(dissenting):
I dissent.
I am unable to join in any way with my brothers in their view that a rehearing is not required in this case with respect to the charge of rape, in violation of Uniform Code of Military Justice, Article 120, 10 USC § 920. In my opinion, the need for reversal because of the introduction of the bloodstained bedding and failure to declare a mistrial after ruling accused’s oral pretrial statement inadmissible is amply demonstrated by this record. I am not persuaded that we may properly avoid this result by weighing the evidence and resolving plain factual issues in favor of the United States. In short, I believe we should determine the existence of error here in accordance with well-established precedents, leaving the question of accused’s guilt to another uninfluenced court-martial. Otherwise we fall into the fatal course of ad hoc disposition of appeals and the rule of men rather than law.
The accused stands convicted of aggravated assault, in violation of Code, supra, Article 128, 10 USC § 928, and rape, as noted above. Originally sentenced to dishonorable discharge, forfeiture of all pay and allowances, reduction, and life imprisonment, the confinement portion of his sentence has now been reduced to twenty-five years. Our grant of his petition for review was restricted to the issues whether the law officer erred in refusing to grant a defense motion for a mistrial when he struck from the evidence an oral pretrial statement of the accused and whether the staff judge advocate erred in concluding that receipt of certain illegally obtained bloodstained bedding was not prejudi-cially erroneous. In order to put these questions in proper perspective, it is necessary to advert to the evidentiary picture disclosed in the record.
Accused’s six-year-old stepdaughter, Debbie, was seen at a neighbor’s apartment in good health at 6:00 p.m. on January 19, 1960. She left to return to her family’s apartment. On January 19 and 20, her mother was in an Army hospital in Augsburg, Germany. Thus, Debbie, her stepfather, and- a younger child were alone in the apartment.
On January 20, 1960, Debbie appeared at the local Army dependent school. The children called the teacher’s attention to her condition. Her head and face were bloody, her right eye was closed, and she was in a state of shock. An ambulance was summoned, and the child was carried to a dispensary from which she was ultimately transferred to an Army general hospital. There, an examination disclosed extensive and severe bruises on her body, head, and extremities. She also suffered from a half-inch laceration of the scalp. The most significant injury, from the standpoint of the rape charge before us, was another laceration commencing at the posterior opening of the vaginal cleft and extending into the vagina itself.
A vaginal smear was obtained, and microscopic examination by a qualified pathologist led to a conclusion on his part that male sperm cells were present in Debbie’s vaginal canal. This smear examination, however, was not conducted until January 23. Subsequent examination of another smear obtained *43on January 25 revealed no spermatozoa.
Suspicion was directed toward the accused initially because of his reaction to information that his child had arrived at school in a severely injured condition and his express opposition to her hospitalization. He was apprehended by military police and turned over to criminal investigators. These officers testified that they obtained accused’s permission to search his apartment. Agent Stephens described the manner in which accused “consented” to the search in the following language :
“Q What explanation did you make to him, if any, when you asked for permission to search his apartment?
“A I told him that relative to this investigation we would like to enter his apartment and that any evidence or pertaining to this investigation that was found in his apartment we would wish to take, at which time I told him, I had asked him for his key and he had given me some explanation that he didn’t have a key, that he had left it for his wife with some neighbors or something and that he had only one key to the apartment. I acquired a key from the commissary officer in Leipheim who had possession of a key to his apartment.
“Q Well when you told Sergeant Justice that you intended to search his apartment and that you might keep anything you found there as evidence for charges by court-martial, did he make any objection?
“A He did not.
“Q Did he consent to the search?
“A He did not object.
“Q What in general was his response to your remarks concerning search?
“A 1 asked him about the search and he said he had no objection to me entering his apartment and he so indicated by saying ‘all right’.” [Emphasis supplied.]
Agent Burkman testified concerning accused’s granting of “consent” by stating:
“Q After this 31 warning, did Sergeant Justice discuss the matter in question with you ?
“A We started in talking about it, in questioning him about the incident we talked briefly on it and then Specialist Stephens approached him on the subject of searching his quarters, and Sergeant Justice offered no objections to it. We told him, or Specialist Stephens did, that anything that would, that was found in the quarters, that had any connection with this investigation could be used as evidence against him, if we found anything, and he still gave permission to search the quarters.
“Q I see. Well, was he asked whether he objected to the search?
“A Yes, he was asked if he objected to the search and he answered ‘no’, or words to that effect.
“Q Did he make any utterances or say anything else in connection with questions relating to this search ?
“A No, he was in accordance with it, he didn’t offer any serious objections in any way at all, in fact he didn’t offer any type of objection to it.
“Q And what did he say, if anything, when you told him that you intended to keep what you might find there for possible evidence in a trial by court-martial?
“A. He made no reply to that, I mean that this was all brought out in an explanation to him that if we fownd anything it could be used as evidence against him, and that we requested permission to search his quarters, and asked him if he objected and he just answered either ‘no’ or ‘go ahead’, or something, words to that effect — I don’t recall now the exact wording he used.” [Emphasis supplied.]
Three searches were thereafter made of accused’s apartment. The first resulted in the seizure of bloodstained bedding from accused’s bed and that *44of his stepdaughter. This was admitted in evidence over objection that the search was illegal.
During the period from January 20 through January 27, 1960, accused made four statements, two of which were reduced to writing. All were made after proper warning under Code, supra, Article 31, 10 USC § 831. In the first statement, executed on January 20, accused admitted whipping his child perhaps “harder that [sic] I should have” but stated that she had also fallen down the stairwell. He also declared that he had used an aluminum baton as the punitive instrument. He unequivocally denied sexually molesting Debbie in any way.
The second statement was made orally to Agents Rasmussen and Burk-man on January 21. Accused testified that, during this interrogation, he told the agents he wished to secure legal advice but was informed by Agent Burkman that “ ‘you’re not entitled to any legal counsel until you have been charged.’ ”
Burkman and Rasmussen stated accused’s request for counsel did not occur until he had made an oral statement and that the interrogation was immediately broken off. This statement, accompanied by appropriate instructions, was received in evidence over defense objection. In it, accused admitted “that he probably inflicted all the injuries that Debbie had, or the child had, with the baton. He stated that if he had inserted anything into her vagina it was probably his finger; and he said he recalled having blood on his hands but he did not know where it came from, the wounds she had received, or from her vagina— and that was the extent of the admissions.” Accused also stated that he was drunk and that, in part, “he did not remember inserting anything into her vagina.”
Accused’s third statement was executed on January 24 and consisted essentially of a written repetition of his second statement. It was excluded from evidence when tendered by the prosecution.
The fourth statement was oral and was made to Agent Burkman on January 27. It is the one with which we are directly concerned on this appeal and, in it, accused, in response to a question whether he had raped his stepdaughter, stated “ ‘well I might have done it, I could have done it, I don’t remember’; he repeated that two or three times, that he might have done it, he could have done it, but he just couldn’t remember.”
As noted above, accused testified that he sought legal advice on January 21 but was told that he was not entitled to counsel until charges were preferred against him. The investigators admitted that accused indicated his desire for counsel but stated that, upon such request, they terminated their interview.
Agent Burkman testified that, on the morning following the interrogation on January 21, he escorted Sergeant Justice to the staff judge advocate section and turned him over to a Major McEwan, a judge advocate officer. McEwan, the section executive officer, conferred with the accused.
Accused testified that he informed Major McEwan that “I would like some legal counsel” and the Major replied that “ ‘you haven’t been charged yet and you are not entitled to any legal counsel.’ ” McEwan informed him of his rights under Code, supra, Article 31, and, in response to a specific inquiry, told accused the results of a lie detector examination could not be used in any court in the land. McEwan “didn’t say I didn’t have to make any statement, he didn’t explain, he didn’t say I did not have to — I went up for legal advice and counsel which I did not get.” Thereafter, in view of Me-Ewan’s statements, accused did not see any use in repeating his request for counsel or legal advice to the investigators. Nevertheless, “there was a lot of things I needed advice on, but after he told me that I was not entitled to the counsel, I didn’t know what to do, I didn’t know what to ask him or what to say — I mean I didn’t know whether or not, or what he would say, after he told me that, sir.” On the following *45day, accused unsuccessfully sought to obtain funds with which to hire a civilian attorney. The topic of civilian counsel, however, was not discussed with Major McEwan.
After hearing the foregoing testimony, the law officer resolved the issue of denial of counsel against the accused and received in evidence his oral admission concerning the charge of rape.
After the admission was received and other witnesses had testified, the prosecution saw fit to call Major Mc-Ewan.
The Major declared that Sergeant Justice was escorted to his office on January 22. He described what transpired as follows:
“A The Sergeant had apparently indicated he wanted to talk with the Judge Advocate, and my conversation with the Sergeant was substantially this: 1 informed Mm that he was entitled to be advised of his rights by a Judge Advocate officer if he so desired, he did not fall within the legal assistance program, but I would be able to inform him of his rights. I read to him Article 31 of the Code quite carefully, I explained it to him, I told him substantially that it meant he didn’t have to answer any questions if he didn’t want to, he didn’t have to answer any questions particularly which might tend to incriminate him. I explained in fairly simple terms what it meant by, to incriminate him, what those words mean.
“Q Was there any conversation relative to counsel for the accused that you recall?
“A I racked my memory on that this morning. I don’t know exactly what took place, but I do know this, that I had spoken with a number of individuals under circumstances such as that where they came to the Judge Advocate for advice, and if I told him anything about counsel it would be that he was entitled to retain individual civilian counsel if he chose to, that he was not entitled as a matter of right to military counsel but there would be nothing to prevent his requesting military counsel and that request would be given ivhatever consideration that it appeared to warrant.
“Q Do you recall any conversation with him relative to a lie-detector test and his rights and privileges concerning such a test ?
“A There was something about it, and again I’ve racked my mind to try to recall exactly what happened, but I’m quite sure that I informed him that in no case that I knew of in any court could the results of a lie-detector test be received into evidence.” [Emphasis supplied.]
Major McEwan also testified that he had told the accused that there was nothing confidential about their interview and that he was “not his counsel.” When questioned by the law officer, McEwan stated that he understood accused was seeking legal advice and that he told him “he had no entitlement to counsel, but if he requested military counsel the request would be given whatever consideration it appeared to warrant.” (Emphasis supplied.) To an inquiry concerning whether accused requested counsel, McEwan replied, “Not that I know of.” He did not ask the Major “to assign a counsel to him.”
On the basis of McEwan’s testimony, the prosecution renewed its offer of the written statement taken from the accused on January 24. The statement was rejected upon defense objection, the law officer noting:
“LO: Lieutenant Belson, I will admit that perhaps the technical and purely technical provisions of the right to consult with the Judge Advocate was fulfilled. But on the testimony of Major McEwan and the testimony of the accused himself, he was told that he did not have a right to assigned counsel, that he had a right to go out and hire civilian counsel, and if he made a request for military counsel, it might be assigned to him. I believe in the mind of the accused that he was refused counsel. Now let’s say he was refused adequate counsel at that time: for that reason I’m going to *46Sustain the objection put by the defense.” [Emphasis supplied.]
Thereafter, in an out-of-court hearing, the defense counsel moved for a mistrial on the basis that accused’s oral admission on January 27 concerning the rape was equally infected by the denial of counsel. The motion was denied, but the law officer agreed to instruct the court to disregard “any statement made by the accused which was made subsequent to the time he requested counsel.” Upon reconvening in open session, he so advised the court members.
In its case, the defense adduced the testimony of a qualified criminal pathologist, who opined that it was “[m]ost likely not possible” to find spermatozoa in a child’s vagina after elapse of the period of time between the alleged assault and obtaining of the smear here involved. He thought it possible that another organism, such as “Trichomonas Vaginalis” or deteriorated white blood cells, had been mistakenly identified as spermatozoa.
The accused elected to testify in his own behalf. His relation of the events effectively constitutes a judicial confession to the charged offense of aggravated assault. However, he again unequivocally denied sexual molestation of the child:
“Q Did you have intercourse with your stepdaughter, Debbie?
“A No sir, I did not, sir.
“Q Did you have any forceful intercourse with her?
“A No sir.
“Q Did you have any intercourse with her at all?
“A No sir.
“Q Did you molest her sexually in any way?
“A No sir, I did not, sir.” [Emphasis supplied.]
On cross-examination, trial counsel sought to impeach accused with those of his pretrial statements admitted in evidence. Accused denied informing Agent Rasmussen that he “could have fondled the child” indecently. The following colloquy then transpired:
“Q. Now Sergeant, I’m not sure whether I understand your testimony: are you telling the court that you did not do any of these things charged against you, or are you merely telling the court that you do not remember doing any of these things charged against you?
“A Sir, I know that I didn’t raye her, 1 know that.
“Q Do you know that you didn’t fondle her in any way ?
“A Yes sir.” [Emphasis supplied.]
Thereafter, the trial counsel displayed the previously admitted bloodstained items of bedding to the accused and pointed out that they were found both on his bed and that of his stepdaughter. In response to questions put to him, accused stated that he had not noticed the stains when he arose.
Evidence was also adduced on behalf of the defense which tended to establish accused’s good character, his fondness.for his stepdaughter, and her return of that regard even after the incident. In addition, a doctor testified that he had examined accused’s genitalia on January 21. He found “no evidence of bruising, bleeding, or any other evidence which would indicate traumatic coitus” or “a forceful intercourse.”
In rebuttal, the prosecution introduced the testimony of another pathologist, who was of the view that spermatozoa would survive in a child’s vagina for a period in excess of that involved in this case.
Turning initially to the search and the seizure of the bloodstained bedding, it is to be noted that the staff judge advocate found and the convening authority adopted the following position set out in the post-trial review:
“From the foregoing, it appears that the evidence as to whether or not the accused consented to the search of his apartment is not conflicting. Neither of the agents asserted that the accused ‘consented’. Both testified that the accused did *47‘not object’ and, at most, said ‘go ahead’ or ‘all right,’ ‘or words to that effect.’ In the Lantrip case, with facts closely parallel to the instant case, the court held this to be a peaceful submission to the law enforcement officers, an acquiescence rather than a consent thereto. United States v Lantrip, as quoted in United States v Alaniz, supra, page 316. ACM 13950, Delton, 24 CMR 734; distinguishable United States v Hurt (No. 10533), 9 USCMA 735 at 779, 27 CMR 3 at 47, in that the court there found ‘substantial evidence of affirmative consent.’
“In the final analysis, the evidence as to the circumstances under which the search here was made negatives a consent freely and voluntarily given. There being no consent, there was no lawful search and it was error to admit the results of such search in the face of a timely objection by the defense counsel.
“Error in the admission of evidence justifies setting aside a conviction only if the improper evidence is prejudicial to the accused. United States v Bergen (No. 6642), 6 USCMA 601, 607, 20 CMR 317, 323. Since there is sufficient competent evidence in this record, aliunde the improper evidence, to sustain the findings of guilty, the improper evidence is not considered prejudicial to the accused.” [Emphasis partially supplied.]
In United States v Alaniz, 9 USCMA 533, 26 CMR 313, we were also confronted with the issue whether the accused had consented to a search of his property. Under circumstances almost identical to those here presented, a staff legal officer concluded there was no consent to the search, and the convening authority adopted that position. In returning the case for a determination by that officer concerning whether a subsequent confession was the product of the search, we said, at page 536:
“As we have stated in reviewing the record of trial, the staff legal officer concluded, as a matter of fact, that the law officer had erred in holding the search was with the accused’s consent, and that the evidence obtained therefrom was admissible and so advised the convening authority. The convening authority clearly followed his staff legal officer’s counsel and disapproved specification 1 of the Charge on the ground that the evidence of a search was inadmissible.
“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 888, 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 supplied.]
Turning to the instant case, it is equally apparent that the staff judge advocate made a “truly factual” determination concerning whether the accused consented to the search of his apartment. He summarized the evidence and emphasized that there was no testimony that accused “consented.” Rather, there were only statements that he made no objections to the proposed quest while in custody. Indeed, the staff judge advocate specifically noted that the evidence regarding this issue “was not conflicting” and ultimately concluded that accused did no more than acquiesce in the inevitable.
Every facet of the post-trial summary and discussion is amply supported by the record in this trial. It is to be particularly noted that each time *48trial counsel sought an answer concerning the issue of consent — even when leading questions were used- — his witnesses equivocated and satisfied themselves with a reply indicating mere lack of objection. Compare United States v Lantrip, 74 F Supp 946 (ED Ark) (1948), and United States v Wallace, 160 F Supp 859 (DC DC) (1958). Moreover, accused did not furnish the key to his apartment or the specific information by which entry was obtained. In short, the staff judge advocate had more than an adequate foundation for the inference of lack of consent which he drew from the evidence.
As there is support in the proof for his view, it is my opinion that our decision in United States v Alaniz, supra, requires that we accept this “truly factual” determination. Under the standard applied by the Chief Judge, therefore, the only question for decision is whether there is a fair risk that the evidence uncovered by the search prejudiced the accused’s substantial rights.1
Consideration of this issue requires that we note accused repeatedly — in court and out of court — denied raping or otherwise sexually molesting his daughter. Moreover, he attacked the prosecution’s presentation of circumstances tending to establish rape by adduction of contrary testimony from his own expert witness; evidence that his sexual organ bore no marks indicating forceful intercourse; and proof that he was a person of excellent character and kindly disposed toward his stepdaughter. Thus, a substantial question was presented to the court members concerning his guilt of rape. When the trial counsel produced previously admitted bloodstained bedding and used it on accused’s cross-examination to diminish his credibility, it is patent that these items may be said fairly to have affected the determination of the fact finders. Indeed, few circumstances are more consistent with a sexual assault than a demonstration of the existence of bloodstained items from the accused’s bed, in which it was shown that the victim did not sleep.
When these items were used by the Government in the manner depicted in this record, they were not mere quiescent paraphernalia harmlessly, albeit erroneously, before the court-martial. They were the prosecutor’s traditional bloodstained exhibits, an active part of his ammunition, and, in my view, if such be the test, their demonstrative value to the United States clearly establishes a fair risk that the court-martial accorded them weight in its deliberations.
It is here that I believe the rationale of the principal opinion goes astray. Correctly concluding that the accused’s own testimony leaves no room for harm to have resulted with reference to the charge of aggravated assault, it devotes several pages to weighing the prosecution’s case against that of the defense. The testimony of the Government’s experts is said to be so clear and positive that the bloodstained bedding could not have affected the rape verdict. The contrary defense case is simply dismissed, with no effect being given to the specific testimony that spermatozoa would most likely not have lived in the child’s vagina sufficiently long to have obtained the critical smear. The results of the medical examination of accused’s genitalia, and his repeated protestations that he did not molest Debbie sexually are also accorded no credibility. In short, the reasoning of the opinion is based upon a complete rejection of the defense case and a factual conclusion at this level that accused is guilty. But Congress has denied us the authority so to weigh evidence and to judge credibility. Code, supra, Article 67, 10 USC § 867; United States v Alaniz, supra; United States v Black, 12 USCMA 571, 31 CMR 157. And as we noted in the last cited case, *49at page 575, we simply cannot “resolve all factual issues in the case against the accused,” for the court-martial, not this Court, are the judges of his guilt. Nevertheless, that is precisely what my brothers do in this case and, as I do not consider it proper so to assume the role of the military jurors, I necessarily must disagree with their finding of no prejudice to the substantial rights of the accused.
The existence of prejudice need not, however, be predicated on the use of the illegally obtained bloody bedding. The second issue before us deals with the law officer’s ultimate exclusion of accused’s oral statement that he “might have” raped Debbie and his refusal to grant a mistrial on the basis of its earlier receipt and consideration by the court-martial. When the weight of this inadmissible statement is added to the illegally obtained items, accused’s chances of an impartial hearing of his case became nonexistent.
It is asserted that Sergeant Justice was not entitled to a mistrial after elimination of the oral statement for three reasons. First, it is stated the law officer erred in concluding that the statement was not admissible. Secondly, it is said the statement itself is “an unimportant erypticism” in light of the “substantial testimony regarding penetration by sexual act.” Thirdly, it is declared the statement itself said no more than that accused could not remember the assault and, as his testimony was replete with inabilities to recall the critical events, the oral admission is not likely to have impressed the court members.
Taking up these reasons in reverse order, it seems to me the last ill construes accused’s testimony regarding the rape charge. As set out above, he stated clearly and repeatedly that he had sufficient recall of the events to know positively that he neither raped his stepdaughter nor molested her sexually. He admitted there were events which he could remember and occurrences which he could not, but, again and again, he denied the commission of any sex offense. And consistent with this was the testimony of the defense expert, the evidence regarding the medical examination of the accused, and the proof of his good character. Thus, it hardly seems accurate to say his pretrial oral declaration that he “might have” or “could have” raped Debbie was so consistent with his trial testimony that there is no fair risk the former influenced the court-martial.
With regard to the proposition that the evidence of guilt is so overwhelming that accused’s pretrial statement is “an unimportant erypticism,” much of what has been said concerning the illegally seized evidence is also pertinent here. I can only repeat that this record presents a substantial factual issue concerning accused’s guilt of rape. When the jury heard his pretrial admission that he “might have” or “could have” raped the child, I suggest accused’s fate was so far sealed that the subsequent evidence adduced by the defense could receive but scant attention.
Of course, we cannot plumb the minds of court members anymore than those of civilian jurors, but, as noted in United States v Grant, 10 USCMA 585, 28 CMR 151, at page 590:
“ . . Human nature does not change merely because it is found in the jury box. The human mind is not a slate, from which can be wiped out, at the will and instruction of another, ideas and thoughts written thereon.’ ”
In that case, we held it improper not to declare a mistrial when accused’s commander vituperatively testified to his guilt and painted him as a despicable person unworthy of belief. Here, we have a court-martial allowed to hear testimony that accused admitted orally that he “might have” or “could have” raped his stepdaughter. In face of prosecution evidence tending to support that view, I suggest it takes little perspicacity to conclude that these members, honest as they might be, would be unable to abide by the law officer’s instruction, erase the pretrial statement from their minds, and thereafter accord any real consideration to accused’s sworn, and not unsupported, denials of guilt.
*50The last premise upon which the conclusion of lack of prejudice is founded is the simply asserted conclusion that the law officer initially erred in excluding the statement. An examination of this problem requires a more detailed analysis of our former opinions and the trial ruling.
In United States v Gunnels, 8 USCMA 130, 23 CMR 354, the accused was interviewed by investigators who advised him of his rights under Code, supra, Article 31, and informed him of the allegations of misconduct against him. Accused stated that he desired to make no statement until he had an opportunity to consult counsel. He was permitted to go to the office of the local staff judge advocate. There, he was told he could not get any advice and was shown a regulation which indicated he did not come within the purview of the legal assistance program. This was done at the direction of the staff judge advocate. Accused returned and made a statement to investigators which was subsequently received in evidence. We reversed, holding the statement inadmissible. Of the situation, we said, at page 133:
“. . . Even in an administrative proceeding, Congress has directed that a ‘person compelled to appear . . . before any agency or representative thereof shall be accorded the right to be accompanied . . . and advised by counsel.’ 5 USC § 1005 (a). We, therefore, strongly condemn the 'practice, which appears to be common in the military, of telling a suspect that he cannot consult with counsel in connection with an interrogation by enforcement agents. 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. Cf. Rule 5 (b), Federal Rules of Criminal Procedure. We also condemn, therefore, the Staff Judge Advocate’s order to his assistants to ref rain, from advising the accused if he sought their counsel.” [Emphasis supplied.]
We also declared, at page 134:
“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. It seems to us 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 with him during an interrogation by a law enforcement agent.” [Emphasis supplied.]
In United States v Rose, 8 USCMA 441, 24 CMR 251, we reiterated our holding in the Gunnels case. There, Naval intelligence agents, during an otherwise proper interrogation, informed an accused that he could not call his attorney and that, as no charges had been preferred, he had no right to consult counsel. We again held a subsequently obtained statement inadmissible in evidence and reversed.
In United States v Wheaton, 9 USCMA 257, 26 CMR 37, accused was told by a criminal investigator, in response to an inquiry whether he could have “ ‘any kind of counsel,’ ” that he was “ ‘not allowed to have counsel at that time.’ ” Accused admitted he was fully advised of his rights under Code, supra, Article 31, and that he had made a voluntary statement. We sustained a holding of the board of review that accused was misadvised of his right to counsel, stating, at page 259:
“It is arguable that the accused was simply informed that he had no right to appointed counsel as distinguished from no right to consult counsel. United States v Gunnels, supra. See also United States v Melville, 8 USCMA 597, 25 CMR 101. However, the board of review construed the evidence as affirmatively indicating that the accused was mis*51informed as to his right to ‘the benefit of counsel.’ We cannot say as a matter of law that the board of review’s finding has no support in the record of trial. United States v Moreno, 6 USCMA 388, 20 CMR 104; cf. United States v Waymire, 9 USCMA 252, 26 CMR 32.” [Emphasis partially supplied.]
Application of our holdings in the foregoing cases to the evidence before the law officer clearly supports his conclusion that the oral statement should be excluded. Major McEwan’s own testimony was a masterpiece of hesitancy for he had “to rack his memory” to recall the nature of his consultation with the accused. In light of his declarations, there is small wonder the law officer concluded that the accused was misled concerning his rights and was thereby denied the opportunity to consult with an attorney. True, he said that McEwan may have “technically” complied with our holding in Gunnels— a most generous observation — but it is also true that, as he ultimately noted, there was a plenitude of proof to indicate a reliance upon niceties of language in order deliberately to mislead the accused and cause him not to consult a lawyer of his own choice.
The fact that Major McEwan advised accused of his rights under Article 31 is immaterial. In United States v Wheaton, supra, we reversed despite the accused’s concession that he was so advised. The important consideration is not the existence of such advice but whether accused was made aware of his right to consult with counsel. United States v Gunnels, supra; cf. United States v Adkins, 11 USCMA 9, 28 CMR 233, and United States v Kantner, 11 USCMA 201, 29 CMR 17.
Finally, despite the taxing of his mental faculties, Major McEwan could not recall “exactly what took place” but if he “told ... [accused] anything about counsel,” he clearly eliminated any possibility of advice unless obtained from a civilian attorney. Indeed, McEwan’s testimony is so unclear that the law officer would have been fully justified in expressly according it no credibility in face of accused’s statements concerning the interview.
The real question, however, is not whether we agree with the law officer’s ruling but whether there is in the record a basis for his belief that the accused was misadvised and that the subsequent statement was thereby tainted. United States v Wheaton, supra. As he heard and saw the witnesses and the evidence is clearly subject to the construction which he gave it, I am required to conclude that his opinion had a sound predicate. We cannot at this level, as a matter of law, hold that he was wrong.
In sum, I do not believe that this record demonstrates accused’s guilt of rape so conclusively that a fair risk of prejudice is eliminated. When the Government introduced evidence obtained by an illegal search and seizure and an oral statement in which accused admitted that he “might have” or “could have” committed the offense, it thrust into the balance factors which cannot be overcome by a mere instruction to disregard or a weighing of the conflicting proof at this level. As Congress has wisely commanded that we reverse for any error which we find prejudicial to the rights of an accused and has limited our jurisdiction to legal issues, I cannot assume the authority to decide clear factual disputes. I believe my brothers do just that, and I accordingly register my disagreement.
I would reverse the decision of the board of review and return the record of trial for a rehearing on the rape charge or reassessment of the sentence on the basis of the findings of guilty of aggravated assault.
The presence in this record of factors harmfully affecting the accused’s substantial rights eliminates any need to determine whether, in the words of Mr. Justice Rutledge, reversal is perhaps required simply because of a “departure . . . from a constitutional norm or a specific command of Congress.” Kotteakos v United States, 328 US 750, 764, 90 L ed 1557, 1566, 66 S Ct 1239 (1946).