(dissenting):
In this case a criminal investigator testified for the Government that he gave adequate Article 31 and counsel warnings to the appellant and that he proceeded no further than the warning requirement after the appellant requested the presence of counsel. According to the investigator, however, Carey then volunteered the comment that if he had had a gun he would have “capped” the victim.
During an out-of-court hearing the appellant testified that he had said nothing more after requesting counsel. Since the appellant denied having given an incriminating statement to the criminal investigator, the only issue was whether he uttered the statement. The accused could not disavow the statement and then contend it was involuntary. Consequently, instructions covering vol-untariness were not required. Cf. United States v Ledlow, 11 USCMA 659, 29 CMR 475 (1960). In these circumstances, the erroneous instruction could not have harmed the appellant. United States v Shaw, 13 USCMA 144, 32 CMR 144 (1962). For this reason, I would affirm the decision of the Court of Military Review.