(dissenting):
I dissent.
It is with regret that I part from my brothers on their interpretation of the record of trial before us, but I am convinced that a fair reading of the transcript of testimony establishes that the medical officer involved suspected the accused of using narcotics and initiated the series of events which eventually led to his conviction.
Tried by general court-martial, the accused pleaded guilty to a charge of absence without leave, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886, and not guilty to the offense of using a habit-forming drug, in violation of Code, supra, Article 134,10 USC § 934. He was found guilty of both delicts and sentenced to bad-conduct discharge, forfeiture of all pay .and allowances, confinement at hard labor for two years, and reduction to steward recruit. With some reduction in the portion of the sentence adjudging ■confinement, intermediate appellate authorities affirmed, and we granted accused’s petition on the issue whether it was proper to receive evidence relating to a medical officer's opinion that accused was a narcotics addict.
Accused was apprehended by civilian authorities as an unauthorized absentee ■on March 10, 1959. He was delivered into the custody of naval personnel, and ■on March 12, 1959, was required to undergo a routine preconfinement physical examination at the U. S. Naval Receiving Station brig. The examination was conducted by Lieutenant Gerald W. Buetow, Medical Corps, United States Naval Reserve, a naval ■officer on active duty. Dr. Buetow noticed vein punctures on accused’s arms. His own testimony best reflects the suspicion which these marks .aroused:
“Q. You have testified that it was your opinion that due to the physical factors you observed on the accused and his past history, that he had used some type of narcotic drug; is that correct?
“A. Yes.
“Q. When did you first make this determination ?
“A. I don’t understand what you mean?
“Q. Did you make this determination after your examination on the 12th or after he presented himself to you on the 14th?
“A. I reached a conclusion in my own mind — an opinion, not a diagnosis ; an opinion on the 12th.
“Q. Can you explain why you made no record of such opinion?
“A. Well, I don’t think it’s — to put an entry in a health record — to put a diagnosis — to pin a label or a diagnosis on a man; a patient that presents himself to me, I think that I would require further investigation or, let’s just say not investigation — I would have to wait and observe characteristic physical findings in the clinical course of a patient before malting a conclusive diagnosis.
“Q. Now, Doctor, is it your statement that as of the 12th of March, you were not sufficiently convinced of the accused’s physical state as to make any diagnosis, one way or another ?
“A. That’s right.
“Q. After your opinion that this man had used narcotics, did you report this to anyone?
“A. Yes, I did.
“Q. To Whom, may I ask?
“A. To my immediate superior, Captain Humphries.
“Q. When was that?
“A. I believe it was the same day. I’m immediately responsible — yes, I’m immediately responsible to Captain Humphries, therefore, any problems
“Q. He’s your division officer?
“A. He’s my commanding officer, as far as the medical department is concerned. ...
“Q. Excuse me. I misunderstood your testimony.
“A. 12th of March was the day that *319I spoke to Captain Humphries about the case.
“Q. Can you recall the next time anybody ever said anything about this problem ?
“A. I believe the next time was on the 14th after placing the patient on medication, I discussed the case once again with Captain Humphries.” [Emphasis supplied.]
Doctor Buetow indicated that the venipunctures were medically neutral to him. However, on an undisclosed date, he obtained a clinical history from the accused which caused him to conclude that the punctures resulted from the injection of narcotic drugs. At no time prior to obtaining the history did he advise the accused of his rights under Code, supra, Article 31, 10 USC § 831. On March 14, 1959, accused complained that he was nervous and unable to sleep. Dr. Buetow prescribed tranquilizing drugs and noted in accused’s Health Record that he had a history of mild drug addiction. Over defense objection, Dr. Buetow was permitted to testify to the following matter:
“A. The opinion that I formed was that the physical findings of veni-puncture marks represented, in my mind, the findings of having given himself intravenous medication, which from the patient’s history, led me to believe it was a narcotic type drug.” [Emphasis supplied.]
Code, supra, Article 31, provides that, “No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense” unless he is given the warning for which provision is made in that statute. (Emphasis supplied.) My brothers have so construed Article 31 that the additional requirement of “officiality” must be met before its warning requirement comes into play. United States v Dandaneau, 5 USCMA 462, 18 CMR 86; United States v Gibson, 3 USCMA 746, 14 CMR 164; concurring opinions of Judge Latimer and Chief Judge Quinn, United States v Souder, 11 USCMA 59, 28 CMR 283. Accepting the validity of that concept, however, for the purposes of this case, I am nevertheless unable to perceive the rationale by which it is finally determined that interrogations conducted by armed services medical officers are not within the Article’s coverage.
At the outset, I note the record makes it crystal clear that Doctor Buetow suspected the accused of injecting narcotics into his veins at the time he examined him on March 12. True it is he acted with praiseworthy caution in refraining from entering any notes in accused’s records until he was assured of their accuracy by accused’s later symptoms and clinical history. However, we have not required that a questioner be absolutely certain of a suspect’s guilt before the warning is required. Code, supra, Article 31, requires only that suspicion be present, and this certainly need not reach the level of a medical diagnosis — a term requiring, in the doctor’s words, that “I was able to say without a doubt that this man is labeled with any particular disease or problem.”
It is equally apparent that Dr. Buetow acted in an official capacity when he sought to obtain information from the accused concerning the needle punctures. A medical officer in the armed forces owes a duty to the service of which he is a member as well as to his patient. With respect to the latter, he need only treat his ailments and insure the continuation of his good health. With respect to the former, however, he must make certain that the condition of no individual is permitted to affect the welfare and safety of the service as a whole. Thus, in the instant case, preconfinement physical examinations were in order, not only to establish that particular persons were able to undergo’ the rigors of confinement, but also to’ discover any affliction which would affect other personnel in the brig. In short, Dr. Buetow was in the performance of his official duties at the time he interrogated the accused and his purpose was to seek confirmation of his “opinion on the 12th” that accused was-an addict. “Officiality,” the consideration found to be material in my brothers’ construction of Code, supra, Article 31, is here much more strongly established than in the case of the officer who sought to question suspects while *320acting as the proprietor of a music store. United States v Souder, supra. Moreover, the record demonstrates that Buetow, acting as a naval officer, reported his suspicions to his superiors, and supports the inference that they, in turn, eventually caused appropriate criminal proceedings to be commenced.
As Dr. Buetow suspected the accused, and was acting within the scope of his official duties, it is apparent he was required to advise Baker of his rights under Code, supra, Article 81, unless it is simply to be held that no medical officer must comply with the statute in question. The author of the principal opinion, however, seeks to base the unavailability of this great shield upon the conclusion that the accused was not suspected of an offense, not under charges, and that the purpose of the inquiry was not to establish accused’s guilt. I have already recorded my disagreement with these findings, as I believe the testimony of Dr. Buetow establishes that he suspected the accused and that his findings formed the basis for the charges. If indeed his inquiries were made solely for medical purposes, it is odd that he absolutely refused initially to designate accused as an addict but rather chose to report the matter to his commanding officer, who apparently passed the information to the line officer in charge of the naval station. It is equally certain that his findings form an essential part of the prosecution’s evidence, for, lacking Dr. Buetow’s testimony, there is no corpus delicti for accused’s subsequent statement.
The second argument made in the principal opinion is that adherence to the warning requirement in the case of physicians would seriously impair the efficiency of the armed forces’ medical service. I suggest that this sweeping statement is simply inapplicable under the circumstances of this case. Initially, a medical officer must suspect that an accused has committed an offense before the Article comes into play. In the majority of cases, that suspicion will not arise. Most doctors are concerned simply with the diagnosis and treatment of illness. Hence, they have no reason to believe that a person has violated the provisions of the Code. Accordingly, no warning need normally be interposed prior to obtaining an individual’s clinical history. Compare United States v Hopkins, 7 USCMA 519, 22 CMR 309. Secondly, the addressing of a warning to the accused permits him to make a meaningful choice concerning whether he should disclose incriminating information to a physician which can result, as in this case, in the imposition of severe punishment. Finally, we should recognize the fact that the armed services deny the existence of a physician-patient privilege. Manual for Courts-Martial, United States, 1951, paragraph 151c (2). Certainly, Congress did not intend to strip an accused of every protection available to him simply because he is being questioned by a medical officer. To the contrary, I find the terms of Article 31 expressly applicable to every person “subject to this chapter.” I am, therefore, compelled to conclude that a medical officer, suspecting an accused of the use of narcotic drugs, must advise him of his rights before attempting to obtain a clinical history which is subsequently to be used in evidence against him.
In the present case, the record demonstrates that Dr. Buetow was permitted to state a conclusion concerning accused’s addiction, based upon the history which he obtained without the requisite warning. Moreover, contrary to Judge Latimer’s assertion, he effectively related that history to the court, for he was permitted to testify, over appropriate objection, that accused had “given himself intravenous medication, which from the patient’s history, led me to believe that it was a narcotic type drug.” (Emphasis supplied.) As he suspected accused was an addict from the presence of needle punctures, I am of the view that he was required to give the necessary advice under Code, supra, Article 31. As he did not, I believe that reversal is required.
I would reverse the decision of the board of review concerning the narcotics conviction and return the record of trial for a rehearing on the sentence with respect to the findings of guilty of absence without leave.