(dissenting):
I dissent.
I had thought, until the advent of this opinion, that one accused of crime had an unqualified right to refuse to give testamentary evidence against himself under the Fifth Amendment to the Constitution and Article 31, Uniform Code of Military Justice, 10 USC § 831. However, my brothers now hold this right to be qualified by the need of the Government to perfect its evidence in rebuttal to an accused’s defense of insanity. The door has now been opened to other similar qualifications and I do not perceive how it can be closed short of reversal of this opinion.
The situation which presented itself at the time the law officer directed the accused to cooperate with the Government’s psychiatrists, as a condition precedent to presenting his own psychiatric evidence, is the same as that underlying the question presented in United States v Kemp, 13 USCMA 89, 32 CMR 89. As did this accused, Kemp claimed his rights imdqr Article 31 and refused to discuss the offense with the Government’s psychiatrists. As a result, the sanity board was unable to determine whether Kemp was capable of forming the degree of intent, willfulness, malice, or premeditation called for by the offense charged. Subsequent to defense evidence relating to the issue of Kemp’s sanity, the Government presented witnesses who disclosed the fact of Kemp’s refusal to cooperate and of his reliance on his right against self-incrimination. As the Court stated in Kemp, at page 97:
“The question before us is whether an accused who has claimed a right guaranteed to him, which springs from the Constitution and is expanded and implemented by statute, may have the fact that he invoked such privilege disclosed against him upon his trial.” [Emphasis supplied.]
We reversed Kemp’s conviction for premeditated murder on the ground that “[t]he action of trial counsel in developing the fact that accused had claimed the protection of Article 31 was highly prejudicial to the accused.” Ibid., at page 100.
It goes without saying, that, if one has a right guaranteed by the Constitution, he may not be deprived of that right as a condition precedent to the exercise of another right, also guaranteed by the Constitution — that of presenting the testimony of his own witnesses. United States v Clay, 1 USCMA 74, 1 CMR 74. See also the Constitution of the United States, Amendment 6; Article 46, Code, supra, 10 USC § 846; United States v Sweeney, 14 USCMA 599, 34 CMR 379. Notwithstanding my brothers’ footnote reference to Kemp, I do not perceive how the underlying rationale of that case — an accused’s unqualified right to remain silent in such circumstances— can be distinguished from the case at bar. It seems to me that if trial counsel could not comment on Kemp’s refusal to cooperate with the Government’s psychiatrists, it is clear that he could not be ordered to do so. If, as the majority now hold, that right is not un*334qualified, and Kemp could have been ordered to cooperate with the Government’s psychiatrists, if only the prosecution had thought to petition the law officer or the convening authority for such an order (see paragraph 121, Manual for Courts-Martial, United States, 1951), then we were guilty of gamesmanship by not calling attention to that fact and Kemp should be overruled. However, no one involved in Kemp’s trial or in the appellate proceedings, including myself, apparently believed that such an order, having as its purpose assistance to the Government in the perfection of its case, would have been valid. In my opinion, an order under such circumstances would be illegal as in contravention of a constitutional right and Article 31.
As a matter of proper procedure, a serviceman may be ordered by his superiors to submit to a physical, including mental, examination, and his refusal to comply may be the subject of charges under the Code. United States v Koch, 17 USCMA 79, 37 CMR 343. But when he is suspected of an offense, an order of this nature would be in violation of Article 31, if the result, obtained against his will, would incriminate or tend to incriminate the accused.
In the case at bar, the accused, following his reliance on Article 31, was ordered by the law officer to answer questions of the Government psychiatrist, even “as these might relate to the offense.” Only a disingenuous argument could suggest that this subsequent questioning did not contribute to the diagnosis that was admitted in evidence or that the diagnosis did not depend upon questioning concerning the offenses charged, for the reason given for failure to render a psychiatric determination following the original interview was the accused’s refusal, on advice of counsel, to discuss the charges. It matters not that the diagnosis did not tend to prove that the accused committed an offense. Any evidence obtained in violation of the privilege against self-incrimination is inadmissible (United States v Price, 7 USCMA 590, 23 CMR 54; Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966); United States v Tempia, 16 USCMA 629, 37 CMR 249), including evidence used in rebuttal to a defense of insanity. Cf. United States v Lincoln, 17 USCMA 330, 38 CMR 128. Since accused’s conviction was materially supported by this diagnosis, prejudice is apparent. United States v Stephen, 15 USCMA 314, 35 CMR 286; United States v Kemp, supra.
Concededly, the civilian court cases cited by my brothers1 in support of their view, hold that a person’s right not to incriminate himself, under the Fifth Amendment to the Constitution, is not violated per se by requiring him to submit to a mental examination. But this Court has always held that Article 31 is broader in its protection of the accused serviceman (United States v Musguire, 9 USCMA 67, 25 CMR 329; United States v White, 17 USCMA 211, 38 CMR 9), and we have not hesitated to apply this view, even in areas where the Supreme Court has held to the contrary. Cf. United States v White, supra, with Gilbert v California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951 (1967). Military due process accords to an accused the unqualified right to remain silent (United States v Clay, supra). There is nothing in Article 31 which even hints that this right might be subordinated to the needs of the Government, or, as rationalized in Pope v United States, 372 F 2d 710 (CA8th Cir) (1967), to that which the court there referred to as “fundamental fairness” and in United States v Albright, 388 F2d 719 (CA4th Cir) (1968), as the need to maintain a “ ‘fair state-individual balance.’ ” The decision in Pope, incidentally, is still in the process of appeal (397 F2d 812), and the statement in Albright that the “maintenance of a ‘fair state-individual balance’ clearly required that *335the government be permitted to have defendant examined” (388 F2d, at 724), is obviously misplaced. This quotation was taken from the following language of Miranda v. Arizona, supra, as set forth in the margin in Albright at page 724:
“ * * the privilege against self-incrimination — the essential mainstay of our adversary system — is founded on a complex of values, Murphy v Waterfront Comm., 378 US 52, 55-57, n. 5, 84 S Ct 1594, 1596-1597, 12 L Ed 2d 678 (1964); Tehan v (United States ex rel) Shott, 382 US 406, 414-415, n. 12, 86 S Ct 459, 464, 15 L Ed 2d 453 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government — state or federal — must accord to the dignity and integrity of its citizens. To maintain a “fair state-individual balance,” to require the government “to shoulder the entire load,” 8 Wig-more, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v (State of) Florida, 309 US 227, 235-238, 60 S Ct 472, 476-477, 84 L Ed 716, 722 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will.” Malloy v Hogan, 378 US 1, 8, 84 S Ct 1489, 1493, 12 L Ed 2d 653 (1964).’ 384 US 460, 86 S Ct 1620.”
Any fair reading, of the Miranda language leads to the exact opposite conclusion as that drawn in Albright.
Encroachments on constitutional rights have a long history of rejection by the courts. As long ago as 1866, Mr. Justice Bradley, speaking of the Fourth and Fifth Amendments to the Constitution, wrote in Boyd v United States, 116 US 616, 635, 29 L Ed 746, 6 S Ct 524 (1886):
“. . . It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”
No amount of equivocating language or specious reasoning, such as that used in the civilian cases cited by my brothers, to reach their results, can obscure the fact that those holdings are a serious and unjustified encroachment on a fundamental right guaranteed by the Constitution. It illbehooves this Court to adopt, for the system of military justice, a rationalization so obviously contrary to the plain language of Miranda, that:
“. . . our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v Florida [supra].” [384 US, at page 460.]
I do not base my opinion solely on the greater scope of protection afforded by Article 31. Rather, I believe that the privilege against self-incrimination, guaranteed by the Fifth Amendment to the Constitution, is unqualified and transcends any needs of the Government to enhance its prosecutorial evidence. Cf. Counselman v Hitchcock, 142 US 547, 563, 35 L Ed 1110, 1114, 12 S Ct 195 (1892), wherein the Court stated:
“, , . The privilege is limited to *336criminal matters, but it is as broad as the mischief against which it seeks to guard.”
We heard argument on this case on the following questions certified to this Court by the Acting Judge Advocate General of the Air Force:
“I. WAS THE BOARD OF REVIEW CORRECT IN HOLDING THAT THE LAW OFFICER’S RULING, REQUIRING THE ACCUSED TO SUBMIT TO EXAMINATION BY GOVERNMENT PSYCHIATRISTS AS A CONDITION PRECEDENT TO THE ADMISSION OF DEFENSE PSYCHIATRIC EVIDENCE, VIOLATED THE PROVISIONS OF ARTICLE 31.
“II. WAS THE BOARD OF REVIEW CORRECT IN DETERMINING THAT THE PSYCHIATRIC DIAGNOSIS AND CONCLUSION OF THE SANITY BOARD WAS INADMISSIBLE AND PREJUDICIAL TO THE ACCUSED.”
I would answer these questions in the affirmative.
Pope v United States, 372 F2d 710 (CA8th Cir) (1967), reversed on other grounds, 392 US 651, 20 L Ed 2d 1317, 88 S Ct 2145 (1968); United States v Albright, 388 F2d 719 (CA4th Cir) (1968); Alexander v United States, 380 F2d 33 (CA8th Cir) (1967); State v Whitlow, 45 NJ 3, 210 A2d 763 (1965).