(dissenting but concurring in the disposition) :
In United States v Josey, 3 USCMA 767, 777, 14 CMR 185, the majority of this Court said:
“. . . Under our interpretation, Article 31(d), in its prohibition against the consideration by a court-martial of statements obtained through the use of coercion, unlawful influence or unlawful inducement, embodies a Congressional intention to remove all doubt that servicemen should have the benefit of all elements of the right against self incrimination guaranteed by the Fifth Amendment. Cf. United States v Monge, supra. In accordance with the holdings of the Supreme Court relating to the protection of that right, we consider that disobedience of the prohibition of Article 31(d) would certainly be generally and inherently prejudicial, and would probably constitute an infringement of military due process. United States v Clay, 1 USCMA 74, 1 CMR 74. Similarly, we feel compelled to conclude that reception in evidence of an inculpatory statement shown to have been obtained through depriving the accused of his 'mental freedom’ will necessitate reversal of a *637conviction regardless of compelling evidence of guilt other than the statement. Malinski v New York, supra, but see Stein v New York, supra.
“It is urged, however, that such a result need obtain only where particularly offensive instances of ‘third-degree’ tactics are involved' — -and ad- ■ mittedly most of the Supreme Court opinions pertaining to the deprivation of due process through use of involuntary confessions have involved claims of marked police brutality. However, we discover no conscious attempt on the part of the Supreme Court to distinguish in this context between coercion, on the one hand, and unlawful influence or inducements, on the other. Consequently, we shall erect no such distinction. Moreover, such a distinction would appear to be illogical— for the reason that as to both coercion and inducements, the issue is the same — that is whether their probable effect in the specific case was to deprive the accused of his mental freedom to choose between speaking and remaining silent. United States v Monge, supra; United States v Colbert, supra. In dealing with so basic a protection as the one against self incrimination, it would be highly undesirable — perhaps unworkable— to attempt to cause results to hinge on the means by which the will of the accused was constricted in the making of a statement. Nor in safeguarding this right, would we distinguish between admissions and confessions — once it is established clearly that the statement received in evidence had been unlawfully secured.”
In a number of later cases, the Court reiterated the principle that when evidence is admitted in clear violation of Article 31, we need not review the weight of the other evidence for the purpose of affirming the conviction. United States v Holmes, 6 USCMA 151, 19 CMR 277; United States v Taylor, 5 USCMA 178, 17 CMR 178; United States v Hernandez, 4 USCMA 465, 16 CMR 39. Consequently, I disagree with that part of Judge Latimer’s opinion which propounds a contrary rule.
Turning to the facts of this case, I find no basis for concluding that there was a violation of Article 31. Certainly, there was no coercion, either express or implied. Equally clear is the fact that the accused was fully informed of his rights under the Article and he understood that anything he said could be used against him at a court-martial trial for the offense of which he was suspected. The question then is narrowed to whether the statement was obtained by “unlawful influence, or unlawful inducement.” In other words, did the agent’s remark, that the accused’s further statements would be kept between them, constitute an improper influence or inducement?
The start of our inquiry is whether the influence or inducement is unlawful. United States v Howell, 5 USCMA 664, 18 CMR 288. In my separate concurring opinion in United States v Payne, 6 USCMA 225, 19 CMR 351,1 expressed doubt as to whether “under all circumstances” a promise of confidentiality could properly be regarded as beyond the condemnation of Article 31. I specifically related my doubts to a situation in which the accused’s commanding officer tells him that if he discloses his complicity in a crime it would remain between them as “man to man.” Inasmuch as the commanding officer has the authority to quash a charge against the accused, the statement can be construed as a promise not to prosecute. See: United States v Werthman, 5 USCMA 440, 18 CMR 64. Whether the same inference can be drawn when the person making the promise of secrecy is a known law enforcement agent and the accused understands his rights under Article 31, is a closer question. I need not, however, consider the matter as a theoretical problem. Here, some of the evidence indicates that the promise of confidentiality was not related to the use of the accused’s statement at a later court-martial trial.
Agent Johnson testified that the accused was concerned about the publicity given the case. He wanted “to know how this [his statement] would be pub*638licized.” Agent Johnson then informed the accused that the statement would be confidential. Defense counsel expressly inquired, in his cross-examination, as to whether the accused “could have gotten confused by what you meant by confidential.” The agent replied as follows: “I didn’t think so, sir. Most of this admission was prior to this part we are speaking of here.” In further clarification of the circumstances, he testified on redirect examination as follows:
“Q Do you feel that when you told him that this would be confidential and you shut the door that he felt that you wouldn’t even tell it to a court-martial ?
A No, sir, he was just reluctant to talk with these people in the room.
Q Is that why you told him it would be confidential?
A Yes, sir. That’s why I emptied the room out.
Q Do you think he understood the paragraph about any statements he made could be use against him?
A I think he was well aware of the fact that anything he told me could be used against him, and, if the case did result in a court-martial, would be used.
Q Did you ask him if he understood this Article?
A Yes, sir.
Q Did he ever indicate to you that because of this statement — because it was confidential, at that time, between you two, that he thought you couldn’t use it in court? .
A No, sir.”
The accused presented no evidence to contradict the agent’s testimony. Before the law officer ruled, both counsel specifically argued the question of the meaning and the effect of Agent Johnson’s remark that the accused’s statement would be confidential. Trial counsel concluded his argument with the contention that the accused understood “that it [his statement] could be used against him in court and he knew that the confidential only meant that they were not going to broadcast this all over the hills of Colorado Springs.” There is evidence to support this conclusion. Consequently, I would affirm the law officer’s ruling admitting the accused’s pretrial statement. United States v Volante, 4 USCMA 689, 16 CMR 263; United States v Dandaneau, 5 USCMA 462, 18 CMR 86. However, in order to effect a practical disposition of the case, I am willing to return it to the board of review for reconsideration of the sentence on the basis of the lesser offense.