(dissenting):
I
CAPTAIN BLACK’S OBLIGATION TO COMPLY WITH THE McOMBER RULE.
The majority’s declaration, in Part III, that Captain Black’s notification to the accused that an additional charge had been preferred against him was “the ‘functional *42equivalent’ of interrogation” and, thereby, obligated Captain Black to comply with the rule in United States v. McOmber, 1 M.J. 380 (C.M.A. 1976), impels me to immediate disagreement. The majority acknowledge that under paragraph 32i)l), Manual for Courts-Martial, United States, 1969 (Revised edition), a unit commander, like Captain Black, has the “duty to inform ... [an] accused of the charges against him.” The Manual paragraph effectuates the requirement of Article 30(b), Uniform Code of Military Justice, 10 U.S.C. § 830(b), that “the person accused shall be informed of the charges against him as soon as practicable.”
Substantively, the present Manual provision is identical to the same numbered paragraph in the Manual for Courts-Martial, United States, 1951, which was promulgated upon enactment of the Uniform Code. The responsibility was, therefore, part of the complex of duties and responsibilities that was complained of as constitutionally disqualifying a commander from serving as a “neutral and detached magistrate.” After deliberating on that matter for more than 3 years, the Court unanimously held that a commander is not inherently disqualified to act with such neutrality and detachment. United States v. Ezell, 6 M.J. 307, 318 (Perry, J.); 6 M.J. 326, 330 (Fletcher, C. J., concurring); 6 M.J. 330, 331 (Cook, J., concurring in part and dissenting in part). The Court propounded an alternative test to determine whether a commander is disqualified in a particular instance. As enunciated by Judge Perry, the test was stated as follows: (1) Disqualification results “when the military commander becomes personally involved as an active participant in the gathering of evidence”; or (2) the commander “otherwise demonstrates personal bias or involvement in the investigative or prosecutorial process against the accused.” Id. at 318.
I cannot conceive how advising an accused, as the Manual requires, that a formal charge of a violation of the Uniform Code has been lodged against him involves the commander “as an active participant in the gathering of evidence” against the accused. Were that true, no magistrate or judge could preside at a detention hearing of one charged with a crime because one of his judicial responsibilities at such hearing is to apprise the accused of the charge against him. Fed.R.Crim.P. 5. Nor can I conceive any reasonable basis upon which to justify a conclusion that the giving of notice of the existence of a charge is proof of “personal bias” against the accused or constitutes “involvement in the investigative or prosecutorial process.” Consequently, I reject out-of-hand any imputation that, in apprising the accused of the additional charge, Captain Black was “the ‘functional equivalent’ ” of an investigator.
The obligation to apprise accused’s counsel of an intended interrogation of him was created in United States v. McOmber, supra. The rule was stated as follows:
We therefore hold that once an investigator is on notice that an attorney has undertaken to represent an individual in a military criminal investigation, further questioning of the accused without affording counsel reasonable opportunity to be present renders any statement obtained involuntary under Article 31(d) of the Uniform Code.
1 M.J. at 383.
Although Captain Black was not, as I indicated, an investigator, the majority say that in advising the accused of the additional charge, he engaged in “the ‘functional equivalent’ of interrogation.” I shall presently discuss whether Captain Black was required to advise the accused of the right to remain silent, as provided by Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831, which is the subject of Part II of the majority opinion. Here, the issue is the applicability of the McOmber rule, which imposes the obligation to give notice to an accused’s counsel of an intended interrogation only upon a particular kind of interrogator, specifically an interrogator who is engaged in the discovery of evidence of a crime. I have already pointed out that, in my opinion, Captain Black was not so engaged when he was carrying out his duty to *43notify the accused of against him. Consequently, McOmber does not, in my opinion, apply to him, either by the text of the opinion or, as the majority posit, by analogy. the new charge
II
A COMMANDER WHO VISITS A MEMBER OF HIS COMMAND IN CONFINEMENT FOR A HEALTH AND WELFARE INQUIRY IS NOT REQUIRED BY ARTICLE 31(b), 10 U.S.C. § 831(b) OF THE UNIFORM CODE TO ADVISE THE CONFINEE THAT HE HAS A RIGHT TO REMAIN SILENT.
In my judgment, Point II of the majority opinion misapprehends an essential element in the relationship between a military commander and his unit subordinate. An Army Regulation synthesizes the responsibilities of a commander in the reminder that “[s]econd only to accomplishing their military mission, leaders are responsible for the welfare of their troops.” AR 600-20, c. 3, para. 5-7e (June 22, 1973).
Years ago, I set out some of the reasons that convince me that Article 31, 10 U.S.C. § 831 of the Uniform Code does not mandate that whenever a commander has reason to suspect that a subordinate has engaged in conduct violative of the Uniform Code, he must precede communication with him with advice that the subordinate has a right to remain silent. United States v. Seay, 1 M.J. 201, 204 (C.M.A. 1975). As I remarked in my separate opinion in Seay, to require such preliminary advice in every instance is likely “to defeat the purpose” of a particular interchange between the commander and his subordinate that is entirely separate from investigation or prosecution of the suspected offense. Id. at 205.
Captain Black testified that he visited the accused in pretrial confinement for three reasons, but with respect to one, delivery of a pay check, he later acknowledged that, as a result of the further questioning of him he was not sure he “did take a check down there this last time.” Effectively, therefore, he attributed his visit to two reasons: (1) “to accomplish” a “health and welfare” visit, as prescribed by regulation; and (2) to read to the accused the “additional charge that showed up.” The majority ascribe to the reading of the additional charge “the natural tendency to induce” the accused to speak out. From that natural tendency, they deduce an obligation to advise the accused of the right to remain silent. Never since the enactment of the Uniform Code has the Court previously intimated that advice as to the right to remain silent under Article 31(b), 10 U.S.C. § 831(b), of the Code must be preliminarily provided to an accused before such reading of a charge. I reject the contrary rule now imposed by the majority. I do so for three reasons. First, the majority’s reliance upon the concept of an “admission by silence” is wholly inapposite. The discussion of the concept in paragraph 140a(4) of the Manual, which was then in effect, indicates that, in certain circumstances, the reasonably expected response by a person accused of a serious crime is not an incriminating statement, but a denial of guilt. Consequently, goes the concept, the failure to deny implies guilt. Here, the accused was not silent, so there is no foundation whatever for an “admission by silence.” Secondly, “admission by silence” applies only when the circumstances “reasonably call for a denial” but no denial is forthcoming. Apprising an accused of the existence of a formal charge against him, whether by a police officer or by a court, imposes no obligation upon the accused to speak. See Baxter v. Palmigiano, 425 U.S. 308, 316-17, 96 S.Ct. 1551, 1557, 47 L.Ed.2d 810 (1976); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The current rule, Mil.R.Evid. 304 h(3), Ch. XXVII, Manual for Courts-Martial, United States, 1969 (Revised edition), provides that the “failure to deny an accusation” by a person “under official investigation or ... in confinement . . . does not support an inference of an admission of the truth of the accusation.” Consequently, there can be no “admission by silence” resulting from the mere reading of a charge. Thirdly, I do not understand how an eviden*44tiary inference predicated upon a failure to speak can logically be transformed into an obligation to advise an individual he has a right to remain silent. Under Article 31(b), 10 U.S.C. § 831(b), the obligation to provide preliminary advice on the right to remain silent arises only when the purpose is to “interrogate, or request any statement ... regarding the offense” from the accused. As prescribed by paragraph 32f(l) of the Manual, the duty to advise an accused of formal charges contemplates nothing more than “inform[ing] the accused of the charges” and the “signing of a] certificate to that effect on the charge sheet.” I unqualifiedly reject any suggestion that the requirement is a subterfuge for inducing incriminating statements from an accused. I conclude, therefore, that the reading of the additional charge did not obligate Captain Black to advise the accused that he had a right to remain silent, as provided by Article 31,10 U.S.C. § 831 of the Code, or as provided for “custodial interrogation” Under United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).
Turning to Captain Black’s purpose, and obligation, to inquire into the accused’s “health and welfare,” I have no doubt that, facially, it is so foreign to the idea of an interrogation of an accused in regard to misconduct as not to be within the scope of Article 31, 10 U.S.C. § 831. United States v. Seay, supra; United States v. Carlisle, 22 U.S.C.M.A. 564, 48 C.M.R. 71 (1973); United States v. Beck, 15 U.S.C.M.A. 333, 35 C.M.R. 305 (1965); United States v. Valdez, 38 C.M.R. 602 (A.B.R. 1967), pet. denied, 17 U.S.C.M.A. 662, 38 C.M.R. 441 (1968). Cf. United States v. Jordan, 20 U.S.C.M.A. 614, 44 C.M.R. 44 (1971) (“office hours” inquiry into report of wrongful conduct by accused). A health and welfare inquiry of a person in confinement implicitly invites him to speak freely. To advise him that whatever he says can be used against him in a court-martial is patently antithetical to the invitation to speak and tends to negate the purpose of the inquiry. Cf. United States v. Simpson, 17 U.S.M.C.A. 44, 37 C.M.R. 308 (1967). This is not to say that what starts out as a health and welfare inquiry can never change into an encounter that is subject to Article 31, 10 U.S.C. § 831. See United States v. Hall, 1 M.J. 162 (C.M.A. 1975). As the majority imply that advice as to the right to remain silent must be given at the outset of the inquiry, I am impelled to state that, in my opinion, a commander who goes to a confinement facility to talk to a member of his command confined therein about matters pertaining to the subordinate’s “health and welfare” is not obligated by Article 31(b), 10 U.S.C. § 831(b) of the Uniform Code to advise him, first, that he has a right to remain silent and that anything he says can be used against him in a court-martial trial.
Ill
THE NATURE OF THE HEALTH AND WELFARE DISCUSSION BETWEEN A COMMANDER AND A CONFINED ACCUSED.
My conclusion that a health and welfare inquiry is not within the ambit of Article 31(b), 10 U.S.C. § 831(b), does not dispose of the question of the admissibility of the statements made by the accused during the inquiry. Although he overruled defense counsel’s objection to the admission into evidence of accused’s disclosures, the trial judge acknowledged “merit” in counsel’s contention that Captain Black should have, “at least,” informed the accused that, if he talked about the offenses, his statements could be used against him. However, the judge remarked that he was “not aware of any law” under which Captain Black’s omission “would render ... [them] inadmissible.” In my opinion, the trial judge erred in his view of the law.
In United States v. Seay, supra, I noted that an interchange between a commander and a subordinate can be invested with a promise of confidentiality that renders inadmissible at a court-martial statements made by the subordinate.
The concept that promised confidentiality by a commander renders a statement by a subordinate inadmissible in evidence at a court-martial is not new to military law. It *45was first remarked, by way of an hypothesis, a quarter of a century ago. United States v. Payne, 6 U.S.C.M.A. 225, 19 C.M.R. 351 (1955).1 Three years after Payne, the rule was expressly propounded and applied. United States v. Washington, 9 U.S.C.M.A. 131, 133, 25 C.M.R. 393, 395 (1958). There, one of two questions before the Court was “whether a pretrial statement made by the accused to his acting company commander ... [was] admissible in evidence.” Id. at 132, 25 C.M.R. at 394. The Court answered as follows:
We all agree that a statement is inadmissible, despite advice to the accused of his rights under Article 31 of the Uniform Code, 10 U.S.C. § 831, if the accused is informed at the time of the advice by a competent person that whatever he says will be held in confidence between them. A representation of that nature tends to induce a belief in the mind of the accused that his disclosure will not be made the basis for a criminal prosecution.
Id. at 132-33, 25 C.M.R. at 394-95.
In my opinion in Seay, I noted that a promise of confidentiality may inhere in the nature of a particular inquiry by a commander. Earlier, I indicated that a personal health and welfare visit by a commander to a subordinate in confinement is implicitly calculated to encourage the subordinate to unburden himself. The record demonstrates that is precisely how the accused reacted to Captain Black’s visit.
Captain Black testified he sat with the accused in the interview room of the confinement facility. He said that his first remark was, “Well, how is it going?” The accused’s answer was, “I’m depressed”; then “after he had made the statement that he was depressed, he started talking about one of the initial charges.” At that point, Captain Black told the accused he did not have to “make any statements in front of me.” The accused persisted, and “started to discuss the entire” situation he was in. The captain “got the feeling” that the accused had “just kind of give[n] up the ship.” He interrupted the accused to tell him he was not there “to conduct a hearing” so the accused “did not have to make any comments” to him, “if he did not care to.” But, as Captain Black admitted, the accused “continued, so, obviously, he cared.”
Arguably, Captain Black’s statement may have sufficed to apprise a reasonably prudent and emotionally-controlled person that he should not regard their conversation as confidential. United States v. Cudd, 6 U.S.C.M.A. 630, 635, 20 C.M.R. 346, 351 (1956) (Latimer, J.). I am not sure, however, that they would convey that idea to a person in the grip of an emotional state like that of the accused. For the purpose of this case, I assume that Captain Black’s words fell short of dispelling the promise of confidentiality implied in the nature of the meeting with the accused. As in Seay, therefore, the accused’s statements were inadmissible, over his objection, at his court-martial trial.
IV
ERROR IN THE ADMISSION OF EVIDENCE DOES NOT AUTOMATICALLY MANDATE REVERSAL OF FINDINGS OF GUILTY. ALSO TO BE CONSIDERED IS WHETHER THE ERROR PREJUDICED THE ACCUSED.
Two standards obtain for determination of the prejudicial effect of error in the *46admissibility of evidence. The first applies to an error of constitutional dimension; under that standard, the reviewing tribunal must be convinced beyond a reasonable doubt that the error was harmless to the accused. United States v. Hunter, 7 M.J. 287 (C.M.A. 1979); United States v. Ward, 1 M.J. 176, 180 (C.M.A. 1975). The prejudicial effect of an erroneous ruling in the exclusion or reception of evidence that does not violate a constitutional right of the accused is determined by whether the record presents a “fair risk” that the inadmissible evidence “influenced the verdict.” United States v. Woolery, 5 M.J. 31, 33 (C.M.A. 1978); United States v. O’Berry, 3 M.J. 334, 336 (C.M.A. 1977). A special situation exists as regards a violation of Article 31, 10 U.S.C. § 831 because of the unique role that article has in military law. Consistently, the Court has held that the erroneous admission into evidence of statements obtained from an accused in violation of Article 31, 10 U.S.C. § 831 constitutes reversible error “regardless of the compelling nature of the other evidence of guilt.” United States v. Hall, supra at 163; United States v. Ward, supra at 179 n. 3. However, the Article 31, 10 U.S.C. § 831 rule is inapplicable when, not impelled by an erroneous ruling by the trial judge admitting pretrial statements, the accused testified in his own defense and judicially admitted the same incriminatory statements as those allowed into evidence under the judge’s ruling. United States v. Sikorkski, 21 U.S.C.M.A. 345, 45 C.M.R. 119 (1972); United States v. Trojanowski, 5 U.S.C.M.A. 305, 17 C.M.R. 305 (1954). Measured by the most stringent of these standards, the accused was patently not prejudiced by the inadmissible testimony of Captain Black.
According to the majority, the accused’s statements to Captain Black regarding the aggravated assault were inadmissible because, as indicated in Part II of their opinion, they were obtained in violation of Article 31, 10 U.S.C. § 831. However, the accused testified and, as I read his testimony, he not only repeated the incriminating admissions that he made to Captain Black but added substantial detail. Consequently, unless the accused was compelled to testify because of the judge’s erroneous ruling, the error was harmless. United States v. Trojanowski, supra at 313, 17 C.M.R. at 313. See also United States v. Dusenberry, 23 U.S.C.M.A. 287, 49 C.M.R. 536 (1975). The record convinces me that the accused testified, not because he was constrained to do so by the judge’s ruling on Captain Black’s testimony, but as part of a predetermined defense tactic, which included testimony by other defense witnesses, to challenge the legitimacy of the severity of the charge that was lodged as a result of his fight with Moore.2 He succeeded. As he voluntarily and judicially acknowledged the facts determined by the majority to be inadmissible because obtained in violation of Article 31(b), 10 U.S.C. § 831(b), the alleged error is harmless.
In Part III of their opinion, the majority maintain that Captain Black also violated the McOmber rule by failing to notify accused’s counsel of his intended health and welfare inquiry of the accused. Although the notification rule is judicial in origin, the Court related it to accused’s rights under Article 31 of the Code, 10 U.S.C. § 831. United States v. McDonald, 9 M.J. 81, 83-84 (C.M.A. 1980). As the majority characterize Captain Black’s reading of the additional charge as “the ‘functional equivalent’ of interrogation,” the resultant picture of the accused’s situation is that he was being subjected to “custodial interrogation.” See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
A violation of an accused’s rights at a custodial interrogation is constitutional in nature. Consequently, the test for prejudice in the majority’s formulation of the error is whether we can conclude, from the entire record, that the error was beyond a reasonable doubt not harmful to the accused. The entire record obviously includes *47the testimony of the accused and his witnesses. As I have already pointed out, the accused admitted matter from the stand that went far beyond the admissions he made to Captain Black. In my opinion, a fair reading of the entire record would impel a reasonable person to conclude, beyond a reasonable doubt, that Captain Black’s testimony did not adversely influence the trial judge’s findings, which absolved the accused of the offense of maiming but held him responsible for aggravated assault, I would affirm the decision of the United States Army Court of Military Review.
. In Payne, the accused was apprehended for wrongful use of narcotics. After a period of questioning by agents of the CID that produced no incriminating admission, an agent remarked to the accused, “Man to man, just between you and I [sic], when was the last time you used narcotics?” The accused laughed, then admitted that he “took it” the previous day. Writing for the Court, Judge Latimar upheld the admissibility of the accused’s statement, but he explicitly remarked that “[n]o command status was involved” and “no ... promise, express or implied, that any disclosure would be kept confidential, was made.” United States v. Payne, 6 U.S.C.M.A. 225, 228, 19 C.M.R. 351, 354 (1955). In his separate opinion, Chief Judge Quinn also indicated his belief “that ‘a promise of secrecy’ ... made by a commanding officer” was different from a similar promise during an interrogation of an accused by a police officer. Id. at 230, 19 C.M.R. at 356.
. The charged offense, maiming, subjected the accused to punishment that included confinement at hard labor for 7 years. Table of Maximum Punishments, para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition).