(dissenting):
A good case can be made to show that Miranda v Arizona, 384 US 436, 16 L ed 2d 694, 86 S Ct 1602 (1966), was not intended by the Supreme Court to apply to the military legal system. The Supreme Court especially pointed out that an “understanding of the nature and setting” of the kind of in-custody interrogation it was concerned with was “essential” to its decision. It illumined and analyzed interrogation techniques that were “psychologically oriented” to deprive the individual of the free and unfettered choice to speak or to remain silent. Id., at pages 445, 448. In United States v Wimberley, 16 USCMA 3, 10, 36 CMR 159, however, this Court observed that its experience with the conditions and methods of military interrogations indicated they did not tend to override or interfere with the individual’s exercise of the right to remain silent. Perhaps even more significant than the factual underpinning of Miranda is the approbation accorded the military interrogative procedure by the Supreme Court.
The central purpose of Miranda was to effectuate the Fifth Amendment right of the individual to remain silent. To achieve that purpose, the Supreme Court deemed it necessary to adopt certain “protective devices” to nullify the “inherent compulsions of the interrogation process as it is presently conducted.” Id., at pages 458, 467. The devices adopted by the Court were patterned on safeguards in effect in other ■jurisdictions. Among these jurisdictions was the United States military. The Supreme Court commented on the procedure to safeguard the right to remain silent, which had been prescribed by Congress in Article 31 of the Uniform Code of Military Justice, 10 USC § 831, and further delineated by this Court in United States v Gunnels, 8 USCMA 130, 23 CMR 354, and United States v Rose, 8 USCMA 441, 24 CMR 251. It reasoned that “at least as much protection” of the right to remain silent should be accorded to individuals in the civilian community. Miranda, at page 489. It seems to me that this esteem for the military practice was expressed in Miranda only because the Supreme Court was satisfied it provided effective counterbalance to the inherent pressures of in-custody interrogation, and assured the individual complete freedom to decide whether to speak or to remain silent.
Assuming, however, I read too much into the praise accorded the military system in Miranda, I am convinced that the military procedures to safeguard the right to remain silent are, within the framework of Miranda, “fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will *644be scrupulously honored.” The Supreme Court expressly disclaimed any intention that Miranda operate as “a constitutional straight jacket” of preconditions to in-custody interrogation. It expressly acknowledged that means other than those prescribed by it may be equally effective to safeguard the right. And, it expressly reaffirmed that a confession is admissible in evidence against the accused when demonstrated to have been “given freely and voluntarily without any compelling influences.” Id., at pages 479, 467, 478. I am satisfied that the means provided by Congress in the Uniform Code to safeguard the accused’s right to remain silent satisfy all constitutional requirements; to demand more, as the majority do, is to legislate, not adjudicate.
Military law starts with a safeguard not mentioned in Miranda, Article 31 of the Uniform Code, supra, requires that, before any questioning, the individual be informed of the “nature of the accusation” which prompts the proposed questioning. Thus, the individual is immediately and directly oriented to the purpose of the interrogation, and is better able to determine whether to speak or to remain silent. United States v Johnson, 5 USCMA 795, 803, 19 CMR 91. Next, for many years military law has required, as Miranda interpreted the Fifth Amendment to require, that, before questioning, the individual be specifically informed “he has the right to remain silent,” and if he chooses to speak, anything he says can be used against him in court. Id., at page 479; United States v Williams, 2 USCMA 430, 9 CMR 60; see also United States v Diterlizzi, 8 USCMA 334, 24 CMR 144. The third safeguard devised by the Supreme Court deals with advice to the individual as to the right to counsel in connection with the interrogation. My brothers maintain the military procedure does not match Miranda in this area. I pass the point for the moment to note the correspondence between the military procedure,. and the fourth and final procedural safeguard promulgated by Miranda. Miranda postulated that the opportunity to exercise the right to remain silent and the right to consult counsel “must be afforded throughout the interrogation.” Id., at page 479. Military law imposes a continuous' duty upon law enforcement agents to accord that right to the individual being questioned. United States v Dickson, 16 USCMA 392, 37 CMR 12; United States v Evans, 13 USCMA 598, 33 CMR 130; cf. United States v Rogers, 14 USCMA 570, 34 CMR 350.
I turn now to the alleged difference between the mandate of Miranda and the requirements of military law. Miranda held that one of the minimum safeguards to assure the individual in an in-custody situation the unfettered choice between speech and silence is that he be advised he “has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Id., at page 479.
Anticipating Miranda, and its precursor, Escobedo v Illinois, 378 US 478, 12 L ed 2d 977, 84 S Ct 1758 (1964), this Court held that an accused has the right to the presence of counsel throughout interrogation by law enforcement officials. United States v Gunnels, supra, at page 134. It did not, as Miranda does, impose an obligation upon the agents to advise the individual explicitly that he has a right to counsel. United States v Wimberley, supra.1 However, at least since Esco-bedo, it has been common practice in the Air Force to provide such preliminary information. In fact, the accused in this case was affirmatively and fully informed he had a right to counsel and his lawyer could be with him during any interrogation. This part of the counsel safeguard expounded in Miranda was thus honored in fact, although it had not yet been posited by Miranda as a requirement to assure that the in*645dividual knows the nature of his right to remain silent and that he is free to exercise it as he chooses. That brings us to the second part of the Miranda formula which is to advise the individual that if he “cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” In my opinion, military law provides the individual an equivalent, if not a greater, safeguard; and that safeguard was accorded the accused in this case.
Miranda postulated that the circumstances of in-custody interrogation “can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators.” It, therefore, concluded that a “once-stated warning, delivered by those who will conduct the interrogation,” was insufficient to assure the right to choose between silence and speech. Id., at page 469. As a counterweight to the coercive influences of the in-custody interrogation, the Supreme Court determined that the individual was entitled to the assistance of counsel at the station house. Military procedure deals with the problem differently. It cuts off, abruptly and completely, the entire station house atmosphere. In its place it substitutes the dignity, the prestige, and the independence of the staff legal officer. Instead of a lawyer appointed by his interrogators, which itself may engender suspicion and fear, the individual is accorded the opportunity to consult the senior military legal officer of his command, or his representative, at a place removed from the interrogation site. United States v Gunnels, supra, at page 134. Instead of a “once-stated warning” by the interrogator, the individual discusses his right to remain silent with an impartial legal authority. And the legal officer is duty bound to advise the individual fully as to his right to remain silent and the means available to him to exercise tbe right. Gunnels, at page 138. Taking into account the individual’s education, intelligence, and ability to understand English, the staff legal officer must be certain the individual understands that the law gives him the absolute right to face his interrogators and tell them, bluntly and immediately, that he does not want to talk. See United States v Hernandez, 4 USCMA 465, 16 CMR 39.
I fully appreciate that, in advising the accused in an interrogative situation, the staff legal officer does not act as a lawyer for the accused in the sense of the conventional attorney-client relationship. I do not, however, regard the absence of the conventional relationship as a defect in the military procedure. As I view the interrogation situation, the only advice 1 any lawyer can give the individual is' that if he keeps silent he will give the police nothing they can use against him, but if he talks whatever he says can be used against him. That is precisely the counsel the staff legal officer gives him. And, it seems to me, the impact of his advice upon the individual is greater than the probable impact of similar advice by a lawyer appointed through the efforts of the individual’s interrogators.
The staff legal officer is the legal authority of the command, and his advice as to the dictates of the law is rarely disregarded by military persons within his jurisdiction. Consequently, if we consider operative psychological influences, as Miranda indicates we may, the legal officer’s advice on the right to remain silent is likely to make a deeper and more lasting impact upon .the individual than the advice given him at the station house by a lawyer secured by his interrogators. I am, therefore, convinced that according the individual faced with in-custody interrogation the right to consult the staff legal officer, or a legal member of his office, is fully as effective a safeguard of the right to remain silent, as informing the individual that if he “cannot afford an attorney one will be appointed for him . . . if he so desires.” That opportunity was extended to, and accepted by, the accused. He was allowed to leave the Office of Special Investigations to go, at his own time and at his own convenience, to consult the Base Staff Judge Advocate. In fact, he consulted with the Staff Judge Advocate, and was provided with a complete oral and written explanation of the right to remain silent, the right to have counsel present during the interrogation if he desired, *646and the maximum punishment for the offenses under investigation. I conclude that the procedures followed in this case satisfied every demand of Miranda for effective assurance that the accused knew and understood how he could exercise the right to remain silent.
One final comment is necessary. The majority refer to the accused’s remarks on returning to the Office of Special Investigations. Agent Feczer’s testimony thereon is as follows:
“DC: Mr. Feczer, did Airman Tem-pia, upon returning to the OSI office after speaking with Major Hogue, decline legal counsel, or did he say he was unable to obtain legal counsel to represent him at the interrogation?
“A: Sir, the way he put it, he did not desire legal counsel, that they could not help him. This is the statement that he gave us.
“Q: That the military could not help him.
“A: Well, he didn’t say ‘military.’ He said, ‘They didn’t do me no good.’ ”
The majority interpret the accused’s statement to indicate he had apparently despaired of obtaining legal advice from the Base Staff Judge Advocate, and they conclude the accused was given no advice. In my opinion, the majority misconstrue the statement. The accused did not testify, so the record does not indicate the meaning he personally attributed to it; but as I read the testimony of the agent, he interpreted the comments as indicating the accused had concluded the “jig was up” so no one, not even lawyers, could help him. Before his apprehension, the accused had been identified at the place of the offense by each of his victims. I echo the majority’s remark, “small wonder at his feelings”; but for a different reason.
On the evidence in this record, I cannot avoid the conclusion that when the accused returned to the Office of Special Investigations he knew and fully understood his right to remain silent. He returned to the office determined to speak. He had been caught practically “redhanded” and there was no way out; but he could perhaps gain a measure of leniency by immediate cooperation with the police. Miranda does not proscribe a confession in such circumstances. On the contrary, it explicitly acknowledges “[t]here is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime.” Id., at page 478.
I would answer the certified question in the affirmative, and I would sustain the decision of the board of review.
As pointed out in United States v Wimberley, 16 USCMA 3, 36 CMR 159, our experience with military investigative processes did not indicate the additional safeguard of appointed military counsel was essential to assure that the individual understood his right to remain silent and that he was absolutely free to exercise the right as he desired.