(dissenting):
I dissent.
*205With the decision of the majority in this case, United States v Alaniz, 9 USCMA 533, 26 CMR 313, is reversed despite a purported distinction, and the principles originally enunciated in United States v Gunnels, 8 USCMA 130, 23 CMR 354; United States v Rose, 8 USCMA 441, 24 CMR 251; and United States v Wheaton, 9 USCMA 257, 26 CMR 37, become so limited there is little chance that an accused person will derive any benefit from his right to counsel.
The accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. Tie was sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. Intermediate appellate authorities affirmed, and we granted review on the issue whether accused’s pretrial statement was erroneously admitted in evidence.
Accused’s roommate, one Sergeant Koski, purchased two money orders on July 31, 1958. The money orders contained no entries indicating the identity of the purchaser or the payee. He placed the orders in his wall locker. On August 5, 1958, he discovered the money orders were missing. On the same day, the accused, accompanied by one Poole, cashed one of the money orders in a Baltimore bank in order to pay a debt. A few days later, he cashed the other order. In a pretrial statement made to criminal investigators, accused related that he had found the money orders on the floor in the barracks hallway. He asked several individuals if they had lost the items and, upon receiving a negative response, decided to use them to pay his obligations. He stated that he knew he was “doing wrong” but was desperately short of funds.
The accused produced witnesses to support his claim of finding the money orders and his general inquiry of several soldiers concerning whether they had lost them. He also testified in his own behalf. He generally reiterated the circumstances set forth in his pretrial statement but claimed that he honestly believed he had a right to convert the money orders to his own use. He denied having stated in his confession he knew he was “doing wrong” and asserted that this declaration resulted from being informed by the investigators that “the Army wouldn’t go along with that statement, ‘Finders keepers, losers weepers.’ ”
The pretrial statement was obtained from the accused by Agent Bedford in the presence of a postal inspector. Bedford stated that he had appropriately advised the accused of his rights under Code, supra, Article 31, 10 USC § 931, and had obtained the statement from him. However, the following testimony was elicited concerning accused’s desire to consult counsel:
“Q. Did Kantner ever say, T don’t want to say anything until I talk to my attorney.’?
“A. He may have said something like that.
“Q. Now, Mr. Bedford, you stated that Kantner said something about he wouldn’t make a statement until he saw his attorney. Can you maybe clarify that a little for us, spell it out a little more for us?
“A. When I was talking ' with Kantner he was upset and he said, T am not sure I should say anything until I can see an attorney. I would like to get an attorney.’
“Q. At what point of the interview did he say this to you?
“A. This was well after we discussed it for a few minutes and I had advised him of his rights.
“Q. At any time did he ask to talk to an attorney?
“A. No.
“Q. Did he ask you to procure an attorney for him, some JAG officer or anyone else?
“A. No.”
The postal inspector could not recall “any mention of an attorney being made in this particular case.”
Counsel for the accused objected to the receipt of the confession on the ground that the accused was deprived of his right to consult an attorney. The objection was overruled and the *206statement admitted in evidence. Subsequently, the accused, testifying on the merits of the case, declared he had informed Bedford that he desired to consult an attorney. Bedford’s exact reply was, “ ‘This boy has been over the coals before. He knows what it is all about.’ ”
In discussing the admissibility of the statement, the staff judge advocate made the following comments in his review:
“Viewing the testimony as a whole, it appears that the accused had probably requested to be allowed to talk to an attorney but that he was not given the opportunity to talk to an attorney. For this reason, the pretrial statement of the accused was inadmissible. The law officer erred in admitting into evidence the written pretrial statement of the accused.
“However, while the admission of the pretrial-statement was error, the accused testified in his own behalf and admitted all the material matters contained in his pretrial statement. . . .
“Therefore, the error of the law officer in admitting the accused’s pretrial statement (Pros Ex 9) was not prejudicial in that the accused’s testimony on the merits of the case in substance was a waiver.”
The convening authority took action in accordance with the recommendations of the staff judge advocate, thus adopting the findings contained in the review.1
In United States v Alaniz, supra, we were confronted with a similar situation. There, the staff judge advocate found, as a matter of fact, that the law officer had erred in concluding that the accused had consented to an otherwise illegal search. In stating that the finding of the staff judge advocate was binding upon us, we said:
“In United States v Massey, 5 USCMA 514, 18 CMR 138, we stressed the convening authority’s almost absolute appellate reviewing powers. It is clear beyond cavil that this Court is not possessed of fact-finding powers. Article 67(d), Uniform Code of Military Justice, 10 USC § 867, and that we may not overturn a truly factual determination based upon the evidence of record made by intermediate appellate bodies possessed of fact-finding jurisdiction. United States v Bunting, 6 USCMA 170, 19 CMR 296; United States v Moreno, 5 USCMA 500, 18 CMR 124; United States v Moreno, 6 USCMA 388, 20 CMR 104. In the present case the factual determination of this controverted factual issue by the convening authority is binding upon this Court.” [Emphasis]
I see no difference between the factual issue of consent to a search of one’s dwelling and the factual issue of the denial to an accused of his right to consult counsel. Assuming arguendo that there was room for disagreement on the question, a proposition which I personally reject, the matter has now become final, and we step outside our sphere when we substitute our judgment for that of the convening authority. United States v Alaniz, supra. And see United States v Wheatley, 10 USCMA 537, 28 CMR 103, for a similar holding with respect to factual determinations by a board of review. In short, there being a rational basis in the record upon which the review could reach the conclusion set forth therein, it ill behooves us to upset the findings of the *207convening authority simply because others may have reached a different conclusion.
As I read the record, however, there is a clear showing the accused was, as a matter of law, deprived of his right to consult counsel. He indicated to the criminal investigator that he “would like to get an attorney.” True, he did not seek Bedford’s assistance in employing a civilian attorney or consulting an officer of the Staff Judge Advocate Section. Nevertheless, as Bedford’s testimony clearly indicates, he was unmistakably informed that the accused did not desire to make a statement until he had consulted a legal ad-visor.
My brothers seem to think a military suspect must bound from the interrogation room to the nearest telephone or run the risk of having subsequent admissions placed in evidence against him. This places too much emphasis on resistance to superior military authority and too little on the naturally submissive attitude of a soldier in the hands of the military police. Moreover, it ignores the fact that rights which exist only in vacuo do not, for practical purposes, exist at all. Thus, when an accused unequivocally indicates a desire to communicate with his attorney, and the criminal investigator continues to interrogate him with the observation that the suspect “has been over the coals before,” it would be little short of remarkable if the individual did not conclude he was not going to be permitted to obtain advice. Under such circumstances, he is as effectively denied counsel as if the agent had expressly informed him he was not entitled to legal assistance until charges were preferred. United States v Gunnels, supra; United States v Rose, supra.
The principal opinion nevertheless concludes that tenacious questioning by an agent who simply ignores the accused’s request is sufficient to excuse the deprivation involved. I prefer the sounder approach that a clear indication that an accused desires to consult an attorney requires military investigators to discontinue their interview and afford the accused a reasonable opportunity to seek advice. This was the essence of our decisions in United States v Gunnels and United States v Rose, both supra, and we should adhere to that principle.
In view of the denial to the accused of his right to consult counsel and the major inconsistency between his pretrial statement and his testimony in court, I would reverse the decision of the board of review and authorize a rehearing.
The Manual for Courts-Martial, United States, 1951, provides pertinently, in paragraph 85c, at page 141:
“. . . In those unusual cases in which a convening authority is in disagreement with his staff judge advocate or legal officer as to the effect of any error or irregularity respecting the proceedings, as to the adequacy of the evidence, or as to what sentence can legally be approved, the convening authority may transmit the record of trial, with an expression of his own views and the opinion of his staff judge advocate or legal officer, to the Judge Advocate General of the armed force concerned for advice.” [Emphasis supplied.]
That procedure was not followed in this case. Hence, it must be assumed that the convening authority adopted the staff judge advocate’s findings of fact.