Opinion of the Court
Quinn, Chief Judge:
Early on the morning of June 3,1959, the accused stabbed his wife to death with a large kitchen knife. Shortly after he inflicted the fatal wounds, he reported the stabbing to the Air Police by telephone. Two officers proceeded to the accused’s home, and found Mrs. Erb on the living room floor with a knife protruding from her chest. They took the accused into custody. That afternoon the accused signed a written statement in which he admitted he quarreled with his wife because he had lost “all . . . [the money they] had” in a slot machine in the noncommis-sioned officers’ club. In the course of the quarrel she slapped him. He got a knife from a rack on the kitchen wall, and stabbed her with it a number of times.
For several months after the homicide, the accused was hospitalized for treatment and evaluation of a mental illness. He was examined by three boards of medical officers, in both Japan and the United States. Specific findings by the third board which was convened at Sheppard Air Force Base hospital, in Texas, indicated that the accused possessed sufficient mental capacity to be legally responsible for the death of his wife; and that he was mentally competent to stand trial. Accordingly, he was returned to Japan, and, in due course, was brought to trial before a general court-martial at Fuchu Air Station on a charge of premeditated murder. He was convicted as charged, and sentenced to a, dishonorable discharge, confinement at hard labor for life, and accessory penalties.
No dispute exists over the fact that Barbara Erb died as a result of stab wounds on June 3, 1959. Also uncon-troverted is the fact that the accused inflicted the fatal wounds. However, the accused challenges the validity of the pretrial psychiatric evaluation to which he was subjected, and the correctness of certain instructions dealing with his mental condition at the time of his confession.
As a background to the attack on the pretrial psychiatric procedures, the accused reverts to his hospitalization for psychiatric treatment in November 1958. At that time the accused was a member of the Tenth Weather Group at Tokyo Weather Station, Fuchu Air Base. He was generally regarded as a quiet, well-mannered person. With his wife and infant daughter he occupied quarters in a Government housing area. To one of their neighbors the Erbs outwardly “seemed like a happy family.” In fact, they faced serious problems. On November 26, 1958, the accused told his chaplain that “several times during the past two weeks [he had] been on the verge of killing his wife . . . and then committing suicide.” He was taken to Tachikawa Air Force hospital and placed in a closed ward because he appeared to be suffering from a “Manic-Depressive Psychosis, Depressed Type, Acute.” Drug treatment was prescribed. However, on November 27 a medical report shows an “initial impression” of “personality disturbance.” [528]*528On December 1, the accused was assigned to occupational therapy, with a provisional diagnosis of manic-depressive reaction. On December 4, on order of the attending physician, the accused was transferred to an open ward. He was released from the hospital and returned to duty on December 10, 1958. The final diagnosis shown on the record was “Neurotic depressive reaction, acute, moderate.”
At the time of his discharge from the hospital, the accused was instructed to report back if he experienced any further difficulty. However, he never returned for treatment until his commitment after the homicide. In his pretrial statement, the accused said he telephoned Dr. Barkin, the attending physician in his earlier hospitalization, once in February 1959; and he “saw him again at the hospital when [he] had [his] wife in for a check-up.” (Mrs. Erb was then pregnant; she gave birth to a son in April 1959.) On the afternoon of the killing, the accused was sent again to the hospital. He was seen “briefly” by Captain R. W. Anderson, an Air Force psychiatrist, who reported that he appeared to be withdrawn and depressed. On June 9, Captain Anderson “extensively” interviewed and examined him. The accused talked at length about his gambling losses and the consequential deteriorating relationship with his wife. Captain Anderson was of the opinion that at the time of the homicide the accused could not “in any degree” distinguish right from wrong. He was also of the opinion the accused “was misdiagnosed in November and December.” On July 6, 1959, a medical board, which included Captain Anderson as a member, concluded the accused suffered from a “schizophrenic reaction” at the time of the homicide and was not then so far free from mental defect and derangement as to be able to distinguish right from wrong; to adhere to the right; and to form the degree of premeditation required for the offense charged. At the same time, the board found the accused had so recompensated since the offense as to possess sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense. One member of the board, Captain J. R. Dubois, Jr., a neuro-psychiatrist, later testified that he disagreed with the findings of the board; in his opinion, the accused was able to distinguish right from wrong, and there was only “partial impairment” of his ability to adhere to the right as a result of the schizophrenic condition.
Acting on a recommendation from the hospital that the accused “be medically evacuated” to the United States for psychiatric treatment, the commander of the Support Wing to which accused’s organization was attached forwarded the charge sheet and the hospital report to Air Division. He recommended the charge be dismissed, and that disposition of the case be effected through medical channels. At the suggestion of Major W. C. Marsh, Jr., Chief of Military Justice in the office of the Staff Judge Advocate of the Air Division, and the concurrence of the Staff Judge Advocate, the Air Division commander directed Wing to obtain a complete description of the premises of the homicide, especially the respective locations of the knife rack on the kitchen wall and Mrs. Erb’s body on the living room floor. It was believed desirable to return the accused to the United States, but the additional description of the scene of the homicide was deemed necessary for use in the medical evaluation in the Zone of Interior. Wing furnished the “additional information requested,” which was forwarded by Air Division to Sheppard Air Force Base, Texas, as the authority “presently exercising general court-martial jurisdiction” over the accused. The entire file was submitted to Sheppard for “appropriate disposition.”
Tachikawa hospital transferred the accused to Travis Air Force Base. From there he was transferred to Sheppard Air Force Base hospital, and admitted on August 22, 1959. Twelve days later a Competency Board, composed of three medical officers, was convened to consider the accused’s mental condition. Captain Branham, the attending psychiatrist, presented the case to the board. However, diagnosis was deferred because the board believed fur[529]*529ther observation of the accused was necessary.
On November 19, 1959, a new sanity board was appointed. Captain Branham was substituted for Captain B. W. Hen-dry as one of the members of the board because a new policy of the Chief of the hospital’s Division of Psychiatry and Neurology required that the doctor “personally responsible” for the patient be a member of the board. This board met on November 21. It diagnosed the accused’s mental condition as “Schizophrenic reaction, latent, chronic,” which it described as not constituting “an overt psychosis.” It found the accused was suffering from mental illness, but he could distinguish right from wrong, and with “a moderate degree of impairment” could also adhere to the right in regard to the offense charged. The board also found that the accused had “impaired” ability to form the “necessary specific intent implied by the offense of homicide.” It recommended that all the factors set out in its report be “strongly considered in reaching a decision” as to ultimate disposition of the accused.
About a week after the board’s report, Headquarters, U. S. Air Force, telegraphed U. S. Pacific Air Force. It referred to the findings and said that the “overwhelming number” of witnesses in Japan “dictates desirability” of returning the accused to Japan for trial. It requested “comments.” In turn, Pacific Air Force asked for the views of the subordinate commanders that might have jurisdiction over the accused if he were returned to Japan. One of the major commands said it had “no objection” to holding the trial in Japan, but it understood that Pacific Air Force “would make the necessary determination.” Pacific then notified headquarters that the “situation makes it desirable that the accused be tried in Japan.” It further indicated the accused “should be transferred” to the air division in which he had originally been. Eventually, the accused was assigned to Fuchu Air Base, and the commander of air division referred the charge of premeditated murder to trial.
Proceeding on the premise that the commander of air division was dissatisfied with the findings of the medical board at Tachikawa hospital in July 1959, the accused contends he was transferred to the United States only for the purpose of subjecting him to “psychiatric bombardment” until such time as a medical board could be found to certify him as mentally competent. To bolster the argument, he maintains the findings of the Tachikawa board are “inherently more reliable [than those of the board at the Sheppard hospital], and must be accepted.” Assuming the division commander was affirmatively displeased with the Tachikawa board’s findings, the record presented to us compellingly indicates that neither he nor any other commander attempted to influence the psychiatrists at Sheppard Air Force Base for the purpose of obtaining findings contrary to those reached by the sanity board at Tachi-kawa hospital. He divested himself of jurisdiction when he forwarded the charge sheet and the whole file to Sheppard Air Force Base for “appropriate disposition.” And the basic decision to return the accused to Japan for trial was made by competent authority in the United States and the commander of Pacific Air Force. Moreover, it is difficult to draw a sinister inference from the fact that the accused was examined and evaluated by other medical boards.
Psychiatry is not an exact science; and individual psychiatrists may differ strongly in their findings regarding an accused. United States v Carey, 11 USCMA 443, 29 CMR 259; United States v Kunak, 5 USCMA 346, 17 CMR 346, separate opinion by Chief Judge Quinn. The Manual for Courts-Martial, United States, 1951, specifically recognizes that the surrounding circumstances may justify successive mental examinations. Manual for Courts-Martial, supra, paragraph 121. Nevertheless, the appellant urges us to apply to the medical board proceedings, a principle analogous to that which prohibits twice putting an accused in jeopardy. Medical board proceedings, of course, are not judicial in nature, purpose, or ef-[530]*530feet; they are entirely administrative. We observed in United States v Vaughan, 3 USCMA 121, 124, 11 CMR 121, that “action of an undiluted administrative character, can, in itself, contain no latent double jeopardy problems.” Medical opinion is unquestionably important in cases of this kind, but the ultimate decision as to accused’s legal responsibility for the commission of the offense charged is a matter for judicial determination. United States v Carey, supra; see also United States v Kunak, supra, separate opinion by Chief Judge Quinn. Consequently, the findings of the medical board cannot preclude trial and conviction by a court-martial.
Not a scintilla of evidence exists in the record of the preliminary proceedings to indicate that any of the board findings were the result of, or influenced by, command control. Almost all the doctors who examined the accused in Japan and in the United States testified at the trial. The testimony of each clearly and convincingly shows his opinion was entirely his own, and was reached without regard to any official or unofficial pressures. See United States v Smith, 5 USCMA 314, 17 CMR 314. In sum, we find no merit in the claim of “psychiatric bombardment” for the purpose of obtaining favorable findings on mental capacity.
Referring to some language used by the board of review in overruling the assignment of error discussed above, the accused contends it constitutes improper criticism of appellate defense counsel and “demonstrates a bias so deep-seeded as to vitiate” the board of review’s decision. Before the board of review, appellate defense counsel had contended that the treatment accorded the accused after the Tachikawa board’s report, was “directed to a single end, viz., to obtain, without regard to their reliability or trustworthiness, a set of board findings that would make it possible for this accused to be brought to trial and convicted.” Considering the allegation, the board of review said:
“. . . We are constrained to comment upon assignments of this nature for we look with disfavor upon unfounded accusations against those who are not only commissioned officers in the military service, who historically have lived by a code of conduct others might find burdensome, but in addition, are also members of honorable professions and as such bound by the oath or code of ethics of such profession or both. The assignment and the argument in support are so worded as to infer, in not the weakest of language, what would have to be a conspiracy between the convening authority plus his legal staff located in Japan and members of the staff of the USAF Hospital at Sheppard Air Force Base to declare accused sane, and therefore mentally responsible for the homicide, regardless of his mental condition. The argument in support of the assignment is devoid of fact but contains instead a series of innuendoes and tenuous inferences. Due to the nature of the accusation, however, we have carefully examined the record of trial and the allied papers and find not the slightest appearance of evil, much less evil itself (United States v Walters, 4 USCMA 617, 16 CMR 191).
. . The record of trial contains the sworn testimony of Major Grissom that the board which met in September did not return a finding because the members felt that the information on accused was, at that time, insufficient to satisfactorily answer all the questions involved, but recommended reconvening in 30 to 60 days. He also testified that the policy with respect to sanity board membership was changed so as to include in the membership of the board, the medical officer primarily responsible for the patient. Suffice it to say that this Board of Review accepts the sworn testimony of a medical officer, whose only connection with the case was the psychiatric evaluation of accused, over the unsupported and unfounded assertions of his counsel on appeal, individuals whose interest in an accused’s case is partisan by its very nature and all too often not purely professional but personal as well.”
[531]*531We are not persuaded that the quoted remarks show prejudice toward appel-late defense counsel or re-fleet a predisposition to disregard all challenges to the official actions of military commanders. It was wrong to ascribe to appellate defense counsel a personal and not “purely professional interest” in the case; but neither the language of the quotation, nor the opinion as a whole, demonstrates such injudiciousness as to disqualify the board of review from consideration of the appeal on the merits. Cf. United States v Lynch, 9 USCMA 523, 26 CMR 303. We have pointed out in other cases that the official act of a person engaged in the administration of military justice is not invalidated merely because he entertains opinions and attitudes which are contrary to established rules of law. To set aside the official act, it must appear that the erroneous idea or sentiment influenced the official decision. United States v Plummer, 7 USCMA 630, 23 CMR 94; United States v Deain, 5 USCMA 44, 17 CMR 44. In the Deain case, for example, the president of the court-martial which tried the accused said he did not believe military persons were entitled to any rights under the U. S. Constitution, and that he disagreed with provisions of the Uniform Code of Military Justice. Commenting on the effects of these views, we said:
“Appellate defense counsel have urged upon us Admiral Ruddock’s statement that he did not regard military personnel as possessing any constitutional rights other than those which may have been duplicated by specific grants from Congress, and have also called our attention to his criticism of the Uniform Code. As to the former, we disagree with Admiral Ruddock. See United States v Voorhees, 4 USCMA 509, 16 CMR 83. As to the latter, the record is silent concerning the particulars of his disagreement with the Uniform Code, but the omission is unimportant. As far as both matters touch our problem, we are unwilling to hold that, standing alone, they indicate sufficient bias or partiality against this accused, or accused persons in general, to sustain the challenge. Cf. Carnaggio v State, 143 Miss 694, 109 So 732. The statements do indicate strange conceptions of military law, but the accused has not shown, and we cannot find, in these theoretical pronouncements any substantial danger to a fair and impartial trial.”
Disqualification is also asserted against the trial counsel, Major Marsh. The accused contends that Major Marsh was ineligible to prosecute the case because he “simultaneously, [acted] as legal advisor to the convening authority on the conduct of the prosecution.” The contention is based upon the fact that both before and after he assumed the duties of trial counsel, Major Marsh was Chief of the Military Justice Division in the office of the Staff Judge Advocate to the convening authority.
Major Marsh became trial counsel on March 28, 1960. In July 1959, in his capacity as chief of military justice, he had read the report of the Tachikawa medical board, and recommended to the staff judge advocate that “some further inquiry was warranted.” The recommendation was passed on to, and accepted by, the division commander, who, it will be recalled, directed the wing commander to obtain additional data about the scene of the homicide. After becoming trial counsel, Major Marsh, acting as chief of military justice, prepared and transmitted several messages to Sheppard Air Force Base inquiring into the availability as witnesses of some of the doctors who had examined the accused during his confinement in the hospital on that base. The accused maintains that these acts are of a staff judge advocate “nature” and effected an improper “merger of . . . prosecu-torial and judicial functions in the same individual.”
As a judge advocate general officer, Major Marsh could be called upon to perform many duties. See United States v Hurt, 9 USCMA 735, 27 CMR 3. The Uniform Code recognizes that a change of duty in regard to the same case may result in a conflict of function. Article 6(c) prohibits the trial counsel in a case from “later act[ing] as a staff judge advocate . . . upon [532]*532the same case.” The purpose of the prohibition against dual function in the same case is “to preclude situations which impair or destroy the fairness and impartiality of the proceedings against the accused.” United States v Hightower, 5 USCMA 385, 18 CMR 9. Major Marsh was not the staff judge advocate. He did not fall, therefore, within the express prohibition of Article 6. His eligibility to serve in the two capacities must be judged by the test of incompatibility between his functions as trial counsel and his actions as chief of military justice. United States v Hayes, 7 USCMA 477, 22 CMR 267; United States v Hurt, supra.
Elaborate discussion is not needed to establish compatibility between the im-partiality of a request for additional facts for use in a later medical evaluation of the accused and later action as trial counsel; similarly, compatibility is equally evident in the request as chief of military justice, for information regarding the availability of witnesses. United States v DeAngelis, 3 USCMA 298, 12 CMR 54; cf. United States v Turner, 7 USCMA 38, 21 CMR 164. However, going beyond the record of Major Marsh’s conduct, the accused alleges that since the Major was chief of military justice he must have had something to do with the selection of the court members. The accused concedes there is no “proof” of participation, but he maintains the Government has the burden of affirmatively showing that Major Marsh had no connection with the selection process. See United States v Moses, 11 CMR 281.
For the purposes of this case, we may assume it is the “usual” practice, as the accused contends, for a staff judge advocate to recommend to the convening authority suitable personnel for court-martial service and that the chief of military justice acts as his alter ego in that matter. We may further assume these circumstances cast upon the Government at least the burden of going forward with the proof to overcome the inference in a particular case. The record demonstrates that the burden was met here.
If Major Marsh “hand-picked” the court members, we would not expect him to challenge any of them for cause, much less exercise his peremptory challenge. Yet, he challenged one of the members of the court-martial for cause because the member had conscientious scruples against the imposition of capital punishment; he joined defense counsel in another challenge for cause because the member indicated he did not look with favor upon the defense of insanity; and he peremptorily challenged a third member of the panel. Besides the inconsistency of challenging supposedly preselected court members, there is an affirmative statement of fair dealing in the record. The Major submitted a chronology of his acts in “processing” the case in connection with a defense motion to dismiss the charge for lack of speedy prosecution. In it, he said he had not engaged in “any conduct designed to handicap or oppress the accused.” The statement was unchallenged and uncontradicted. It stands broadly opposed to the charge that he chose the court members he personally desired.
Turning to the trial itself, the accused advances three separate claims of prejudicial error. He alleges first that the president of the court-martial deprived him of a fair trial. The allegation has two parts, the first of which concerns an out-of-court conversation between the president and Dr. Anderson, the principal medical witness for the defense. Disclosure of the conversation was made by the president in open court. In the course of Dr. Bran-ham’s examination of his findings as the accused’s attending physician at Sheppard Air Force Base hospital, he was asked if there are any “chemical or physical . . . tests” by which a psychiatrist could establish “absolutely a diagnosis of schizophrenic.” The president of the court interrupted to say he did not think the witness should answer the question. He said his objection was based on the fact that on the previous day he had had an “intellectual discussion” with one of the doctors, and “This point was discussed partially.” The president further said [533]*533the conversation “had nothing to do with the trial”; he “just got interested in the gentleman and talked to him later on [a matter], unrelated to the trial.” He had merely interposed the objection “to get things straight, to be fair to everybody.” The assistant trial counsel also spoke up. He said he had heard the conversation. He told Dr. Anderson at the time that he could not discuss “any facts pertaining to this trial.” He was assured the matter under discussion “had nothing to do with the trial.” While the assistant trial counsel did not know what Dr. Anderson and the president said specifically, he believed the general subject was “chemistry.”
No objection to the account of the out-of-court conversation was made by defense counsel. Nor did the defense call Dr. Anderson to verify or to deny the nature of the discussion. The record of trial suggests a strong reason for the defense acceptance of the president’s version of the incident. Earlier, Dr. Anderson had testified extensively on the effects of the schizophrenic condition which he found in the accused. Explaining the phenomenon of decom-pensation, he interpolated some comments on the nature of schizophrenia. Included in his interpolation was a statement to the effect that it was “reasonable to assume that brain function could be altered by changes in [the] chemistry” of the brain. He further testified that under this theory “if we had the tools to assay” imbalances in brain chemistry, “we could measure [the physical entity] in some quantitative form.” This theoretical discussion was of special interest to the president. During the voir dire examination, defense counsel had established that the president had expertise in drugs and chemicals of medical application. One of these was an experimental drug which could produce “pseudo-schizophrenia.” Thus, Dr. Anderson’s testimony and the president’s background in drugs and chemicals clearly indicate the out-of-court “intellectual discussion” between the two concerned the future possibilities of determining mental illness from imbalances in brain chemistry. Quite clearly, this is the light in which defense counsel regarded the conversation. And it is equally clear defense counsel was satisfied the discussion could not possibly prejudice the accused. Thus, the presumption of prejudice that arises on a showing that a member of the court had a private conversation with a third person in regard to a matter pertaining to the case, which is pressed upon us on this appeal, is fully rebutted by the record of trial. We hold, therefore, that while it was unwise of the president to engage Dr. Anderson in conversation, there is no fair risk the discussion prejudiced any substantial right of the accused.
Moving to the second part of his attack on the president’s conduct, the accused contends he was prejudiced by “aggressive cross-examination” of the medical witnesses. We need not detail the numerous questions asked, and the statements made by the president. Neither need we consider, as the Government contends we should, whether defense counsel actually invited a probing examination of the witnesses.1 It is [534]*534not the number of the questions, but the fact of partisanship that is the fundamental issue in an allegation of this kind. In other words, did the president act as an impartial fact finder or did he take on the mantle of a Government advocate? United States v Blankenship, 7 USCMA 328, 22 CMR 118; United States v Carver, 6 USCMA 258, 19 CMR 384. The accused contends the president displayed “a basic and disqualifying partiality” toward the prosecution. See United States v Marshall, 12 USCMA 117, 30 CMR 117. Here, the record extracts set out in the accused’s own brief show the president was primarily concerned with the psychiatric testimony; they further show that the substance of his inquiries was virtually the same for both prosecution and defense doctors.2 It may be that the president talked too much; but nothing he said evinces partiality or a prejudgment of the merits of the issues. See United States v Smith, 6 USCMA 521, 20 CMR 237. We agree with the holding of the board of review below that the record of trial shows “no indication of partisanship.”
Two assignments of error concern the instructions. In the first, the accused maintains the law officer erred in denying a request for the following instruction:
“With regard to the opinion testimony of the several psychiatrists as expert witnesses, the court is instructed that the longer the period of time between the offense and the psychiatric evaluation or examination, the less chance there is of detecting factors for making a good evaluation.”
[535]*535The requested instruction is abstracted from testimony by a clinical psychologist in the case of United States v Somerville, 19 CMR 655, 660. Appellate defense counsel maintain the statement is a factual truism which, in view of the inconstant character of the accused’s schizophrenic condition, was “absolutely necessary” to call to the attention of the court-martial. They say the request has legal support in a comment by the United States Supreme Court on the “difficulties of retrospectively determining . . . competency as of more than a year ago.” Dusky v United States, 362 US 402, 4 L ed 2d 824, 80 S Ct 788.
There may indeed be difficulties in evaluating the mental condition of an accused a considerable time after the offense, but difficulty is not the equivalent of inexactitude. An evaluation made some time after the offense may be a perfectly good one. The requested instruction, however, implies that a delayed psychiatric evaluation is not likely to be good. The implication is contrary to many cases that have come before this Court; and it is not at all supported by the comment in the Dusky case. See United States v Washington, 6 USCMA 114, 19 CMR 240; United States v Smith, supra; United States v Kunak, supra. Time of evaluation is only one of many factors the court-martial may consider in determining what weight to accord the testimony of a psychiatrist. Among other things, the court-martial may consider differences in the training and background of the doctors, and differences in the period of time available for, or devoted to, examination of the accused.3 The law officer, therefore, was entirely correct in refusing to single out time of examination as a circumstance meriting special instruction. United States v Harris, 6 USCMA 736, 21 CMR 58.
In the final assignment of error the accused challenges the law officer’s instructions on the right of the court-martial to disregard a pretrial statement admitted into evidence. The statement was made by the accused. Prosecution witnesses testified that the accused appeared to be normal when he made the statement. However, Dr. Anderson said that in his opinion the accused was “overtly psychotic” at the time and his statement was “probably not volitional.” Admitting the statement into evidence, the law officer instructed the court-martial on its right to disregard it. He repeated the advice, without objection, in final instructions to the court. The questioned instruction as first given, is as follows:
“. . . Evidence has been presented in this case which places in' issue the question of mental competency of the accused at the time he was informed of his rights under Article 31, as well as at the time of his making the sbatement. You are instructed that, if you find the accused had a mental disease, defect, or derangement to such a degree that he was unable to understand the warning given or which deprived him of mental freedom to confess or deny participation in the offense, or which preclude him from exercising his volition to refuse to make a statement, or which compelled him to make a statement, then you must find a failure to comply with Article 31 in the first instance, or find the statement was involuntarily given in the other instances. In any of these events, you must give no weight to the statement given by the accused. Also, if you find that the accused was not mentally competent at the time he made the statement, then you must give no weight to the statement. The mental competency of the accused has already been raised at this trial, and I assume I will be called upon later to instruct the court regarding the mental responsibility or capacity of the accused, or both of them, at a later time in this trial. You will consider those instructions in connection [536]*536with the instructions I have just given you.” [Emphasis supplied.]
Lack of mental capacity at the time of the making of a confession will ren-der it inadmissible in evidence. Blackburn v Alabama, 361 US 199, 4 L ed 2d 242, 80 S Ct 274; United States v Dison, 8 USCMA 616, 25 CMR 120. The burden of establishing the admissibility of a confession rests upon the Government. United States v Josey, 3 USCMA 767, 14 CMR 185. The accused contends the instruction in issue shifted the burden to him, and required the court-martial to find affirmatively that he had some mental disease or defect before it could disregard his pretrial statement. Cf. United States v Troutt, 8 USCMA 436, 24 CMR 246; United States v Rowan, 4 USCMA 430, 16 CMR 4. At the outset, it is distinctly arguable that the purported error was waived. The record shows defense counsel was constantly alert to the adequacy of rulings and instructions by the law officer. He was specifically asked if he was satisfied with the instruction now challenged, and replied that he had “no objection.” See United States v Sanchez, 11 USCMA 216, 29 CMR 32.4 We put aside that matter, however, to reach the merits of the assignment of error.
The Government contends the instructions are sanctioned by our opinion in United States v Dison, supra; see also Wilson v United States, 162 US 613, 40 L ed 1090, 16 S Ct 895; cf. Mora v United States, 190 F2d 749 (CA 5th Cir) (1951). In the Dison case, the law officer gave a general instruction on the court-martial’s right to determine the voluntariness of a confession. He made no mention of the effect of evidence of substantial intoxication at the time. We held that the standard general instruction on voluntariness did not cover the specific issue of whether the accused understood the nature of the Article 31 advice given to him. In the course of the opinion we said:
“. . . In the light of the present record, we are at a loss to understand how a court could be advised properly unless at some time during the course of his instruction the law officer marked out the field of warning under Article 31 and informed the court members that if they found the intoxicated condition of the accused was of such a degree that he was unable to understand the warning given, then they should find a failure to comply with Article 31 and give no weight to his oral statements.” [Emphasis supplied.]
Our statement in the Dison case was not intended as a model instruction. It merely emphasized that a correct general instruction can be entirely inadequate in a specialized situation. Dison, therefore, does not answer the accused’s claim of error. More to the point is the Government’s contention that the challenged instruction does not stand alone. When the statement was admitted into evidence the law officer advised the court-martial that his instruction on voluntariness was to be considered “in connection with” his later instructions on the accused’s mental responsibility.
Initial instructions on voluntariness at the time of the admission in evi-dence of a pretrial statement need not be definitive. See United States v Sanchez, supra, dissenting opinion by Judge Ferguson. Properly, instructions on the right of the court-martial to reject the pretrial statement can be left to the final instructions, when all the issues to be determined by the court are submitted to it for decision. See United States v Jones, 7 USCMA 623, 23 CMR 87; United States v Sanchez, supra, opinion by Judge Ferguson. As directed by the instruction itself, we must consider it in conjunction with the other instructions on the accused’s mental condition. The Government observes in its brief, and the record of trial shows, that the law officer repeatedly informed the court that the prosecution had the burden of estab[537]*537lishing sanity beyond a reasonable doubt. The questioned instruction does not itself refer to the standard of proof to be applied by the court-martial in determining the accused’s sanity at the time of his pretrial statement. On that point, it was amplified by the other instructions. There is, therefore, no fair risk that the court-martial was misled as to the burden of proof. United States v Sanchez, supra; United States v Smith, 11 USCMA 321, 323, 29 CMR 137. In the Smith case, we said: ’
. . In short, there is no intimation in the instruction as to who has the burden of proof. That matter was covered at length later in the instructions, and it was stressed repeatedly that the burden was on the Government. Accordingly, we find no merit in this claim of error.”
The decision of the board of review is affirmed.
Judge Kilday concurs.