(dissenting) :
I am satisfied that the final instructions as to the voluntariness of the confession were understood by counsel and the court members to be controlling. This last statement was explicit and correct and left no doubt that the burden of proving the voluntariness of the confession was on the Government and that the finding of voluntariness had to be beyond a reasonable doubt.
As to the second issue, although the accused twice indicated to the Military Police investigator that he did not wish to make a statement, the record indicates that substantial additional evidence implicating the accused was ob*508tained subsequent to the second refusal, which made it entirely appropriate for the investigator to try again to interview the accused. In this regard, the situation is different from that in United States v. Attebury, 18 USCMA 531, 40 CMR 243 (1969), in which we held that repeated reliance by the accused upon his right to remain silent “.made it incumbent upon the agent to desist in his attempts to get the accused to talk.” Id., page 532. The meeting with Captain Motley was initiated by the accused, and is not, therefore, part of the investigator’s efforts to interrogate the accused. Captain Motley’s version of his conversation with the accused differed materially from that of the accused. The conflict was submitted to the court members, with proper instruction as to the effect of the accused’s version on the right of the court-martial to consider the confession.
I would affirm the decision of the United States Army Court of Military Review.