(dissenting) :
The record in this case supplies enough justification to believe that the appellant’s plans to contact representatives of North Vietnam or the Viet Cong sprang from good intentions. My own judgment is that charging him with unauthorized absence would have been enough. But that was not a decision for me to make. Despite my reservation about the compounding of the charge here, the principles of our decisions apply to other cases in which we have no doubts about the extent of the charges. As a result of that recognition, I must express my view that the principal opinion extends the holding in United States v Reynolds, 16 USCMA 403, 37 CMR 23 (1966), beyond the latter’s limits.
I do not agree that the difference in this case and Reynolds is irrelevant. In Reynolds, the interrogator suspected an accused who was absent without leave and who was also connected with the taking of an automobile, but the interrogator warned the accused only that he was interested in the latter’s activities since he left his base. In the case now before us, the interrogator testified he did not know that communicating with the enemy is an offense under the Uniform Code of Military Justice. How could the interrogator warn the appellant he was suspected of an offense when the interrogator was unaware that such an offense existed? The word “accusation” as it is used in Article 31(b)1 of the Code, supra, can take its meaning only in terms of an offense. Hence I do not' understand how conduct that is not an offense, at least in the opinion of the interrogator, may be the basis of an accusation. From this it follows that I do not agree with the statement in the principal opinion that “It is self-evident that such an unauthorized activity, when it occurs, as here, in or near a theater of combat operations, is obviously illegal.”
Paragraph 44h of the Manual for Courts-Martial, United States, 1969 (Revised edition), covers the relations of trial counsel, not investigators, with the accused and his counsel. In this area I adhere to the language of the Court’s recent opinion in United States v Flack, 20 USCMA 201, 43 CMR 41 (1970).
“No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”