(concurring in part and in the result):
The question before us is whether appellant’s June 1996 statements to Doctor Alfano (a civilian psychiatrist in government employment) were privileged and thus inadmissible at his court-martial in January of 1997. These statements were made by appellant while he was hospitalized at Landstuhl Regional Medical Center in Germany for a self-inflicted gunshot wound to his stomach which had earlier caused his transfer back from Bosnia where he was deployed. Doctor Alfano’s purpose in treating appellant was to develop a disposition plan, i.e., to determine whether he should be returned to duty or returned to the United States for further treatment. (R. 75) The doctor’s primary focus was to determine appellant’s level of “suicidality.” (id.) The doctor testified that appellant said he was “not suicidal” but was “distressed” over his wife’s “affair with another soldier” and wanted to return to Germany to get his family back together. (R. 75-76)
The lead opinion affirms the judge’s denial of defense counsel’s motion to suppress Doctor Alfano’s testimony because it was privileged under Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). It does so on the basis that Mil.R.Evid. 501(d) at the time of appellant’s statements and trial affirmatively precluded a privilege for statements made to a physician, including a psychiatrist like Doctor Alfano. Our case law applying Mil.R.Evid. 501(d) clearly supports the decisions of the lead opinion, the Court of Criminal Appeals, and the military judge on this legal question. See United States v. Mansfield, 38 MJ 415, 418 (1993); United States v. Tharpe, 38 MJ 8, 15 n. 5 (1993); United States v. Toledo, 25 MJ 270, 275 (1987) (pre-Jaffee cases); see also United States v. Flack, 47 MJ 415, 417 (1998); United States v. English, 47 MJ 215, 216-17 (1997) (post-Jaffee cases).
The dissenters, implicitly renouncing ornease law, have concluded that Mil.R.Evid. 501(d) does not preclude a psychotherapist-patient privilege. See generally United States v. Demmings, 46 MJ 877 (Army Ct.Crim.App.1997). Moreover, relying on Mil. R.Evid. 501(a)(4) and Jaffee v. Redmond, supra, they conclude that a psychiatrist-patient privilege was “generally recognized in the trial of criminal cases in the United States” at the time of appellant’s court-martial. 54 MJ at 162. In addition, the dissenters rely on Mil.R.Evid. 513, promulgated by the President in October 1999, well after appellant’s trial, in concluding that application of this privilege at appellant’s court-martial was “[ojbviously ... ‘practicable’ ” (54 MJ at 162-63) as required by Mil.R.Evid. 501(a)(4).
I am not persuaded by the dissenters that our prior case law (holding that Mil.R.Evid. 501(d) includes psychiatrists) should be overturned. See United States v. Scalarone, 54 MJ 114 (2000) (discussing and applying the doctrine of stare decisis). Even if I were, I am not persuaded that application of such a privilege in appellant’s case is “practicable” as additionally required by Mil.R.Evid. *162501(a)(4). The President, in subsequently promulgating Mil.R.Evid. 513, which recognized a military psychotherapist-patient privilege, did so on a limited basis reflecting the exigencies of military service. He specifically provided exceptions where there is no privilege under this rule. One exception to application of this privilege arises
(4) when a psychotherapist or assistant to a psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person, including the patient[.]
In my view, appellant’s case (a suicide review) fits in this category* and thus I conclude that no privilege existed even under the dissenters’ approach to this case. Accordingly, I vote to affirm.
The suicide review would equally he covered by Mil.R.Evid. 513(d)(6). It provides an exception which arises
(6) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission!.] In the instant case, the review by Dr. Alfano was to determine whether to return appellant to Bosnia or to send him back to the United States for treatment.