(concurring in the result) :
I concur with the opinion of the Chief Judge, but consider it advisable to state my reasons for not aeeept ing the Government’s contention that this case should be controlled by the holding in Stein v. People of the State of New York, 346 US 156, 97 L ed 1522, 73 S Ct 1077. There are at least three reasons why the rationale of that case is inapplicable to the issue which concerns us. First, the board of review found, as a factual matter, that the accused had not been advised properly of his rights as required by Article 31(5) of the Uniform Code of Military Justice, 50 USC § 602. Second, the court-martial was not instructed on, and did not decide, the issue which prompted the board of review to grant a rehearing. Third, the Stein case did not involve a holding by an intermediate appellate court that incompetent evidence had a prejudicial effect on the triers of fact.
The Government in its brief concedes the power of the board of review to make a factual determination and insists it is not inviting this Court to disturb the board’s holding on the “failure to warn” issue. All it maintains is that having made that determination the board of review should have applied the rule announced by the United States Supreme Court in Stein v. People of the State of New York, supra, and affirmed the findings and sentence. Article 66 (c) of the Code, 50 USC § 653, enumerates the powers of a board of review, and it provides that it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact. It is authorized to affirm only such findings of guilt as it finds correct in law and fact and determines on the entire basis of the record should be approved. In this instance when the board of review made its factual determination that the accused was not advised properly, the base to support the introduction of the confession into evidence failed and its contents could not then be used to sustain the finding. Absent that incriminatory statement, the board of review concluded there was insufficient testimony in the record to convince it beyond a reasonable doubt that *470the offense had been committed and it refused to affirm the finding. Unless we can overrule the board on the admissibility of the confession, which the Government concedes we cannot do, then a holding that the evidence is not sufficient to meet the burden of proof placed on the Government is binding on us. That is no more than weighing the facts, which a board of review may do; and so we are faced with a situation which is a far cry from the one which confronted the Supreme Court of the United States in Stein v. People of the State of New York, supra. In that case the Supreme Court acknowledged that the New York Court of Appeals had the authority to grant a new trial if for any reason justice demanded that action. Had the New York Court exercised those powers and granted a new trial, the appeal would never have reached the Supreme Court of the United States. In this case an appellate tribunal with comparable authority granted a rehearing and while a procedure which permits the Government to reach this Court is available under the Code, our power to review the question certified is limited to questions of law. The holding by the board of review that the competent evidence in the record does not persuade it that the Government has carried its burden to convince beyond a reasonable doubt does not fall in that category.
Another important difference between this and the Stein case can be found in the posture of the issues and the instructions. The United States Supreme Court there held that, in view of the fact the jury had been instructed to consider the voluntariness of the confessions and to disregard them if they were found to be involuntary, it could be presumed the jury followed the instruction. In the event the instructions given in that case were followed, the confessions were either found to be involuntary and ignored or found to be voluntary and considered. I find no comparable principle which can be relied upon in the instant case. It is conceded the law officer instructed on the question of voluntariness, but, at most, that is only part of the factual question which was determined by the board of review. Here the issue was whether the accused was advised of his rights in such a way as to understand their nature and extent. While it may be argued there was some element of coercion because a sergeant obtained the confession, the instruction given would not require a finding on the important question decided by the board of review. Failure to understand a right does not equal coercion, and to equate this and the Stein case would require us to assume that the court-martial members in this instance understood fully that they could only use the confessions if they found the accused was fully and fairly apprised of his rights and was aware that he need not make any statement. In the absence of an instruction to that effect, it cannot be contended that the principles announced in Stein, supra, are influential.
In United States v. Josey, 3 USCMA 767, 14 CMR 185, I sought to invoke the compelling evidence rule to sustain a conviction when a confession was improperly admitted in evidence. I would use that concept to test the board of review holding in this case as an appellate court is permitted to assess the effect of error for prejudice. Most certainly the contents of this confession had an impact on members of a court-martial. A reasonable doubt of guilt might be present absent the confession but not so if it is considered. No reasonable person could contend that the evidence aliunde the confession compelled a finding of guilty by the court-martial or an affirmance by the board of review. Because of its erroneous admission, the evidence contained in the confession must be eliminated from consideration; when that is done, the board of review was correct in concluding the record was barely sufficient to establish a prima facie case. That is far short of the weight necessary to compel any appellate court to affirm, and prejudice is apparent.