concurring in part and dissenting in part:
For the reasons stated in the original Moore opinion (attached as an appendix) I *714concur with the lead opinion insofar as it may be read to state that Batson applies to courts-martial.
I dissent from the court’s unnecessary and legislative establishment of a per se rule removing the defense requirement to articulate a prima facie showing of discriminatory purpose. I further dissent from the court’s use of an affidavit to make its factual determination of no discriminatory intent. Such an ex parte procedure denies appellant due process of law. I find in this case that appellant had, at trial, established a prima facie case of discriminatory use of the government’s peremptory challenge. I would apply Bat-son in its entirety — not selectively — and return this case to the trial level for litigation of the Batson issue.
APPENDIX
U.S. Army Court of Military Review.
Before ADAMKEWICZ, LYMBURNER, and SMITH Appellate Military Judges.
UNITED STATES, Appellee v. Specialist Four HAROLD MOORE, 317-68-6163, United States Army, Appellant.
ACMR 8700123.
For Appellant: Captain Scott A. Hancock, JAGC (argued); Major Russell S. Estey, JAGC, Major Eric T. Franzen, JAGC (on brief).
For Appellee: Captain George R. Gillette, JAGC (argued); Colonel Norman G. Cooper, JAGC, Lieutenant Colonel Gary F. Roberson, JAGC, Major Byron J. Braun, JAGC (on brief).
17 Dec. 1987.
OPINION OF THE COURT *
SMITH, Judge:
On 7 and 26 November, 1-5, 8 and 9 December, 1986, appellant was tried by a general court-martial composed of officer members at Frankfurt, Federal Republic of Germany. Contrary to his pleas, he was convicted of attempted murder, attempted wrongful appropriation of private property, operating a motor vehicle while drunk (two specifications), wrongful appropriation of government property (two specifications), wrongful appropriation of private property, robbery (two specifications), and aggravated assault (seven specifications), in violation of Articles 80, 111, 121, 122, and 128, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 911, 921, 922 and 928, respectively. The court sentenced appellant to confinement for twelve years, total forfeitures, and reduction to Private E-l. The convening authority approved the sentence.
Subsequent to voir dire, trial counsel made a peremptory challenge against a member of the court, Major Junior Harris, Jr. Defense counsel requested that the military judge inquire whether the challenge was for any impermissible discriminatory purpose, noting that Major Harris, like appellant, was black. Trial defense counsel cited the Supreme Court holding in Batson v. Kentucky [476 U.S. 79], 106 S.Ct. 1712 [90 L.Ed.2d 69] (1986), for the proposition that a prosecutor’s discriminatory use of peremptory challenges to remove blacks from a jury violates a black defendant’s equal protection rights.
Defense counsel stated: “We are not averring that the government has made an improper challenge on discriminatory constitutionally impermissible grounds, we are merely stating that that is the appearance and the defense would ask the bench to inquire of the government its reasoning for this challenge, this peremptory challenge.”
The military judge reviewed the Batson decision and ruled that it did not impose a requirement on the government to disclose its reasons for a peremptory challenge in a court-martial. The judge ruled that, even if Batson did apply to military trials, its requirements were not satisfied under the facts of this case. The military judge did *715not require trial counsel to disclose the reason for his challenge, but gave him the option of doing so. Trial counsel declined, stating: “Your Honor, the principle of peremptory challenge being at the discretion of counsel, counsel will not make any comment as to the basis for his peremptory challenge.”
Appellant argues the applicability of Bat-son to military courts-martial, noting that the Supreme Court has ruled that Batson applies retroactively to all cases, state and federal, citing Griffith v. Kentucky [479 U.S. 314], 107 S.Ct. 708 [93 L.Ed.2d 649] (1987). Appellant contends that it is only logical that courts-martial be included. In support of his argument appellant cites United States v. Caver, CM 448132, slip op. at 3 n. 3 (A.C.M.R. 20 Feb. 1987) (unpub.), petition denied, 25 M.J. 385 (C.M.A. 1987) (“A court may need to apply the equal protection principles in Batson to trials by court-martial.”)
The government asserts that Batson does not apply to courts-martial, first, because Batson concerns safeguards on the right to trial by jury, which is not applicable in the military. Further, the government contends that, since trial counsel has only one peremptory challenge, the use of that challenge cannot be considered a “jury selection device” that permits discrimination nor can it establish systematic exclusion which raises the issue of discriminatory purpose.
I
In Swain v. Alabama, 380 U.S. 202 [85 S.Ct. 824,13 L.Ed.2d 759] (1965), a prosecutor had used his peremptory challenges to strike the six blacks on the jury venire. The Supreme Court rejected the accused’s claim that he was being denied equal protection by the state’s exercise of peremptory challenges to exclude members of his race from the jury, on the basis that he failed to meet his burden of proving purposeful discrimination. The Court did recognize that the use of peremptory challenges could be the basis for a claim of purposeful discrimination if the defendant could show that the system was being perverted. Id. at 224 [85 S.Ct. at 838]. The Supreme Court indicated that a prima facie ease could be made by a showing that the prosecutor, in case after case, removed qualified blacks from the jury. Id. at 223 [85 S.Ct. at 837]. Since the defendant in Swain offered no proof of the circumstances of the prosecutor’s use of peremptory challenges in cases other than his own, he did not meet the necessary evidentiary burden for establishing a prima facie case. Subsequently, lower courts in interpreting Swain reasoned that proof of repeated striking over a number of cases was necessary to establish an equal protection violation. See Batson v. Kentucky, 106 S.Ct. at 1720 n. 16. The Supreme Court in Batson rejected this interpretation of Swain, since it placed a “crippling burden of proof” on defendants and left peremptory challenges immune from constitutional scrutiny. Bat-son, 106 S.Ct. at 1720-21. The Court, in Batson, reviewed its decisions since Swain and indicated that it had recognized that an accused could make a prima facie case of purposeful discrimination in the selection of the venire based on the facts in his case alone. Batson, 106 S.Ct. at 1722. The Court applied this analysis to the exercise of peremptory challenges as well. Id. at 1722-23.
The Supreme Court in Batson was faced with a case in which a black defendant was tried by an all-white jury after the prosecutor had used his peremptory challenges to strike all four black persons on the venire. The Court held that, to establish a prima facie case of purposeful discrimination based on the use of peremptory challenges in the accused’s trial, the accused (1) must show that he is a member of a cognizable racial group and that the prosecutor has used his peremptory challenges to remove from the jury venire members of his race; (2) can rely on the fact that peremptory challenges constitute a jury selection device that permits discrimination by those so inclined; and (3) must show that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude venire members on account of their race. Id. at 1723. The Court gave two examples of *716how a trial judge could decide whether, under all relevant circumstances, the defendant had made the necessary prima facie showing: a pattern of strikes against blacks in the venire may give rise to an inference of discriminatory purpose, and a prosecutor’s questions and statements during voir dire and in exercising his challenges may support or refute such an inference. Id. Once the defendant has made a prima facie showing, the burden shifts to the prosecution to articulate a neutral explanation related to the particular case for the peremptory challenges against black jurors. Id. The trial judge then will have the duty to determine if the defendant has established purposeful discrimination.
II
The initial question presented here is whether Batson applies in the military. Previous unpublished Army court opinions indicate a split. Compare United States v. Caver, supra (Batson issue waived), (Smith, J., concurring in the result) (Batson applies in the military) with 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) (questioning application of Batson to the military because system allows only one peremptory challenge). The court now believes that the Batson issue is squarely presented in this case, and that the court needs to resolve the applicability of Batson to trials by courts-martials.
A. In Principle
The government’s first contention, that, because the right to trial by jury does not apply to courts-martial, neither do the constitutional safeguards designed to protect the jury system, is overbroad. The government’s interpretation of Batson as a Sixth Amendment case is incorrect. The Court in Batson clearly stated that its holding was based not on the Sixth and Fourteenth Amendment rights to an impartial jury, drawn from a cross-section of the community, but rather on equal protection principles: “[w]e agree that the resolution of petitioner’s claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner’s Sixth Amendment arguments.” Id., 106 S.Ct. at 1716 n. 4. Thus we are dealing not with a jury trial issue but rather with an equal protection issue. While a military accused does not have the right to trial by jury, he does have the equal protection right to a fairly selected court-martial panel. Clearly there can be no provisions for selection or nonselection of court members on the basis of race at any point in a court-martial; indeed, such a concept is unthinkable. “Discrimination in the selection of court members on the basis of improper criteria threatens the integrity of the military justice system and violates the Uniform Code.” United States v. Daigle, 1 M.J. 139, 140 (C.M.A.1975). See also United States v. McClain, 22 M.J. 124 (C.M.A. 1986).
This court remains unpersuaded by the government’s representations and appellate brief that military necessity or the provisions of the UCMJ or the Manual for Courts-Martial, United States, 1984, preclude application of the Batson equal protection principles to trials by court-martial. As the United States Court of Military Appeals has stated, “[t]he time is long since past ... when this Court will lend an attentive ear to the argument that members of the armed services are, by reason of their status, ipso facto deprived of all protections of the Bill of Rights.” United States v. Tempia, 37 C.M.R. 249, 253 (C.M.A. 1967). Additionally,
[ujnder the Fifth and Sixth Amendments to the United States Constitution, persons in the armed forces do not have the right to indictment by grand jury and trial by petit jury for a capital or infamous crime. However, courts-martial are criminal prosecutions and those constitutional protections and rights which the history and text of the Constitution do not plainly deny to military accused are preserved to them in the service. Constitutional due process includes the right to be treated equally with all other accused in the selection of impartial triers of fact.
United States v. Crawford, 35 C.M.R. 3, 6 (C.M.A.1964) (citations omitted). “The Fifth Amendment’s right to due process *717encompasses equal protection of the laws.” United States v. Rodriguez-Amy, 19 M.J. 177, 182 n. 7 [(1985)] (Everett, C.J., dissenting) (citing Bolling v. Sharpe, 347 U.S. 497 [74 S.Ct. 693, 98 L.Ed. 884] (1954)).
Thus, the military accused is entitled, through his right to due process and equal protection, to rely upon the equal protection principles articulated in Batson. See Tempia, 37 C.M.R. at 254 (“both the Supreme Court and [the Court of Military Appeals] itself are satisfied as to the applicability of constitutional safeguards to military trials, except insofar as they are made inapplicable either expressly or by necessary implication.”)
B. The Procedure
The government contends that the use of only one peremptory strike against a black member is insufficient to establish a prima facie case. Both federal and state courts have held otherwise. See, e.g., United States v. Chalan, 812 F.2d 1302 (10th Cir. 1987); State v. Alvarado [226 Neb. 195], 410 N.W.2d 118 (Neb.1987); Saadiq v. State, 387 N.W.2d 315 (Iowa 1986), appeal dismissed [479 U.S. 878], 107 S.Ct. 265 [93 L.Ed.2d 242] (1986); Cf. United States v. Cloyd, 819 F.2d 836 (8th Cir.1987); United States v. Love, 815 F.2d 53 (8th Cir.1987) (sole black juror removed by peremptory strike; in view of deference given to lower court’s finding that prima facie case rebutted, government explanation sufficient). In Alvardo [Alvarado], the Nebraska Supreme Court recognized that
[i]n this case, there is no pattern of strikes from which such an inference [of discriminatory purpose] can be raised, as there was only one strike which was relevant to a Batson determination. However, a pattern of strikes is not required to show a Batson violation. In Batson, supra at 106 S.Ct. at 1723, the Court indicated that a pattern of strikes was merely an “illustrative” example of circumstances which might permit an inference of purposeful discrimination.
Id., 410 N.W.2d at 122. Accordingly, the court held that “the trial court in this case erred in basing its determination that there was no showing of purposeful discrimination on the fact that there was only one strike at issue,” although the court ordered no relief in view of the prosecutor’s neutral explanation for the strike. Id. [410 N.W.2d] at 122, 123.
Chalan is also instructive: in a prosecution of an American Indian, two Indians were challenged for cause (with a third challenged by peremptory although both trial and appellate court treated the challenge as a challenge for cause in view of juror’s language difficulties) while the fourth (and last) Indian on the jury was removed by peremptory challenge. The defendant protested but, as to the unexplained challenge to the fourth Indian, the trial judge ruled: “I think just the striking of one juror in a particular case does not rise to the level of ... a prima facie showing....” Id., 812 F.2d at 1312. The Tenth Circuit ruled that, in Chalan’s case, that one peremptory against the one juror of his race was sufficient to raise an inference that the juror was excluded on account of race. The court observed:
The striking of a single juror of defendant’s race may not always be sufficient to establish a prima facie case. However, using the reasoning as articulated in Batson “that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case,” id. [106 S.Ct.] at 1722, we hold this was done in the instant case even though we are here concerned with only a single juror. Our conclusion comports with the notion that peremptory challenges constitute a practice particularly susceptible to racial discrimination. See id. at 1723.
Chalan, 812 F.2d at 1314. The Tenth Circuit decided that, since the peremptory removed the only Indian on the jury, there was a substantial risk that the juror was excluded because of race. Thus, the Army court's observation in Santiago-Davila that “[i]t is unlikely that Batson would apply to trials by courts-martial, primarily [sic] because our system allows only one peremptory challenge — a situation which simply does not permit the government an opportunity to dramatically change the *718composition of a court-martial (jury) through challenge,” id., slip op. at 2, is not the standard applied by other courts. The question is whether a juror is excluded because of race, not whether the jury composition was dramatically changed. We find that neither the lack of a Sixth Amendment jury trial nor the existence of only one peremptory challenge in the military precludes the application of the principles enunciated in Batson. We hold that Batson applies to trials by court-martial.
Ill
In this case, there were two black members detailed to the panel, only one of whom was removed by peremptory strike. However, that was the limit of the prosecutor’s power to remove by peremptory. Batson has been applied to cases in which, in spite of the prosecution’s use of peremptory strikes, blacks did sit on the jury. The fact that black jurors may have actually sat on the jury does not dispose of the Batson issue. See Keeton v. State, 724 S.W.2d 58, 65 n. 5 (Tex.Cr.App.1987) (“[w]e find nothing in the language of the Batson opinion which limits its application to only those cases where all of the prospective jurors of the defendant’s race were excluded from the panel. Rather, the opinion seems to indicate that, regardless of the number of minority race veniremen that actually serve, the prosecutor may not use peremptory strikes to eliminate any potential juror solely on the basis of that juror’s race.” (emphasis in original)). Cf. United States v. Forbes, 816 F.2d 1006 (5th Cir. 1987); United States v. Woods, 812 F.2d 1483 (4th Cir.1987) (not all-white jury; when challenged, prosecutor gave reasons for strikes). Instead, the appellate courts have looked to what the final jury composition was in determining whether there was an inference of discriminatory intent. For example, when blacks remain on the jury and the prosecutor has unused peremptory challenges available, courts have found no inference raised. See, e.g., United States v. Montgomery, 819 F.2d 847 (8th Cir. 1987); United States v. Dennis, 804 F.2d 1208 (11th Cir.1986), cert. denied [— U.S. -], 107 S.Ct. 1973, 1974 [95 L.Ed.2d 814] (1987); Clay v. State [290 Ark. 54], 716 S.W.2d 751 (Ark.1986). However, this analysis is based on the inference that, since the government could have used its additional peremptory strikes to pull the remaining blacks from the jury, “the government did not attempt to exclude all blacks, or as many blacks as it could, from the jury.” Montgomery, 819 F.2d at 851; Dennis, 804 F.2d at 1211. Of course such an inference is not available in this case because the government used its only challenge to remove one of the two black members detailed to the court-martial; thus, in fact, the government excluded “as many blacks as it could” from the panel.
Finally, government counsel conceded in argument that there is no basis in the record to find a non-discriminatory reason for the challenge. See, e.g., State v. Farmer, 407 N.W.2d 821 (S.D.1987) (juror related by marriage to defendant); Phillips v. State, 496 N.E.2d 87 (Ind.1986) (of three black jurors removed by peremptory strike, one was acquainted with potential government witness, second had a brother and sister previously convicted in same county, and third was familiar with police officer). See also United States v. Cox, 23 M.J. 808, 811 (N.M.C.M.R.1986) (prosecutor explained challenge on basis that manner of member’s responses in voir dire indicated member was “overly cautious individual who would find it hard to convict”). There is nothing in the voir dire in this case to show any reason for the peremptory strike, even granted that the strike need not rise to the level of a challenge for cause. “A prosecutor’s failure to engage Black prospective jurors ‘in more than desultory voir dire, or indeed to ask them any questions at all,’ before striking them peremptorily, is one factor supporting an inference that the challenge is in fact based on group bias.” People v. Turner [42 Cal.3d 711, 230 Cal.Rptr. 656, 665], 726 P.2d 102, 111 (Cal.1986) (quoting People v. Wheeler [22 Cal.3d 258, 148 Cal.Rptr. 890], 583 P.2d 748 (Cal.1978)). In this case, the only questions directed to Major Harris by trial counsel were general questions directed to all the members together, to which a general *719response, all members concurring, was provided.
The military judge ruled that “there is no requirement for the government to disclose under our current law, and even under Batson v. Kentucky, taking it at face value as being applicable to the military, I don’t find that there is the prima facie case made out____” He articulated no basis for either determination. As a general rule, Batson determinations by a trial judge, when properly focused, are accorded great deference. See, e.g., Love and Woods, both supra. However, in the absence of any basis in the record for such rulings and in view of his initial determination that Bat-son did not apply, such deference is not appropriate here. We find that appellant has, in this case, established a prima facie case of discriminatory use of the government’s peremptory challenge. The court will provide government trial counsel an opportunity to respond.
IV
Finally, although not presented in this case in its present posture, we believe some guidance to the trial judiciary in similar cases is appropriate. When an accused is black and a black member is peremptorily challenged by trial counsel over defense objection, the military judge and counsel must recognize that peremptory challenges can constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Batson, 106 S.Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562 [73 S.Ct. 891, 892, 97 L.Ed. 1244] (1953)). The defendant bears the burden of persuasion to show that these facts and any other relevant circumstances raise an inference that the trial counsel has used his challenge to exclude a member on account of race. When the circumstances of the case, e.g., trial counsel’s questions and statements during voir dire examination and in exercising his challenges or the lack of meaningful voir dire of the challenged member, give rise to an inference of purposeful discrimination, the military judge will require trial counsel to articulate the reason for his challenge. It is not necessary that this reason meets challenge for cause standards; it needs only to be race-neutral. If trial counsel declines to state his reason, gives a reason that is not race-neutral or, indeed, does not satisfy the military judge that his reason is race-neutral, then the military judge may deny the peremptory challenge and the challenged member will remain on the court.
The record of trial is returned to the Judge Advocate General for remand to the same or a different convening authority for a hearing to determine the basis of trial counsel’s peremptory challenge of Major Harris.
The convening authority will refer the record to a general court-martial for a limited hearing on the matter discussed above. The military judge, under the provisions of Article 39(a), UCMJ, will hear the respective contentions of the parties on the matter, permit the presentation of witnesses and evidence, if any, in support thereof, and enter findings of fact and conclusions of law. At the conclusion of the proceedings, the record with an authenticated verbatim transcript of the hearing will be returned to the Judge Advocate General for further review by this court.
Senior Judge ADAMKEWICZ and Judge LYMBURNER concur.Vacated and rehearing en banc ordered, United States v. Moore, ACMR 8700123 (A.C.M.R. 13 Jan. 1988) (en banc).