(dissenting):
I dissent.
Contrary to the assertion of the majority, I find more than a passing reference to the request for counsel in the evidence adduced in open court regarding the question of the members’ consideration of the confession. Indeed, the prosecution saw fit to call a witness who rebutted such proof on part of the defense. Thus, scrutiny of the record indicates the following testimony by the accused before the fact finders:
“A. Then this investigator, Church, came into the head and told me to come into the chief’s office. So when I walked in there, he said, ‘Take everything our [sic] of your pockets. Take your belt off and your shoe strings and put them on the desk.’
“Q. And did you?
“A. Yes, sir.
“Q. Then what did you do?
“A. Well, I asked him what was it all about, and he told me it was not for me to ask questions, that I just answer questions. He said, ‘We’re going to lock you up.’ So I said to him, ‘If you’re going to hold me, I’d like to call Deslant and speak to Lieutenant Canning. He’s a lawyer down there.’ He said for me to shut up, that things would be taken care of, that if I wanted a counsel, they would get me one.” [Emphasis supplied.]
In rebuttal, the prosecution recalled Church, whose testimony had already been taken in the out-of-court hearing, and adduced the following concerning accused’s request for counsel:
“Q. At the time you removed his personal articles from him, was there any discussion about his calling an attorney ?
“A. No, there wasn’t any request. I can’t give his exact words, but I know it was in the form of a threat. He said, ‘I’ll call the DesLant Legal Office,’ or something to that effect.
“Q. What did you say when he said that?
“A. I told him, ‘Go ahead.’
“Q. Was there any phone near him at that time?
“A. Yes, sir. There were three phones on the chief’s desk, one connected with the Fire Department, one connected with the Marine Corporal of the Guard, and one outside the Base.
“Q. Would you have taken any steps to prevent him from using those phones ?
“A. No, sir, I wouldn’t.
“Q. Did Petty choose to use those phones ?
“A. No, sir, he didn’t.
“TRIAL COUNSEL: I have no other questions.” [Emphasis supplied.]
While it is true that the defense counsel sought, for purposes of clarity, *404to separate the issues of voluntariness and denial of counsel in the closed session discussion, it is clear to me that he also wished the matter to be presented to the fact finders. Thus, prior to presentation of testimony quoted supra, and upon the offer of accused’s confession in evidence, he noted that the defense “has previously entered objection to the admission of this document on two grounds, which objections we reiterate.” And when the law officer pointed out that these objections were not before the court, counsel made the following statement:
“DEFENSE COUNSEL: Well, in that case the defense will interpose its objection on the grounds that Petty was denied his right to counsel — [Emphasis supplied.]
In an in-court conference which followed, the law officer stated that the court members “are going to have to resolve the issue of voluntariness” and that such issue was not then before them. Thereafter, the conference was terminated and defense counsel proceeded to present testimony on the question.
In United States v Brown, 13 USCMA 14, 32 CMR 14, Judge Kilday declared, on behalf of a unanimous Court :
“The law is clear under the eases previously cited that when an accused or suspect requests such information it is error to misadvise him of his right to consult with an attorney and ‘force him to submit to questioning . . . without a lawyer.’ Gunnels, supra, at page 135. If the accused seeks to exercise his right to consult with counsel during interrogation he must be afforded the opportunity to do so.”
In my opinion, the foregoing evidence presented in open court effectively raised an issue concerning the denial of accused’s right to seek advice from an attorney who, in fact, subsequently represented him at the Article 32 investigation. Where such an issue is raised and evidence is presented thereon to the fact finders, it must be meaningfully submitted to them by the law officer’s instructions. Thus, in United States v Odenweller, 13 USCMA 71, 32 CMR 71, we stated, at page 74:
“. . . If true, the accused’s contention [concerning denial of counsel] alone may have been sufficient to invalidate the confession. United States v Gunnels, supra; United States v Rose, supra. And the questions of the veracity of his claim was one ultimately for the court members. United States v Minnifield, 9 USCMA 373, 26 CMR 153; United States v Gorko, 12 USCMA 624, 31 CMR 210. Thus, it was incumbent upon the law officer to submit the question whether accused was denied access to counsel to the court-martial under proper instructions, in a manner similar to voluntariness.”
In the instant case, there were no such instructions.
In light of these matters, I cannot agree that the issue was not raised in open court and that it was not counsel’s intention to go beyond the interlocutory decision of the law officer and appeal to the fact finders. True it is that he did not see fit again to present the testimony of Osborne, his supporting witness, to the members of the court-martial, but he did adduce some evidence to show a denial to accused of the right to consult with Lieutenant Canning. Such was sufficient to raise the issue, and, as the law officer did not mention the subject in his instructions, I am required to conclude that a rehearing should be ordered. United States v Odenweller, supra.
I would reverse the decision of the board of review and order a rehearing.