Opinion of the Court
Homer Ferguson, Judge:The accused was found guilty of wrongful possession of heroin, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934, and wrongful use of a narcotic drug, in violation of the same Article. He was sentenced to bad-conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for six months, and reduction to the lowest enlisted grade. Intermediate appellate authorities affirmed, and we granted review on the issues whether the accused was prejudiced by the receipt in evidence of the results of chemical tests performed upon blood and urine samples obtained from him.
Fellow soldiers discovered MeClung lying unconscious in his barracks’ latrine on September 3, 1959. An eye dropper was clasped in one hand, and a hypodermic needle was discovered either in the other hand or on a nearby shelf. An ambulance was immediately summoned, and MeClung was carried, still unconscious, to the station hospital.
Immediately after his arrival in the hospital emergency room, the accused was subjected to a physical examination, and blood samples were taken from his body. Captain Schragger, the examining medical officer, concluded that the accused was undergoing a reaction to the use of narcotic drugs and directed that criminal investigators be notified. By application of physical stimuli, Schragger finally succeeded in returning the accused to a conscious state. Thereafter, and in the presence of a Criminal Investigation Detachment agent, Schragger asked MeClung, “if he could give us a urine specimen so that we could examine it and he said he would.” Accused was nevertheless unable to furnish the specimen until “we gave him eight or ten glasses of water.” He then passed the desired sample which was immediately turned over to the investigator. During the entire proceedings, accused’s condition remained such that he continued to lapse into unconsciousness and could be aroused only by talking to him.
Subsequent analysis of the urine and blood specimens disclosed the presence of a morphine derivative in accused’s body. Testimony concerning the results of the analyses were received on behalf of the prosecution over defense objection that the samples had been improperly obtained.
*756*755Appellate counsel have principally di*756reeled their briefs and arguments before us to the question whether accused should have been advised of his rights under Code, supra, Article 31, 10 USC § 831, before being asked to provide law enforcement personnel with a urine sample. We need not now decide that question, for it is crystal clear that Article 31 requires specimens at least to be voluntarily furnished. Concurring opinion of Chief Judge Quinn, United States v Booker, 4 USCMA 335, 337, 15 CMR 335, 337; United States v Jordan, 7 USCMA 452, 22 CMR 242; United States v Forslund, 10 USMA 8, 27 CMR 82. As was said in United States' v Jordan, supra, and reiterated in the Forslund case, one may not be compelled against his will to produce his urine for the purpose of using it, or an analysis of it, as evidence against him in a trial by court-martial without violating Code, supra, Article 31. That holding and, indeed, Article 31 itself, is rendered meaningless if urine sample may properly be obtained by “request” from one whose physical state is such that he is unable properly to evaluate the desires of a commissioned officer and to make a knowing election concerning the “asking” for the sample. In short, a semiconscious accused is in no condition voluntarily to respond to an inquiry whether he is willing to furnish evidence against himself. See United States v Hernandez, 4 USCMA 465, 16 CMR 39; United States v Dison, 8 USCMA 616, 25 CMR 120; and concurring opinion of Chief Judge Quinn, United States v Wynn, 11 USCMA 195, 29 CMR 11. The record here depicts precisely that situation, for Captain 'Sehragger testified that accused continued to lose consciousness even after he had furnished the urine sample. Under the circumstances, we hardly think it likely that McClung possessed the ability to understand the “request” of his superior and voluntarily to consent to furnish the specimen. Accordingly, we must conclude that it was prejudicially erroneous to receive the results of the analysis of his urine in .evidence.
As- reversal of the specification of wrongful use of narcotics is required by our holding with respect to the urinalysis, we need not reach the issue relative to the blood samples obtained from the accused. That also furnished evidence only respecting the use of a morphine derivative. Neither question affects accused’s conviction of the entirely separate specification of wrongful possession of heroin. Thus, findings of guilty with respect to that count may stand.
The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army. The board may reassess the sentence on the basis of the remaining findings of guilty or direct a rehearing on the specification of wrongful use of narcotics and the penalty.
Chief Judge Quinn concurs.