with whom COX, Senior Judge, joins (dissenting):
The Supreme Court, the President, all 50 States, and the District of Columbia all agree that communications between a psychiatrist and a patient are privileged. Mil.R.Evid. 513; Jaffee v. Redmond, 518 U.S. 1, 12 and n. 11, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). Nevertheless, because Specialist Rodriguez had the misfortune of consulting with Dr. Alfano before November 1, 1999, the effective date of Mil.R.Evid. 513, the majority denies him the benefit of the privilege. The majority hangs its hat on Mil.R.Evid. 501(d) and holds that the President has “occupied the field” by making communications with “a medical officer or civilian physician” unprivileged. I strongly disagree.
In my view, the majority’s decision is contrary to the common law as well as Article 36, UCMJ, 10 USC § 836, and Mil.R.Evid. 501(a)(4), which enjoin courts-martial to follow “principles of common law generally recognized in the trial of criminal cases in United States district courts pursuant to rule 501 of the Federal Rules of Evidence,” to the extent practicable. Those “principles of common law” recognize the privilege between a psychiatrist and a patient. See Jaffe v. Redmond, supra. Obviously, recognition of the privilege has been determined by the President to be “practicable,” because he expressly made it applicable to courts-martial by promulgating Mil.R.Evid. 513.
The majority concludes that because Dr. Alfano is also a physician, Mil.R.Evid. 501(d) is dispositive. The majority overlooks the fact that appellant’s disclosures to Dr. Alfano were in his capacity as a psychiatrist, not as a physician. A “psychiatrist” is defined as “[a] physician especially'learned in psychiatry.” 5 J.E. Schmidt, Attorneys’ Dictionary of Medicine 514 (1999). The fact that Dr. Alfano is a physician does not remove the privilege, any more than it would remove the privilege from a communication with a lawyer or a clergyman who also happened to be a physician. The critical issue is the capacity in which the communication was received, not the curriculum vitae of the recipient.
The Supreme Court recognized in Jaffee that there is a fundamental difference between treatment by a physician and a psychiatrist. The Supreme Court explained how the two differ:
Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears....
518 U.S. at 10, 116 S.Ct. 1923. When the President promulgated Mil.R.Evid. 513, he did not find it necessary to modify or further define the terms “medical officer” or “civilian physician” in Mil.R.Evid. 501(d), strongly suggesting that he did not find the language of Mil.R.Evid. 513 inconsistent with Mil. R.Evid. 501(d).
*163In my view, appellant’s communications to Dr. Alfano do not fall under the “medical officer” or “physician” exceptions in Mil.R.Evid. 501(d). In the Army, the term “medical officer” applies only to commissioned and warrant officers of the Army Medical Department. See generally Army Regulation 40-1, Composition, Mission, and Functions of the Army Medical Department (1 July 1983). Because Dr. Alfano is a civilian, he is not a “medical officer.” With regard to the “physician” exception, Dr. Alfano was not working as a “physician,” but as a “psychiatrist.” Thus, Mil.R.Evid. 501(d) is inapplicable to this case.
In my view, there is no justification in law or policy for denying appellant the protection of the common-law privilege recognized by the Supreme Court in Jaffee. I would hold that under Mil.R.Evid. 501(a)(4), appellant was entitled to invoke that common-law privilege. The majority denies him that right. Accordingly, I dissent.