Before the Court Sitting En Banc.
OPINION OF THE COURT ON RECONSIDERATION
COKER, Senior Judge:
This case is before the court sitting as a whole for reconsideration of the prior decision of a panel of the court. Reconsideration was ordered on the court’s own motion in view of the exceptional importance of the issue involved. Appellant was convicted by a panel of officer members of attempted murder and attempted wrongful appropriation of a motor vehicle, operating a motor vehicle while drunk (two specifications), wrongful appropriation of a firearm valued at more than $100.00 (two specifications), robbery (two specifications), wrongful appropriation and assault (two specifications, lesser included offenses of robbery), aggravated assault (four specifications), and assault consummated by a battery, violations of Articles 80, 111, 121,122, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 911, 921, 922, and 928 (1982) [hereinafter UCMJ]. The adjudged sentence of confinement for twelve years, total forfeitures, and reduction to the grade of Private E-l was approved by the convening authority. On direct appeal, four issues were raised: failure of the military judge to require trial counsel to explain his peremptory challenge against a panel member of appellant’s minority race, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); improper selection of enlisted members to the panel;1 failure of the Article 32, UCMJ, investigating officer to submit a complete report of the investigation; and failure of the military judge to instruct the members on the defense of partial mental responsibility. The original opinion of the court held that the Batson rule does apply to courts-martial and that appellant had established a prima facie case of discrimination, and therefore ordered a limited hearing to allow the government to rebut appellant’s allegation. United States v. Moore, ACMR 8700123 (A.C.M.R. 17 Dec. 1987), vacated, 13 January 1988.2 The opinion did [695]*695not address the other issues raised by appellant.
I. Facts regarding the Batson issue.
The members of the panel, not including those persons detailed but excused, were Colonel (COL) B.H., COL J.T., Lieutenant Colonel (LTC) R.W., Major (MAJ) J.H., MAJ N.H., Captain (CPT) C.G., and CPT C.S. The military judge began voir dire of the panel with preliminary questions. Colonel B.H. apparently knew some of the details of the case. Captain C.S. and CPT C.G. were serving as court members for the first time. Colonel B.H., COL J.T., and LTC R.W. had served as trial or defense counsel at some time in the past. Lieutenant Colonel R.W. and CPT C.S. had previous dealings with parties to the trial. Captain C.S. had received legal advice from trial or defense counsel. Trial counsel asked a series of questions directed to all of the members geared to introduce them to the government’s theory of the case and a few general questions regarding sentencing.
Appellant’s civilian defense counsel (IDC) had previous court-martial experience and had represented clients at courts-martial in which LTC R.W. and MAJ J.H. had sat as court members. Appellant’s civilian counsel asked each member to list his length of service, duty position, and home town. Of those members who had previously served as court members, only LTC R.W. had not served on a general court-martial panel. Of the panel members who had served on prior courts-martial, only COL B.H. had sat as a member in a case involving a violent crime. Captain C.S. was the only member who had contact with trial counsel outside the courtroom. Colonel B.H. and CPT C.S. both had personal property stolen from them. Appellant’s civilian counsel asked all members if “the fact that several of the alleged victims in this case are white and [appellant] is black [will] effect you in your deliberations at any point in the trial”. All members replied that it would not. Most of the members had heard or read some news about appellant’s case. Colonel B.H. had some knowledge in the field of alcohol abuse. Only CPT C.S. thought he could not consider no punishment as a sentence if appellant were found guilty of some or all of the offenses.
Several members were questioned individually. Colonel B.H. remembered the news accounts of the crimes at issue only vaguely. As assistant chief of staff, the ADCO section was under his management. Additionally, COL B.H.’s father and brother were alcoholics. Colonel B.H. did not think his experience with them would affect his deliberations. Lieutenant Colonel R.W. had been called as a panel member in a prior case in which appellant's civilian counsel served as defense counsel, but had been challenged off the panel. Captain C.S. had occasionally obtained legal advice from the trial counsel. He appeared to believe that, if appellant were found guilty of the assault offense using the pistol as a club, he could not realistically consider adjudging no punishment. After further explanation by the military judge, CPT C.S. stated that he could in fact consider adjudging no punishment. Colonel J.T., a Medical Service Corps officer, did not have any medical expertise. Colonel J.T. only vaguely remembered hearing or reading about the crimes at issue.
Defense challenged CPT C.S. for cause because of his responses to questions pertaining to sentencing. After discussion, the military judge denied the challenge. The government peremptorily challenged MAJ J.H., and the defense peremptorily challenged CPT C.S., stating that had the challenge for cause been granted, defense would have peremptorily challenged COL J.T. instead.
Defense counsel requested that “the military judge assure himself that the challenge for cause [sic] against Major J.H., who is black, is not for any impermissible discriminatory basis.” Appellant’s civilian defense counsel noted that CPT C.G. was also black, and remained on the panel, and that in Batson, all black veniremen had been stricken from the panel. Defense counsel stated that, given that trial counsel had conducted no individual voir dire of MAJ J.H., there was no apparent basis for striking him from the panel except for [696]*696race. Trial counsel stated that “if the concern is an articulation by the government as to the reason for their peremptory [challenge] ... the government wouldn’t have any problem in this particular case articulating such a reason for its challenge of Major J.H.” After obtaining a copy of Batson and reading it, the military judge asked for the government’s position. The government felt it had no responsibility to disclose its reasons, but had no objection if the court ordered disclosure. Neither the defense nor the government made further argument.
The military judge noted for the record that there were originally two black panel members on the court, one of whom was challenged, and that the convening authority was black. He found that there was no requirement for the government to disclose its reasons under current law, even taking Batson at face value as being applicable, because he did not find that appellant had made out a prima facie case. The military judge next noted that the prosecutor had exercised a peremptory challenge to remove a member of appellant’s race, and that peremptory challenges by their nature did constitute a jury selection practice that allows discrimination by those of a mind to discriminate. After stating the last criterion, that “[t]he defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used a peremptory challenge to exclude the venireman from the petit jury on account of their race,” the military judge stated without explanation that this requirement had not been met. The military judge therefore did not require trial counsel to explain his reasoning, but offered him the opportunity to do so, in order to protect the record. Trial counsel declined the offer, stating that the principle of the peremptory challenge was that it was at counsel’s discretion.
II. The Background of the Batson Decision.
For more than a hundred years, it has been held that intentional exclusion of individuals from juries on the basis of race violates the Equal Protection Clause. See Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880). Such discrimination “violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717. The “protection” afforded an accused in a trial by jury is the guarantee of an impartial jury selected from among his peers and equals in the district where the crime was committed. When a person or easily recognizable group of persons is denied this protection, that person or group is subject to deprivation of life or liberty without due process of law; that person or group is denied the equal protection of law. “The very idea of a jury is a body of men composed of peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Strauder, 100 U.S. at 308. When “every white man is entitled to a trial by jury ... selected without discrimination against his color, and a negro is not, [it cannot be said that] the latter is equally protected by the law with the former.” Strauder, 100 U.S. at 309.
A distinction between exclusion of blacks from jury venires and exclusion of blacks from the petit jury was drawn by the Supreme Court’s decision in Swain v. Alabama, 380 U.S. 202, 239', 85 S.Ct. 824, 846, 13 L.Ed.2d 759 (1965) (Goldberg, J., dissenting). The Court distinguished the selection of a jury venire vis-a-vis of a petit jury, as an action solely of the state, and therefore, any racially discriminatory action in the selection of the venire could be imputed to the state. Based on the long history and importance of the peremptory challenge, the Court decided that “[t]o subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge.” Swain, 380 U.S. at 221-22, 85 S.Ct. at 836-37.
“The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and [697]*697impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.”
Swain, 380 U.S. at 222, 85 S.Ct. at 837.
To overcome the presumption, the Court required that a defendant prove that, by state action and responsibility, “Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice.” 380 U.S. at 224, 85 S.Ct. at 838. The prosecutor in Swain struck all six black veniremen, and the appellant had demonstrated that no black had sat on a petit jury in that county in living memory. Nevertheless, the Court found that appellant had not met his evidentiary burden for making out a prima facie case of discriminatory intent because he had not shown that the state, rather than the accused or the particular situation of the trial, was responsible for the general exclusion of blacks from the petit jury.
The dichotomous treatment of exclusion from the jury venire and exclusion from the petit jury was ended by the landmark decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712. After much criticism of its decision in Swain, and ample demonstration that blacks were being systematically excluded from the petit jury through the use of the peremptory challenge, the Supreme Court determined that the procedure formulated in Swain had for all practical purposes made the peremptory challenge sacrosanct. Accordingly, a new procedure was formulated by which to determine if peremptory challenges were being used to intentionally discriminate on the basis of race, and thus deny an accused due process of law (in the federal system) or the equal protection of the law (in state systems).
[T]he defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.
Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
476 U.S. at 96, 106 S.Ct. at 1723 (citations omitted) (emphasis added).
In determining whether a defendant has made a prima facie showing of discrimination, “the trial court should consider all relevant circumstances,” including, but not limited to, identifying a pattern of strikes against black jurors and the prosecutor’s manner of exercising voir dire and challenges. Id. at 96-97,106 S.Ct. at 1722-1723.3
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors____
[T]he prosecutor [may not] rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirming his good faith in individual selections.’ ... The prosecutor therefore must articulate a neutral explanation related to the [698]*698particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.
Id. at 97-98, 106 S.Ct. at 1723-1724 (citation and footnotes omitted).
Since evaluation of a prosecutor’s rationale for challenging a particular member is largely one of credibility, reviewing courts should give these factual findings great deference. Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21. In the event that a defendant establishes a prima facie case, and the prosecutor’s explanation does not rebut the allegation, the conviction is to be reversed. Id. at 100, 106 S.Ct. at 1725. This court fully supports the soundness of these principles and their application, mutatis mutandis, to trials by court-martial. That is unquestioned. The scope and application of the procedure formulated by the Supreme Court to the issues in this case concern us here.
III. Application of the Principles Developed in Batson to Courts-Martial.
The basic principles enunciated, i.e., elimination of racially discriminatory challenges, are consistent with and necessary to the proper administration of military justice. “The time is long since past ... when [the Court of Military Appeals] 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).
[C]ourts-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 the facts. Methods of selection which are designed to produce a court membership which has, or necessarily results in, the appearance of a ‘packed’ court are subject to challenge.
United States v. Crawford, 35 C.M.R. 3, 6 (C.M.A.1964) (citations omitted).
Article 25, UCMJ, 10 U.S.C. § 825, limits the criteria by which panel members may be selected to age, education, training, experience, length of service, and judicial temperament. Race is not an included criterion in the selection of court-martial members, and certainly is not a proper criterion for exclusion. Cf. United States v. Crawford, 35 C.M.R. at 13 (Quinn, C.J.) and 29-30 (Ferguson, J., dissenting). “Discrimination in the selection of court members on the basis of improper criteria threatens the integrity of the military justice system.” United States v. Daigle, 1 M.J. 139, 140 (C.M.A.1975) (exclusion of junior officers from panels). See United States v. McClain, 22 MJ. 124 (C.M.A. 1986) (exclusion of junior enlisted soldiers from panels in order to achieve heavier sentences).
By the same token, race may not “be allowed to raise its ugly banner as a criterion for” peremptory challenges. United States v. Crawford, 35 C.M.R. at 21 (Ferguson, J., dissenting). Discrimination on the basis of race is abhorrent. It is particularly pernicious in the administration of justice. Accordingly, there is no logic in permitting the prosecutor, through the use of his peremptory challenge, to do what the convening authority, in the selection of panel members, cannot. Therefore, this court finds the basic principles of the Batson decision fully applicable to trials by court-martial, and in the exercise of our supervisory responsibility to protect the integrity of the Army court-martial system adopts a procedural method suited to the military justice system to effectuate this decision. See United States v. Carter, 25 M.J. 471, 473 (C.M.A.1988).4
[699]*699IY. Application of the Batson Procedure to Courts-Martial.
Application of the specific procedural formulation enunciated in Batson to trials by court-martial is neither required nor practicable, due to the substantial legal and systemic differences between courts-martial and civil criminal prosecutions.
The constitutional underpinning of the Batson decision is that “[pjurposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.” Batson, 476 U.S. at 86,106 S.Ct. at 1717 (emphasis added). However, courts-martial are not subject to the jury trial demands of the constitution. United States v. McClain, 22 M.J. at 128; Ex parte Quirin, 317 U.S. 1, 39-41, 63 S.Ct. 2, 16-17, 87 L.Ed. 3 (1942); see Reid v. Covert, 354 U.S. 1, 21, 77 S.Ct. 1222-1233, 1 L.Ed.2d 1148 (1957) (“Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.”); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 18 L.Ed. 281 (1866) (The right to trial by jury — “one of the most valuable in a free country — is preserved to everyone accused of crime who is not attached to the army, or navy, or militia in actual service.”) Thus, military accused are tried not by a jury of their peers, but by a panel of their best qualified superiors. UCMJ art. 25(d)(1). Civilian juries are drawn from a random cross-section of the community; military panels are selected by the convening authority on a best qualified basis. UCMJ art. 25(d)(2). Clearly, if a service-member has no right to trial by jury under the sixth amendment, then procedural rules designed to protect that right cannot apply to trials by court-martial, even if the procedural rule flows from the fifth amendment. Yet as the procedure is constitutionally nourished, it is appropriate to consider the application to the court-martial system.
In most civilian jurisdictions, the prosecution and the defense are both allowed a substantial number of peremptory challenges,5 sufficient that one party or the other can pervert constitutional norms by purposefully excluding a segment of society from participation in the administration of justice. See Batson, 476 U.S. at 91, 106 S.Ct. at 1720. However, the limitation to one peremptory challenge per side at trials by court-martial6 prevents their use as a method for “selecting the petit jury” whether it is to exclude a segment of society or to ensure that the jury is impartial.7 Civilian counsel are provided a large jury venire by a representative of the state, composed of persons from designated groups, such as registered voters or property tax rolls. They then select their petit jury by striking or by challenging numerous persons from their venire. In courts-martial, counsel use their single peremptory challenge not to select a jury, but to preserve or to enforce a challenge for cause, cf. United States v. Smart, 21 M.J. 15 (C.M.A.1985); R.C.M. 912(f)(4), or to remove a member that counsel suspects, intuitively or otherwise, will be sympathetic to the opponent’s case. Of equal importance, there has been no showing or history [700]*700of systemic subversion of the system or exclusion of members of minority races from court-martial panels, as has occurred in civilian trials. See Batson, 476 U.S. at 100, 101, 106 S.Ct. at 1725, 1726 (White, J., concurring) and 102, 103-104, and 106 S.Ct. at 1725, 1726-1727 (Marshall, J., concurring).
To some extent, stereotypes may form the basis of the intuition for peremptory challenges of minority members, or for judgment of the correctness of a peremptory challenge. Obviously, stereotyping can be illogical and dangerous, whether it be to assess the character of a minority group or to identify the reasons for prosecutorial action. For example, part of the factual history of striking presented in Swain was contrary to stereotype and formed a basis of the Court’s finding that exclusion of blacks from the petit jury was not necessarily a result of state action.8 We do not condone the use of stereotypes for any purpose within the court-martial system.
Because of the differences between courts-martial and other criminal trials, both legal and systemic, the specific procedural formulation adopted in Batson v. Kentucky, supra, to address purposeful racial discrimination in the exercise of peremptory challenges does not apply to courts-martial.
V. Procedure Applicable to Courts-Martial.
The limitation at courts-martial to one peremptory challenge per party would render the burden of establishing a prima facie case under the Batson decision intolerably high. Most of the factors used to establish a prima facie case relate to use of a number of peremptory strikes. See Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987); Williams v. State, 507 So.2d 50 (Miss.1987) (striking of all blacks from a venire); United States v. Cartlidge, 808 F.2d 1064 (5th Cir.1987); Gamble v. State, 257 Ga. 325, 357 S.E.2d 792 (1987); Keeton v. State, 724 S.W.2d 58, 65 n. 5 (Tex.Crim.App.1987) (striking of most black veniremen). Disproportionate impact would be difficult, if not impossible to demonstrate. New of these quasi-numerical tests would be of any use at courts-martial. See, e.g., United States v. Cloyd, 819 F.2d 836 (8th Cir.1987); United States v. Chalan, 812 F.2d 1302 (10th Cir.1987) (striking of only or last remaining juror of defendant’s race). Thus, military accused would be left to rely on the nature and tone of voir dire, see State v. Alvarado, 226 Neb. 195, 410 N.W.2d 118 (1987); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 905, 583 P.2d 748, 764 (1978), racial overtones inherent in his particular case, see People v. Turner, 42 Cal.3d 711, 230 Cal.Rptr. 656, 726 P.2d 102 (1986) (black defendant, white victims), and other general facts and circumstances in the case. These factors alone, in the absence of the ability to examine a pattern of strikes, generally will not provide sufficient information from which discriminatory intent may be inferred. Therefore, in those cases where the accused is a member of a recognized racial group and the government peremptorily challenges a member of the court-martial panel who is also a member of the accused’s racial group, we will require only that the accused state an objection to the prosecutor’s peremptory challenge. The accused may present, as part of the objection, any evidence supporting the objection. The government will be required to provide an explanation for the challenge, notwithstanding the absence of defense evidence supporting the objection and without regard to the merits of any defense evidence. This procedure insures that the defense has an opportunity to present evidence of prosecutorial misconduct or to rely on the per se rule in the absence of such evidence.
Use of this per se rule may appear to be too much of an encroachment on the use of the peremptory challenge. For two reasons, we are satisfied that this approach is appropriate to military practice. First, mil[701]*701itary communities are small ones. Unlike the situation in the civilian context, trial and defense counsel are usually familiar with the court members, have had the opportunity to work with some of them in some capacity, or observed at least some of them in prior trials. Some members will be known to counsel by way of reputation for being particularly lenient or harsh, for having a law enforcement background, etc. This familiarity with the court members will make the burden on military trial counsel to articulate race neutral reasons for the exclusion of a single minority member less difficult than that imposed on their civilian counterparts, who are exposed to each venireman only briefly. Secondly, this per se rule requires no balancing of factors, no evidentiary hearing, and no need for later review of a trial judge’s prima facie determination. The simplicity of this rule leaves no room for error, and no doubt that minority accused can adequately raise the issue.9
Once the objection is made, the trial counsel will explain the reason for his challenge. In this respect, we will limit the level of scrutiny into the reasons provided. In the civilian context, some jurisdictions analyze the government’s explanation of its challenges more closely than others. Compare United States v. Cartlidge, supra (court accepted at face value a prosecutor’s affidavit that one challenged minority member avoided eye contact and that another was a low income divorcee) with Garrett v. Morris, supra (court did not accept a prosecutor’s explanation that he had peremptorily challenged black veniremen who were not well educated, given the fact that the prosecutor did not strike similarly situated whites). See also Gamble v. State, 357 S.E.2d at 794-95 (“The rubber stamp approval of all nonracial explanations no matter how whimsical or fanciful, would cripple Batson’s commitment to ‘ensure that no citizen is disqualified from jury service because of his race’ ” and the persuasiveness of the explanation may be magnified or diminished by the strength of the prima facie case.). While the military judge must give due deference to the government representative as an officer of the court, we neither expect nor desire a rubber stamp approach.
Accordingly, this court expects that military judges will ensure that the reasons provided by counsel are clearly stated for the record. The military judge should use appropriate trial procedures to best protect the privacy interests of the challenged member.10 After counsel’s reasoning is properly clarified,11 the military judge will rule on the issue and make findings of fact. If a reasonable, racially neutral explanation is not presented, the peremptory challenge will be disallowed, and trial counsel may challenge a different member. As the issue hinges on credibility of the explanations provided, great deference will be given to the trial court’s findings, see United States v. Cloyd; United States v. Forbes, 816 F.2d 1006 (5th Cir. 1987), subject to review for abuse of discretion.
VI. Application to the Case Sub Judice.
Because the Batson procedural formulation does not apply directly to trials [702]*702by court-martial, and because our adoption of an analogous procedure appropriate to military practice is a new policy, application need not be retroactive. However, since the general principles enunciated in Batson do apply to courts-martial, and so as not to disadvantage appellant, we will consider his case under the Batson procedural rule, and in addition will apply our procedure.
The strongest factor which can be identified to support an inference of discrimination is that, in a pretrial statement, appellant referred to his victims as “redneck pussies,” an obvious indication that at least some of his victims were white.12
An equally strong factor that denies any inference of discrimination was defense counsel’s initial statement when raising the issue: “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.” Such statement appears to negate the existence of any other “relevant facts or circumstances,” and shifts the defense burden, Batson, 476 U.S. at 96, 106 S.Ct. at 1722, to the government.13
In addition, there are several race neutral factors found in the record of trial that support the challenge. The trial counsel did not attempt to develop a challenge for cause against either black member of the panel. Therefore, he made no blatant attempt to achieve a monochromatic panel. Major J.H. recognized the civilian defense counsel from other trials and also recognized the trial counsel as V Corps’ trial counsel. Lastly, trial counsel initially offered to provide a race-neutral explanation for his challenge of MAJ J.H., but was halted by the military judge. After the judge ruled that no prima facie case of discriminatory intent had been established, trial counsel declined the opportunity to state his reasons and thus “protect his record.” 14
The military judge found as fact that a prima facie case of discrimination had not been established. He did not ask defense counsel to articulate the facts and circumstances on which he relied in making the objection, and did not make specific findings of fact. He did, however, properly note the Batson factors and made his ruling based on the assumption that the decision was applicable to courts-martial. He had the opportunity to observe the tone of trial counsel’s questions, the responses and demeanor of MAJ J.H., and the appearance of any hostility between the two men. Finally, the military judge had available to him evidence regarding the selection policies and procedures of the convening authority and materials considered by the convening authority in selecting the panel. Based on these factors, and our own review of the record, we find no abuse of discretion in the military judge’s resolution of the issue.
Applying this court’s procedure for trials by court-martial and to ensure compliance with Batson principles, the court ordered that the government trial counsel provide an affidavit15 explaining the basis for his [703]*703peremptory challenge for review by this court. His response provided a reasonable, racially neutral explanation for the challenge, with no indices of racial motivation. We find, therefore, that the government’s peremptory challenge was exercised in accordance with constitutional principles and the procedure established by this court.
The remaining alleged errors have been considered and found to be without merit.
The findings of guilty and the sentence are affirmed.
Chief Judge HOLDAWAY, Senior Judge FELDER, Senior Judge De GIULIO, Judge GILLEY, Judge CARMICHAEL, Judge KENNETT, and Judge ROBBLEE concur.
DeFORD, Senior Judge, with whom Judge KANE concurs, concurring in part and dissenting in part:
I agree with the majority that the concept of equal protection of the law which is applied to the sovereign states by virtue of the Equal Protection Clause of the fourteenth amendment and to the instrumentalities of the Federal Government as a consequence of the Due Process Clause of the fifth amendment to the Constitution of the United States is applicable to the Armed Forces of the United States subject to certain exceptions necessitated by conditions of military service. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). The circumstances in this case to a great extent do not fit within those previously established and known exceptions. Furthermore, the concept of equal protection is of paramount importance in creating and maintaining a well ordered and disciplined fighting force.
I
In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), a case founded upon the equal protection clause, the Supreme Court of the United States considered a case in which it was alleged that there was invidious racial discrimination in the selection of the general jury venire because black persons were excluded from the petit jury through the use of peremptory challenges. The Court held that the petitioner Swain had failed to establish systematic discrimination in the selection of the general jury venire and in the prosecutor’s exercise of peremptory challenges. They ruled that, absent a clear showing of systematic discrimination, the presumption in any particular case must be that the prosecutor is using his challenges to obtain a fair and impartial jury and that any other result would establish a rule wholly at odds with the peremptory challenge system. Swain v. Alabama, 380 U.S. at 222, 85 S.Ct. at 836. That Court further stated that, with regard to petitioner’s claim that black people had been denied the right to sit on petit juries in civil and criminal cases for many years, the record was not sufficient to demonstrate that black persons had been excluded from juries for reasons wholly unrelated to the outcome of a particular case at trial. Id. at 224, 85 S.Ct. at 838.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court reconsidered the doctrine of Swain v. Alabama in a case in which the prosecutor removed all four black persons from the jury venire through the application of peremptory challenges. The Court reaffirmed the rule of Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880), that, while recognizing that a racial minority defendant does not have a right to a petit jury composed in whole or in part of persons of his own race, he is nevertheless denied the equal protection of the laws when the state puts him on trial before a jury from which members of his race were purposefully excluded. Batson v. Kentucky, 476 U.S. at 85, 106 S.Ct. at 1716. Batson, like Swain, held that the state’s privilege to strike individual jurors through peremptory challenges is subject to the commands of the Equal Protection Clause. Id. at 89, 106 S.Ct. at 1718. As a [704]*704consequence, prosecutors are forbidden to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to consider the state’s case against a black defendant. Id. The Court in Batson noted that a number of lower courts had found that the decision in Swain had created a crippling burden of proof upon black defendants attempting to show invidious racial discrimination and had resulted in prosecutor’s peremptory challenges being largely immune from constitutional scrutiny. Id. at 92 n. 17, 106 S.Ct. at 1720 n. 17. Accordingly, the Court noted that in the years after Swain had been decided the Court had recognized that a defendant may make a prima facie showing of purposeful racial discrimination in the selection of the venire by relying solely on the facts concerning its selection in a given defendant’s case and that a consistent pattern of official racial discrimination in other eases is not a necessary predicate to establish a violation of the equal protection clause. Id. at 95, 106 S.Ct. at 1722. The Court then modified the rule in Swain with regard to the standard of proof required to establish a prima facie case of purposeful invidious racial discrimination.
To establish such a case, the Court stated that the defendant must first show he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove members of the defendant’s race from the venire. Second, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude veniremen from the pet-it jury on account of their race. The Court also held that a defendant is entitled to rely on the fact that “peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate [citations omitted].” Id. at 96, 106 S.Ct. at 1723. This combination of factors in the impanelling of a petit jury raises the necessary inference of a purposeful discrimination. Id.
The Court further laid out a broad spectrum of nonexclusive considerations judges could consider in determining whether a prima facie case has been established including both any known pattern of strikes and the prosecutor’s questions and statements during voir dire. In order to present a prima facie case, the trial defense counsel has the burden of presenting to the court sufficient facts under the totality of the circumstances to raise an inference that the purpose behind any given peremptory challenge was to preclude the prospective juror from sitting solely by reason of his race.
II
I believe an inference is neither supposition nor conjecture but a logical deduction drawn from other facts proven. Computer Identics Corp. v. Southern Pacific, 756 F.2d 200 (1st Cir.1985). See also Mitchell v. Machinery Center, Inc., 297 F.2d 883 (10th Cir.1962). Furthermore, in order to create the inference, the evidence must demonstrate more than the fact that the prosecutor has challenged peremptorily a person on the jury venire who is of the same race as the defendant. That fact does not, per se, create the inference of invidious racial discrimination as it is neither more nor less justified than an inference that the purpose is constitutionally innocuous. However, that fact coupled with other evidence may well create such an inference.1 Swain created a presumption that the prosecution’s peremptory challenges were for the purpose of achieving a fair and impartial jury. As I read Batson, that presumption was not vacated but the evidentiary standard to overcome the presumption was lessened in order to provide a given defendant the opportunity to show invidious racial discrimination from the facts in his own case. See Batson v. Kentucky, 476 U.S. at 91, 106 S.Ct. at 1719.
Batson decreed that once a defendant makes a prima facie case, the burden shifts to the prosecution to come forward [705]*705with a neutral explanation for peremptorily challenging black jurors. The prosecutor may not merely deny that his peremptory challenge was racially motivated nor indicate his belief that the challenged juror would be partial because of a shared race with the accused. He must articulate good and sufficient reasons based upon the circumstances in the case. The trial judge then has the duty to determine the character of the response and whether that response provides a racially neutral reason. Batson v. Kentucky, 476 U.S. at 98, 106 S.Ct. at 1723.2
Both Batson and Swain, although based upon the application of the Equal Protection Clause, nevertheless dealt with state jury systems. The constitutional guarantee of the right to trial by jury does not apply to members of the armed forces. United States v. McClain, 22 M.J. 124, 128 (C.M.A.1986) (citing Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866)). Consequently, I view the procedural aspects of Batson and Swain as not binding on trial by courts-martial. However, notwithstanding the foregoing premise, I can see no valid reason for not applying those procedural requirements to military trials. Accordingly, I believe that this court should require the implementation of the procedural requirements of Batson in Army courts-martial.
Our system is blessed with competent judges who are as capable as any Federal judge in this land in sorting out the issues that this decision may create. Furthermore, I foresee the the principles of Bat-son being enlarged in the years to come to cover more than race. Consequently, basic procedural concepts for handling Batson type issues should and can be implemented in trials by courts-martial as easily as in the Federal jury system.
Ill
The “per se ” rule advanced by the majority superficially relaxes to the benefit of the accused the standards otherwise required to make out a prima facie case. In making a traditional equal protection claim, the burden always lies with the moving party to establish a prima facie case. Batson v. Kentucky, 476 U.S. at 93, 106 S.Ct. at 1721. The per se rule eliminates this burden as well as the presumption of propriety which would otherwise attend the exercise of the peremptory challenge. Cf United States v. Cruz, 20 M.J. 873, 886 (A.C.M.R.1985), rev’d in part, 25 M.J. 326 (C.M.A.1987) (“Mere possibilities cannot overcome the general presumption of regularity; to hold that they can would be to hold that the presumption itself does not exist ...”). Thus, while eliminating any burden of proof, the per se rule practically creates a presumption that invidious racial discrimination is present when a prosecutor exercises a peremptory challenge against a member of the same minority race as the accused.
The per se rule also poses other distinct disadvantages and harmful effects. First, it departs from the traditionally adversarial nature of American trial procedure. Second, the rule removes the responsibility from counsel to produce evidence to identify the factors and circumstances dispositive of the accused’s claims. Third, it places an unreasonable burden on the military judge to ascertain these same factors and circumstances based upon the totality of the events giving rise to the claims. Fourth, the effect of the rule creates for certain classes a special privilege whereby the accused obtains adjudication of a claim without advancing a basis for relief. Cf M.C.M., 1984, Mil.R.Evid. 103(a)(1) (a party may not complain of a ruling unless he states specific grounds for his objection). Finally, the result is “wholly at odds with the peremptory challenge system as we know it”. Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965). The prosecutor’s peremptory challenge will now be scrutinized not necessarily because he is applying his challenges in violation of equal protection, but because [706]*706the challenged member happens to be a member of a cognizable minority. Thus, the purpose of the peremptory challenge, to remove the fear of arousing a juror’s hostility through an unsuccessful attempt to develop a challenge for cause, will be lost whenever the peremptory challenge is exercised against a member of a cognizable minority. See Swain v. Alabama, 380 U.S. at 219-20, 85 S.Ct. at 835-36. On balance, the disadvantages derived from the “per se” rule far outweigh any questionable benefits which might be ultimately derived therefrom.
IV
Turning to the facts in the ease, the appellant is a black soldier. The convening authority had appointed and impaneled seven officers to consider appellant’s court-martial. Two of these members were black. Trial counsel’s voir dire of the membership of the court appears to be entirely innocuous. The record establishes that the trial counsel made no deliberate efforts to establish a challenge for cause against either of the two black members of the panel. He did, however, exercise his one peremptory challenge against Major Harris, a black member.3 Trial defense counsel requested that the military judge inquire of the trial counsel whether his challenge was for any impermissibly discriminatory purpose. He further stated, “We are not offering that the government has made an improper challenge on discriminatory constitutionally impermissible grounds, we are merely stating that is the appearance____” The military judge ruled that Batson did not require the government to disclose its reasons for a peremptory challenge in a court-martial. He further ruled that, even if Batson did apply to military trials, its requirements were not satisfied under the facts of this case. He did not require the trial counsel to provide the reasons for his peremptory challenge of Major Harris.
Under these facts, we believe this case does not suggest a racially motivated peremptory challenge much less meet the burden of proof required by Batson. Here, there was no attempt to establish challenges, either peremptorily or for cause, against black members which, if successful, would have resulted in a monochromatic panel. Therefore, the record suggests and infers that the peremptory challenge was exercised against Major Harris on grounds other than race.4 The motion was further clarified by the representation of trial defense counsel that he was not challenging the propriety of the challenge. For these reasons I agree with the trial judge that the appellant did not present a prima facie case of invidious racial discrimination.5
In view of the fact that the majority of this court takes a different approach and application from the view I have outlined above, I respectfully dissent from its opinion.