(concurring in the result):
I concur only in the result reached in this case. I disassociate myself entirely from that portion of the principal opinion which holds that when handwriting exemplars are obtained during a military interrogation, the warning requirements as to an accused’s right to counsel are not applicable and only Article 31, Uniform Code of Military Justice, 10 USC § 831, need be complied with. This is, in my view, an unwarranted bifurcation of the test laid down in United States v Tempia, 16 USCMA 629, 37 CMR 249, for the determination of whether a statement obtained from a military suspect was secured in violation of his constitutional right against self-incrimination.
Contrary to the holding of the Supreme Court in Gilbert v California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951 (1967), that since a handwriting exemplar, in contrast to the content of what was written, was an identifying physical characteristic it was outside the protection of the Fifth Amendment, we held that it was a statement within the meaning of Article 31, Code, supra, the military counterpart of the Fifth Amendment (United States v *361White, 17 USCMA 211, 38 CMR 9; United States v Minnifield, 9 USCMA 373, 26 CMR 153), because of our previously stated view that “Article 31 is wider in scope than the Fifth Amendment.” (Emphasis supplied.) United States v Musguire, 9 USCMA 67, 68, 25 CMR 329. Surely a statute that “is wider in scope” than the constitutional amendment it encompasses, includes within it all, not less than, the protection afforded under the particular amendment. The Constitution is the basic law of the land and many statutes have been enacted expanding the particular privileges of citizenship established by the Bill of Rights. Article 31 is one of these. As this Court stated in United States v Kemp, 13 USCMA 89, 97, 32 CMR 89:
“Congress adopted Article 31, Uniform Code of Military Justice, supra, for the express purpose of assuring to persons in the military service the full protection against self-incrimination afforded by the Fifth Amendment to the Constitution of the United States. Under the Fifth Amendment, a witness must explicitly claim his constitutional immunity or he will be considered to have waived it. Rogers v United States, 340 US 367, 95 L Ed 344, 71 S Ct 438 (1951); United States v Monia, 317 US 424, 87 L Ed 376, 63 S Ct 409 (1943). Fully conscious of the fact that a person in the military service might not know of his right to refuse to answer and thereby unwittingly waive such privilege, and of his unique position while under interrogation, Congress went much further than the Fifth Amendment.” [Emphasis supplied.]
When, in Tempia, we adopted for the military the decision of the Supreme Court in Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966), we specifically noted, at page 635, that in prescribing the formulae to be utilized in custodial interrogations, “the Court was laying down constitutional rules for criminal interrogation which are part and parcel of the Fifth Amendment.” (Emphasis supplied.) A statement obtained in violation of these rules is inadmissible.
Since in the military system, handwriting exemplars are in the nature of a statement (United States v White, supra), I believe that when they are obtained by virtue of a military interrogation, full advice, including the right to counsel, must be given. When the advice is not given or is erroneous, I would hold the exemplars inadmissible.
Like my brothers, I, too, am concerned with the possibility that cooperative investigations of this nature, between civilian agencies and the military, could result in depriving a military accused of his fundamental rights. This is particularly apparent in the verbal advice given to the accused by the Secret Service agent, relative to counsel. When queried as to whether he had amplified the advice contained on his printed form, he replied:
“As far as the attorney was concerned, yes, I explained that. I said, 'If you want an attorney now, I have no provision to furnish you one. You are only entitled to a court appointed attorney at the time the matter should go to court.’ ” [Emphasis supplied.]
I question whether this advice is correct even under Miranda v Arizona, supra, but I am certain that it is erroneous within the military system of justice. United States v Tempia, supra; United States v Hardy, 17 USCMA 100, 37 CMR 364. See also United States v McCauley, 17 USCMA 81, 37 CMR 345; United States v Pearson, 17 USCMA 204, 37 CMR 468; United States v Wood, 17 USCMA 257, 38 CMR 55; United States v Stanley, 17 USCMA 384, 38 CMR 182.
My brothers urge that the cooperating agencies use extraordinary care to insure that their joint efforts are clearly justifiable and that they do not invite suspicion of being a whipsaw that abridges the rights of the accused. I would go further than that and require affirmative action at the outset of the interrogation in order to remove all doubt. Since an interrogation of a suspected military offender, conducted under these circumstances, is custodial because of the unique relationship between the serviceman and *362his superiors (United States v Tempia and United States v Hardy, both supra), I believe, in the interest of justice, he should be specifically informed of the civilian nature of the inquiry; that insofar as the military is concerned he is free to go if he chooses; and that such action will not be used against him. Advice of this nature would immediately establish that the inquiry is civilian, thus eliminating any later speculation thereon. The issue would then be clear and the law officer would be relieved from the need, in questionable cases, to submit the matter to the triers of fact. It would have the added value of eliminating a later claim by an accused, either at trial or on appellate review, that he was under the impression he was required to cooperate with the civilian investigator. This advice would likewise bear upon the question of the vol-untariness of any statement obtained thereat.
In my opinion, this would not place an undue burden upon the civilian or military investigators. While there must, of necessity, be cooperation between the agencies of Government and the military — and this should be encouraged — they both serve the same sovereign, and the fact that each is interested in the investigation from the standpoint of a different statutory enactment, should be immaterial. They are not, or, at least, should not be in competition with each other. Primary investigative jurisdiction over violations of the United States Code is granted by the Congress to particular civilian agencies at the time of enactment. These offenses are triable in the Federal District courts. However, military personnel are also subject to trial and punishment for these same offenses, under the provisions of Article 134 of the Code, 10 USC § 934, and, for this reason, they may be tried in Federal District courts or by military courts-martial. In such circumstances, I believe that the special rights granted a serviceman by the same Congress which enacted both sets of laws should be strictly adhered to by both civilian and military investigators. I do not perceive that Congress intended otherwise.