Opinion of the Court
CRAWFORD, Judge:
On January 22-25 and February 25, 1991,1 appellant was convicted by a general court-martial of willfully disobeying an order of a superior commissioned officer to deploy to the Persian Gulf as part of Operation Desert Shield, in violation of Article 90, Uniform Code of Military Justice, 10 USC § 890. Appellant was sentenced by members to a dishonorable discharge, 2 years’ confinement, and reduction to the lowest enlisted grade. The convening authority reduced the term of confinement from 2 years’ to 1 year but otherwise approved the sentence. On September 16,1991, the Air Force Clemency and Parole Board remitted the portion of the sentence in excess of a bad-conduct discharge, confinement for 1 year, and reduction to El, and approved parole for appellant effective “as soon as possible.” The court below affirmed the findings and the sentence. This Court granted review of Issues I, II, and III raised by appellate defense counsel; Issue IV raised by appellant pursuant to United States v. Grostefon, 12 MJ 431 (CMA 1982); and Issues V and VI which we specified as follows:
I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF INABILITY.
II
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE INSTRUCTED THAT REASONABLE DOUBT MERELY REQUIRED PROOF TO A MORAL CERTAINTY RATHER THAN TO AN EVIDENTIARY CERTAINTY.
Ill
WHETHER TRIAL COUNSEL’S ARGUMENT WAS SO INFLAMMATORY AND PREJUDICIAL THAT IT DEPRIVED APPELLANT OF A FAIR TRIAL.
IV
WHETHER APPELLANT’S COMMANDER’S FAILURE TO ADVISE APPELLANT OF HIS ARTICLE 31 RIGHTS PRIOR TO INTERROGATION RENDERED HIS STATEMENTS OF OCTOBER 4-5, 1990, INADMISSIBLE.
V
WHETHER TRIAL COUNSEL’S SENTENCING ARGUMENT UNFAIRLY PREJUDICED APPELLANT WHERE TRIAL COUNSEL ASKED THE COURT MEMBERS TO PUT THEMSELVES IN THE PLACE OF THOSE WHO DEPLOYED FOR SERVICE.
VI .
WHETHER TRIAL COUNSEL’S SENTENCING ARGUMENT UNFAIRLY PREJUDICED APPELLANT WHERE TRIAL COUNSEL REFERRED TO EVIDENCE NOT IN THE RECORD TO SUGGEST THAT APPELLANT COULD RECEIVE PSYCHIATRIC TREATMENT WHILE IN MILITARY CONFINEMENT.
[153]*153We hold that, under the facts of this case, where lack of mental responsibility is asserted as a defense to disobedience of an order and the defense of physical inability is inextricably tied to the defense of lack of mental responsibility, an instruction on lack of mental responsibility precludes the necessity of an instruction on physical inability; the instruction on reasonable doubt was not erroneous; trial counsel’s arguments did not ask court members to set aside their impartiality; appellant’s statements “I can’t” on October 4-5, 1990, were admissible; and trial counsel did not improperly argue concerning psychiatric treatment in a military confinement facility.
DEFENSE OF INABILITY
FACTS
Appellant was a security policeman assigned to Brooks Air Force Base, Texas. Appellant was named to a 13-member “deployment team” organized to conduct air base ground defense. On October 3, 1990, appellant’s team was ordered to deploy to the Persian Gulf as part of Operation Desert Shield.
At 1600 hours on October 3, 1990, appellant visited the head chaplain and was upset about his possible deployment. The next day appellant sought treatment at an outpatient mental health clinic and was referred to the emergency room of Wilford Hall Medical Center for a mental status evaluation due to possible depression. Appellant was diagnosed as dehydrated and given intravenous fluids and was also diagnosed as “mildly anxious and depressed” but deployable. Appellant admitted that he had not sought medical care prior to being notified about the deployment. On October 5, 1990, appellant saw a flight surgeon as a followup to his Wilford Hall visit. At this appointment appellant was no longer dehydrated and was determined to be medically fit for duty. This determination was made without benefit of appellant’s mental health evaluations. Appellant then reported to the office of Captain Andersen, his commander, who gave him the following order, “Staff Sergeant Meeks, I am ordering you to report to CBPO [Consolidated Base Personnel Office] for processing to deploy with your team____ Will you do that?” Appellant replied, “I can’t,” and was immediately relieved of duty. He did not deploy with his team the following day.
The charge against appellant was preferred on October 19, 1990. Appellant was referred by the base commander for a Sanity Board in conjunction with the charges pending against him. The Sanity Board commenced on December 3,1990, and “concluded that at the time of the ... offense” appellant “was suffering from an adjustment disorder with mixed emotional features ... of depression and ... profound anxiety”- rendering him unable to obey the order to deploy. The Board determined that the disorder was brought about by the following combination of stress factors: appellant’s child having been diagnosed with infantile rheumatoid arthritis early in 1990, a note from the IRS in April 1990, his father-in-law having been diagnosed with terminal cancer early the same year, and appellant’s order to deploy. As a result of the anxiety, appellant was experiencing physical symptoms including headaches, gastro-intestinal distress, and sleeplessness.
The Government offered rebuttal testimony of a forensic psychiatrist which refuted the Sanity Board’s findings.
Appellant’s trial strategy beginning with voir dire was to prove that appellant was unable to obey the order to deploy because he was suffering from anxiety and depression.
DISCUSSION
Inability is a defense to disobedience to orders if the accused’s condition made it impossible to obey the order. United States v. Williams, 21 MJ 360, 362 (CMA 1986). The judge has a sua sponte duty to instruct on this affirmative defense when fairly raised by the evidence, even without a specific request by the defense. United States v. Cooley, 16 USCMA 24, 36 CMR 180 (1966); United States v. Heims, 3 USCMA 418, 12 CMR 174 (1953).
[154]*154Appellant asserts that evidence that he suffered both physical and mental illness entitled him to instructions on both physical inability and lack of mental responsibility. Appellant argues that it was prejudicial error not to give the instruction on physical inability since the amount of evidence required for instructions on affirmative defenses does not need to “be compelling or convincing beyond a reasonable doubt.” United States v. Van Syoc, 36 MJ 461, 464 (CMA 1993) (citation omitted).
At the outset we note that the defense of physical inability, although not always susceptible of precise definition, United States v. Heims, supra, has been explained as being
a matter of degree, and it will not justify the acts of the accused in refusing to comply with the order unless such refusal was reasonable in the light of the fact and extent of the ailment, its relation to the task imposed or other subject matter of the order, the pressing nature of the circumstances involved, and any other relevant circumstances.
United States v. Tolle, 39 CMR 297-99 (ABR 1968). Further, the physical condition must be the proximate cause of the offense. Id. at 299.
The question at issue here, however, is how to treat evidence of physical inability, also an affirmative defense to disobedience to orders, which is inextricably tied to a defense of lack of mental responsibility. The court belowr determined:
An inability instruction based on appellant’s mental condition would have duplicated the instruction the military judge properly gave on partial lack of mental responsibility. In these circumstances, any inability instruction would have been more likely to confuse the members than to assist them.
Unpub. op. at 6.
The determination by the court below is supported by this Court’s decision in United States v. Latsis, 5 USCMA 596,18 CMR 220 (1955). We held in Latsis that
where physical inability resulting from a combat-precipitated psychiatric disorder is asserted as a defense, an instruction on insanity precludes the necessity of a law officer instructing sua sponte on physical incapacity____
5 USCMA at 601, 18 CMR at 225. The rationale for this holding was “that the defense of physical inability resulting from combat induced mental disorders is inextricably wound up with the defense of mental irresponsibility, and a submission of the latter issue is a submission of the former” and that “when the court-martial considered the issue of mental responsibility, it ... also considered the defense of physical incapacity.” Id.
There are some obvious differences between the facts of this case and those in Latsis. Concerning the question of appellant’s mental capacity, expert witnesses testified for both sides and obviously “held contradictory conclusions derived from essentially the same facts.” Unpub. op. at 3. Further, “[a]ll the mental health experts agreed appellant had no psychosis or other serious mental illness, and there was no issue of a lack of mental responsibility within the meaning of RCM 916(k)[, Manual for Courts-Martial, United States, 1984] or a lack of mental capacity to stand trial under RCM 909.” Unpub. op. at 4. Hence, an instruction was given on partial lack of mental responsibility. Additionally, appellant’s problems were not combat induced but perhaps best described as stress related.
Nonetheless, under the facts of this case, where appellant’s physical symptoms are insignificant as compared to his mental distress and are part and parcel of his mental distress, we believe the same rationale applies. Here, the mental inability rather than the physical inability is asserted to be the proximate cause of the disobedience; we distinguish those cases where physical inability is asserted to be the proximate cause of the inability.
If appellant cannot move because his leg is broken, that is physical inability. If he cannot adhere to the right (move) because of a mental disease or defect, that is the lack of [155]*155mental responsibility. The burden in the former is on the Government, ROM 916(b), and in the latter on the defense, Art. 50a, UCMJ, 10 USC § 850a. A shift in the burden of proof does not change the fact that appellant cannot move. Of course, incapacity or inability to some extent is a matter of, degree, but not in this case.
Accordingly, we hold that, under the facts of this case, where lack of mental responsibility is asserted as a defense to disobedience of an order and the defense of physical inability is inextricably tied to the defense of lack of mental responsibility, an instruction on lack of mental responsibility precludes the necessity for an instruction on physical inability. United States v. Latsis, supra.
REASONABLE-DOUBT INSTRUCTIONS
Appellant also argues that the military judge improperly instructed the members on the definition of reasonable doubt. See Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). Judge Breidenbach gave the following reasonable-doubt instruction:
Reasonable doubt is not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or the lack of it in a case. It is an honest misgiving caused by insufficiency of proof of guilt. Proof beyond a reasonable doubt means proof to a moral certainty, although not necessarily an absolute or mathematical certainty. A reasonable doubt is a doubt which would cause a reasonably prudent person to hesitate to act in important and weighty personal affairs. The proof must be such as to exclude hot every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. The rule as to reasonable doubt extends to every element of the offense, although each particular fact advanced by the prosecution which does not amount to an element, need not be established beyond a reasonable doubt. However, if, on the whole evidence, you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.
Certificate of Correction (March 9, 1994) (emphasis added). Both counsel expressly waived any objection to this instruction.
The above instruction should be contrasted with the following instruction in Cage v. Louisiana, supra:
[A] reasonable doubt ... is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.
498 U.S. at 40, 111 S.Ct. at 329.
The Supreme Court in Cage zeroed in on three phrases: “actual substantial doubt,” “grave uncertainty,” and “moral certainty.” Only the third phrase, “moral certainty,” appears in the instruction given in this case. The Cage Court then noted:
The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a “grave uncertainty” and an “actual substantial doubt,” and stated that what was required was a “moral certainty” that the defendant was guilty.
The Court continued by stating “that the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard.” It is when these two “statements” are
considered with the reference to “moral certainty,” rather than evidentiary certainty, [that] it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based [156]*156on a degree of proof below that required by the Due Process Clause.
Cage v. Louisiana, 498 U.S. at 41, 111 S.Ct. at 329.
In United States v. Robinson, 38 MJ 30 (CMA 1993), we held that an instruction similar to that given here was not plain error because the error was not obvious and did not affect a substantial right of the accused. In Sullivan v. Louisiana, — U.S. -, ---, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the Supreme Court held that a violation of Cage could not be harmless error because it constitutes such fundamental error that it must result in a reversal of the defendant’s conviction regardless of the strength of the evidence against him.
Recently, in Victor v. Nebraska and Sandoval v. California, — U.S.-, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Court addressed references to moral certainty.
The instruction in Victor was as follows: “Reasonable doubt” is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. You may be convinced of the truth of a fact beyond a reasonable doubt and yet be fully aware that possibly you may be mistaken. You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence on the part of the state, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture.
— U.S. at-, 114 S.Ct. at 1249.
The instruction in Sandoval was as follows:
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.
Id. at-, 114 S.Ct. at 1244.
The Court remanded the following instruction from North Carolina v. Bryant, — U.S. -, 114 S.Ct. 1365, 128 L.Ed.2d 42 (1994) (instructions set out in 337 N.C. 298, 446 S.E.2d 71, 73 (1994)), for consideration in light of Victor:
When it is said that the jury must be satisfied of the defendant’s guilt beyond a reasonable doubt, it is meant that they must be fully satisfied or entirely convinced or satisfied to a moral certainty of the truth of the charge.
If, after considering, comparing and weighing all the evidence, the minds of the jurors are left in such condition that they cannot say they have an abiding faith to a moral certainty in the defendant’s guilt, then they have a reasonable doubt; otherwise not.
A reasonable doubt, as that term is employed in the administration of criminal law, is an honest substantial misgiving generated by the insufficiency of the proof----
On remand this instruction was held valid by the Supreme Court of North Carolina, which stated:
We next consider defendant’s argument that the use of the phrase “moral certainty” in this instruction would allow a jury to [157]*157return a verdict of guilty based on a subjective feeling rather than upon an evaluation of the evidence. The Court in Victor acknowledged the distinction drawn in Cage between “moral certainty” and “evidentiary certainty.” Victor, 511 U.S. at -, 114 S.Ct. at 1248, 127 L.Ed.2d at 596. The Court stated, however, that in Cage, “the jurors were simply told that they had to be morally certain of the defendant’s guilt; there was nothing else in the instruction to lend meaning to the phrase.” Id. In Victor, the jury was explicitly told to base its conclusion on the evidence in the case, and there were other instructions which reinforced this message.
Likewise, in the present case, the jury was instructed that a reasonable doubt existed “if, after considering, comparing and weighing all the evidence, the minds of the jurors are left in such condition that they cannot say they have an abiding faith to a moral certainty in the defendant’s guilt.” The jury was also instructed that a reasonable doubt is “a sane, rational doubt arising out of the evidence or lack of evidence or from its deficiency” and that it is “an honest substantial misgiving generated by the insufficiency of the proof.” We therefore conclude that, under Victor, “there is no reasonable likelihood that the jury would have understood moral certainty to be disassociated from the evidence in the case.”
State v. Bryant, 337 N.C. 298, 446 S.E.2d 71, 76 (1994).
In Sandoval the Court rejected the argument that the phrase “moral certainty” would allow a conviction on less than “a reasonable-doubt standard.” This is because “the judge had already informed the jury that matters relating to human affairs are proved by moral evidence; giving the same meaning to the word moral in this part of the instruction, moral certainty can only mean certainty with respect to human affairs.” — U.S. at-, 114 S.Ct. at 1247 (citation omitted). Thus, the Court found there was no error here in using the term “moral certainty, in conjunction with the abiding conviction language [“Reasonable doubt ... leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the change.” — U.S. at-, 114 S.Ct. at 1244.]” - U.S. at-, 114 S.Ct. at 1247. The Court distinguished Cage on the basis that “there was nothing else in the instruction to lend meaning to the phrase [moral certainty].” While finding no violation of due process the Court refused to “condone the use of the phrase.” — U.S. at -, 114 S.Ct. at 1248.
As to the instruction in Victor, the Court indicated:
Instructing the jurors that they must have an abiding conviction of the defendant’s guilt does much to alleviate any concerns that the phrase moral certainty might be misunderstood in the abstract. The instruction also equated a doubt sufficient to preclude moral certainty with a doubt that would cause a reasonable person to hesitate to act. In other words, a juror morally certain of a fact would not hesitate to rely on it; and such a fact can fairly be said to have been proven beyond a reasonable doubt.
— U.S. at---, 114 S.Ct. at 1250-51 (citation omitted).
When the instruction in this case is contrasted with the instructions in Sandoval, Victor and Bryant, we are confident there is no chance of the court members’ being confused as to their responsibilities. Thus, we conclude that there was no error here.2
[158]*158ARGUMENT — PARTIALITY
During Ms closing statement on sentencing, trial counsel argued:
As for five years’ confinement, please realize that while he’s in confinement, he’s going to be here in America safe. His wife and Md can come visit him every Sunday. That is so important. Please understand what he will be facing in confinement and what he won’t be facmg had he deployed last October. Compared to what this man has gotten out of, the fear he would have had last October had he deployed, five years in jail is nothmg compared to the fear that he had last October. Please also, and tMs is so important, tMnk about his co-workers that did deploy last October. Think of the message that you’re going to send to them. Think about Sergeant Bradford, who had to volunteer to replace this man ... [sic] who went voluntarily, if he finds out that tMs man got a light sentence, think of the message that you’re going to send out—
DC: Objection, Your Honor. There’s no evidence to—
MJ: Overruled. Go ahead.
TC: I just want you to think about Ms coworkers who did deploy last October ... [sic] the message that you’re going to send to them. You all have a very tough decision here today____
Based on tMs argument the defense argues that trial counsel is asking the court members to put themselves in the place of those who have deployed. Appellant recognizes that it would have been proper to argue about manning problems or morale problems in the umt. However, appellant argues that it was unduly prejudicial to ask the court members to put themselves in the shoes of those who were already serving in the Gulf.
As we said m United States v. Kropf, 39 MJ 107, 108 (1994):
Trial counsel is required to represent zealously the Government and offer vigorous arguments for sentencing. Rule 1.3 (Comment), ABA Model Rules of Professional Conduct (1989 ed.); United States v. Edwards, 35 MJ 351 (CMA 1992). Arguments must be based on a fair reading of the record. United States v. White, 36 MJ 306 (CMA 1993); United States v. Nelson, 1 MJ 235 (CMA 1975). Counsel may comment on contemporary Mstory or matters of common knowledge within the commimity. United States v. Long, 17 USCMA 323, 38 CMR 121 (1967). But [see ] RCM 1001(g)....
However, we have held that it is inappropriate for trial counsel to urge the court members to consider the victim as their child, United States v. Wood, 18 USCMA 291, 296, 40 CMR 3, 8 (1969), or to suggest that they consider themselves as the helpless husband who witnesses the gang rape of Ms wife, United States v. Shamberger, 1 MJ 377, 379 (CMA 1976). But counsel may comment on “matters of common knowledge within the eommumty.” United States v. Kropf, supra at 108. See also Standard 3-5.9, ABA Standards for Criminal Justice: The Prosecution Function at 3.91 (2d ed, 1986), which states that the prosecutor may argue “matters of common public knowledge based on ordinary human experience____” See 50 Cr.L.2067 Standard approved (Feb. 3, 1992). In tMs instance appellant’s trial started after the air war and Ms sentencing was taking place at the same time that the Urnted States and its allies were engaged m the ground war. These facts were most certainly “matters of common public knowledge within” both civilian [159]*159and military communities. Trial counsel’s argument was a fair comment on preserving good order and discipline and the needs of general deterrence.
ARGUMENT-PSYCHIATRIC TREATMENT
Appellant’s psychiatrist, Captain John W. Thompson, Jr., from Wilford Hall testified both at findings and sentencing. During direct examination at sentencing, defense counsel elicited testimony from Captain Thompson that appellant required continued mental health treatment. The implication of this testimony was that appellant should not be sentenced to confinement.
During cross-examination by assistant trial counsel, the following exchange occurred:
Q: And if the accused were confined isn’t it true that he can still get treatment for any mental health problems that may exist at that time?
A: I’d have to specifically—
DC: Your Honor, that’s an ambiguous question and we’re going to have to object.
MJ: Overruled. Go ahead.
WIT: Okay. I guess you’d have to look at what the level of quality of care would be. I’ve worked in one prison and a couple of jail populations, and I can tell you that with him, personal psychotherapy would be a rare occurrence if someone was getting weekly, hour-long individual psychotherapy in that population. If that occurs, and he could get that kind of treatment, whether that would be from a psychiatrist who is also treating him, I don’t know. It would depend upon the specific prison population on whether or not he could get that kind of treatment there.
ATC: And, the prison systems that you’ve worked in are civilian, isn’t that correct? I’m trying to remember from the findings portion when you testified.
A: In Florida ... [sic] with the State Prison system in Florida in the county in Florida as well, Alachua County, and then with my own experience with the Texas system, Texas Department of Corrections, when I went to medical school, and we did evaluations on the psychiatric patients there, and those were ones that were referred from various areas in Texas to be evaluated, so I have experience in those areas.
Q: And you’re not familiar with the military confinement?
A: Not familiar exactly what his treatment would be in a prison military system.
Q: Captain Thompson, one more question. Just a little bit more specifically, do you know whether or not Lowry or Leavenworth specifically those confinement facilities have a means of treating the accused?
A: The last that I heard about Leavenworth was from the forensic psychiatrist there and that was about a year ago. And his description of it to me was that ... [sic] now he saw the patients very briefly for medication adjustments, and there were a lot more people to see then he had time to see. So, that’s all I know about the Leavenworth system. I’m not familiar with the other systems.
After redirect examination, First Lieutenant Thomas, a court member, asked the following question:
Q: Captain Thompson, you may have already addressed this. Could Sergeant Meeks receive treatment on a confinement basis similar to what he is receiving at Wilford Hall?
A: I’d have to answer that based on the limited knowledge that I’ve spoken about before. My opinion is that he wouldn’t receive the same care that he would at Wilford Hall. In that we’re a highly staffed unit and we have all kinds of different therapies available to patients. Prisons are not going to have all those facilities as near as I know. We are able to care for him better. That’s all I can tell you. I think that’s commonly held throughout the United States. The judicial system is starting to address some of those issues that that standard of care is not as high in those areas as it is on our ward. I hope that helps you.
[160]*160Based on this evidence trial counsel argued that psychiatric treatment was available while in confinement:
Captain Ruiz [defense counsel] mentioned that you should not sentence this man to prison or discharge him because he’s sick. Well, again, he can go to confinement, and even Doctor Thompson can testify that there were treatment facilities at various confinement facilities....
The defense cites United States v. Stevenson, 34 CMR 655, 659-60 (ABR), pet. denied, 15 USCMA 670 (1964), for the proposition that an argument concerning psychiatric care in a military correctional facility is improper. “[T]he trial counsel had no evidentiary basis whatever for his assertion of the adequacy of the facilities of the Army correctional and penal system for dealing with the accused’s psychiatric problem.” 34 CMR at 660.
Under the circumstances of this case the argument by trial counsel was not error. Captain Thompson did testify that mental health treatment was available at both the civilian and military confinement facilities. Although he had limited knowledge regarding the psychiatric treatment available at Fort Leavenworth, he felt knowledgeable enough to testify that appellant would not receive the appropriate care while in confinement. Contrary to the defense assertion that the prosecutor’s argument concerning Captain Thompson’s testimony was improper because it concerned psychiatric treatment in a military confinement facility, such argument was not improper because it was based on matters excluded by the military judge. Cf. United States v. Causey, 37 MJ 308 (CMA 1993); United States v. White, 36 MJ 306 (CMA 1993).
ARTICLE 31
Appellant’s commander, Captain Andersen, talked to appellant on several occasions prior to relieving him of duty on October 5, 1990, for not deploying. On October 4, 1990, the commander was not sure “what the problem was with” appellant. “Everybody that I had talked to up to this point felt that he was going to be able to deploy with the team____” The military judge found:
Captain Anderson did not suspect the accused of committing any offense at this time [at the Primary Care Clinic]. He did not know the circumstances of the missed mobility meeting and the failure to remain on standby. He did not know if the accused had been notified and he thought there might be a legitimate reason for seeking medical attention.
Captain Andersen enlisted the aid of appellant’s wife to convince appellant to deploy. He then visited with appellant for 3 1/2 hours at the hospital and “towards the end of the 3-and-a-half hours, ... realized that there was a good possibility he may choose not to deploy.” At this meeting
[t]he accused told him that he did not feel he had shown the proper love and affection for his wife and family. He felt that if he were deployed and he were killed he would never have the opportunity to make up for the lack of attention. He continually responded that he couldn’t deploy.
Captain Andersen then told him he would meet with him later, but he should “think about the situation.” On October 5, 1990, he called appellant into his office and gave him this order: “Sergeant Meeks, I am ordering you to report to the CBO for processing for deployment to deploy with your team. Will you do that?” Appellant responded, “I can’t.”
Article 31(b), UCMJ, 10 USC § 831(b), provides:
No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
[161]*161See also Mil.R.Evid. 305(c), Manual, supra. Both Article 31(b) and Mil.R.Evid. 305(c) provide that a person subject to the Code must give warnings under Article 31 before “interrogat[ing], or request[ing] any statement from an accused or a person suspected of an offense.”
Standard of Review
As we stated in United States v. Davis, 36 MJ 337, 340 (CMA 1993), aff'd on other grounds, — U.S.-, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the standard of review is as follows:
Whether a person being interviewed is a “suspect” is a question of law. United States v. Good, 32 MJ 105, 108 (CMA 1991). The military judge’s factual deter-, minations pertaining to what criminal investigators knew at the time of the interview will be upheld unless “clearly erroneous”; but the legal issue whether the person being interviewed was a suspect will be reviewed de novo. Id.; United States v. Uribe-Velasco, 930 F.2d 1029, 1032 (2d Cir.1991). If a criminal “investigator suspects or reasonably should suspect” a person “of a crime, then rights’ warnings are required.” United States v. Schake, 30 MJ 314, 317 (CMA 1990).
Who Must be Warned
It is clear that an accused is a person who has had charges preferred against him. The question in this case is whether appellant was a “suspect” when Captain Anderson ordered him to deploy. The fact that there is “a hunch” that a crime has been committed does not trigger Article 31(b). The test to be applied is an objective test asking whether a reasonable person should consider appellant to be a suspect under the totality of the circumstances. United States v. Leiffer, 13 MJ 337, 343 (CMA 1982).3
In United States v. Shepard, 38 MJ 408 (CMA 1993), appellant was late for the unit formation. When he approached his squad leader, he told him:
“You need to call the MPs [military police].” When the squad leader asked why, the appellant said, “You don’t know yet. You’ll find out. I just need the MPs.”
Later the platoon sergeant invited appellant into his office to discuss missing formation. At that time “appellant blurted out that he needed to go to jail.” 38 MJ at 409. We held that the platoon sergeant “did not suspect or have any reason to suspect that appellant had just murdered his wife. His purpose in questioning appellant was to determine the reason for his absence at formation and assess the general welfare of his family.” 38 MJ at 411.
Also, in United States v. Davis, supra, we held appellant was not a suspect. The investigators “had determined that a pool cue was the probable murder weapon,” but they had not determined how many individuals “owned pool cues.” Appellant’s interview was the second or third of an individual known to have owned a pool cue. Although appellant had “intimate information” concerning the crime, this “was attributed to third parties.” Even though appellant was known as a “disciplinary problem” and had made “bizarre comments about killing someone,” 36 MJ at [162]*162340-41, we held that he was not a suspect within the meaning of Article 31. 36 MJ at 341.
Likewise, in this case, we agree with the military judge that appellant was not a suspect. The commander did not know if appellant had failed to repair. In any event, he thought there might be a legitimate reason for missing the formation.
Captain Andersen was trying to determine whether Sergeant Meeks would deploy. Until appellant replied, “I can’t,” to the order, he had not committed any offense. While a commander may suspect that a servicemember will not obey an order, most commanders hope, based on their personal presence and the power of their office, that the person will obey when eventually confronted with the order. Commanders are not required to anticipate disobedience of orders and to give an Article 31 warning before an order is given. There is no requirement to prospectively advise an individual of Article 31 rights prior to commission of an offense.
When Warning Must be Given
A warning under Article 31 must be given when the interrogator is “interrogat[ing], or requesting] any statement.” Relying on Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), Mil. R.Evid. 305(b)(2) defines “interrogation” to include “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” As we have “long intimated,” Article 31 “requires warnings only when questioning is done during an official law-enforcement investigation or disciplinary inquiry.” United States v. Loukas, 29 MJ 385, 387 (CMA 1990); United States v. Dugo, 10 MJ 206 (CMA 1981). Like the admission of appellant in United States v. Shepard, 38 MJ 408, 411 (CMA 1993), the counseling by Captain Andersen was not “an interrogation or a request for a statement within the meaning of Article 31.” The purpose of counseling appellant was to advise him of the consequences of not deploying. Id. Thus, the statements made by appellant without warnings were not barred by Article 31. Id. and cases cited therein.
The decision of the United States Air Force Court of Military Review is affirmed.
Judges COX and GIERKE concur.