(dissenting):
I dissent.
This case represents to me an astonishing departure from the real meaning and purpose of Uniform Code of Military Justice, Article 31, 10 USC § 831. So construed, in light of the admitted facts, the bulwark erected by Congress to guard against the coercive influence inherent in interrogation by a military superior is substantially weakened.
The accused became a suspect in the alleged larceny and was interrogated by Agent Jones on several occasions. Before each such interview, he was appropriately warned of his rights under Code, supra, Article 31, and advised of the nature of the offense of which he was suspected. On January 17, 1962, accused was again advised of his rights by Agent Jones at approximately 9:30 a.m. He steadfastly denied his guilt. A matter involving accused’s finances and relevant to the investigation came up. Agent Jones and accused proceeded “downtown” to check on an aspect of this question. Some traffic tickets were also mentioned, and “to get this point cleared up,” Jones decided to take accused “to see his commander,” a Major Bean. They arrived at Bean’s office at approximately 10:30 a.m. After Jones “talked with Major Bean regarding this other subject, I briefed him ... on what I had learned during the course of my investigation to date.” According to Jones, he did not speak to Bean except in the accused’s presence.
Bean, promoted to lieutenant colonel by the time of the trial, testified he was accused’s commanding officer on January 17. On that date, Agent Jones visited him, asked about the traffic tickets, and told him “he had run into a brick wall as regards the [larceny] investigation.” At first, the accused was not present, and Jones “suggested that we call him over and ask him about it, which we did.” Jones inquired once more about the traffic tickets in accused’s presence, and “the conversation went from traffic tickets to the alleged theft.” Lieutenant Colonel Bean then declared, “I can’t recall everything that was said, but I did ask him if he had taken the money, and I told him if he ever expected me to help him, as his commander, he ought to he honest with me.” (Emphasis supplied.)
Lieutenant Colonel Bean further stated accused said nothing. Asked whether he was “prodding” accused, he testified:
“A. Well, I don’t know how you could interpret prodding, but I was after an honest ansiver.” [Emphasis supplied.]
Bean was “sort of testing” accused for, “if he remained adamant he hadn’t taken the money,” he would have caused the investigation to be terminated. When asked whether accused could have interpreted his questions as an order to speak, Lieutenant Colonel Bean conceded that defense counsel might “have a point,” but did not believe he would consider himself compelled to speak “if my Wing Commander called me in and asked me if I had done something wrong to answer ‘Yes’ if I hadn’t done it wrong.” (Emphasis supplied.) It was Bean’s impression that accused “may have thought he had a duty to be honest with” him.
Accused asked if he could speak to Bean alone. The Colonel assented, and Jones left the room. Accused blurted out, “ T took it. I took the money’.” Jones was called back in the room and Lieutenant Colonel Bean informed him of what accused had said. Jones asked accused to return with him to Office of Special Investigations headquarters, “so we might discuss the matter further.” There, he again advised Goard of his rights under Code, supra, Article 31, and accused made the written statement which was received in evidence. Three days later, accused executed an additional statement, which amplified the earlier one.
*596Accused, testifying in his own behalf, declared he confessed because he “figured that was what he [Bean] wanted and if I went ahead and did it he would help me.” Thereafter, he believed he “had to make a statement” to Agent Jones. The confession was motivated by “fear of what he [Bean] could do, as being a commanding officer.”
From the foregoing, it will be seen that, according to the Government’s own witnesses, the criminal investigator took the accused before his squadron commander, Lieutenant Colonel (then Major) Bean, after informing the latter that he “had run into a brick wall” in the investigation; that the accused had in fact refused in all previous interviews to incriminate himself; that the accused was not advised of his rights under Code, supra, Article 31, during his interrogation by Lieutenant Colonel Bean; that he was repeatedly and mercilessly importuned by Bean to make a statement or else the latter, as commanding officer, could not help him; and, finally, that he made the statements only because he feared Bean’s reaction as his commander if he did not confess. Seldom have I seen a more cavalier disregard of an accused’s rights.
Code, supra, Article 31, commands that no person “subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense,” unless he first advises him of his privilege to refuse to make any statement at all. The statute also prohibits the receipt in evidence of any statement “obtained from any person in violation of this article” or which was obtained by use of, among other things, any “unlawful inducement.”
In United States v Gibson, 3 USCMA 746, 14 CMR 164, the Chief Judge pointed out, at page 752:
“. . . Careful consideration of the history of the requirement of warning, compels a conclusion that its purpose is to avoid impairment of the constitutional guarantee against compulsory self incrimination. Because of the effect of superior rank or official position upon one subject to military law, the mere asking of a question under certain circumstances is the equivalent of a command.” [Emphasis supplied.]
In his concurring opinion, the late Judge Brosman pointed to deep Congressional concern, in enacting the warning requirement, “with the possibly subtle effects of military position and habits of obedience in inducing an accused to respond to questions relating to an alleged offense.” Gibson, supra, at page 755. Cf. United States v Dandaneau, 5 USCMA 462, 18 CMR 86; United States v Green, 7 USCMA 539, 23 CMR 3; United States v Souder, 11 USCMA 59, 28 CMR 283; United States v Tharp, 11 USCMA 467, 29 CMR 283.
This Court has thus repeatedly declared that one of the principal purposes in requiring an accused to be advised of his rights under Code, supra, Article 31, is to remind him forcefully of his privilege to remain silent and to erect a shield between him and the inherently coercive influence of questioning by a military superior. Other facts may call for another conclusion, but, in this case, it seems to me that such advice was required, as a matter of law, from Lieutenant Colonel Bean. The record strongly depicts Bean’s use of his superior rank and position as a commander in every possible way to induce accused to make a statement. That he may have been honestly motivated or actually believed accused innocent is immaterial. The question before us is the effect of his interrogation on the accused, and the evidence shows beyond cavil that the latter surrendered his independent desire to remain silent only because of the awe and fear instilled by the former’s military capacity. Under such circumstances, I would hold that the failure again to advise accused of his rights under Code, supra, Article 31, at the outset of this interview in and of itself vitiated the later confessions to Agent Jones, premised as they were upon his earlier, less detailed statement to Bean. United States v Powell, 13 USCMA 364, 32 CMR 364; United States v Bennett, 7 USCMA 97, 21 CMR 223.
Assuming, however, Jones’ earlier warning still effectively remained in accused’s consciousness, I would, under *597the circumstances of this case, hold the confessions inadmissible as the result of unlawful inducement. Lieutenant Colonel Bean admitted he had repeatedly told the accused he would not help him in his difficulties unless he made a statement. He conceded accused might have interpreted his language as an order to speak and that he was insistent upon “an honest answer.” Accused testified he confessed only out of fear of Bean’s position and because he believed he could not otherwise obtain his assistance as commander.
It is impossible to believe that any young enlisted man is going to resist the relentless questioning of a field grade officer who is directly over him in the chain of command when he is offered the alternative of either remaining silent and being thrown to the wolves or, in Bean’s own language, giving an “honest answer” and having the commander stand behind him.1 That sort of thinking ignores the realities of military life. In short, Bean’s tactics correspond precisely to the sort of situation which was envisioned in United States v Gibson, supra, when it was declared that “the mere asking of a question under certain circumstances is the equivalent of a command.”
That the two statements made to Agent Jones and admitted into evidence over accused’s objection were the product of the earlier, illegally obtained confession to Lieutenant Colonel Bean is also established, as a matter of law, by this record. As noted above, the first such statement to Jones was obtained immediately after Bean’s importunate interrogation and as a direct result thereof. The second, although more widely separated in time from Bean’s questioning, merely enlarged upon the first. While accused was, on each occasion, again advised of his rights under Code, supra, Article 31, Jones at no time informed him that the prior statement to Bean could not be used against him. In United States v Bennett, supra, we said, at page 101:
“. . . [W]e now announce the rule that if the Government obtains admissions illegally, and they are of a nature likely to produce a subsequent confession, a strong showing that a subsequent warning severed the presumptive influence must be made to permit use of the confession. Furthermore, absent any showing that the accused knew or had been informed that his prior admissions could not be used against him, the fact that he was advised of his rights prior to the execution of his confession would normally not [make it admissible].”
In like manner, in United States v Powell, supra, we applied the Bennett rule to hold inadmissible two subsequent confessions after proper warning under Code, supra, Article 31, because of an earlier statement made by the accused while he was deprived of counsel. In that case, an entire weekend intervened between the interrogations, but it was concluded that the United States had not borne its heavy burden of demonstrating a severance of the presumptive influence of the earlier statement.
Applied to the facts now before us, these cases make it clear that the prosecution in this case failed utterly to make any showing of dissipation of the influence of the statement made by Goard to Lieutenant Colonel Bean in the forlorn hope of obtaining his help as commander in the forthcoming trial.
In sum, then, I am of the view that under the facts of this case, Lieutenant Colonel Bean was required again to advise accused of his rights under Code, supra, Article 31, prior to importuning him to speak. I note with some surprise that my brothers make no attempt to discuss this problem, as important as it is to resolution of the issue before us. Moreover, I firmly believe that all the evidence indicates that Bean intended, and the accused concluded, that his rank and position be used to compel accused to make a statement regarding his guilt. Such amounts to an unlawful inducement and, as it led to the subsequent statements made to Jones, made *598the latter inadmissible as a matter of law. United States v Bennett, supra; United States v Powell, supra.
I would, therefore, reverse the decision of the board of review and order a rehearing.
In light of Lieutenant Colonel Bean’s professed desire to assist Goard, it is, to say the least, interesting to note that, following the trial, he recommended affirmance of the sentence as adjudged and questioned Goard’s “future usefulness in the service.”