(concurring in the result):
I concur in the result.
I agree outright with my brothers’ holding that there was no error in the admission of the accused’s pretrial statement as part of the stipulations of expected testimony. United States v Gustafson, 17 USCMA 150, 37 CMR 414. I disagree, however, as to their determination that the board of review was not correct in holding the testimony of Doctor Blumenthal inadmissible (see my dissenting opinion in United States v Babbidge, 18 USCMA 327, 40 CMR 39), but accept the result as the law of this Court. See my opinion concurring in the result in United States v Wilson, 18 USCMA 400, 40 CMR 112.
Although I have previously presented my views on this issue in Babbidge, I feel impelled to add some additional comments. When one accused of crime enters a plea of not guilty, the burden is on the Government to prove his guilt beyond a reasonable doubt. Under the provisions of the Fifth Amendment to the Constitution, he may not “be compelled in any criminal case to be a witness against himself.” The defense of insanity is, in effect, a plea of not guilty because of a defect of the mind. By virtue of such a plea, however, my brothers hold that an accused may be compelled to waive his right to silence and to offer testimony to the prosecution’s psychia*413trists in support of the Government’s burden of proof, or, in the alternative, to forgo the defense.
I believe this is not the law. While one may voluntarily waive his right to silence, the Government may not compel him to do so. We affirmed this proposition in United States v Kemp, 13 USCMA 89, 32 CMR 89, where we held that it was error to inform the court members that Kemp declined to be interviewed by Government psychiatrists and refused to waive his right to silence. As the late Judge Kilday said in Kemp, at page 100:
“We echo Justice Harlan’s warning, quoted earlier, that ‘the danger . . . of equating the plea of the Fifth Amendment with guilt is, in light of contemporary history, far from negligible.’ We know that currently great resentment has grown up in our country against what is regarded as flagrant abuse of the right to refuse to answer under the Fifth Amendment. As shown in Slochower, supra, laws have been passed to remove from public employment, ipso facto, one invoking its protection. No one need have admiration for the individual who has so conducted himself as to find it necessary to seek this protection. Especially is this true when the question involves loyalty to our own form of government. Naturally, resentment exists in patriotic and sincere people. The danger lies in the fact that this resentment extends to all persons refusing to answer questions on all subjects. It, therefore, behooves those prosecuting capital cases, and reviewers in passing thereon, to make positive that no such consideration entered into the determination that an accused must forfeit his life.
“The action of trial counsel in developing the fact that accused had claimed the protection of Article 31 was highly prejudicial to the accused. It had a direct bearing on the only substantial issue in the case and requires reversal of his conviction for premeditated murder.”
I believe it is clear that Kemp has been overruled. In my opinion, this decision does a serious disservice to military accused and pointedly ignores the words of Mr. Justice Bradley as found in Boyd v United States, 116 US 616, 635, 29 L Ed 746, 6 S Ct 524 (1886):
“. . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”