(concurring):
Although, because of the current state of decisional law, I am in reluctant concurrence with the decision of my brothers in this case, I am constrained to comment on what I perceive to be a conflict between certain rights guaranteed by the Constitution of the United States.
The appellant, in the assigned error first discussed by the majority, complains:
THE GENERAL COURT-MARTIAL CONVENING AUTHORITY ABUSED HIS DISCRETION WHEN HE REFUSED TO GIVE HODGE A TESTIMONIAL GRANT OF IMMUNITY.
To review some of the facts summarized by the majority, it should be recalled that the bed in which Mrs. Martin, the deceased, was found was a heated waterbed, and that when the body was discovered by a neighbor, the neighbor partially covered the body with bedclothes. This factor made it very difficult to establish a time of death with any degree of certainty. The appellant in this case was known to be on his way to work at 0558 on the morning of the murder, and arrived at work at about 0630. (See testimony of Corporal Rivera, R.612 et seq.). Appellant was seen at work by Sergeant Sundeen between 0620 and 0630 (R.621). Two witnesses testified to having heard a *743scream from the direction of the Martin quarters on the morning in question. One estimated the time to be about 0555 (R.336), and the other estimated the time of the scream to be about 0640. During the preliminary stages of the trial, the appellant petitioned the military judge to admit evidence of lie detector tests. The proposed evidence would reflect that appellant had undergone four different polygraph examinations by a qualified operator, the results of which showed a lack of deception, consistent with appellant’s claim of no criminal responsibility for the death of his wife. The military judge denied the motion and the exculpatory polygraph results were not admitted (R.108, Appellate Defense Exhibit Q). On the other hand, Corporal Hodge, a neighbor, was not required to work on the day in question and was out of his house from about 0730 until 0810 (Appellate Defense Exhibit W). The record does not reveal his whereabouts at the time the scream was heard. During the trial it was stipulated by trial and defense counsel that Corporal Hodge had been administered a polygraph test by a qualified operator and that, in the opinion of the operator, Corporal Hodge was deceptive in his responses to all relevant questions (Appellate Defense Exhibit KK).
With this background, the appellant called Corporal Hodge during an Article 39(a), Uniform Code of Military Justice, session of the court as a defense witness for the obvious purpose of attempting to obtain relevant information pertaining to the offense for which he was being tried. Corporal Hodge, quite understandably perhaps, declined to answer nearly all the questions of the defense on the ground that he wished “to invoke his Article 31(b) Rights [sic]”. The military judge upheld the right of Corporal Hodge to invoke his statutory shield. Although I question the basis for the judge’s action in regard to certain of the questions the answers to which did not appear to be incriminatory, I do not here indulge an impulse to hold the judge guilty of an abuse of discretion because the questions which I consider innocuous also would not appear to aid the appellant’s cause and because I understand that the rights given pursuant to Article 31(b) are broader in scope than are the rights guaranteed by the Fifth Amendment to the Constitution. United States v. Jordan, 7 U.S.C.M.A. 452, 22 C.M.R. 242 (1957). The military judge refused to order Corporal Hodge to answer the questions of the defense, but, sua sponte, directed the trial counsel to place the matter before the convening authority to determine whether that authority would grant testimonial immunity to Corporal Hodge, so that appellant might have the benefit of whatever knowledge Corporal Hodge had of the crime. The convening authority declined to grant such immunity.
The Fifth Amendment to the Constitution contains the following admonition: “. . . nor shall [he] be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; . . ” The Sixth Amendment to the Constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right . to have compulsory process for obtaining witnesses in his favor . . .
It has long been held that the Government is not required to grant immunity to a prosecution witness for a defendant. United States v. Bautista, 509 F.2d 675 (9th Cir. 1975), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); United States v. Jenkins, 470 F.2d 1061 (8th Cir. 1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1544, 36 L.Ed.2d 313 (1973); United States v. Beasley, 550 F.2d 261 (5th Cir. 1977), cert. denied, 434 U.S. 938, 98 S.Ct. 427, 54 L.Ed.2d 297 (1977); United States v. Smith, 542 F.2d 711 (7th Cir. 1976). I have found no cases, however, in which the Supreme Court has specifically addressed the conflicting Constitutional guarantees which effect this issue.
In a narcotics case involving a similar factual situation, Circuit Judge Burger, writing for an undivided United States Court of Appeals for the District of Columbia Circuit, held against the appellant, saying that “The Government does not suggest that Congress could not provide for a proce*744dure giving a defendant a comparable right to compel testimony, but only that Congress has not done so.” However, in a footnote he adds:
We might have quite different, and more difficult, problems had the Government in this case secured testimony from one eyewitness by granting him immunity while declining to seek an immunity grant for Scott to free him from possible incrimination to testify for Earl. That situation would vividly dramatize an argument on behalf of Earl that the statute as applied denied him due process. Arguments could be advanced that in the particular case the Government could not use the immunity statute for its advantage unless Congress made the same mechanism available to the accused. Here we are asked in effect to rewrite a statute so as to make available to the accused a procedure which Congress granted only to the Government.
Earl v. United States, 361 F.2d 531, 534 n.1 (D.C.Cir.1966) (Emphasis in original text).
In another case, the United States Court of Appeals for the Ninth Circuit held:
To interpret the Fifth and Sixth Amendments as conferring on the defendant the power to demand immunity for co-defendants, potential co-defendants, or others whom the government might in its discretion wish to prosecute would unacceptably alter the historic role of the Executive Branch in criminal prosecutions. Of course, whatever power the government possesses may not be exercised in a manner which denies the defendant the due process guaranteed by the Fifth Amendment. . . The key question, then, is whether appellant was denied a fair trial because of the government’s refusal to seek immunity for defense witnesses. . . . We are not convinced that appellant was denied a fair trial in this case. The testimony sought by appellant was cumulative of the testimony of other witnesses. The jury had before it all the facts and claims appellant intended to elicit from the witnesses for whom he sought immunity. The trial was not rendered unfair because of the absence of these witnesses’ testimony, and appellant was therefore not denied due process.
United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976) (Emphasis added). In Alessio, the Government sought and obtained immunity for one prosecution witness.
In United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), a recent decision of the United States Court of Appeals, Third Circuit, the court held:
. we conclude that the federal immunity statute cannot legitimately be construed to authorize judicial review of the prosecutorial decision not to immunize a defense witness. Nor do we think that this construction of the statute raises any constitutional difficulties. We note, first, that the statute cannot be attacked on the ground that it unconstitutionally discriminates against defendants by making immunity available only in the discretion of the prosecution. Due process has never yet been held to require that the defendant be permitted to marshal precisely the same investigative and legal resources as the prosecution, and Congress could legitimately have concluded that the defendant should not be empowered by statute to impose upon the prosecution the burden of an unwanted grant of immunity.
Id. at 1203.
In a strong dissent in Herman, however, Circuit Judge Garth makes an interesting point:
The analysis is quite different, however, when it is the criminal defendant, and not the government, who desires immunity for a witness. The defendant has no authority to confer such immunity. Rather, the defendant must hope that the government will exercise its statutory authority to obtain immunity for the witness whose testimony the defendant desires. In such a situation, the court must be concerned with the public interest determination and exercise of discretion of *745the United States Attorney. First, there is an obvious conflict of interest between the government and the criminal defendant. On this basis alone, a court must be suspicious of the government’s refusal to grant immunity to a witness who seemingly has relevant, probative, and exculpatory testimony to offer. Second, if a criminal defendant’s only exculpatory witness does not testify because of his fifth amendment privilege, the fact-finder will be denied evidence highly probative of the guilt or innocence of the defendant. Not only will the trial process be less accurate and reliable, but it will be less fair because the defendant will have been prevented from fully presenting the case for his innocence. .
. . . Since the United States Attorney’s decision not to seek immunity for a defense witness will implicate the quality of the judicial process, the judicial branch has a keen interest in assuring that the discretionary power to grant immunity is not abused. Furthermore, a grant of immunity to a defendant’s witness would not substantially affect the government’s initial investigation and preparation of its case against the defendant. Of course the government may choose to respond to the testimony offered by a defendant’s immunized witness, but it need not do so. And in any event, responding to defenses raised by a criminal defendant is something the government must do in the course of any criminal prosecution. The grant of immunity may concededly have some effect on the government’s ability subsequently to prosecute the immunized witness. Although this factor is deserving of consideration, the Supreme Court has emphasized that “immunity from use and derivative use ‘leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege’ in the absence of a grant of immunity.” Kastigar v. United States, 406 U.S. [441] at 458-59, 92 S.Ct. [1653] at 1664, 32 L.Ed.2d 212. Since the grant of use immunity will not necessarily impair subsequent prosecution of an immunized witness, I conclude that separation of powers concerns are not so fundamentally trenched upon as to preclude judicial review of the government’s refusal to seek immunity for a defense witness.
Id. at 1211.
I am keenly aware that there was no offer of proof at trial that Corporal Hodge had killed appellant’s wife and that his testimony would so show, nor even that Corporal Hodge was a participant in such killing. This record does not show precisely what Corporal Hodge’s knowledge was; however, there is evidence to establish that Corporal Hodge was deceptive in his responses to all relevant questions. There is some evidence that he could have been present at the time of the slaying. In any event, without a grant of immunity, the grant of which was solely in the discretion of the Government, the witness’s testimony was effectively lost to the appellant, since only the Government possessed the key to unlocking Hodge’s mouth. Of what value, then, is that portion of the Sixth Amendment which guarantees an accused “compulsory process for obtaining witnesses in his favor”? Is it not mockery to guarantee the presence of a witness, when the accused is not provided the means to elicit testimony from this witness? Can we safely hold that in the circumstances of this case there is no reasonable doubt that the testimony, unavailable to the appellant without the Government’s assistance, would not have exonerated or partially exonerated the appellant in the unfortunate death of his wife?
The Court of Military Appeals has held that:
. . . before an error founded solely upon the federal constitution can be held harmless under Article 59(a), the court must be able to declare a belief that it was harmless beyond a reasonable doubt. See Chapman v. California, [386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).]
United States v. Ward, 23 U.S.C.M.A. 572, 50 C.M.R. 837, 841 (1975).
*746Although I believe that the majority has correctly decided this case in the light of current overwhelming decisional law, I am constrained to add that if ever a Constitutional principle needed an authoritative interpretation by the United States Supreme Court, this is it.
Before CEDARBURG, C. J., and FERRELL and DONOVAN, JJ.ON RECONSIDERATION
FERRELL, Judge:This Court decided the case sub judice on 7 August 1979, in which decision the findings and sentence as approved by the convening authority were approved. Appellant, on 17 August 1979, moved for reconsideration and for an enlargement of time in which to file a brief in support of his motion. We granted the requested enlargement and ordered the brief to be filed by 17 September 1979. Thereafter, the Court granted four further enlargements of time; appellant’s brief was filed on 4 January 1980. We heard oral argument on appellant’s Motion For Reconsideration on 12 February 1980.
Appellant in his Motion For Reconsideration presented the following issues:
WAS THE DECISION OF THIS HONORABLE COURT OF 7 AUGUST 1979 PREDICATED ON SUBSTANTIAL ERROR AS TO LAW OR FACT IN THAT:
I
THE NAVY COURT OF MILITARY REVIEW OPINION INCORRECTLY HELD THAT APPELLANT LACKED STANDING TO CHALLENGE THE CONVENING AUTHORITY’S REFUSAL TO COMPEL THE TESTIMONY OF A KEY DEFENSE WITNESS AND THAT THE CONVENING AUTHORITY’S REFUSAL WAS NOT AN ABUSE OR DISCRETION IN THAT:
A. THE OPINION ERRONEOUSLY RELIED ON CIVILIAN COURT INTERPRETATIONS OF FEDERAL CIVILIAN IMMUNITY STATUTES, WHICH DO NOT APPLY TO TESTIMONIAL IMMUNITY OF MILITARY WITNESSES AT COURTS-MARTIAL, TO DENY APPELLANT STANDING TO CHALLENGE THE CONVENING AUTHORITY’S DECISION.
B. IF FEDERAL CIVILIAN STATUTES FOR WITNESS IMMUNITY DO APPLY TO COURTS-MARTIAL, THE CONVENING AUTHORITY ABUSED HIS DISCRETION BY FAILING TO COMPLY WITH THE STATUTORILY MANDATED PROCEDURES AND STANDARDS FOR DECIDING WHETHER TO GRANT IMMUNITY TO THE WITNESS UPON DEFENSE REQUEST.
C. WHETHER MILITARY REGULATIONS OR THE CIVILIAN STANDARDS FOR WITNESS IMMUNITY APPLY TO THIS CASE, APPELLANT AS A MILITARY ACCUSED AT COURT-MARTIAL, HAS STANDING TO INSIST, UNDER THE FACTS OF THIS CASE, THAT A VITAL AND MATERIAL MILITARY WITNESS BE IMMUNIZED OR, IF THE CONVENING AUTHORITY DECLINES TO GRANT IMMUNITY, THAT THE COURT-MARTIAL PROCEEDINGS BE ABATED.
II
THE TESTIMONY OF SSGT TURNER THAT SGT GONZALES HAD INDICATED TO HIM THAT SGT GONZALES COULD IDENTIFY AS APPELLANT’S AN AUTOMOBILE SEEN BY SGT GONZALES NEAR THE SCENE OF THE CRIME
A. WAS INADMISSIBLE UNDER ANY THEORY OF EVIDENCE, AND
B. THE MEMBERS’ EXPOSURE TO THIS INADMISSIBLE TESTIMONY PREJUDICED APPELLANT. (Compare Martin, at 736).
*747III
THE TESTIMONY OF DR. SPERBER, THE PROSECUTION’S ODONTOLOGY WITNESS, WAS INADMISSIBLE UNDER THE STANDARDS REQUIRED FOR THE RECEPTION OF EXPERT SCIENTIFIC TESTIMONY. People v. Slone, 76 Cal.App.3d 611, 143 Cal.Rptr. 61 (Dist.Ct.App. 1978). (Compare Martin, at 737-738).
IV
THIS HONORABLE COURT WAS INCORRECT IN ITS CONCLUSION THAT SGT GONZALES, RATHER THAN MRS. SOTO, WAS ACCURATE REGARDING THE TIME OF THE SCREAM, BECAUSE IT DID NOT CONSIDER ALL THE EVIDENCE.
V
WHETHER OR NOT THE “EVIDENCE PRESENTED AT TRIAL BY THE GOVERNMENT” PROVED APPELLANT TO BE GUILTY BEYOND A REASONABLE DOUBT, THE ENTIRE RECORD DOES NOT ESTABLISH HIS GUILT BEYOND A REASONABLE DOUBT.
VI
THE STAFF JUDGE ADVOCATE’S REVIEW, BY FAILING TO ADVISE THE CONVENING AUTHORITY THAT HE WAS REQUIRED TO CONSIDER THE ENTIRE RECORD, INCLUDING INFORMATION NOT ADMITTED AS EVIDENCE, AND FAILING TO EXPLAIN THE TEST RESULTS TO THE CONVENING AUTHORITY, DEPRIVED APPELLANT OF A FAIR REVIEW OF HIS CASE BY THE CONVENING AUTHORITY.
We shall discuss only the first assignment of error.
Appellant, on 14 April 1980, filed a Motion For Leave To Cite Additional Authority based on Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). We granted that motion on 15 April 1980.
We have reconsidered our opinion of 7 August 1979 in the case sub judice and are convinced that our decision to approve the findings and sentence as approved by the convening authority was correct. There are certain additions, modifications, and changes in our first opinion we think need to be made; otherwise we reaffirm our prior opinion.
In dealing with the issue pertaining to whether or not Corporal Hodge should have been given a testimonial grant of immunity, we stated that “[a]ppellate counsel, however, cites no authority in his brief which would support the conclusion that appellant has standing to base a complaint on whether or not immunity is granted to another individual.” We believe the source of a general court-martial convening authority’s power to grant immunity is the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial, 1969 (Rev.) (MCM), paragraph 68h, and not 18 USC §§ 6001-6005. This does not, however, preclude this Court from considering federal court cases for persuasive reasoning on issues pertaining to decisions which arise under either the UCMJ or the MCM. The appellate defense counsel appropriately cited to this Court, on 14 April 1980, Virgin Islands v. Smith, supra, and contends it is analogous to his case. The Virgin Islands case indicates that appellant does have standing to litigate the question of immunity for a defense witness.1 We have also considered Unites States v. Lenz, 616 F.2d 960 (6th Cir. 1980), involving a situation in which the United States Attorney refused to seek use immunity for a defense witness. The court in Lenz stated the defendants had no compulsory-process right to have their witnesses immunized. They further stated that it was unnecessary in that case *748to decide whether, under the circumstances, the Government’s refusal to immunize defendant’s witnesses might deny the defendant his due process rights to a fair trial as the defendant failed to show that the witness would have testified and that, if he had, his testimony would have told the jury that the defendant did not participate in the offense.
The cases of Virgin Islands v. Smith and United States v. Lenz, supra, persuade us that the portion of our opinion concerning the issue of immunity for a defense witness should not contain the statement pertaining to a lack of standing to raise the issue by the appellant. The strong desire for justice within our system convinces us that if a purported defense witness did possess exculpatory knowledge, the Government’s refusal to grant testimonial immunity should be balanced against the Government’s justification for withholding that immunity. The record of this case, however, including the out of court statements of Corporal Hodge, are not clearly exculpatory of the appellant.2 The question of testimonial immunity was presented to the convening authority pursuant to and in accordance with the military judge's instruction. The convening authority consulted with his staff judge advocate and, after hearing what had transpired in court and what a testimonial grant of immunity entailed, declined to issue a grant of immunity. We find nothing in the record to indicate the convening authority was misled as to his authority to issue the grant nor that the decision involved any sort of gamesmanship to assist the Government. We therefore find no error in the convening authority’s declination to issue Corporal Hodge a testimonial grant of immunity.
Subject to the foregoing, the opinion of this Court in the case sub judiee, decided 7 August 1979, is approved as the decision of this Court.
Chief Judge CEDARBURG and Judge DONOVAN concur.. In view of our disposition, we limit our reliance on Virgin Islands v. Smith, supra, to the issue of standing without adopting its specific “conditions” by which to judge governmental inaction, such béing left to future cases.
. Appellate Defense Exhibit W, entitled Results of Interview with Bill W. Hodge, (witness), as recorded by Special Agent Carroll F. Egbert, Jr., on 7 February 1978. Appellate Defense Exhibit Z, a signed statement by Corporal Hodge taken by NIS, dated 20 April 1978. Appellate Defense Exhibit AA, a signed statement by Corporal Hodge, taken by NIS, dated 21 April 1978. During an Article 39(a),-UCMJ, session of appellant’s court-martial, Corporal Hodge was placed on the stand and defense counsel asked Corporal Hodge the questions eliciting the information he wanted to present to the members. Corporal Hodge refused to answer all pertinent questions, asserting his Article 31, UCMJ, rights. Corporal Hodge, during a pretrial interview conducted by defense counsel, furnished the information they were seeking. The military judge mentioned the possibility of a stipulation of what Corporal Hodge would say if he testified, but no further information on this suggestion was forthcoming during the trial. The defense counsel offered no appellate exhibits purporting to show the information they obtained from Corporal Hodge during the pretrial interview.