concurring in part and dissenting in part:
I
I applaud the bold step taken by the majority of this court in creating a per se rule. This approach will best implement the non-discriminatory policies underlying the holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. .1712, 90 L.Ed.2d 69 (1986), and will enhance military and civilian confidence in the fairness of our military justice system.1 The rule announced today in the exercise of our supervisory powers over the administration of military justice in U.S. Army courts-martial gives “bright-line” guidance to trial courts and the military bar and will provide uniformity and even-handed application of the Batson principles at the trial level. Our holding establishes unprecedented safeguards to minority accused and will significantly reduce the probability that peremptory challenges can be influenced by impermissible considerations of race. Except for eliminating peremptory challenge entirely, Id. at 107, 106 S.Ct. at 1728 (Marshall, J., concurring), the action we take is the most practical and effective means at our disposal for the elimination of racial prejudice in the selection of court-members. However, I must respectfully dissent against this court’s denial to Specialist Moore of the full benefits of Batson and of the holding announced today.
I also write to express my reservations about the analysis used by the court. The majority states that, at a court-martial, the peremptory challenge is not used as a jury selection device because each side is limited to one peremptory challenge. No authority is cited for such a bald proposition. To the contrary, Batson teaches us that the “reality of practice” is otherwise. A sole excusal may improperly affect the integrity of the selection of the jury and purposeful discrimination may be shown solely from the facts in the case under review. Further, if, as the majority states, in courts-martial counsel use their single peremptory challenge “to remove a member that counsel suspects, intuitively or otherwise, will be sympathetic to the opponent’s ease,” then such action by a trial counsel, to excuse a black member because that member may be sympathetic to a black accused, evinces a racially discriminatory purpose violative of Batson. See United States v. Crawford, 35 C.M.R. 3, 13 (C.M.A.1964).
Unlike the majority, I do find instances where minority soldiers have raised the issue of improper exclusion of fellow minorities from court-martial panels. Most recently, in United States v. Hodge, 26 M.J. 596 (A.C.M.R.1988), the appellant, a black soldier, complained of selection procedures that excluded black members on his court-martial panel. The issue we address has also been raised in prior cases before this court. United States v. Caver, CM 448132 (A.C.M.R. 20 Feb. 1987) (unpub.), petition denied, 25 M.J. 385 (C.M.A.1987); United States v. Santiago-Davila, CM 447830 (A.C.M.R. 6 Aug. 1986) (unpub.), petition granted, 24 M.J. 55 (C.M.A.1987). See generally Felder, A Long Way Since Houston: The Treatment of Blacks in the Military Justice System, The Army Lawyer, Oct. 1987, at 8.
Inexplicably, although the majority holds that “the specific procedural formulation adopted in Batson ... does not apply to courts-martial,” the opinion never identifies what those procedures are that are so objectionable for military use. I cannot believe that this court is saying that military trial practitioners are incapable of understanding and applying the procedural intricacies of recognizing when an accused has established a prima facie case of racial discrimination based on the trial counsel’s use of a peremptory challenge to strike a member of accused’s race from the panel. Nor can I accept the proposition that our trial practitioners are unable to comprehend that, once a prima facie showing is made, the burden shifts to the trial counsel to come forward with a neutral explanation *708for such challenge. Clearly, such “civilian” procedure is not incompatible with “military” practice. Our military courts have been applying similar procedures from at least the time of the enactment of the Uniform Code of Military Justice and are just an qualified as our civilian brothers “in dealing with the nice subtleties of constitutional law.” O’Callahan v. Parker, 395 U.S. 258, 265, 89 S.Ct. 1683, 1687, 23 L.Ed. 2d 291 (1969), overruled in Solorio v. United States, — U.S. -, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987). Recent examples would be the different standards to be employed and shifting burdens in raising and meeting the issue of selective prosecution, United States v. Hagen, 25 M.J. 78, 84 (C.M.A.1987) (once a prima facie case made out, burden shifts to the prosecution to disprove misconduct) and command influence, United States v. Thomas, 22 M.J. 388, 396 (C.M.A.1986) (burden shifting to prosecution to demonstrate no prejudice), cert, denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). There is nothing in our court-martial practice that would preclude allegations of racially discriminatory prosecutorial actions from being adjudicated under equal protection standards.2
Senior Judge Coker, in Part IV, treats the application of Batson procedures to courts-martial as a sixth amendment issue concerning the right to trial by jury. He reasons, citing Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 18 L.Ed. 281 (1866), that, “if a servicemember has no right to trial by jury under the sixth amendment, then procedural rules designed to protect that right cannot apply to trials by court-martial, even if the procedural rule flows from the fifth amendment.” While selection of a jury from a fair cross-section of the community applies, under the sixth amendment, only to the selection of the venire and not the petit jury, Lockhart v. McCree, 476 U.S. 162,106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), Senior Judge Coker’s reliance on Ex parte Milligan and sixth amendment analysis is misplaced. In Batson, the Supreme Court reaffirmed the principle previously announced in Swain v. Alabama, 380 U.S. 202, 203-204, 85 S.Ct. 824, 826-827, 13 L.Ed.2d 759 (1965), and in other cases as well, that the purposeful or deliberate exclusion of blacks as jurors because of race violates the Equal Protection Clause. The Court specifically declined to apply sixth amendment analysis to resolve the matter.3 Further, “[although an accused tried by a court-martial has no Sixth-Amendment right that its membership reflect a representative cross-section of the military population, he does possess a due-process right to a fair and impartial factfinder.” United States v. Carter, 25 M.J. 471, 473 (C.M.A. 1988) (citation omitted). Military law recognizes that the abuse or misuse of the peremptory challenge is of constitutional concern. Id. at 478 (Cox, J. concurring).
I also fail to see how an issue of retroactivity lies in this case. Batson was decided in April 1986 and Specialist Moore was tried in November and December 1986. Defense counsel argued for the application of Batson below. Batson was the law of the land when the case was tried. Even if retroactivity were a viable issue, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), teaches us that Batson and its principles apply to this case on appeal. Further, the fact that the court searches the record for a “blatant attempt to achieve a monochromatic panel” by the prosecutor demonstrates a lack of understanding of the true meaning and underpinnings of Batson. The court fails to recognize that racial discrimination is insidious precisely because it so often does not reveal itself overtly.
*709It is ironic that, after professing to extend to Specialist Moore the benefits of the Batson principles, the court proceeds to deny him the “sensitive inquiry” mandated by the Supreme Court in Batson. Id., 476 U.S. at 93, 106 S.Ct. at 1721. Once the appellant is given the benefit of the per se rule, we must conclude that improper racial factors triggered the trial counsel’s use of his peremptory challenge. As Senior Judge DeFord cogently points out in his dissent, the practical effect of a per se rule is to create a “presumption that invidious racial discrimination is present when a prosecutor exercises a peremptory challenge against a member of the same minority race as the accused.”4 Therefore, the burden has shifted to the government to establish legitimate racially neutral grounds for the challenge.
To meet that burden, over the dissent of four of our members, this court ordered that the trial counsel in this case provide an affidavit explaining the basis for his peremptory challenge of MAJ J.H. I believe that such action is constitutionally insufficient, procedurally unsound, and unnecessarily muddles the appellate process. An ex parte affidavit from an affected litigant is an inadequate substitute for the “sensitive inquiry” required by Batson. Review of the furnished affidavit confirms my belief.
In his rebuttal, the trial counsel asserts that he exercised his challenge against Major J.H. because he had previous dealings with him on military justice matters. In addition, he states that “MAJ J.H. responded with quizzical looks to several of the standards questions posed by the military judge during voir dire.” MAJ J.H. was challenged “since the case ... involved numerous charges and several complicated issues, [and] the government desired a panel that was least likely to be confused by the complexities of the trial.”
Applying standard appellate review procedures to this explanation, it is obvious that the trial counsel initially attempts to challenge the accuracy of the record of trial for the record of trial does not support his assertions. As the majority has reported, the trial transcript reflects that “Captain C.S. was the only member who had contact with trial counsel outside the courtroom.” It is hornbook law that a properly authenticated record of trial imports absolute verity on appeal and may not be challenged except on the ground of fraud. See, e.g., United States v. Albright, 26 C.M.R. 408 (C.M.A.1958). The presumption of regularity which attends a properly authenticated record of trial precludes informal alteration procedures by the use of ex parte affidavits. Id. The affidavit here is not admissible as jurisdictional in nature, see, e.g., United States v. Crawford, 35 C.M.R. at 23-24 (Ferguson, J., dissenting), and is also not presentable under the relaxed procedures authorized in United States v. Roberts, 22 C.M.R. 112, 115 (C.M.A.1956), as a supplementary designation of record since the matters asserted in the affidavit do not involve “some procedure or occurrence which ordinarily would be included in the record of trial and other proceedings ...” related to the record.
The second reason given is also inadequate to carry the government’s burden. The record reflects that other members were equally “confused” during the voir dire process and that the military judge himself expressed confusion during trial counsel’s examination of the members. Since these other “confused” but non-black members were permitted to serve, it appears that the stated reason is pretextual. Further, there was nothing “complicated” to the government’s case. To predicate the challenge on “quizzical looks” and a befuddled mind incapable of understanding the proceedings serves to perpetuate the very racial stereotyping that Batson seeks to eliminate and all of the members of this *710court have rightfully and forcefully disavowed.
A convening authority selects those members of his command “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Uniform Code of Military Justice art. 25(d)(2), 10 U.S.C. § 825(d)(2) [hereinafter UCMJ], Often referred to as a “blue ribbon” jury, “[m]ilitary accused are tried not by a jury of their peers, but by a panel of their best qualified superiors.” United States v. Hodge, 26 M.J. at 601. Trial counsel’s attempt to annul the convening authority’s action in selecting MAJ J.H., a military intelligence officer, with twelve and one-half years of active duty, serving as the communication and electronics staff officer for a military intelligence brigade, comes too late and falls short of the explanation required to carry the government’s burden.5 As Senior Judge DeFord, dissenting, makes clear, “mere disclaimers of discriminatory intent or simple avowals of proper purpose will not satisfy [this] burden.” The affidavit is insubstantial and unsupported by the record. Accordingly, the affidavit has little, if any, probative value, and should not be outcome determinative.
II
In my view, the constitutional principles recognized by the United States Supreme Court in Batson apply to courts-martial. The right of a soldier-accused to equal protection is violated when a member of his race is excluded from the trial panel solely because of race.6 The trial counsel’s use of a peremptory challenge in such a manner can constitute a prohibited selection device. There is no requirement that the findings and sentence in the case be affected by the alleged discrimination, just as there is no requirement that a certain level of challenge use be achieved. Batson does not require that all members of the cognizable group be excluded. Griffith v. Kentucky, 107 S.Ct. 708. The military prosecutor who uses his peremptory challenge7 to remove purposefully a panel member of accused’s race has used “all” of the government’s allowed peremptory challenges and so is subject to the basic principles of Batson. To me Batson means that the government is prohibited from striking any court member because of his or her race.8 Therefore, a Batson violation may occur even if a member of the constitutionally cognizable group remains on the court.
After timely objection by defense counsel below, the military judge ruled that Batson did not apply to trials by court-martial.9 This ruling was error. Further, even when he assumed that Batson did apply, he gave trial counsel the option of responding to the defense’s Batson inquiry, rather than requiring a response. He then compound*711ed the error by failing to make the findings required by Batson.10
The proper action for the judge to have taken would have been to conduct “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” Batson, 476 U.S. at 93, 106 S.Ct. at 1721 (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977)), so as to provide the defense with an opportunity to establish a prima facie case of prosecutorial misuse of the peremptory challenge under the constitutional standards announced in Batson.11 The military judge should then examine all the circumstances before him to determine whether a reasonable inference arises that the prosecution used the peremptory challenge for racially discriminatory reasons.12 Once a prima facie case of purposeful discrimination is made,13 the burden is then on the government to articulate a nondiscriminatory reason for the challenge within the context of the case.14
In those cases where a “neutral explanation” is presented, the military judge should permit the defense to challenge the prosecution’s explanation as pretextual. Close judicial scrutiny should be given to any rebuttal evidence from the government.15 A mere affirmation of good faith is insufficient. The presumption of propriety in a prosecutor’s use of his peremptory challenge does not survive when a prima facie case of purposeful discrimination is established. The principles enunciated in Batson would signify nothing if unlawful discrimination could be judicially masked by the mere recitation of an impartial motive.
Ill
As the Supreme Court appositely noted: [i]n this case, petitioner made a timely objection to the prosecutor’s removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed.
Batson, 476 U.S. at 100, 106 S.Ct. at 1725.
I joined in the original Moore opinion that would return this matter for the sensitive inquiry required in Batson to determine the issue of purposeful discrimination *712and to develop a proper record for appellate review.16
However, the government has now been given an opportunity not only at the trial level by the military judge17 but also at the appellate level by this court to advance a legally sufficient reason for the peremptory strike. Having twice failed, I can think of no valid reason to approve a third attempt. Under strict Batson standards or the per se rule announced today, I would reverse and authorize a rehearing.
. Strict application of Batson requirements would cause an unnecessarily unrealistic evidentiary burden on a military accused.
. I do not join my dissenting brothers' objection to the institution of a per se rule as a legislative encroachment. In Batson, the Supreme Court specifically declined "to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.” Id., 476 U.S. at 99, 106 S.Ct. at 1724. Whatever the label, the "particular procedures” fashioned by the majority are constitutionally sound and manifestly workable in a military context.
. ”[R]esolution of petitioner’s claim properly turns on application of equal protection principles and [we] express no view on the merits of any of petitioner’s Sixth Amendment arguments.” Batson, 476 U.S. at 84-85 n. 4, 106 S.Ct. at 1715-1716 n. 4.
. Another significant effect of the per se rule will be that a military judge may not only require a trial counsel to justify a peremptory strike but, in the exercise of sound discretion, also may subject the prosecutor's motives and intent to be examined at the Batson hearing. This may necessitate the trial counsel being called to the stand. See United States v. Hagen, 25 MJ. at 85.
. Batson assumes that the prosecutor’s rebuttal will be reasonably contemporaneous to the challenged strike. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 1768 n. 17, 95 L.Ed.2d 262 (1987).
. Equal protection guarantees are infringed when ‘‘constitutionally suspect classifications like race, religion, or national origin are utilized____” United States v. Means, 10 M.J. 162, 165 (C.M.A.1981). Cf. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (classifications based on race, alienage, national origin, and sex are inherently suspect); Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964) ("while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process’ ”). In short, due process, whether civilian or military, includes equal protection. See United States v. Rodriguez-Amy, 19 M.J. 177, 182 n. 7 (1985) (Everett, C.J., dissenting). See generally Gilligan, The Bill of Rights and Service Members, The Army Lawyer, Dec. 1987, at 3.
. UCMJ art. 41(b) ("[e]ach accused and the trial counsel is entitled to one peremptory challenge____”); Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 912(g) [hereinafter R.C.M.].
. See United States v. Gordon, 817 F.2d 1538 (11th Cir.1987). I would also hold that "the defense must likewise be so prohibited.” United States v. Leslie, 783 F.2d 541, 565 (5th Cir.1986) (en banc), vacated and remanded, 479 U.S. 1074, 107 S.Ct. 1267, 94 L.Ed.2d 128 (1987), on remand, 813 F.2d 658 (5th Cir.1987).
. Notwithstanding the pusillanimous exception taken by the defense counsel, the parties at trial proceeded as if the issue were presented for resolution.
. See also R.C.M. 905(d) (when factual issues are involved in determining a motion, the military judge shall state the essential findings on the record).
. This showing must be more than mere exclusion of a member of a distinct group.
. Under current practice in federal trials, the threshold for establishing a prima facie case is very low. For example, in United States v. Thompson, 827 F.2d 1254 (9th Cir.1987), where the Assistant United States Attorney used some but not all of her challenges against the blacks in the venire, the government, on appeal, conceded a prima facie case under Batson.
. Both Senior Judge Coker and Senior Judge DeFord find no prima facie case. Senior Judge DeFord states that "this case does not suggest a racially motivated peremptory challenge much less meet the burden of proof required by Bat-son." Senior Judge Coker notes that the “trial counsel did not attempt to develop a challenge for cause against either black member of the panel.” Because governmental racial distinctions are inherently suspect, I believe that my brothers do not give sufficient recognition to the requirement that we employ the most exacting judicial examination in this case. Cf. Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (circuit court reversed for relaxing strict scrutiny standard). I fear that the test they employ is a lower standard than "strict scrutiny.”
. The reason given need not rise to the level justifying a challenge for cause.
. In a Batson challenge, the initial evaluation of the credibility of the parties and of the reasons given is to be at the trial level. Id., 476 U.S. at 98 n. 21, 100, 106 S.Ct. at 1724 n. 21, 1725. Notwithstanding our fact finding powers under Article 66(c), UCMJ, we are in no position to make that judgment on this incomplete and inadequate record. The actions of the majority have denied Specialist Moore the adversarial process so fundamental to our system of justice. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
. See United States v. DuBay, 37 C.M.R. 411 (C.M.A.1967); see also United States v. Benoit, 21 MJ. 579 (A.C.M.R.1985) (R.C.M. 912(b) hearing procedure on selection of members applies to excusal of members). The analysis in Benoit should be extended to Batson challenges.
. In this respect, trial counsel’s refusal to speak up when invited to do so by the military judge and his heedless disregard of the opportunity provided to "protect the record” is simply beyond the pale. "To avoid needless appellate issues and the attendant risk of reversal on appeal, an experienced prosecutor will weigh the factors involved that will, in many cases, counsel a prudent course of action____” United States v. Guthrie, 25 MJ. 808, 810 (A.C.M.R. 1988). Trial counsel elected not to pursue the prudent course of action. His immaturity and obstinacy engendered much needless appellate litigation.