(concurring):
37. Although I concur, I write to reflect upon a statement in the majority opinion that in my judgment may be overly broad and, although technically correct, may be misleading. That statement was: “The court below correctly held that Article 31(b) does not confer a right to assistance of counsel.” ¶ 34. That is just as correct as saying, “The Fifth Amendment to the Constitution does not confer a right to assistance of counsel.” That is correct, at least in the sense that you cannot find those words uttered in the Fifth Amendment, just like you cannot find them uttered in Article 31(b), Uniform Code of Military Justice, 10 USC § 831(b). However, all agree that a military member being interrogated while in custody has the right to a military lawyer. United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967); Mil. R.Evid. 305(d)(1)(A), Manual for Courts-Martial, United States, 1984. The member must be advised of this right.
38. Furthermore, Tempia gives us a rather broad definition of the idea of “custody.” There, Judge Ferguson stated:
The test to be applied is not whether the accused, technically, has been taken into custody, but, absent that, whether he has been “otherwise deprived of his freedom of action in any significant way.” Miranda, supra, at page 444, 86 S.Ct. at page 1612. Here the accused was clearly summoned for interrogation. Had he not obeyed, he would have undoubtedly subjected himself to being penalized for a failure to repair. In the military, unlike civil life, a suspect may be required to report and submit to questioning quite without regard to warrants or other legal process. It ignores the realities of that situation to say that one ordered to appear for interrogation has not been significantly deprived of his freedom of action____
16 USCMA at 636, 37 CMR at 256 (citations omitted).
39. Importantly, in this case the Naval Criminal Investigative Service (NCIS) agents did indeed scrupulously advise appellant that he enjoyed the right to counsel. This advice was incorporated into the advice given pursuant to Article 31(b). Appellant most certainly understood the advice because he exercised his right to consult with counsel. Unfortunately, he was denied counsel.
40. Arguably, the NCIS agents perceived that appellant’s “freedom of action” was being limited in a “significant way.” Otherwise, why would they give the advice? And even if the advice was not required, should not the Government be bound by the lawful acts of its agents when they are acting within their scope of authority?
41. In any event, I agree with Judge Gierke that the court below overstepped the boundaries of the appeal under Article 62, UCMJ, 10 USC § 862. Appellant should have the opportunity to further litigate his motion to suppress. Among the questions remaining to be resolved is the query: What does it mean in terms of voluntariness to “waive” the right to counsel if counsel has just told you that you have no right to his services? See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).