(concurring in the result):
Serious questions have existed for a long time concerning the logical consistency of the decisions of this Court which treat compulsory sanity examinations of a military accused by government psychiatrists. See Holladay, Pretrial Mental Examinations Under Military Law: A Re-examination, 16 A.F.L.Rev. 14, 29 (No. 3, 1974) [hereafter cited as Holladay]. Tifford, Babbidge: A Time For Change, 25 JAG J. 133, 137 (1971); see also Lederer, Rights Warnings in the Armed Services, 72 Mil.L.Rev. 1, 22-23 (1976). The majority opinion ameliorates this problem to a certain extent by disapproving the opinion of the United States Navy Court of Military Review in United States v. Duwors, 6 M.J. 957 (1979), pet. denied, 7 M.J. 262 (1979), as a legitimate offspring of this Court’s decisions. The latter opinion holds that if a military accused is advised of his Article 31 rights prior to a sanity board examination, which is necessitated as a condition for his raising the defense of insanity by his own medical experts, incriminating statements made during this examination are admissible against him on the merits of his guilt or innocence. I agree with the majority opinion’s disapproval of Duwors.
The majority opinion nonetheless resolves the granted issue in part on a basis which I cannot accept without further clarification. It notes that in accordance with our precedents, appellant was given a detailed advisement of his Article 31 ^Miranda-Tempia2 rights by the government psychiatrists prior to his making incriminating statements to the sanity board. It implies that compliance with this procedure somehow undermines appellant’s claim that he was prejudiced if the members improperly considered his subsequent statements on the merits of this case. How does it?
Our precedents provide only that such statements may be admitted át a court-martial by the Government on the question of the accused’s mental responsibility. See United States v. Frederick, 3 M.J. 230, 233 (C.M.A.1977); United States v. White, 19 U.S.C.M.A. 338, 41 C.M.R. 338 (1970). The advice given to appellant in the present case must be viewed in this context. Accordingly, I fail to see how appellant’s decision to make incriminating statements to these government doctors can be construed as some indication that he was not prejudiced if the members considered his statements on the merits.
This holding also ignores the facts of the present case. There was an express agreement in this case between trial counsel and defense counsel made prior to appellant’s sanity-board examination. It provided that “any statements made by him during the board’s inquiry would not be introduced unless the defense raised the issue of mental responsibility at trial and would only be used then with respect to the limited issue of mental responsibility.” United States v. *156Parker, 11 M.J. 757, 760 (N.M.C.M.R.1981) (footnote omitted). Surely, this agreement, not the subsequent advice of the sanity board, dictates a conclusion that appellant could be prejudiced if the members considered his statements on the question of his guilt or innocence.
More particularly, appellant in this case cooperated with the government psychiatrists as a condition to his raising the defense of insanity by the testimony of his own experts.3 See United States v. Babbidge, 18 U.S.C.M.A. 327, 40 C.M.R. 39 (1969); Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 1874, 68 L.Ed.2d 359 (1981). Since appellant chose to raise the defense of insanity in this manner, he had no right under the fifth amendment4 or Article 31 to refuse to make inculpatory statements to these medical examiners. United States v. Wilson, 18 U.S.C.M.A. 400, 40 C.M.R. 112 (1969). The doctors’ opinions and his statements after proper advice could only bé admitted at trial on the issue of his sanity. United States v. White, supra. See United States v. Albright, 388 F.2d 719, 725 (4th Cir.1968); see also United States v. Leonard, 609 F.2d 1163 (5th Cir.1980). This in fact was the understanding of trial counsel and defense counsel in the present case as demonstrated by their written agreement.
The advisement of rights under Article 31 and Miranda-Tempia by the sanity board in this context (cf. Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982)), does not unqualify the “qualified nature” of appellant’s waiver. For this to occur, the sanity board would have been required to particularly advise appellant that the purpose of the inquiry was for a much broader objective than to permit the Government a fair opportunity to acquire expert testimony on the question of his mental responsibility at the time of the offense. Estelle v. Smith, supra 451 U.S. at 465, 101 S.Ct. at 1874. Under the circumstances of this case appellant should have been advised that the Government intended to use his statements on the merits of his guilt or innocence; that this use of his statements was not required as a condition to his raising the defense of insanity; that this intended use was in contravention of his earlier agreement with trial counsel; and that he could refuse to permit this use of his statements on the basis of Article 31 and the fifth amendment. Id. at 468-69, 101 S.Ct. at 1875-1876. This did not occur in the present case. Accordingly, the majority opinion is incorrect in asserting that the advice given by the sanity board indicates that appellant could not have been prejudiced by consideration of the challenged evidence on the merits of this case.
Acknowledging my disagreement with the majority opinion, I nonetheless must vote to affirm appellant’s conviction. The assigned issue in this case asks whether appellant was prejudiced in his case on the merits by the admission of the challenged testimony on the issue of his mental responsibility. See United States v. Bennett, 460 F.2d 872, 878-82 (D.C.Cir.1972). In view of other circumstances in this case, I find no prejudice.
First, an essential issue on the merits of appellant’s guilt or innocence of this murder charge was whether he killed the victim Drury with premeditation. Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918. In other words, did appellant shoot and kill Drury after he consciously conceived the thought of taking this person’s life and acted in accordance with this intention? See para. 197b, Manual for Courts-Martial, United States, 1969 (Revised edition). The Government called several witnesses who testified to a series of hostile incidents between appellant and the victim immediately prior to the shooting. Two of these witnesses, Lance Corporal Clough and Lance Corporal Christie testified that appellant told them that there was going to be “some trouble” or a fight between him and Drury. Private Gomez testified that appellant, prior to receiving his pistol and *157rounds for sentry duty, mumbled that he was going to get Drury. Sergeant Ledbetter further testified that the victim, before he died, stated that appellant shot him “on purpose.” The existence of a premeditation to kill on the part of appellant could be inferred from these circumstances. Para. 197, Manual, supra.
Second, defense counsel, in his opening argument at trial, stated that he would rely on the insanity defense. The theory of the defense and the evidence it introduced at trial concerned appellant’s lack of mental capacity to control his conduct in accordance with the law and his inability to form a specific intent to kill the victim Drury. He called no witnesses to contradict the testimony of the aforementioned government witnesses. Under these circumstances and except for the question of appellant’s mental responsibility (para. 120, Manual, supra), the defense virtually conceded the fact that appellant did the charged act with the requisite intent. See United States v. Bennett, supra at 879 n. 24.
Third, during its case-in-chief, the defense called two expert witnesses, Doctor Shapiro and Doctor Ratner, to raise the issue of appellant’s mental responsibility at the time of the offense. See para. 122a, Manual, supra. Prior to trial, appellant requested that these doctors examine him on the question of his mental responsibility and voluntarily made statements to them concerning his involvement in the alleged crimes. See United States v. Frederick, 3 M.J. 230, 233 (C.M.A.1977); United States v. Wimberley, 16 U.S.C.M.A. 3, 36 C.M.R. 159 (1966). On direct examination, the doctors provided the court-martial with their expert opinions, but only generally stated that these opinions were based in part on statements made by appellant during their examinations.
The Government, in its cross-examination of these witnesses, questioned the doctors on the basis of these opinions, including statements made by appellant. See para. 138e, Manual, supra. The doctors testified that appellant stated in substance that he intended to humiliate the victim for past slights by forcing the latter to get on his knees and beg for mercy at the point of a gun. This is substantially the same account of the incident which the government psychiatrists later testified appellant related to them during the course of their interviews. The military judge instructed the members that any statements of the appellant contained in this psychiatric testimony were only to be considered on the issue of appellant’s mental responsibility at the time of the offense.
It is well-established that the Government has the right to cross-examine a defense witness on the issues concerning which he has testified on direct examination, and on his credibility. See para. 149b (1), Manual, supra. Here the defense witnesses provided the court with their expert opinions on appellant’s mental condition at the time of the offense, which in part were based on his incriminating statements. To the extent that these statements were a basis for these opinions, they were matters that the members of the court-martial might properly consider in evaluating the weight to be given these opinions. Para. 138e, Manual, supra. See also C. Wright, Federal Practice and Procedure § 455 n. 7 (1982). The fact that the experts did not disclose the specific contents of these statements during their direct testimony does not negate their relevance to these opinions or shield them from inquiry on cross-examir nation. See Battie v. Estelle, 655 F.2d 692, 702 n. 22 (5th Cir.1981).
A question exists whether the defense psychiatrists can be compelled to answer the questions of the trial counsel concerning statements made by appellant during their examinations. See Gholson v. Estelle, 675 F.2d 734, 741 n. 6 (5th Cir.1982). In view of the military judge’s instructions, this testimony was elicited on cross-examination for the purpose of providing a basis for weighing the experts’ opinion on appellant’s mental responsibility at the time of the offense. See para. 138e, Manual, supra. Moreover, there is no claim by the defense that these statements were irrelevant for this purpose. It is clear however, that these statements *158also are pertinent to the question of whether appellant murdered Drury with premeditation. See United States v. Bennett, supra 460 F.2d at 879.
Appellant voluntarily chose to consult these civilian doctors in regard to his defense of insanity. He also voluntarily chose to make incriminating statements to these doctors in the hope of fostering this defense. Cf. Holladay, supra at 20. Appellant was not forced to raise the defense of insanity at trial (para. 122, Manual, supra) or compelled to do so by means of expert testimony. Under these circumstance and in view of the limited use of these statements to the question of mental responsibility, this cross-examination cannot be said to violate his fifth amendment or Article 31 rights.
An additional argument might be made that although the statements are relevant and proper matter for inquiry on cross-examination, their disclosure would be too prejudicial with respect to appellant’s defense on the merits. See United States v. Bennett, supra. See also Fed.R.Evid. 403; Article 36, UCMJ, 10 U.S.C. § 836. Such an argument is unpersuasive in the present case. First, substantial evidence on the question of premeditation had already been properly introduced at trial by the Government. Second, the defense made no attempt at trial to contest this evidence or this issue on the merits. Third, the military judge specifically instructed the members that they could only consider these statements on the issue of appellant’s sanity at the time of the offense and not on the question of his guilt or innocence. Fourth, appellant made no objection to the disclosure of these statements by Doctor Shapiro on cross-examination, and with respect to Doctor Ratner, his objection was belated and not particularly directed to this point.
In summary, I conclude that the testimony of the defense experts as to incriminating disclosures made by appellant was properly before the members of the court-martial. This testimony was substantially similar to the testimony of the government psychiatrists concerning disclosures made to them by appellant. See United States v. Albright, supra 388 F.2d at 725-26.
Fourth, the military judge on two occasions clearly instructed the members that any statements of the appellant contained in the psychiatric testimony of the Government’s experts could not be used on the question of his guilt or innocence. See United States v. Bennett, supra 460 F.2d at 879 n. 26. Such express limiting instructions in all eases might not be adequate to protect an appellant from undue prejudice. Id. at 880 n. 29. See 8 Moore’s Federal Practice § 12.2.03[2] (2d ed. 1982). Yet, the previously indicated circumstances in which these instructions were given convince me of their efficacy in the present case.
In conclusion, this Court need not decide today whether Article 31 or the fifth amendment was violated when the military judge admitted the challenged testimony of the government psychiatrists at appellant’s court-martial. Cf. Mil.R.Evid. 302. The particular circumstances in this case clearly indicate that if error occurred, no prejudice accrued to appellant as a result thereof.
. Uniform Code of Military Justice, 10 U.S.C. § 831.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).
. I seriously doubt that the doctor-patient privilege has any applicability in this situation. See McCormick’s Handbook of the Law of Evidence §§ 98-105 (2d ed. 1972).
. U.S. Const, amend. V.