(concurring in the result) :
I concur in the result.
In United States v Babbidge, 18 USCMA 327, 40 CMR 39, my brothers held that when an accused raises the issue of insanity and offers evidence thereon, he waives his right to silence guaranteed by the Fifth Amendment to the Constitution. The only alternative open to him in such a situation is to forgo his right to this defense. I dissented in Babbidge and need not restate my views. In the case at bar, they have extended this ruling to include the psychological testing preceding the intended psychiatric examination,1 despite the fact that his attorney was not informed that the tests were to be administered and no Article 31 or *56equivalant warning was given prior to the administration of the tests. The basis for this holding is that no admissions concerning the charged offenses were elicited by the tests and none of the accused’s answers were revealed to the court.
In my opinion, the failure to give an Article 31 warning prior to the psychological testing was a patent violation of the Uniform Code of Military Justice. It matters not that the evidence obtained thereby 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.
I believe that prejudicial error is apparent. However, since the holding of the majority has now become the law of the Court, I have no alternative but to concur in the result in this case.
When the accused appeared before the medical board with his attorney, he declined to talk to the board beyond giving his name, age, date and place of birth,