(dissenting):
I dissent.
The case is before us on the following certified issue:
Was the Court of Military Review correct in holding that the failure of the military judge to instruct on the issue of the voluntariness of the accused’s out-of-court statement was prejudicial error?
At a hearing conducted by the military judge under Article 39(a), Uniform Code of Military Justice, 10 USC § 839, the voluntariness of a pretrial statement, made by the accused to military interrogators, was contested. Contrary to the defense contention, the judge ruled that the statement would be admitted in evidence. In open court, defense counsel again objected to the admission of the statement. His objection was overruled. Thereafter, the military judge, in a side-bar conference, asked defense counsel:
“. . . [Wjhether there is an issue for submission to the court or whether the defense is relying upon the ruling made in the Out-of-Court Hearing regarding the compliance with the Miranda warning and the Article 31 warnings?
“DC: Just a moment.
“(DC and IC confer.)
“IC: We rely on the Out-of-Court Hearing and not to submit it to the court.
“MJ: Then there’s no issue now before the court on the statement?
“DC: The ruling’s been made as far as we’re concerned, that’s the only ruling we’re seeking.”
In its opinion in this case, the Court of Military Review unanimously declared :
“Our careful reading and review of the record of trial and of the commendable briefs of counsel, as well as our receiving the benefit of the excellent oral arguments presented, lead us to conclude that only a rehearing of this case will serve the interests of justice.
“We find no fault with the military judge’s ruling in an Article 39 (a) session, denying appellant’s ‘motion to suppress’ his pretrial statement and admitting such statement into evidence (Assigned Error I). However, because we do find that the question of the voluntariness of appellant’s pretrial statement had been unquestionably put in issue in open court for the fact-finders — the members of the court — to determine, we believe the military judge erred *515in requesting defense counsel’s views on whether there was such an issue, and if so, whether they desired an instruction thereon. The law is clear and unequivocal that responsibility for determinations such as these in the circumstances of this case is for the military judge alone. If such an issue is raised, his is the duty sua sponte to instruct thereon. Paragraph 140a(2), Manual for Courts-Martial, United States, 1969 (Rev); see United States v Howard, 18 USCMA 252, 255, 39 CMR 252, 255 (1968). As a result, the fact-finders were left without legal guideposts to resolve an issue which reasonably might substantially aifect the outcome of the case.
“Because of the vast amount of exculpatory matter contained in appellant’s pretrial statement to the criminal investigators we are loathe to affirm the findings of guilt based upon other uncontroverted evidence of record for we know not what impact such exculpation might have upon other fact-finders, given proper guidance. Accordingly, in our opinion, a rehearing on the merits of the entire case is in the best interest of all concerned.”
Voluntariness of a pretrial statement is a question of fact and like all factual questions must be proved beyond a reasonable doubt. United States v Westmore, 17 USCMA 406, 38 CMR 204 (1968). As my brothers note in their opinion, “[w]hen the volun-tariness of a pretrial statement is in issue the responsibility for the judge to instruct on it is a sua sponte one that arises not from a defense request but from the existence of evidence raising the issue. United States v Howard, 18 USCMA 252, 39 CMR 252 (1969).” (Emphasis supplied.)
In the case at bar, it is patent that the members of the Court of Military Review found as a fact (Article 66(c), Code, supra, 10 USC § 866) that the question of the voluntariness of the accused’s out-of-court statement was raised by the evidence. In a decidedly similar situation, this Court unanimously held in United States v Phifer, 18 USCMA 508, 510, 511, 40 CMR 220 (1969):
“‘(W)e are bound by purely factual determinations of the board of review (United States v Judd, 10 USCMA 113, 27 CMR 187 [1959]; United States v Remele, 13 USCMA 617, 33 CMR 149 [1963]), unless such conclusions are arbitrary and capricious, so as to amount to an abuse of discretion (United States v Wheatley, 10 USCMA 537, 28 CMR 103 [1959]). . . .’ (United States v Baldwin, 17 USCMA 72, 77, 37 CMR 336 [1967].) (Emphasis supplied.)
“In United States v Smith, 17 USCMA 427, 430, 38 CMR 225 [1968] — in response to a certified question involving a board of review’s dismissal of a conviction because of a lack of speedy trial — the rule was put in this way:
‘. . . (U)nder the particular circumstances of this case, the first certified issue is answered in the affirmative, for “Where the board of review decision is rooted solely in findings of fact and where there is a substantial basis for the board of review’s action in favor of the accused — as there is in this case — we are not inclined to disturb its finding. Cf. United States v Moreno, 6 USCMA 388, 20 CMR 104 [1955]; United States v Hendon, 7 USCMA 429, 22 CMR 219 [1956]; United States v Wheatley, . . .; United States v Remele, . . . .” United States v Lamphere, 16 USCMA 580, 583, 37 CMR 200 [1967].’
“On the facts before us in this case, we cannot say that the board of review’s factual interpretation is arbitrary and capricious. We, therefore, answer the certified question in the affirmative.”
My brothers’ holding in this case that “defense counsel waived the vol-untariness instruction and that in the *516circumstances of this case the military-judge properly acceded to the waiver,” is, in my opinion, misplaced. United States v Phifer, supra. Their finding is a direct repudiation of Phifer.
Since I do not believe that the Court of Military Review’s factual interpretation is arbitrary or capricious, I would answer the certified question in the affirmative.