(dissenting):
In United States v. Schuller, 5 US CMA 101, 17 CMR 101, the first case which directly stressed the importance of the pretrial proceedings in the military justice system, I wrote the opinion for the Court. Again in United States v. Allen, 5 USCMA 626, 18 CMR 250, in a separate concurring opinion, I said: “The pretrial investigation and the pretrial advice of the staff judge advocate are not mere formalities. They are substantial proceedings prescribed by the Uniform Code of Military Justice and they constitute the military equivalent of essential pretrial procedures which obtain in the civilian community.” In United States v. Sippel, 4 US CMA 50, 15 CMR 50, the majority in summary fashion disposed of the Manual’s requirement that the convening authority state his reasons for disagreement with the recommendations of his staff judge advocate. In my dissenting opinion in that case, I said:
“I further disagree with the majority in its casual treatment of the failure of the convening authority to state his reasons for taking action different from that recommended by his staff judge advocate. It seems to me that the Manual’s requirement that the convening authority state his reasons in writing when he disagrees with the recommendations of his staff judge advocate, is an integral part of the effort to overcome arbitrary and capricious action by a commanding officer. True, the convening authority’s failure to adhere to the provisions of the Manual may not be the kind of omission that will provide a basis for reversal by this Court, but we should not place our stamp of approval on his dereliction.”
It is, therefore, unmistakably clear that I agree with the principles upon which the majority opinion rests. My disagreement is only with the application of those principles to the facts of this case.
The board of review considered the claim of prejudice on the part of the investigating officer. It found no “sound basis” for concluding that Captain Gamble was biased. I reach the same conclusion. The evidence shows that on January 27, 1954, Captain Gamble received a telephone call from Criminal Investigation Detachment agents and was asked to bring the accused to their office for questioning. At the time, Captain Gamble was serving as “serious incident investigating officer of the organization.” There are some indications that he had talked to the accused *89about the offenses before that date. The nature and the circumstances of these conversations are not shown in the record. However, it clearly appears from the accused’s statement in his petition for a new trial that Captain Gamble did not seek to fix upon him responsibility for the offenses. According to the accused, Captain Gamble never questioned him about the offenses.
The day after the accused’s apprehension, his battalion commander, company commander, and Captain Gamble, called at the military police station where he was confined. The battalion commander asked him if he had committed the offenses, and he replied that he had not. They then procured his release from custody, and took him back to the lías-eme. There, he was not even restricted. Instead, he was permitted to attend school as “he had been doing.” Captain Gamble merely told him to keep together the clothing that he had been wearing on the night of the alleged offenses.
On January 27, the Captain called him from school and told him that the Criminal Investigation Detachment agents wanted to see him. The Captain drove him to the Criminal Investigation Detachment office and “was present during [an] interrogation by the agents.” In the course of the interrogation, the accused asked to speak privately with the Captain. His request was granted. In the private conversation that followed, the accused asked Captain Gamble if the matter could be kept from his mother and wife; his mother had a weak heart and he did not “know how she would take it.” The Captain assured him that the “Army would do all it could,” to keep them from “knowing about this.” The accused then told the Captain that he would give the agents a statement but he “didn’t think this was rape.”
After the accused’s statement to the Criminal Investigation Detachment agents, one of them took out a “file of unsolved cases” and questioned the accused about them. The accused denied knowledge of them but offered to point out places where he had had paid affairs with women. He, Captain Gamble, and a Criminal Investigation Detachment agent, went to “various places” indicated by the accused. On returning to the Criminal Investigation Detachment office, the agents continued to question the accused in Captain Gamble’s presence. At the trial, Captain Gamble unequivocally denied that he had in his private conversation with the accused, said: “Parker, if you were a member of a general court-martial and somebody came in with a confession, the accused told the truth, would you . . . let him off light?” He also said that immediately after the Criminal Investigation Detachment agents had finished interrogating the accused, he took him back to the kaserne.
There is nothing in the foregoing evidence which even remotely indicates that Captain Gamble “importuned Parker to confess” or that he had “convinced the accused of the desirability of making a full confession,” or that he had “obtained the clinching evidence” against him. It seems plain to me that the accused was willing to talk but that first he wanted Captain Gamble’s opinion on a collateral matter. I find it very significant that nowhere in his petition for new trial does the accused himself assert that Captain Gamble was prejudiced against him.
The majority attach great importance to Captain Gamble’s pretrial statement which he appended to his report as investigating officer. This, the majority say, is evidence that Captain Gamble was “used as the chief architect to outline” the case against the accused and it demonstrates his biased attitude. I read no such sinister implication into this statement. The statement is only an account of the accused’s pretrial statement to the Criminal Investigation Detachment agents which was made in Captain Gamble’s presence. It seems to me, therefore, that the situation is substantially the same in principle as that in United States v. Taylor, 5 USCMA 523, 18 CMR 147.
In the Taylor case, the convening authority authenticated a morning report entry showing an unauthorized absence by the accused. This entry was admitted in evidence at the trial and it was uncontradicted. Later, the convening *90authority reviewed the record of trial. We held that even though the convening authority had in effect appeared as a witness against the accused at the trial, he was competent to review the conviction. We indicated that the convening authority’s previous action in connection with the offenses was entirely official and showed no personal interest in the outcome of the ease. See United States v. McClenny, 5 USCMA 507, 18 CMR 131. Here, Captain Gamble was the “serious incident investigating officer” for the accused’s organization. He was specifically requested by Criminal Investigation Detachment agents to bring the accused to their office. He did so. While there, the accused asked his advice about the possibility of keeping the knowledge of his involvement in the offenses from his family. Then the accused made oral statements to the agents in Captain Gamble’s presence. Later Captain Gamble took the accused back to the kaserne. Accordingly, it seems to me that whatever Captain Gamble’s role was in the preliminary proceedings against the accused, it was not that of a detective intent on procuring evidence against him. There is nothing in his position which indicates a desire to press the charges to trial as an “accolade for his efforts,” in securing evidence against the accused. See United States v. Coulter, 3 USCMA 657, 14 CMR 75, page 660. Consequently, there is no basis except that of pure speculation upon which to say that Captain Gamble was prejudiced and unfair in his conduct as the pretrial investigating officer.
Looking at the investigation report itself, the majority find a number of sinister implications. Thus, it points out that the appropriate blank space was not checked to show whether the accused was advised that any statement made by him might be used as evidence in a trial by court-martial. The failure to fill in the blank on the warning may have been inadvertent, but even assuming that no warning was given, I draw no evil inference from the omission. The fact is, that the accused was informed “of his right to make a statement or remain silent,” and he made no statement. Therefore, the §ccuse4 was not harmed. But, since the question is not one of actual harm but of evil design, I have scrutinized the circumstances and I conclude that they show no such purpose.
The day before the accused was interviewed on the pretrial investigation, Captain Gamble was present when the accused was advised of his rights under Article 31, and he said that he understood them. Also, the Captain himself had advised the accused of his rights under the Article. It may be, therefore, that Captain Gamble honestly believed that it was unnecessary to repeat the provisions. Certainly, if he did not warn the accused, he was honest enough to reflect the omission in his report. If he was, as the majority say, a mastermind “of the detective crew,” it seems incredible that he should be so stupid as to overlook a matter which is routine with military law enforcement agents. Moreover, if he and the convening authority were, as the majority find, intent on going through only the motions of a pretrial investigation, surely they would have made special efforts to insure that at least the form was unimpeachable.
As a “definite clue” to the pernicious significance of Captain Gamble’s failure to check the appropriate blank on his report, the majority point to his statement that “Subject accused admitted to offenses as charged.” What is wrong with that? The statement was made in the remarks section and it is not set out as an incriminating admission by the accused during the investigation. There is, therefore, nothing inconsistent between the refusal of the accused to make a statement to the investigating officer and the references to his pretrial admissions to the Criminal Investigation Detachment agents. The latter were made in Captain Gamble’s presence. It was surely proper for him to note them on the report. Suppose he knew of facts which were beneficial to the accused. Should he refuse to disclose the information in his report? I think not. If it is proper to mention the facts in the one instance, surely it can be done in the other. Of course, the previously acquired knowledge may indicate a personal interest in the out*91come on the part of the investigating officer. If that statement shows that he was biased he should be removed, and a new investigating officer appointed. In the statement submitted here, I find no evidence of a biased attitude against the accused.
The second prop supporting the principal opinion is the period of time between the referral of charges to trial and the trial itself. It is said that the preparation of the defense in a case of this kind “If done properly . . . is time consuming.” Ordinarily that is correct. The issue, however, is not the length but the adequacy of the preparation. And the specific question is whether the accused was deprived of a fair trial by the necessity of defending himself without adequate preparation. The majority say that the convening authority, “In total disregard of a reasonable time factor . . . ordered the case to be tried within twenty-four hours of the time the order was published.”
The majority’s argument disregards two facts which are important. First, the charges were originally referred for trial on January 29, 1954, and were served upon the accused on January 30, 1954. Captain Fenig was the defense counsel of that court. Presumably, he undertook preparation for the defense at the time the accused was served with the charges. Manual for Courts-Martial, United States, 1951, paragraph 6a, page 10; United States v. Hightower, 5 USCMA 385, 18 CMR 9. Common sense indicates that he would turn over the results of his work to his successor, Captain Silverberg. Second, in his petition for a new trial, the accused concedes that he was interviewed by Captain Silverberg at least three days before the trial, which took place on February 9. It would affirmatively appear, therefore, that the accused had ample time in which to prepare his defense. Moreover, the impression created by the majority is that the date of trial was fixed peremptorily against the accused. Actually, the order is in the normal form. It provided for convening the court-martial at “0900 hours, 9 February 1954, as as soon thereafter as practicable.” There is nothing in this language which indicates that the accused would have been denied a continuance if he had applied for one. No continuance was requested, and there is nothing in the record of trial, or in the accused’s petition for new trial, which even intimates that a continuance for further preparation was necessary or desirable.
The third main reason which the majority rely upon is an assumed lack of competency on the part of military counsel who represented the accused at the trial. Again, I fully agree with the general principles set out by the majority as to how an accused’s claim of a lack of competent counsel should be met by the Government. However, I am not persuaded by their speculations to find that defense counsel here was incompetent. Other counsel may have conducted a more dramatic cross-examination or made a more polished final argument, but no one could argue effectively against the telling force of the facts. Perhaps the principal deficiency of defense counsel was his failure to present evidence in mitigation. Even here, however, there was an element of great risk which must be recognized. The accused is a married man with two children. He was the father of one of the children before he was married. He was overseas less than six months when he contracted a venereal disease, and it was less than six months after his arrival that he committed the first offense. These facts are not likely to engender sympathy for the accused. It is not unreasonable, therefore, to conclude that the accused and his counsel decided advisedly to make no statement and to take a chance on the sentence.
A number of other points are raised by the majority. However, I have said enough in reply. I have a feeling that the majority is disturbed by the death sentence. They would like to have it reduced but they are unable to accomplish that purpose short of a rehearing. See United States v. Goodwin, 5 US CMA 647, 18 CMR 271; United States v. Freeman, 4 USCMA 76, 15 CMR 76. I have no difficulty. See my dissent in United States v. Goodwin, supra. If *92the majority voted to return the case to the board of review for reconsideration of an appropriate sentence, I would join them. On this record, however, I cannot concur in ordering a rehearing. I would therefore deny the petition for a new trial and affirm the decision of the board of review.