(concurring in the result):
In affirming the judgment of the Court of Military Review, I differ somewhat from the majority as to the reasons calling for that conclusion. My primary con*429cern and reservation about the majority opinion is not that it incorrectly states the existing law, but with the antagonistic choices, under existing law, that one accused of crime faces in the event that he seeks to raise the issue of mental capacity prior to or at trial. The case before us, alleged premeditated murder, stages the problem.
At a point during the Article 39(a) session, individual military defense counsel stated that:
Captain Lewis and I have spent a great deal of time with the accused and we’ve discussed this case in great detail with him. Not only has the accused displayed a recalcitrant attitude, we feel that he has displayed to us certain qualities that show that we are not completely convinced that he understands the nature of the proceedings, the gravity of the offense, nor whether he wishes to participate in defending himself.
Thereafter, pursuant to paragraph 122, Manual for Courts-Martial, United States, 1969 (Rev.), the military judge, realizing the serious charges to be litigated, properly ordered an examination before a psychiatric board and entered the protective order mentioned in the majority opinion.
An accused in such a position faces a major choice between unsatisfactory alternatives. If he submits to the examination by the board, does he risk having statements made to the board being used at trial to determine his guilt? Citing United States v Babbidge, 18 USCMA 327, 331, 40 CMR 39, 43 (1969), the majority opinion states that the objective of the board members is to determine mental capacity rather than other evidence of guilt. To be sure that statement is undoubtedly accurate, but it is far short of holding that incriminatory statements voiced during the examination are inadmissible in evidence. I also have great faith in the dedication of psychiatrists to the ethics and responsibilities of their profession. My apprehension is not because of them, but because of the posture of the law.
In the instant case there were requests by the defense that if the appellant were examined that he not be informed of his Article 31 rights prior to the examination. However, the military judge correctly commented on the fact that the examiner is required to give the warnings. See Army Technical Manual 8-240, Psychiatry in Military Law, paragraph 4-4f (1968).3 See also United States v Baker, 11 USCMA 313, 29 CMR 129 (1960); United States v Bunting, 6 USCMA 170, 19 CMR 296 (1955). If the warnings are properly given, there appears to be no impediment to the potential use of the examinee’s statements at trial.
I share the view of the majority in United States v Babbidge, supra, that in cases where the defense plans to introduce evidence regarding mental capacity of the accused, the Government should be permitted to have the accused examined. My only reservation is that the accused in being examined must also be protected from having to forego his right to freedom from self-incrimination.
18 U.S.C. § 4244 (1970) provides:
No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on *430the issue of guilt in any criminal proceeding.
Therein, Congress has acted to prevent the impediment to the defense that I find onerous. My research does not uncover any provision of law in the military system of justice that accomplishes the purpose of 18 U.S.C. § 4244.
The military judge, wisely recognizing the problem faced by the defense, entered the protective order referred to by the majority. I join in the commendation of the judge for his awareness and action in an attempt to preserve the full range of the appellant’s rights. The only question is whether the order reasonably accomplishes its noble purpose. First, it does not specifically state that statements made during the interview may not be admitted against the accused on the issue of his guilt. Next, the military judge, outside the provisions of the order but on the record, indicated that the inquiry by the board was not to be a means of discovery and that he would sanitize the record. If such a statement can be reasonably interpreted as meaning that he would not allow such evidence to be introduced, the query arises as to whether his decision to reject such evidence is within his discretion. Or suppose he or another judge should change his mind and admit the evidence. The strategy of defense should not have to depend on a gamble as to the answer to such questions.
I would hold that in order to comport with due process of law no statement made during such an examination shall be admitted in evidence against the accused concerning his guilt. If this Court were to so hold in this request, a fair trial to both parties would result.
Turning now to the instant case, although much discussion ensued after the defense request for a civilian psychiatric examination I find no defense objection to the procedure ordered by the military judge. The record is silent as to whether warnings were given prior to the interview or whether any statements were elicited regarding the crimes Johnson faced, or if he made any incriminatory statements. Therefore, I see no evidence of the law working to appellant’s constitutional detriment in this case.
Insofar as the majority concludes that there is no evidence of record showing that the military judge erred in refusing to request the convening authority to authorize the employment of an expert to examine the appellant, I agree. There is no evidence that illustrates that the defense case was prejudiced by the absence of a defense psychiatrist. The only indication of record suggestive of insanity as a defense is the statement of counsel set forth above. And, after the medical board found appellant mentally capable, no objection was made and no further request for expert testimony was made. We can only speculate as to whether or not the defense decided to abandon raising the issue of sanity. For these reasons I affirm the decision of the Court of Military Review.
The same manual serves both the Department of the Air Force (AFM 160-42) and the Department of the Navy (NAVMED P-5105). It provides:
Before starting his examination, the medical officer conducting the psychiatric examination must advise the accused of the nature of the offense of which he is accused or suspected and make clear to the accused the scope and purposes of the examination. He should also inform the accused that he is neither "for him” nor "against him,” and that he may consult with counsel prior to the examination. At the same time the medical officer will advise the accused that he need not say anything and that the medical officer may be called upon to repeat in court, as the basis for his opinion, any statements made to him by the accused. [Emphasis added.]