(dissenting):
I dissent.
There are two principal reasons why I dissent from the rationale of my associates in this instance. First, I do not believe that, merely because a law officer instructs on a subject, we cannot go behind his instruction and ascertain if the issue is raised reasonably. See my opinion in United States v Morphis, 7 USCMA 748, 23 CMR 212. Second, there is no issue of voluntariness involved in the case at bar. Assuming, arguendo, that accused raises any question at all, his only contention is that he was not warned under Article 31. Under the facts found in this record, the omission in that regard cannot be used as a prop to support the holding that the law officer erred in not informing the court-martial to disregard the confession if it were found to be involuntary. My views concerning that principle are found in United States v Gibson, 3 USCMA 746, 765, 14 CMR 164, where I stated:
“Some difficulty is encountered in *386applying the foregoing principle to all the matters covered in Article 31 and this may be occasioned by the fact that, at first blush, the Manual seems to discuss indiscriminately statements whose admissibility depend upon either voluntariness or failure to warn. We, however, should be competent to distinguish them clearly and rule accordingly. In some instances the two grounds may blend together while in other instances, there is no reasonable relationship. In the latter instance, where inadmissibility depends upon failure to warn, the ruling of the law officer should be final, and the ultimate triers of fact should have no authority to redetermine that issue. In furtherance of that principle, I desire to point out that the last subsection of Article 31 contains two parts which are stated in disjunctive and I quote them: ‘No statement obtained from any person (1) in violation of this article, or (2) through the use of coercion, unlawful influence, or unlawful inducement, shall be received in evidence against him in a trial by court-martial.’ That section deals specifically with two separate and distinct areas which, if invaded, will render a statement inadmissible. The second area covers statements made under compulsion and the first covers those which are given without the required warning. The reason for excluding the latter arises out of its possible untrustworthiness, while the former is not predicated on that premise. Here we have a clear-cut issue as this case furnishes a classic example of a suspectee making a statement when there is no compulsion exercised, but there is a failure to warn present. The two problems thus posed are: (1) Who makes the final determination on the admissibility of the statement when inadmissibility depends solely on failure to warn and (2) is there evidence to support the finding?
“Article 51(b) provides as follows:
‘The law officer of a general court-martial and the president of a special court-martial shall rule upon interlocutory questions, other than challenges, arising during the proceedings. Any such ruling made by the law officer of a general court-martial upon any interlocutory question other than a motion for a finding of not guilty, or the question of accused’s sanity, shall be final and shall constitute the ruling of the court; but the law officer may change any such ruling at any time during the trial. Unless such ruling be final, if any member objects thereto, the court shall be cleared and closed and the question decided by a vote as provided in article 52, viva voce, beginning with the junior in rank.’
“Language could hardly express more clearly that the law officer’s ruling on the admissibility of evidence is final and it makes no difference whether the admission is opposed for reasons of involuntariness or failure to warn. It is true that when the admission is opposed because of involuntariness, the statement may be given some preferential consideration by the members of the court-martial, but this need not be extended to failure to warn.”
Therefore, I would affirm the decision of the board of review.