(concurring in the result):
It is easy for me to concur in the result reached by the majority here— although I cannot under any circumstances accept the broad ground on which it is based. To me, the unfortunate ratio of this case constitutes judicial legislation of the most overt sort, and flies in the face of law which is binding on this Court. See my separate opinion in United States v. Fisher, 4 USCMA 152, 15 CMR 152.
II
It is distinctly possible that the instant case may fall within the principle of United States v. Josey, 3 USCMA 767, 14 CMR 185, since my reading of the record reveals that it is not shown clearly that the investigators failed to advise the accused of his rights under Article 31, before he made the statement the reception of which in evidence is now the subject of complaint. However, I prefer to bottom my concurrence on the applicability of the doctrine of waiver — within the historic and precise meaning of that doctrine, that is, the one contemplated by military law. This waiver derives from the conscious choice of defense counsel at the trial level to permit the court-martial to hear the evidence now questioned before us.
III
To put the matter in perspective, I must emphasize that the defense position at the trial was that the accused had not impersonated a noncommissioned officer. The reasonableness of such a position is demonstrated by the circumstance that the record of trial comes perilously close to being insufficient legally to support the findings of impersonation. The only circumstance tending to establish guilt was that the accused had at various times been seen wearing on his cap a minute metal insigne indicating the grade of sergeant first class. However • — as was brought out by the defense through cross-examination of prosecution witnesses — this pin constituted no part of the insignia of rank specifically authorized for noncommissioned officers by regulations. Moreover — as defense counsel also elicited — the accused had not been seen wearing sergeant’s chevrons on his uniform; had not frequented localities reserved for noncommissioned officers; and had not asserted to anyone that he was a sergeant. The fact that —when asked if he was a sergeant — he had replied in the negative fitted neatly into the defense’s theory of the case. Indeed, this information was drawn *161from a prosecution witness, not by the trial counsel, but by the law officer. It is to be noted that trial counsel appears to have realized at once that this testimony had further undercut a weak case — for immediately thereafter he brought out that the accused’s statement to the effect that he was a private was not made until after he had faced the suspicion of his interrogators. The obvious inference proposed was that at prior times — and when not confronted with precipitate detection — the latter may have made statements indicating that he was a sergeant first class.
It is hard to see how the accused’s statement incriminated him in any way —for, in light of other prosecution evidence, there was no basis whatever for doubt that he was a private rather than a sergeant first class. Since the information obtained without Article 31 warning — if in fact no such caution was given — could scarcely have injured the accused, and might have served to aid him, it is understandable that defense counsel did not object thereto or move to strike the testimony and secure a direction that it be disregarded by court members.
Defense counsel revealed clearly that he was aware of the possible benefits of Article 31 to his client. Indeed it was he who inquired whether the accused had been advised of his rights thereunder — to which the witness replied merely that he, himself, had not so advised the accused. Later in the trial — and when the Government sought to present a further remark of the accused, one made at approximately the same time — defense counsel interposed an objection on the ground of noncompliance with warning requirements. At this time the prospective testimony was excluded. It is obvious from the record that defense counsel feared that this additional remark might suggest to the court the impersonation of a noncom-missioned officer by the appellant.
In light of the record’s contents, I am entirely satisfied to say that counsel for defendant at the trial was not guilty of an inadvertent failure to object to damaging evidence. Instead, I am safe in concluding that he made a willing and knowing choice in favor of permitting the account of Henry’s statement to go before the court-martial. In other words, he waived — and in my language. It is certainly not within my province to question the trial tactics of defense counsel.