(dissenting):
I dissent.'
My views regarding the prejudicial vice of the instruction given herein on the effect of prima facie evidence were recorded in United States v Simpson, 10 USCMA 543, 28 CMR 109. There, as here, my brothers concluded that the error involved in advising the members of the court that “In law, prima facie evidence of a fact is sufficient to establish the fact, unless rebutted” was not *14prejudicial, as, viewed in the light of the other instructions concerning reasonable doubt and the presumption of innocence, it could have been understood to mean only that the fact in question might be deemed established if the members entertained no reasonable doubt concerning its existence. I am yet unable to accept this reasoning, for I find the prima facie instruction totally inconsistent with the doctrine of reasonable doubt. I am also convinced that its effect was to cast the burden of proof upon the accused and to inform the court that a case sufficient to support his guilt in law was all that was required to convict unless the accused rebutted the Government’s presentation. However, as I have already set forth in my dissent in United States v Simpson, supra, what I consider to be the defects in the majority’s rationale, I simply record my disagreement with that phase of the principal opinion and pass to what I consider an equally important issue.
Upon his trial by general court-martial, this accused was found guilty of larceny, housebreaking, and attempted housebreaking, in violation, respectively, of Uniform Code of Military Justice, Articles 121, 130, and 80, 10 USC §§ 921, 930, 880. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. Intermediate appellate authorities approved the findings and sentence, and we granted accused’s petition for review. The principal issues now before us involve the question whether the accused was denied the right to consult with counsel prior to the occasion on which criminal investigators obtained a confession from him and whether the law officer’s instructions concerning the matter were proper.
The accused came to the attention of investigators at Dobbins Air Force Base, Georgia, in connection with several housebreakings. On December 4, 1958, he was placed in confinement. He agreed to submit to a lie detector test concerning his guilt and, on December 5, was escorted by two Office of Special Investigations agents to Atlanta in order to undergo a polygraph examination. Upon his arrival in Atlanta, however, the accused declined to take the proposed test and stated his belief that he should consult with an attorney. On the return trip, accused mentioned the names of two officers, stationed at other bases, whom he desired to represent him. He was informed he should contact the staff judge advocate. Accused was returned to the base stockade, and he remained in confinement there until his trial. However, he did not remain silent concerning the matter of counsel. On each day during the period from December 5, 1958, until December 9, 1958, the accused repeatedly asked stockade personnel to obtain counsel for him or to arrange with the staff judge advocate for him to receive legal advice concerning his predicament. These requests were directed for the most part to an Airman Hughes whose assigned duties at the stockade are not reflected by the record. Hughes finally informed accused that he must request an interview with the staff judge advocate by filling out a “DD Form 510,” and promised to help him with it “later.” The use of the form was not, however, an inflexible requirement, for appointments with the staff judge advocate were frequently made on the basis of an oral request. The procedure followed with respect to accused’s request is succinctly stated in the following excerpt from the latter’s testimony on cross-examination :
“A. Everything seemed so mixed up, we have to do this this morning or on some detail and they would say we will get to it this afternoon we’ve got some things to do and I’ll get to you the first thing in the morning and every day seemed to come into another one and it was only a matter of four days and before I knew it every day was coming and going and I made one formal request and I made at least a dozen verbal ones to Airman Hughes.
“Q. From time to time isn’t it true that you have had discussions with other personnel at the guardhouse about the representation by counsel and so forth?
“A. I asked them what should 1 do that no one had come down to see me *15and I thought the lawyer, a couple mentioned that they would send a lawyer down to talk to me and I thought they would and I mentioned to Hughes to get it and still nothing was done. I just didn’t know.”
Accused was finally furnished with a copy of the required form. However, when aid from Hughes did not appear, accused finally completed the form with the assistance of another prisoner and delivered it to Hughes. Hughes called the office of the staff judge advocate on December 9, 1958, and relayed accused’s request. A secretary advised Hughes that the staff judge advocate was in a board meeting, but might be able to see the accused later that afternoon. Hughes gave this information to the accused. In fact, the staff judge advocate was never made aware of accused’s persistent requests, and counsel was not made available until December 17, 1958.
After the accused was advised that the staff judge advocate was unavailable, OSI agents again appeared on the scene. On the afternoon of December 9, they interrogated Adkins after proper warning and obtained from him a complete statement concerning his participation in the offenses charged. At no time during the interview was the question of counsel discussed.
We have repeatedly held that a person suspected of an offense is, upon his request, entitled to consult with counsel or to be advised by the staff judge advocate concerning his right to legal assistance. United States v Gunnels, 8 USCMA 130, 23 CMR 354; United States v Rose, 8 USCMA 441, 24 CMR 251; United States v Wheaton, 9 USCMA 257, 26 CMR 37. Concededly, Airman Adkins had been correctly informed of his right to consult counsel, but how can such advice have efficacy when he is in confinement and depends solely upon stockade personnel for his contacts with the outside world? Obviously, it can be effective only if confinement authorities take prompt action upon any request made to them for assistance in obtaining legal advice. The accused repeatedly made such requests and did all he could to contact the staff judge advocate, to whom he had been referred by investigators. How then can it be concluded that he knowingly abandoned his right of consultation upon his interrogation on December 9? On the contrary, I think the record conclusively demonstrates that he sought assiduously to exercise his right but was prevented from doing so, either carelessly or intentionally, by the failure of the stockade personnel to take prompt action on his request. Nor am I impressed by the argument that the accused was tardy in filling out a written, formal request for counselling. I recognize the necessity for the use of standardized administrative procedures in the operation of any confinement facility. However, the record also demonstrates that Airman Hughes promised the accused assistance in preparing the form from the occasion on which he first made his request. Although the accused again and again made known his desires, the issue was delayed until he finally obtained the services of another prisoner on the night of December 8. It was only when the written form was finally submitted that Hughes deigned to initiate any action. In this respect, I take issue with the statement in the principal opinion that Hughes was merely a guard. His capacity is not shown in the record. However, it is apparent that he performed administrative rather than custodial functions, for it was he who contacted the office of the staff judge advocate and subsequently made an unsuccessful search of the stockade files for accused’s written request for counsel. These duties are unlikely to be performed by a guard. Be that as it may, we elevate form over substance when we permit denial of counsel to an accused solely on the basis that, in making his request known, he failed to comply with every requirement of local administrative regulations.
I view this case, then, as one in which the accused, having been informed of his right to consult counsel, sought by every means at his disposal to exercise that prerogative. Nevertheless, for reasons which do not appear, it was effectively denied him. As I am of the opinion *16that denial of the right to consult is as important as the advice, I would conclude that his confession made on December 9 was inadmissible. United States v Gunnels, supra; United States v Rose, supra. In my mind, the contrary view of my brothers imposes too heavy a burden upon a twenty-one-year-old airman, confined far from home and unable to seek the assistance of friends and relatives.
As I believe the record demonstrates that the accused was denied counsel as a matter of law, it was incumbent upon the law officer to exclude his confession without submitting the question to the members of the court-martial. Hence, I need not reach the question of the sufficiency of the instruction on that issue. However, I do not construe our decisions in United States v Gunnels and United States v Rose, both supra, as limiting the issue to the narrow question whether an accused was misadvised of his right to counsel during interrogation by criminal investigators. Certainly, if deprivation of counsel results from the actions of other agents of the Government, their misconduct is imputable to the interrogators, and I doubt the accuracy of any instruction which limits the court members to consideration only of the events which transpired during interviews with military detectives.
I would reverse the decision of the board of review and order a rehearing.