(dissenting):
I must disagree with my Brothers’ opinion as to the certified question.
First, let me deal briefly with the rationale of the majority opinion that Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), does not state a unique rule as to death-penalty cases, because there is reliance upon the fifth and sixth amendments to the Constitution, instead of the eighth amendment as in other recent death-penalty cases. I would point out that the eighth amendment is used only as a super due-process tool in lieu of the due-process requirement of the fifth amendment. The eighth amendment has not been used by the Court to encompass all of the facets found in the fifth amendment. Further, three of the justices who concurred in the judgment in Estelle v. Smith, supra, relied upon the sixth amendment. My re*119search shows that the Court has not, in death-penalty cases, used the eighth amendment to reach into the sixth amendment. I therefore conclude that if the Court of Military Review and my Brothers are found to be correct, it must not be based in any way upon the above rationale, but upon their reading of the cases from this Court.
The thrust of the Court of Military Review’s opinion is that the military judge compelled appellant to establish the admissibility of prosecution exhibit 20 in violation of his rights under the fifth amendment. It assumes that the evidentiary burden rests only on the Government to make clear on the record that an accused had the opportunity to consult with counsel prior to receiving a challenged nonjudicial punishment. In United States v. Booker, 5 M.J. 238, 244 (C.M.A.1977), this Court stated that where this information was not clearly shown on the offered exhibit, it was incumbent on the military judge to make an inquiry on the record to establish the necessary information. See United States v. Davis, 3 M.J. 430 (C.M.A.1977). Later decisions of this Court make clear that the trial judge may require the Government or the accused to assist him in performing this function. See United States v. Spivey, 10 M.J. 7 (C.M.A.1980); United States v. Mack, 9 M.J. 300 (C.M.A.1980), and United States v. Mathews, 6 M.J. 357 (C.M.A.1979). Accordingly, the assumption of the Court of Military Review that appellant was being compelled to make the Government’s case on sentencing is simply not a correct reading of Booker and its progeny. Cf. Estelle v. Smith, supra, 451 U.S. at 465-66, 101 S.Ct. at 1874.
A second question arises as to the propriety of this Court’s placing on the accused some responsibility to comply with the military judge’s Booker inquiry. I believe this responsibility is appropriate since it is in the accused’s interest that this inquiry is conducted (see Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948)), and it is normally his burden to establish at least initially any denigration of his right to counsel which occurred outside the forum of the court. See Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971).
The decision of this Court in United States v. Booker, supra, was designed to preserve the integrity of a servicemember’s removal decision under Articles 15 and 20 of the Uniform Code of Military Justice, 10 U.S.C. §§ 815 and 820, respectively. See United States v. Syro, 7 M.J. 431, 434 (C.M. A.1979). In particular, the Court was concerned with preventing infliction of any further harm upon a military accused at his court-martial as a result of a disciplinary punishment administered to him in violation of due process of law. E.g., Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967). To protect the accused from this harm, a procedure was devised to establish affirmatively on the record whether in fact an accused was afforded an opportunity to consult with counsel prior to accepting any such disciplinary punishment which the Government intended to use against him at a court-martial. This procedure was derived from seminal cases where questions were raised as to an accused’s waiver of legal representation at trial (see Von Moltke v. Gillies, supra, 332 U.S. at 723-24, 68 S.Ct. at 323), or to an accused’s waiver of a conflict of interest in his legal representation. See United States v. Davis, supra at 434, citing United States v. Garcia, 517 F.2d 272, 278 (5th Cir.1975). See also United States v. Rivas, 3 M.J. 282, 289 (C.M.A.1977) (Fletcher, C.J., concurring). A showing that no opportunity to consult with counsel was provided to an accused or a failure to conduct the necessary inquiry in the face of an otherwise silent record dictated that the exhibit be found inadmissible.
The decision of this Court in United States v. Booker, supra, must be understood and applied in an integral fashion. Its evidentiary remedy is not severable from its purpose or its procedure. See United States v. Syro, supra. Accordingly, in the present ease where defense counsel seeks the benefits of our holding in United States v. Booker, supra, he also, by necessary implication, consents to meet the reasonable burden imposed on him by that decision.
*120A third point raised in the Court of Military Review’s opinion is that the recent decision of the Supreme Court in Estelle v. Smith, supra, in someway emasculates the decisions of this Court in United States v. Spivey, and United States v. Mathews, both supra. Assuming the applicability of Estelle to a non-death-penalty case, it addresses the availability of the fifth-amendment privilege against compelled self-inerimination, while United States v. Mathews, supra, is concerned with an accused’s protection under Article 31. As for the continued validity of United States v. Spivey, supra, despite some unnecessarily broad statements contained therein, I believe the result reached is still correct.
The Court of Military Review, in reaching its decision, relied heavily on the following language in Estelle v. Smith, supra, 451 U.S. at 463, 101 S.Ct. at 1873: “Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.” However, the general principle of constitutional law which can be deduced from Estelle v. Smith, supra, 451 U.S. at 462-63, 101 S.Ct. at 1873, is that the availability of the fifth-amendment privilege against compelled self-incrimination depends not on the proceeding in which it is invoked, but on the nature of the statement and the exposure it invites. On the first point, I note that the trial judge’s inquiry in the present case, as in United States v. Spivey, supra, was conducted for “the limited, neutral purpose of determining” whether appellant was afforded due process in his decision to accept nonjudicial punishment and forego his right of removal provided in Article 15. Id. at 465. The answers to these questions do not constitute affirmative and substantive evidence of his bad military record, but routine assurance to this Court of the integrity of his earlier decision. See United States v. Mack, supra at 320; United States v. Syro, supra. In such a situation, I do not believe Estelle v. Smith, supra, compels a conclusion that the nature of these statements comes within the ambit of the fifth amendment privilege against self-incrimination. Cf. United States v. Nichols, 13 M.J. 154 (C.M.A.1982).
Turning to the second point of Estelle v. Smith, supra, I hold that the consequences of appellant’s responses to the judge are not sufficient to justify the application of the fifth amendment privilege. In Estelle v. Smith, supra, the prosecution used the court-ordered psychiatric testimony as evidence rendering the accused susceptible to the death penalty to which he was otherwise not exposed. In the present case, the answers of appellant do not increase his exposure to any punishment to which he would not otherwise be exposed if they were not given. More importantly, the military judge did not use these responses for anything other than the “neutral purpose” of determining whether appellant was afforded due process in connection with his earlier nonjudicial punishment. Of course, a related consequence of his statement was that the Booker remedy was not imposed with respect to prosecution exhibit 20, but this consequence I find no more severe than the results of a competency or sanity examination. See Estelle v. Smith, supra, 451 U.S. at 465-66, 101 S.Ct. at 1874. Cf. Note, Requiring a Criminal Defendant to Submit to a Government Psychiatric Examination: An Invasion of the Privilege Against Self-Incrimination, 83 Harv.L.Rev. 648 (1970). Accordingly, I would answer the Judge Advocate General’s certified question in the negative.