(dissenting):
I dissent.
I have no doubt that this case can be brought within the sweep of United States v Cates, 9 USCMA 480, 26 CMR 260, but I am of the opinion that the law officer’s technical error was entirely harmless. At the request of the accused, he held an out-of-court hearing and the Government produced testimony showing that the confession was given voluntarily. Thereafter, the accused was sworn as a witness in his own behalf but, when it was made to appear that his testimony on the time of warning would merely conflict with evidence introduced by the Government, the law officer ruled that the hearing would be discontinued and the witnesses would be heard in the presence of court members. The court was then reopened, the Government’s evidence was introduced, and the accused testified. It is clear from the record that there was no coercion of or inducement to the accused which resulted in denying him the free choice of remaining silent, and the issue narrowed to the sequence of events. There is no disagreement about the fact that the accused was advised of his privileges under the Fifth Amendment to the Constitution and those rights granted by Article 31, Uni*253form Code of Military Justice, 10 USC § 831, but there is a conflict in the testimony as to whether that warning was given before or after the accused had signed the confession.
It is apparent from my recitation of the facts that the testimony adduced on the interlocutory question was neither inflammatory nor incriminating. It would not incite hostility, bias, or prejudice on the part of court members as the only matter of substance involved was whether the accused was apprised of his privilege to remain silent. The posture of the evidence made it necessary that the court-marital eventually resolve the conflict in the testimony, and that issue was presented to the members under appropriate instructions. It should be evident from this that any error in not permitting the accused to finish his testimony in camera was merely a formality, for the law officer not only ruled properly on the admissibility of the confession but he instructed the court-martial to disregard it as evidence if they found the advice given to the accused was not timely.
There is yet another reason why this error did not prejudice the accused. In United States v Dial, 9 USCMA 700, 26 CMR 480, we held that persons not subject to the Code need not give the warning required by Article 31, supra. In order to differentiate this case, my associates say that, “If the interrogation is determined factually to be military in nature, the evidence patently raises the question whether the accused was advised before or after the statement of his rights under Article 31 of the Uniform Code.” I am willing to accept that test and rely upon the record for my conclusion that the Air Force was merely a conduit through which the Federal Bureau of Investigation made contact with the accused.
With regard to whether accused was told the investigation concerned a civilian charge, in passing I invite attention to the fact that the transcript reflects he was not asked whether he had been so told, and contrary to the negative inference my colleagues apparently draw from the fact no such question was asked at trial, accused’s responses to other questions indicate the extent of his knowledge on that score. For example, accused testified his interrogator introduced himself as “of the FBI”; he was aware the man called “the District Attorney’s office”; and he was told “The civilian authorities did not wish to press any charges.” Brushing aside any controversy as to what the record shows, however, and getting to the core of this contention, I merely observe that it matters not the slightest what accused was or was not told. Even had accused been told the investigation was purely civilian in nature, that fact would make absolutely no difference if the evidence showed in fact that the venture was military. Conversely, falsely advising him that the questions were of interest to the military would not make the enterprise theirs if in fact it was one by and for civilian authorities alone. And, assuredly, the absence of any statement at all to accused as to the nature of the investigation cannot affect the character of the inquiry.
In connection with the part played by the service in this instance, the footnote reference by my colleagues to United States v DeLeo, 5 USCMA 148, 17 CMR 148, is of more than passing interest. In that ease, as the footnote indicates, a majority of the Court held that the record was “sufficient to sustain. . . [a] determination that "the search was not an American one.” DeLeo, supra, at page 157. In order to provide a proper frame of reference for purposes of comparison with the case at bar, a recitation of facts showing more precisely than that of my associates, the extent of active participation by the American warrant officer in DeLeo is helpful. There the Criminal Investigation Division agent accompanied the French police inspector to accused’s station. The commanding officer was notified, and the accused was summoned to the orderly room where the military investigator took him into custody. The CID agent searched him and found two counterfeit bills. The agent also searched his automobile. The military official and the inspector then went to his apartment in town where the premises were searched. There the CID agent noticed a slip of paper which *254aroused his curiosity, and further seareh uncovered four additional incriminating sheets. These were seized unbeknown to the civilian official and subsequently were introduced into evidence to establish forgery. Comparing DeLeo with the case at bar, if in light of those facts the search, as a matter of law, was not a military venture, then most certainly I for one encounter the gravest difficulty in subscribing to a holding that the instant case rises to that level. I am not unmindful, in making the foregoing statement, that the setting of DeLeo was in France nor of the Court’s observation that they would require “a somewhat higher degree” of participation by the military in overseas areas. I can only observe that the instant case would seem to demonstrate forcefully just how great that “somewhat higher degree” is.
Be the foregoing matters as they may, looking to the record in the instant case I find absolutely no evidence which remotely suggests that this interrogation had its genesis with the military, that the Federal Bureau of Investigation was its agent, that some scheme was developed to escape the provision of the Code, that the agent of the Office of Special Investigations took any part in the interrogation or obtained any statement from the accused, or that the Air Force is seeking to use evidence wrongfully obtained by one of its members. I quote the testimony of the FBI agent to support my conclusion:
“DIRECT EXAMINATION
“Questions by the trial counsel:
“Q. I see. Where did you have this conversation ?
“A. In the office of the Office of Special Investigators, investigated at Luke Air Force Base.
“Q. Mr. Tuckey, who was present other than yourself?
“A. The accused and Mr. Dale Mitchum, a Special Agent of OSI.
“Q. I see. Now, before we go into this any further, what part did Mr. Mitchum play as a witness or as a party to this procedure?
“A. He was just a witness at my request.
“Q. What for, what agency were you making the investigation for?
“A. For the Justice Department.
“Q. Were you making it for the Air Force in any way, sir?
“A. No, sir.
“Q. I see. What part did Mr. Mitchum play, if any, in the questioning of the witness?
“A. None.
“Q. He didn’t. What did he do then?
“A. He sat right next to us while I was talking to the accused and at the completion of the statement he signed it as a witness.
“Q. I see.
“A. I might add that he had made arrangements for the accused to come to the office. I mean he just went through military channels on having him come to the OSI Office.
“Q. At whose request?
“A. At mine.
“CROSS-EXAMINATION
“Questions by the individual Counsel:
“Q. Mr. Tuckey, I have a few questions I would like to ask you. You are with the FBI, is that correct?
“A. Yes, sir.
“Q. Uh huh. Now, for what purpose did you come out here to Luke Air Force Base on this day in question you are talking about?
“A. July 25th, 1957?
“Q. Yes.
“A. To talk to the accused about a check which had been sent in interstate commerce for a possible violation of the inter-state transportation statute.
“Q. How did this possible violation come to your attention?
“A. From another one of our offices. I believe it was our Chicago office.
“Q. And you were sent out here to investigate that fact, is that correct?
“A. Yes, sir, the case was assigned to me by my superior.
“Q. Now, where did you go when *255you first came on Luke Air Force Base.
“A. To the Office of Special Investigations.
“Q. And did you have a conversation with Dale Mitchum, the Special Agent there?
“A. Yes.
“Q. And what did you say to Mr. Mitchum ?
“A. I asked him if there were an airman on the base by the name of Eugene Nicholas Young. His answer yes [sic] ‘yes’. I said, T wonder if you can arrange for him to come to your office for me to talk with him’. I explained to him about the check in question and he said, ‘Fine, I will see if I can get hold of him’ or something similar to that. It wasn’t long until the accused appeared at the office.
“Q. In substance. Didn’t Mr. Mitchum request a copy of this statement from you?
“A. No, sir.
“Q. You didn’t give a copy of this statement to Mr. Mitchum ?
“A. We gave the OSI a copy of my report.
“Q. Of your report?
“A. Yes.
“Q. Did that report include the statement?
“A. It did.
“Q. And was it at Mr. Mitchum’s request that you furnish him with the statement ?
“A. No, sir, that is just our rule.
“REDIRECT EXAMINATION
“Questions by the trial counsel:
“Q. First of all, Mr. Tuckey, at what time did the OSI make a request for this report?
“A. OSI did not make a request for the report.
“Q. I see. Now, I want to get this one point again straight. When you came out here was there any request by the military that you make this investigation ?
[Colloquy on objection to question.] “A. None.
“Q. And again, what was the sole purpose of the investigation?
“A. In connection with a check charge.
“Q. For the agency I am talking about?
“A. Oh, for the agency. United States Department of Justice.”
These facts are undisputed, and on the basis of the quoted evidence, I conclude that, as a matter of law, no issue was raised as to this interrogation being military in nature. Accordingly, I would affirm the decision of the board of review.