(concurring in the result) :
I agree with the Chief Judge that no issue was raised regarding the volun-tariness of accused’s confession. I do so only on the basis that accused unequivocally testified that he made the statement because he “just felt relieved that that thing was over with” and not because of any promise not to involve his paramour if he confessed. Had the latter consideration governed his election to speak, voluntariness would have been in issue, for, as recently stated by the Supreme Court in Shotwell Mfg. Co. *39v United States, 371 US 341, 9 L ed 2d 357, 83 S Ct 448 (1963), at page 347:
. . The controlling test is that approved in Bram: ‘ “a confession, in order to be admissible, must be free and voluntary: that is, .. . not . . . obtained by any direct or implied promises, however slight, , . .” ’ Bram v United States, supra, at 542-543. Evidence so procured can no more be regarded as the product of a free act of the accused than that obtained by official physical or psychological coercion.” [Emphasis supplied.]
In like manner, I agree that the accused was not prejudiced by failure to order the tape recording produced to determine whether the OSI agent might be impeached regarding the inclusion in accused’s statement of the declaration that the latter had actually received the $123.60 involved in the false claim. Accused was not charged with receiving such sum, but with making a false claim therefor. He fully and voluntarily confessed to that offense, and the truthfulness of his statement in this respect is not contested. Having so confessed, the question of receiving the proceeds is immaterial, and there is, therefore, no prejudice to his substantial rights. Uniform Code of Military Justice, Article 59, 10 USC § 859.
I disassociate myself, however, from that portion of the opinion in which it is suggested that accused was under a duty to request production of the tape prior to the trial. To the contrary, there is in military law no pretrial discovery practice of the nature involved in Rule 16, Federal Rules of Criminal Procedure. Cf. United States v Robinson, 13 USCMA 674, 33 CMR 206. Moreover, even under Rule 16, it is doubtful whether its discovery would be ordered before the trial. Monroe v United States, 234 F2d 49 (CA DC Cir) (1956), cert den 352 US 873, 1 L ed 2d 76, 77 S Ct 94. In any event, it is my opinion that the so-called Jencks Act, 18 USC § 3500, governs here, for it was not a copy of accused’s statement which was desired but a tape recording of the agent’s interview with him. And, as my brothers note, that statute provides that only “[a]fter a witness called by the United States has testified on direct examination” may the accused move for production of the witness’ statements. Palermo v United States, 360 US 343, 3 L ed 2d 1287, 79 S Ct 1217 (1959).
Nevertheless, the erroneous refusal to produce the recordings was not prejudicial and I, for the reasons noted, join in the answers given to the certified questions.