Opinion of the Court
Ferguson, Judge:We granted review in this case to determine whether the law officer prejudiced the accused’s right to silence by directly questioning him and eliciting incriminating responses in connec*138tion with the defense motion to dismiss for lack of speedy trial.
After the court-martial was convened, defense counsel requested an out-of-court hearing at which he moved to dismiss all charges and specifications on the ground that the appellant had been denied his right to a speedy trial as provided for in Articles 10 and 33, Uniform Code of Military Justice, 10 USC §§ 810 and 833.1 The main contention of the defense was that the appellant had not been informed of the charges against him from the date of his confinement on April 15, 1969, until May 14, 1969, the day that charges were preferred; that because of the delay, he was unaware of the charges and consequently hampered in acquiring the necessary assistance in his defense. The case was not brought to trial until July 7, 1969. The total overall time in confinement awaiting trial was eighty-three days.
A witness for the Government, in explaining the delay, testified that although he was informed of Turnip-seed’s confinement on April 15th, and knew the general nature of the basis for confinement, it was not until May 14th that he possessed sufficient information on which to initiate charges against the appellant.
Following argument of counsel, the law officer, without any preliminary advice, directly addressed the appellant and questioned him relative to the charges and his knowledge of the manner in which the bases for these charges were obtained. By his responses, the appellant disclosed that he was aware of the reason why he had been confined.
Although finding that Articles 10 and 33 of the Code, supra, were violated in this ease, the law officer denied defense counsel’s motion. In explaining the basis for his denial, the law officer stated:
“. . . Now, I am also taking into consideration the accused had to know what he was charged with in substance if not in detail. He knew he had possession of a false pass. He knew he possessed a false ID card. He knew he was absent without leave whether it would be for numerous periods or for individual periods. He was aware of all this at the time he was put in the stockade. He indicated he was aware of it.” [Emphasis supplied.]
It is apparent that the law officer utilized statements against interest, elicited from the appellant without a warning, when ruling on the motion. By his action, he forced the appellant to become a witness against himself in violation of well-established constitutional and statutory rights. United States Constitution, Fifth Amendment; Article 31, Code, supra, 10 USC § 831. Cf. United States v Russell, 15 USCMA 76, 35 CMR 48 (1964).
The burden is on Government to prove that the appellant was not prejudiced by the delay (United States v Brown, 10 USCMA 498, 28 CMR 64 (1959); United States v Keaton, 18 USCMA 500, 40 CMR 212 (1969), and cases cited at page 504), and the appellant is under no obligation to aid *139the Government in obtaining his conviction. United States v Russell, supra. More fundamental to the issue at hand is the basic right of one accused of an offense not to speak at all. Article 31, Code, supra. As the Chief Judge, writing for the Court in a related matter, said in United States v Phillips, 2 USCMA 534, 536, 10 CMR 32 (1953):
“It is important to note that the protection granted by Article 31 of the Code, supra, goes further than a literal prevention of compulsory self-incrimination. The accused is protected by the Article in question from being required to testify in any manner.”
Failure to object to the questioning cannot be considered as waiver. United States v Phillips, supra. Nor does the appellant’s subsequent plea of guilty deprive him of consideration of the issue on appeal. United States v Keaton, supra; United States v Schalck, 14 USCMA 371, 34 CMR 151 (1964). This case is sufficiently similar to that found in United States v Greer, 3 USCMA 576, 13 CMR 132 (1953), to dictate the same result. See also United States v Clay, 1 USCMA 74, 1 CMR 74 (1951). While reversal of the conviction is required, dismissal of the charges does not automatically follow. Cf. United States v Schalck, supra.
The decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
Judge Darden concurs.“Art. 10. Restraint of persons charged with offenses.
“Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, he shall not ordinarily be placed in confinement. When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.”
“Art. 33. Forwarding of charges
“When a person is held for trial by general court-martial the commanding officer shall, within eighty days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.”