(concurring):
I concur with Judge Ferguson in his disposition of the certified issue. Additional comment, however, is, to my mind, desirable. In my view, were the Supreme Court to consider the case at hand, it would, I believe, unhesitatingly declare the advice afforded Tempia as falling far short of those minimum constitutional requirements enumerated in Miranda v Arizona, 384 US 436, 16 L ed 2d 694, 86 S Ct 1602 (1966).
Initially, I point out that in Miranda the Supreme Court construed and applied the Fifth and Sixth Amendments to the Constitution of the United States. It, in a not too common procedure, laid down what, in future cases, is to be regarded as providing minimum constitutional guarantees to one being interrogated as to the commission of a crime. Being of “constitutional dimension,” Miranda v Arizona, supra, must be assessed accordingly.
In United States v Smith, 13 USCMA 105, 32 CMR 105, this Court considered at length the application in military law of a decision of the Supreme Court establishing a rule of evidence for civilian practice. Cf. Opper v United States, 348 US 84, 99 L ed 101, 75 S Ct 158 (1954). In Smith, a majority of this Court held that in view of paragraph 140a, Manual for Courts-Martial, United States, 1951, and in pursuance of authority granted him by Article 36, Uniform Code of Military Justice, 10 *641USC § 836, the President had provided a different rule of evidence for the military on the question of corroboration of an out-of-court statement of an, accused as to the corpus delicti.
The Smith case serves to point out the very material difference between Miranda, Opper, and Smith. The latter two cases are concerned only with a rule of evidence, whereas, Miranda constitutes a holding as to a constitutional minimum to be applied in both State and Federal courts. See Act of June 29, 1940, 54 Stat 688, Title 18, United States Code, granting the Supreme Court power to prescribe rules of pleading, practice, and procedure, and Rules 26 and 27 of the Federal Rules of Criminal Procedure for United States District Courts, adopted by the Supreme Court under the authority of Congress, last above-cited. In Miranda, the Supreme Court was dealing with a case arising in the State courts of Arizona .rather than a United States District Court. Thus, it is clear the Supreme Court was applying constitutional provisions and not establishing a rule of evidence or procedure in accordance with its statutory powers.
The decision of the Supreme Court on this constitutional question is imperatively binding upon us, a subordinate Federal court, and we have no power to revise, amend, or void any of the holdings of Miranda, even if we entertained views to the contrary or regarded the requirements thereof as onerous to the military authorities.
We are, however, obliged to accord this decision full faith and credit. To do so, we must necessarily face constitutional issues forthrightly, realizing full well that “[w]hen a case has been decided by this Court, appellate review has terminated.” At the same time we cannot be unmindful that decisions of this Court may in turn restrict subsequent review by the Supreme Court. United States v Culp, 14 USCMA 199, 33 CMR 411.
Article 76,1 Uniform Code of Military Justice, 10 USC § 876, notwithstanding, it has long been obvious that court-martial proceedings are open to examination by civil courts. Initially, they were limited to.jurisdictional questions founded upon habeas corpus proceedings. Deemed reviewable were questions going to the composition of courts-martial, to jurisdiction over the person or subject matter, or to whether a sentence was authorized by law. Jurisdiction was also said to exist in order to determine if a sentence was so severe as to offend against the constitutional prohibition against cruel and inhuman punishment. McClaughry v Deming, 186 US 49, 46 L ed 1049, 22 S Ct 786 (1902); Ex parte Reed, 100 US 13, 25 L ed 538 (1879); Carter v McClaughry, 183 US 365, 46 L ed 236, 22 S Ct 181 (1902); Collins v McDonald, 258 US 416, 66 L ed 692, 42 S Ct 326 (1922); Benjamin v Hunter, 169 F2d 512 (CA 10th Cir) (1948); Hunter v Wade, 169 F2d 973 (CA 10th Cir) (1948), 8 ALR2d 277, affirmed, 336 US 684, 93 L ed 974, 69 S Ct 834, rehearing denied, 337 US 921, 93 L ed 1730, 69 S Ct 1152 (1949); Flackman v Hunter, 75 F Supp 871 (D Kan) (1948), appeal dismissed without opinion, 173 F2d 899 (CA 10th Cir) (1949); Glenn v Hodges, 79 F Supp 400 (SD NY) (1948); Richardson v Zuppann, 81 F Supp 809 (MD Pa) (1949); State v Mills, 82 Okla Crim 155, 163 P2d 558 (1945), rehearing denied, 82 Okla Crim 155, 167 P2d 669 (1946); Kinsella v United States, 361 US 234, 4 L ed 2d 268, 80 S Ct 297 (1960); Grisham v Hagan, 361 US 278, 4 L ed 2d 279, 80 *642S Ct 310 (1960); McElroy v Guagliardo, 361 US 281, 4 L ed 2d 282, 80 S Ct 305 (1960); Reid v Covert, 354 US 1, 1 L ed 2d 1148, 77 S Ct 1222 (1957).
The scope of such review has, in recent years, been extended to queries regarding an accused’s constitutional rights. Burns v Wilson, 346 US 137, 97 L ed 1508, 73 S Ct 1045 (1953); Gusik v Schilder, 340 US 128, 95 L ed 146, 71 S Ct 149 (1950). This may involve due process and specific constitutional guarantees. In United States v Hiatt, 141 F2d 664, 666 (CA 3d Cir) (1944), that court first pointed out that basic guarantees of fairness afforded by the due process clause of the Fifth Amendment applied to a defendant in a criminal proceeding in a military court. It thereupon concluded, “it is open for a civil court in a habeas corpus proceeding to consider whether the' circumstances of a court-martial proceeding and the manner in which it was conducted ran afoul of the basic standard of fairness which is involved in the constitutional concept of due process of law and, if it so finds, to declare that the relator has been deprived of his liberty in violation of the fifth amendment and to discharge him from custody.”
In Gallagher v Quinn, et al., Judges of the United States Court of Military Appeals, 363 F2d 301 (CA DC Cir) (1966), certiorari denied, 385 US 881, 17 L ed 2d 108, 87 S Ct 167, that court affirmed an order of the District Court dismissing a complaint for a mandatory injunction and other relief to compel the Judges of this Court to again review, on the merits, the record of Gallagher’s court-martial conviction. Although sustaining this Court’s decision on the constitutional question there involved, the Circuit Court concluded that the District Court had jurisdiction, as a matter of due process, to review the procedure under the Uniform Code of a person shown to have been convicted but who was no longer in custody. The Court of Appeals, at pages 303 and 304, observed:
“. . . though greater latitude respecting due process is allowed military tribunals, due process is requisite. Burns v Wilson, supra n. 2. And the right to due process would be lost if one deprived of it could not obtain redress because not in confinement.
“The Supreme Court is the final arbiter of due process under the Constitution. The Supreme Court has not been granted jurisdiction to review either on direct appeal or by certiorari a decision of the Court of Military Appeals. The consequence is that unless jurisdiction lies in the District Court in such a case as this, with appellate jurisdiction in this court and then in the Supreme Court, the constitutional validity of the Act of Congress cannot be decided except by the military tribunal. The ‘separate and apart’ military law jurisprudence, referred to in those terms in Burns v Wilson, supra n. 2, at 140, would appear not to be separated so far from possible Supreme Court scrutiny.”
Compare, too, Ashe v McNamara, 355 F2d 277 (CA 1st Cir) (1965). The court there considered such fundamental unfairness in court-martial procedure as a denial of effective assistance of counsel.
See, also, Shapiro v United States, 107 Ct Cl 650, 69 F Supp 205 (1947). In that case it was said that the Fifth and Sixth Amendments applied to military tribunals as well as civil courts.
It is sound judicial policy that there be orderly termination of all litigation. If lacking, neither the system nor the parties are afforded any conceivable benefit. An accused may be saddled with an unpardonable burden both personal and monetary. The harm thus wrought may in some cases be irretrievable. Even under more fortunate circumstances the toll can be immeasurable.
In this regard, I am mindful that the decision, noted above, of the United States Court of Appeals, First Circuit, in Ashe v McNamara, favoring that appellant, was rendered some seventeen years after he had been dishonorably discharged from the naval service pursuant to a sentence by a general court-*643martial. This Court had dismissed his petition for review, for lack of jurisdiction, on July 24,1964 (15 USCMA 703).
Similarly, the Court of Claims decision in Shapiro v United States, also above-cited, is shown to have been published in January 1947, almost four years after a 1943 court-martial con.viction.
Shaw v United States, 357 F2d 949 (1966), is an action in the United States Court of Claims to recover back pay and allowance on the ground of a wrongful dismissal from the naval service. His petition to this Court for review was also dismissed for lack of jurisdiction on July 10, 1953 (3 USCMA 851). Judgment favored the plaintiff eleven years after his 1948 court-martial for, under the facts of the case, his conviction of embezzlement was declared constitutionally unwarranted.
Where we possess jurisdiction, it is my desire to ensure the future against such happenings. I am satisfied that in this we can be certain only by assessing each case, as it appears before us, with vigor and fidelity, never narrowing our scope of appellate inquiry.
To summarize, I can but again reiterate my certainty that this Court is bound by the Supreme Court on questions of constitutional import; that our actions in this area are reviewable by civil tribunals; that any other view adopted by us raises the specter of possible harm to an accused with no lasting benefit to the Government; and that finality of litigation occurs only if we face every such issue squarely.
“The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges •carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74) and the authority of the President.”