(dissenting):
As stated in my dissent in United States v. Schmenk, 11 M.J. 801, (A.F.C.M.R. 1981), current Air Force regulations prohibit the commander, as a member of the accused’s rehabilitation committee, from disclosing in criminal proceedings any information concerning the accused’s participation in a drug rehabilitation program unless the accused affirmatively waives such disclosure in writing. The convening authority’s referral of the charge to trial is a part of the “criminal proceedings,” which begin with preferral of charges. As such, the commander’s use of confidential information on the Air Force Form 65, Transmittal of Court-Martial Charges, was clearly in violation of the accused’s exclusionary privilege * that is automatically invoked on behalf of the accused unless he specifically directs otherwise. Therefore, I believe the rights of the accused were substantially prejudiced.
See United States v. Schmenk, 11 M.J. 801, (A.F.C.M.R.1981), where I indicate my belief that while this regulatory privilege exists in contravention of Rule 501 of the Military Rules of Evidence, the government, by virtue of its failure to amend these regulations in conformity with Rule 501, is estopped from denying privileges still existing therein.