(dissenting):
I dissent.
My brothers correctly acknowledge the obligation of the law officer to determine the charge to be given the court and his responsibility to properly tailor his instructions to the evidence and the issues. See United States v Nickoson, 15 USCMA 340, 35 CMR 312—discussion and eases cited at pages 343-344. It is with their determination that in this case the law officer satisfied this requirement that I strongly disagree.
The admissibility of the accused’s oral pretrial statement, one of the granted issues, was vigorously contested during an out-of-court hearing.1 In the main, it revolved about the fact that when the accused was informed of his right to the assistance of counsel, he asked to have Major Merchant, the executive officer, who was not a lawyer. Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966), and United States v Tempia, 16 USCMA 629, 37 CMR 249. At that time, accused was not informed by the Government agents of Merchant’s non-lawyer status. Although prior to making the statement he allegedly became aware of this fact, he proceeded to disclose certain information without further request for a lawyer. His action in proceeding without the assistance of a lawyer is the basis for the defense contention that the evidence is insufficient to show a knowing, conscious, and intelligent waiver of this basic right. In this posture of the record, the defense asserts, the law officer’s failure to tailor his instructions to the evidence and the issues prejudiced the accused. I agree.
Miranda v Arizona and its military counterpart, United States v Tempia, both supra, make it clear that a suspected accused is entitled to a lawyer upon request for counsel — one with whom he can establish an attorney-client relationship. As stated ..-in Tempia, at page 639:
"... a lawyer who is peculiarly and entirely the accused’s own representative; who owes him total fidelity; to whom full disclosure may be safely made in a privileged atmosphere; and from whom accused can learn with confidence a proper course of action.”
Even prior to Miranda and Tempia, this Court has held that furnishing a nonlawyer to an accused was insufficient compliance with a request for counsel. United States v Brown, 13 USCMA 14, 32 CMR 14; United States v Powell, 13 USCMA 364, 32 CMR 364. See also United States v Gunnels, • 8 USCMA 130, 23 CMR 354; United States v Rose, 8 USCMA 441, 24 CMR 251. As we said in Brown, at page 17:
“. . . We do not believe it can be gainsaid that the influence of a lawyer might be greater than that of his lay brother, whether the advice be the same or no.”
In this case, while the investigating agents did not furnish-the accused with Major Merchant, but merely acquiesced in his request, it is interesting to note that the military agent, who warned the accused of his right to a lawyer, testified in response to a direct question of defense counsel that “there was no requirement for me to tell'him this man was not a lawyer.” , '
Major Merchant • testified that he took his duties seriously and felt obligated toward the accused. He told the accused he was not a lawyer but did not suggest that it might be better for him to have one. He did not consider himself as the accused’s attorney and, hence, was not bound by the rule of confidentiality.2 He cautioned the accused not to “weave a web of lies to these people” but to tell only *447'.the truth, if the truth would set him free; otherwise he should be quiet. He felt that an attorney would essentially give him that advice. The accused did not implicate himself in the offense while he was there. He left when he thought the interrogation was over.
The accused denied that Major Merchant told him he was not a lawyer. When told he could have counsel he understood this advice to mean someone from his battalion who would inform him of what was going on. He knew of other soldiers who were given summary and special courts-martial who were assisted by officers from the unit. After Major Merchant left, he gave his statement because a German investigator said he was going to have to take the accused to a German jail. According to the accused, the American agents told him they could not prevent his going with the German agent unless he told them something they could believe. He was afraid of the German jail. He was not asked whether he wanted Major Merchant to come back.
The German agent testified that he told the accused he would have to take him for arraignment before a German judge. The American agents were present at the time, as was Major Merchant. The German agent left to make appropriate arrangements in the belief that American military police would escort the accused to the local police commissioner. While at the police, station he was telephonically informed that the accused had confessed. That was sufficient to fulfill the purpose of his investigation.
• The interrogating agents asserted that they did. not hear the German agent tell tbie accused he was to be taken to a German jail. There was-conversation concerning this matter but not in the accused’s presence. When the accused indicated he wished to-tell- the truth he was specifically asked whether he wanted Major Merchant present. According to the agent’s testimony the accused indi-bated he did not need him. Allegedly, he was told at this time, by one of the agents, that Major Merchant was not a lawyer.
The obligation of the law, officer to instruct on contested confession issues goes beyond the bare bones legal requirements given by the law officer in this case as quoted in the majority opinion. United States v Nickoson, supra. Here, the Government evidence makes out a warning of right to counsel — counsel meaning a lawyer — and accused’s knowing acceptance of the services of a nonlawyer-counsel. Accused, on the other hand, testified as to an inability to comprehend the import of the warning and his right to a lawyer, and an absolute denial that he was informed that Major Merchant was not a lawyer. He also asserted he made his statement because it was the only way to avoid being turned over to the German authorities. These theories should have been specifically marked out by the law officer in order for the court members to intelligently dispose of the issue. In United States v Smith, 13 USCMA 471, 474, 33 CMR 3, this Court defined the “ ‘tailoring’ ” of an instruction as:
“. . . [T]he affirmative submission of the respective theories, both of the Government and of the accused on trial, to the triers of fact, with lucid guideposts, to the end that they may knowledgeably apply the law to the facts as they find them. A liberal application of this approach will avoid ‘ the possible pitfalls that may attend instructing on barren and abstract legal principles in a vacuum. In any case, it surely benefits both parties to a proceeding, and obviously enhances the quest for truth and justice in a truly enlightened atmosphere. As an example of the manner in which one trial court submitted an issue such as that presently before us, tailored to the' facts-'of the case',;, and as illustrative of the care required in covering all aspects of the case, we call attention to Meadows v United States, 82 F2d 881 (CA DC Cir) (1936).” ' -■
*448See also United States v Odenweller, 13 USCMA 71, 32 CMR 71, and United States v Acfalle, 12 USCMA 465, 31 CMR 51.
Except for minor variations, the instructions given in this case are almost verbatim with that set forth in Appendix XXI, Department of the Army Pamphlet No. 27-9, Military Justice Handbook: The Law Officer, April 1958. While it might be contended that this instruction is a proper exposition of the law on the subject of the voluntariness of a confession, it hardly accords with the necessity to provide the court members with “lucid guideposts, to the end that they may knowledgeably apply the law to the facts.” United States v Smith, supra, at page-474. (Emphasis supplied.) As said in United States v Powell, supra, at page 369:
“. . . Attention to the law and to the facts is necessary if the members are to be properly guided in their deliberations.”
Since I believe that the law officer prejudicially erred by failing to tailor his instructions on voluntariness to the issues presented, I would reverse the decision of the board of review as to the conviction for indecent assault and order a rehearing.
Since this case was argued before this Court prior to issuance of the Supreme Court’s opinion in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), I would grant counsel, defense and Government, the opportunity to brief the issue of the applicability of that opinion to the facts of this case.
Record of trial, pages 50-212.
Major Merchant later signed the charges against the accused.