(concurring):
Appellant at trial and on appeal has lodged numerous legal objections to admission of his confession at his court-martial. In my view, use of “abuse-of-discretion” terminology to argue one or more of those claims does not accurately respond to the standard of review which this Court employs in reviewing suppression motions denied by military judges. See generally S. Childress and M. Davis, 2 Federal Standards of Review 11-12 to 11-13 (2d ed. 1992). A military judge has no discretion to admit an involuntary confession or one taken in violation of Article 31, Uniform Code of Military Justice, 10 USC § 831; or one prohibited by our decision in United States v. McOmber, 1 MJ 380 (1976), or the version of Mil.R.Evid. 305 (e), Manual for Courts-Martial, United States, 1984, in effect at the time of trial; or one taken in violation of the Fifth or Sixth Amendment.
Admittedly, in United States v. Ayala, 43 MJ 296, 298 (1995), this Court employed this umbrella term in the suppression context. However, it specifically defined this term to include clearly-erroneous factfinding review and de novo legal determinations, which definition also applies to mixed questions of fact and law. I agree that these particular standards of review are appropriate for determining suppression-motion appeals. See United States v. Yusuff, 96 F.3d 982, 987-88 (7th Cir. 1996). However, I do not believe “abuse of discretion” adequately captures the full breadth of the legal review required of this Court on such matters. See Childress and Davis, supra, § 11.02 at 11-6 (“discretion is an elusive idea, and is hard for the mind to embrace or apply in a coherent way”). On resolution of the legal questions raised in a suppression motion, we do not defer to a military judge’s discretion
Turning to appellant’s particular arguments in this case, I agree with the majority that appellant’s statements to these Defense Investigative Service investigators were voluntary. Cf. United States v. Martinez, 38 MJ 82, 86 (CMA 1993) (de novo standard). Moreover, I also agree that Article 31 was not applicable in this case because appellant was not questioned by a person acting in a law enforcement or disciplinary capacity. See United States v. Bowerman, 39 MJ 219, 221 (CMA 1994) (clearly-erroneous standard or de novo standard). Also, as a matter of law, I conclude that the version of Mil. R.Evid. 305 (e) in effect at the time of trial, is not applicable in this case because his questioners were not required to give warnings under Article 31.
Finally, the decision of this Court in United States v. McOmber, supra, does not render appellant’s confession inadmissible. See *45United States v. LeMasters, 39 MJ 490 (CMA 1994). This Court has not chosen to expand McOmber to situations where the accused voluntarily initiates further questioning without his counsel being present,