(dissenting):
I dissent.
As noted by the author of the principal opinion, an agent of the Federal Bureau of Investigation ap-prehended the accused as an absentee from the armed services. There is no doubt that, in taking the accused into custody, the agent was acting on behalf of the military authorities, for the record shows that he testified as follows:
“Q. Mr. Smith, what was the purpose of you apprehending Private Holder?
“A. Our office previously received a request from the Department of the Army to look for the accused. Our office having been advised that he had been declared a deserter from the Army.
“Q. Then you were doing this primarily for the Armed Forces, is that correct ?
“A. Yes, sir.”
It is also pertinent to note that the agent's confidential information related to accused’s whereabouts rather than to the fact that he had committed an offense. Finally, while the agent questioned the accused for the purpose of establishing the latter’s identity, the obvious purpose of the use of the statements at the trial was to establish that he was the absentee sougnt and thus permit an inference to be drawn by the members of the court concerning his intent to desert.
In United States v Grisham, 4 USCMA 694, 16 CMR 268, a unanimous Court held “if persons not subject to the Code — such as civilian law enforcement authorities — conduct an interrogation or request a statement in furtherance of any military investigation, or in any sense as an instrument of the military, then the duty arises to furnish sound advice concerning the provisions of Article 31.” (Emphasis supplied.) In United States v Dial, 9 USCMA 700, 26 CMR 480, the court reaffirmed the teaching of Grisham but refused to exclude a statement taken by a local civilian police officer for a nonmilitary purpose.
In United States v Garner, 7 USCMA 578, 23 CMR 42, a local peace officer apprehended the accused as an absentee pursuant to a form notification (DD Form 553) that his return to military control was desired. We concluded that the accused’s absence without leave was terminated by' the local officer’s arrest, as the apprehension order constituted the latter an instrument of the military.
The synthesis of the foregoing decisions is that an officer who apprehends an offender at the request of the armed forces is acting as an instrument of the military. Hence, there is a duty placed upon him to advise the individual thus taken into custody of his rights under Article 31 of the Uniform Code of Military Justice, 10 USC § 831, prior to interrogating him concerning that offense. United States v Grisham, supra; United States v Dial, supra. This is particularly true when the suspect is apprehended for purely military offenses, such as unauthorized absence or desertion, and is taken into custody pursuant to authority granted by the Code. See Article 8, Uniform Code of Military Justice, 10 USC § 808. It is worthy of note that, in the absence of the last-mentioned enactment, no authority exists for a civilian police officer to apprehend an unauthorized absentee. Kurtz v Moffitt, 115 US 487, *4536 S Ct 148, 29 L ed 458; United States v Garner, supra.
The principal opinion lightly dismisses these precedents in view of fancied difficulties which would result from the requirement that civil officers comply with the mandate of Article 31, supra. The fallacy of this position is, of course, that we must take the law as we find it and implement it as Congress intended. There is considerable difference between the proposition that a civil officer acted legally, at least from his agency’s standpoint, in interrogating a suspect and the question whether a statement obtained by him is admissible in a military criminal proceeding. The legislative history of the Uniform Code establishes the soundness of our position in Grisham and Dial, both supra, Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 991. Nor should the scope of Article 31, supra, be so narrowly limited that “nothing is left of it but a heap of bare bones.” United States v Minnifield, 9 USCMA 373, 26 CMR 153. Finally, while this Court should not hesitate to overrule its prior decisions where it has clearly fallen in error, we should not by implication and subtle distinction deny to the services their right to rely upon the certainty of existing legal precedents. See dissenting opinion of Mr. Justice Black in United States v Rabinowitz, 339 US 56, 67, 70 S Ct 430, 445, 94 L ed 653.
The record establishes beyond doubt that Agent Smith took the accused into custody only because the Department of the Army had requested his apprehension as an unauthorized absentee. Hence, in thereafter interrogating him, he acted as an instrument of the military. United States v Garner, supra. Accordingly, a duty arose to advise accused of his rights under Article 31, supra, and the failure to do so rendered his statements inadmissible, regardless of whether the agent in obtaining them complied with the Bureau’s standards regarding the conduct of criminal investigations.
In view of the foregoing, I conclude that the accused’s substantial rights have been prejudiced. However, as the statements bore only on the question of the intent with which he absented himself, I would return the record of trial to the board of review for affirmance of the lesser included offense of absence without leave and reassessment of sentence or direction of a rehearing on the desertion charge.