Opinion of the Court
Robert E. Quinn, Chief Judge:The accused was tried and convicted .of sodomy, in violation of Article 125, 'Uniform Code of Military Justice, 10 USC § 925. At the trial, one of the con-Itested issues was the voluntariness of a pretrial statement which the accused ¡gave to an agent of the Office of Naval ■Intelligence. The accused took the ¡stand to testify on that issue.
According to the accused, when the i interrogation began, he was asked ¡about the act of sodomy and denied that ¡he had committed it. Thereupon, the ¡agent told him that he would "make it ¡hard” for him if he did not talk. At ¡first the accused did not know what the ; agent meant. However, after a while, jthe agent began to talk about an undesirable discharge. He “explained” to ¡the accused that a discharge of that kind .“was nothing more than an honorable ¡discharge” which would entitle him to ■“all . . . [his] GI benefits.” Finally, !the agent told the accused that he had ¡a “statement signed by a person say'ing” that the accused had committed the offense alleged. As a result, the accused ■was “pretty well shook up.” Eventual-ily, he signed a statement presented to ¡him by the agent even though he “felt ¡that I didn’t do anything.”
1 In his final instructions, the law officer advised the court-martial it could consider the question of voluntariness of the accused’s pretrial statement to determine “the weight, if any” it would give to it. Defense counsel requested an instruction to the effect that if the court-martial believed the statement was involuntary, it must “disregard :. . . [it] entirely.” The instruction was refused.
After careful'consideration of the evidence, we conclude that the voluntar-iness of the accused’s statement was definitely put in issue. The court-martial might find that the agent improperly compelled the accused to choose between signing the statement and getting an undesirable discharge, which would entitle him to all his “GI benefits,” and refusing to sign, which would subject him to trial by court-martial on a charge of sodomy. The law officer, therefore, was correct in submitting the matter to the court-martial for its determination. His refusal to give the substance of the requested instruction was prejudicial error. United States v Schwed, 8 USCMA 305, 24 CMR 115; United States v Jones, 7 USCMA 623, 23 CMR 87.
The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. A rehearing may be ordered.
Judge Ferguson concurs.