(dissenting);
I dissent.
Tried by general court-martial, the accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. With some reduction in sentence, intermediate appellate authorities affirmed, and we granted review on the issue whether “the staff judge advocate (Major Eades) erred in not’ advising the accused regarding his right to counsel when the staff judge advocate appeared at the Air Police Operation Section and interviewed the accused pursuant to his request to see a legal officer.”
The accused, stationed at an air base in Japan, was suspected of larceny of $161.00 from a fellow airman. He was taken into custody by Air Police investigators and subjected to interrogation. He indicated to the investigator questioning him that he desired to consult a “legal officer.” The interview was temporarily terminated and Major Eades, the local staff judge advocate, was summoned to advise the accused. Major Eades appeared; informed the accused he could not act as his attorney as he was the legal adviser to the special court-martial convening authority; advised him of his rights under Code, supra, Article 31, 10 USC § 831; and discussed with him the elements of the offense of larceny as well as the progress in the investigation up to' that point. He refused to advise the accused whether he should make a statement, stating to the latter he must make that decision himself. He said nothing to the accused of his right to be represented by counsel. It should also be noted that some controversy arose between Major Eades and the accused concerning whether the former was in fact the staff judge advocate. On the following morning, accused was taken to Eades’ office. Eades pointed to an informative sign on his desk and asked accused if he now believed he was the staff judge advocate. The accused replied in the affirmative and blurted out a statement that he had only taken $70.00 from the victim. Thereafter, and without advising him of his rights under Code, supra, Article 31, Eades questioned accused closely concerning the details of the offense. Upon completion of the interrogation, he assigned a Lieutenant Ferguson as defense counsel.
Upon the presentation of the statement made by accused to Major Eades at the trial, defense counsel objected on the basis that it was a confidential communication made by a client to his attorney. The law officer overruled the objection, although he later submitted the issue to the members of the court-martial with appropriate instructions. As there is substantial evidence in the record to support his conclusion in this respect, it must stand. However, it should be noted that we granted on the issue of Major Eades’ failure to advise the accused of his right to counsel rather than whether he became the accused’s lawyer, and it is with the disposition of this question by the author of the principal opinion that I disagree.
In United States v Gunnels, 8 USCMA 130, 23 CMR 354, a majority of this Court decided an accused was entitled to the advice of counsel during inquiries conducted by criminal investigators. We pointed out it was the duty of the staff judge advocate to advise a suspect who consults with him that he is entitled to be so represented by counsel. As stated by the Chief *79Judge in the principal opinion in that case, at pages 134 and 135 :
"... A suspect has no right to the appointment of military counsel, but he most assuredly has a right to consult with a lawyer of his own choice or with the Staff Judge Advocate. . . . We also condemn, therefore, the Staff Judge Advocate’s order to his assistants to refrain from advising the accused if he sought their counsel.
“We have no fear that the Staff Judge Advocate will be inundated by hordes of suspected accused seeking him out for advice as to their rights during the investigative proceedings by law enforcement officers; nor do we fear that by giving the accused advice as to his rights the Staff Judge Advocate will compromise his position as legal adviser to the convening authority, at least no more so than when he is asked to advise the investigating officer. United States v DeAngelis, supra [3 USCMA 298, 12 CMR 54]. It seems to tis to be a relatively simple matter to advise an uninformed and unknowing accused that, while he has no right to appointed military counsel, he does have a right to obtain legal advice and a right to have his counsel present ivith him during an interrogation by a law enforcement agent.” [Emphasis supplied.]
Our decision in United States v Gunnels, supra, was published on July 19, 1957. Accused conferred with Major Eades on October 20, 1958. It is obvious that sufficient time had elapsed for this opinion to come to the attention of this staff judge advocate, and we must, of course, assume he was familiar with our holding therein. Certainly, it cannot be argued that he complied with our decision in Gunnels, supra, for he contented himself with a discussion of the offense, the progress in the investigation, and advice to the accused of his rights under Code, supra, Article 31. That was the extent of his conversation. He made no mention of the latter’s entitlement to consult with counsel and the right to have his counsel present with him during an interrogation by a law enforcement agent, although he states he specifically informed accused that he could not represent him, he did not mention anything concerning the availability of the other three junior officers assigned to his office, one of whom was designated to represent the accused immediately after the confession was made on the following morning. These circumstances require me to conclude that the failure properly to advise the accused of his counsel rights was error. United States v Gunnels, supra; United States v Rose, 8 USCMA 441, 24 CMR 251.
My brothers find, however, that accused was not prejudiced by the misad-vice. I am unable to perceive the reasoning which leads them to this result. The accused had made no admissions to investigators until Major Eades appeared on the scene. He continued to remain silent until the following morning when, confronted with the fact that Eades was indeed the staff judge advocate, he blurted out a confession. True, the statement was not made to the agent who initially interrogated him, but is this a material distinction? The vice involved in the denial of the right to consult with counsel is that the accused is denied the opportunity to receive sound advice concerning the legal consequences of his conduct. Had he received proper information concerning his entitlement to representation and acted on it, is it likely that he would have spontaneously admitted his guilt to Major Eades? Of course, it is possible he might have done so, but appellate courts deal in probabilities, and I think it only fair to conclude that he would have chosen to remain silent had he been properly informed. Thus, the misadvice can properly be denominated the foundation for his subsequent declaration to Major Eades. As this incriminating statement constituted the heart of the Government’s case, prejudice is apparent.
Although the principal opinion does not denominate it as such, I also detect a belief on the part of the majority that the doctrine of waiver is applicable here. With respect to such a contention, I can only point out that we are *80dealing with an accused’s right to consult with an attorney at a time when he is suspected of a serious criminal offense. This is a basic constitutional right. Powell v Alabama, 287 US 45, 53 S Ct 55, 77 L ed 158; Re Groban, 352 US 330, 77 S Ct 510, 1 L ed 2d 376. Its denial violates the requirements of due process. United States v Gunnels, supra. Moreover, we are not dealing with a mature legal system in which the accused’s representatives possess the sophistication of experienced members of the unfettered civilian criminal bar. We must recognize the realities of the military legal situation and cut through the failure of counsel to argue obviously meritorious contentions in order to prevent denial to an accused of the fundamental protections afforded him by our charter of government. Thus, I would not invoke the doctrine of waiver, and I believe that my brothers err if they utilize it as a means of overlooking the important question involved. Parenthetically, I also note that Major Gunnels did not contend at any level below this Court that he was not permitted to consult with counsel. See United States v Gunnels, supra, dissenting opinion of Judge Latimer, at page 135.
I would reverse the decision of the board of review and authorize a rehearing.