(dissenting):
I dissent.
The review in this case reached this Court without the accused contending he had been deprived of his right to counsel. That alleged error was noticed by.us but remains unanswered for as I understand the present opinion it holds that an accused is entitled to a *136dismissal of one offense because an assistant in the office of the staff judge advocate failed to advise him he could have a lawyer of his own selection present during a preliminary inquiry into his alleged criminal conduct.
I can only hope this is an ad hoc decision, for it contains a number of principles which make for bad law and difficult administration. At least I find certain concepts, either express or implied, with which I disagree, and upon which I therefore set forth my views: First, the Court saddles an unwarranted obligation on the legal de-partments of the Armed Services; second, the opinion announces the erroneous hypothesis that an accused is given the right or privilege of selecting any lawyer that he chooses; third, there is no legal duty resting on a staff judge advocate or his assistant during the investigative phase to advise a fellow-officer that he may employ civilian counsel; fourth, an accused is not entitled to appointed. military counsel merely because he is a suspect; fifth, an accused’s right to military counsel of his choice is not absolute; sixth, the omission on the part of the staff judge advocate, if any, is magnified out of all proportion to its importance, for the record does not suggest remotely that the accused was uninformed of his right to employ and consult with civilian counsel; and, seventh, prejudice to the accused did not result from any act of commission or omission on the part of the staff judge advocate.
Just by way of preface to my short statement of facts, I quote from an opinion which shows our prior view of the law. The Chief Judge in United States v Manuel, 3 USCMA 739, 14 CMR 157, had this to say:
“. . . This confession was reduced to writing and signed by the accused. After a preliminary showing of its voluntariness, and of compliance with Article 31 (&) of the Code, supra, 50 USC § 602, the confession was received in evidence over the accused’s objection. This objection was rightly overruled because it was based on lack of opportunity by the accused to consult with counsel prior to his interrogation. See Anderson v. United States, 124 F 2d 58 (CA6th Cir).”
Of course, I appreciate that the two cases can be distinguished on their facts but as between the two this one has less merit for reversal.
Because the holding of the Court has been narrowed to a reversal of a specification for an alleged error of omission, many of the facts set out in the opinion are immaterial. I, therefore, believe it would be helpful in understanding my opposition to the principles announced for me to emphasize some of the facts and circumstances casting light on the controlling question now being considered. The accused was a major with some fifteen years military experience. He was not uninformed in the ways of the business world, and he had had at least one previous brush with criminal investigations. He was not arrested, confined, or restricted; and he was not taken by surprise when he learned that he was being investigated for the commission of a number of offenses. When he appeared before the investigator, the special agent advised him of the nature of the accusations against him and of his rights under Article 31, including his right to refuse to answer any questions. He thereupon informed the agent that he would make no statement until he could consult with, and be represented by, counsel. The special agent volunteered his belief that the accused was not entitled to counsel until charges were preferred but, nevertheless, he informed the accused that he could leave and obtain legal assistance. The accused went to the office of the staff judge advocate and talked to Lieutenant King, who had previously represented him. The Lieutenant informed the accused that he had been forbidden to advise him, whereupon the latter returned to the office of the special agent. At that time, he was again advised that he need not answer any questions, and he well understood his rights for the record is replete with questions which he refused to answer. In all but three or four isolated instances he gave as his reasons for re*137fusing to reply, his privilege to refrain from answering. His principal mistake and the one by which he now profits was that his privilege not to testify was temporarily abandoned. Apparently as questions were being propounded and answers refused, the agent reached one area where the accused concluded he might benefit by responding. He, thereupon, elected to answer but, unfortunately for him, he lied. Beyond all question of doubt, he understood his choice to remain silent and his election to talk was not influenced by any failure to understand his rights or privileges. Moreover, there is not a scintilla of evidence in this record that the accused was induced, coerced, compelled, or misled into making any admission. His answers were freely and voluntarily given, and his failure to be advised by counsel did not result in a misunderstanding of his rights. He is merely the victim of his own. folly.
The board of review in a fully and carefully developed opinion covers the original contentions of the accused. It is unmentioned and not followed by the Court, but I commend it to those readers who may be interested in determining its logic.