloody.” The accused’s “emotional display was something” Wood had never before seen in his “entire” military and civilian life. Suddenly Wood felt a blow on the face; it dazed him. Then he saw blood “running from . . [his] face onto the desk.” At this point in his testimony, Wood was asked “Where was this cut?” He answered, “Across the chin,” and continued with an extensive recital of the later events in the office. He said that Sergeant Rossler restrained the accused. About five minutes later Captain Boyce arrived at the office. He spoke to the accused and asked him “what seemed to be the matter”; the accused replied that “under Article 31, he didn’t have any statement to make” and that was “all he did say.” The Captain offered the accused a cigarette which the accused refused. The accused then “started crying” and remarked that his “five years in the Air Force have been wasted.” The air police arrived and took the accused away.
In his final argument to the court-martial, trial counsel maintained that the evidence bore out “in toto” his open- . ing statement. He contended it established that Warrant Officer Wood was the accused’s superior officer and that the accused knew he was such. His argument continued as follows:
“The reason for this was the fact that they had previous dealings. He had addressed him previously as Mr. Wood, the proper title for a warrant officer and when asked what was the trouble about five minutes after this incident occurred, the accused stated *570he had the right to refuse to answer any questions under Article 31.”
Article 31 of the Uniform Code, 10 USC § 831, provides inter alia that no person subject to the Uniform Code may “request any statement” from one suspected of an offense without first informing him of the nature of the accusation and advising him that he “does not have to make any statement regarding the offense.”
Unquestionably, Captain Boyce’s appearance at Wood’s office indicates he came to inquire into the incident. But Captain Boyce did not testify, and there is no clearly defined picture of whether he talked to the accused as a person suspected of an offense, or whether he was, as Adjutant, simply trying to ascertain the circumstances for the purpose of reporting to the commanding officer. See United States v McGriff, 6 USCMA 143, 19 CMR 269; United States v Dandaneau, 5 USCMA 462, 18 CMR 86. We assume for the purposes of this case that the accused’s responses were inadmissible as evidence against him. United States v Kowert, 7 USCMA 678, 23 CMR 142. However, they were not affirmatively offered by the Government. Rather they were disclosed by the witness Wood in a wholly unresponsive answer, and were presented simply as part of a general recital of the events that transpired in his office. We can hardly charge trial counsel and the president of the court with resposibility for not anticipating the reply. United States v Johnson, 3 USCMA 447, 13 CMR 3. The question, then, is whether either should have acted sua sponte to strike the testimony. United States v Williams, 8 USCMA 443, 24 CMR 253.
The account of the exchange between the accused and Captain Boyce tends to evoke some sympathy for the accused’s plight. It is not at all unreasonable to suppose that, in context, the court members would not draw any adverse inference from the accused’s remarks. Considering the form in which the evidence was presented, its wholly incidental nature as part of a general description of the events, and the absence of objection by defense counsel, a qualified lawyer, the failure of trial counsel to move, and the failure of the president to strike the testimony was not a violation of any substantial right of the accused.
A somewhat different problem is presented by trial counsel’s argument. If nothing more had been said, it is possible that under the circumstances the court-martial might have been inclined not to draw an inference of guilt from the accused’s reliance upon Article 31. However, trial counsel removed that possibility. What was inferential, he made explicit. He asked the court-martial to consider the accused’s statement as direct proof of at least one of the elements of the offense. Thus the accused’s right to say nothing was used against him. This was error.
Left for consideration is the effect of trial counsel’s improper argument. It is well settled that “mis-conduct by a prosecuting attorney in his final argument does not justify reversal of an otherwise valid conviction if the evidence of guilt is clear and compelling.” United States v Beatty, 10 USCMA 311, 314, 27 CMR 385. See also United States v Skees, 10 USCMA 285, 289, 27 CMR 359. The record of trial establishes beyond doubt the compelling nature of the evidence of guilt. Accordingly, we affirm the decision of the board of review.
Judge LatimeR concurs in the result.