(dissenting):
I dissent.
If the issue presented by this case simply turned upon the resolution of a factual dispute involving the credibility of the Government’s agents vis-a-vis that of the appellant, I would have no difficulty in joining my brothers in affirming this case. However, even assuming under the facts of this case that all questions of credibility were resolved adversely to the appellant at the trial level, this alone does not end the inquiry. In each instance, regardless of an accused’s testimony or lack thereof, the burden rests upon the prosecution to provide evidence of compliance with the necessary warning of an accused’s right to remain silent and to be represented by an attorney. Miranda v Arizona, 384 US 436 (1966); United States v Tempia, 16 USCMA 629, 37 CMR 249 (1967).
In military trials, a pretrial statement of the accused may not be used, even for the purposes of impeachment, unless the prosecution can affirmatively show that the accused freely, knowingly, and intelligently waived his right to remain silent and to the assistance of counsel with respect to that particular statement. Paragraphs 140a (2) and 153b (2)(c), Manual for Courts-Martial, United States, 1969 (Rev); United States v Jordan, 20 USCMA 614, 44 CMR 44 (1971); United States v Lincoln, 17 USCMA 330, 38 CMR 128 (1967). As consistently held by this Court, at least until today, this burden of proof upon the Government to affirmatively show compliance with the warning requirements is to be proof beyond a reasonable doubt.1 The Government is held to this same burden of proof both in proving that once properly warned, an accused subsequently waived his rights to remain silent and to counsel, United States v Westmore, 17 USCMA 406, 38 CMR 204 (1968), and in showing that a pretrial statement was given voluntarily.2
*269In attempting to establish the requisite proof beyond a reasonable doubt in the case at bar, the Government called two agents of the Criminal Investigation Division (CID).3 One was Agent Robinson, who actually interviewed the appellant, the other was Agent Harrell, who claimed to have only been present during the initial phase of that interview when Agent Robinson purportedly warned the appellant of his rights. As noted extensively in the majority opinion, the accused also testified on these matters.
When initially testifying about this matter at a Article 39(a) session before the judge alone, Agent Robinson testified that he first advised the appellant that he was suspected of the sale and possession of heroin. Robinson related that he then advised the appellant of his rights by reading from a card. He continued with the following testimony:
A: I read it verbatim off the card. I then in turn asked the individual did he understand various words, such as counsel, and I explained to him. He said that he understood. I asked him, did he want to make a statement then. He said no, that he didn’t want to make a statement. I also asked him did he want counsel then, and he said no. I asked him would he answer questions, he said some, you know, some of them, you know, I’ll answer some of them. And I began to ask him questions.
MJ: And did you read the front and back portion of that card?
A: Yes, sir, I did.
MJ: Now did the accused indicate he would sign anything that day?
A: He did not want to make a statement of any type, a written statement.
MJ: That’s what you mean by written statement?
A: Right.
MJ: Did the accused say written statement?
A: No. I asked him did he want to make a statement and he said no, that he didn’t, sir. I explained to him, you know, when I say statement, like I asked him a question and then he’d give me the answer, and this would be typed on the correct document the 28004 that he would have to sign it. This was the statement that I was referring to. And I asked him did he understand it, and he said yes, he understood it. He waivered all his rights.
MJ: Insofar as an attorney?
A: Right.
MJ: And you asked him questions?
A: You want to answer questions? And he said he would answer, you know, some of my questions.
MJ: Let’s come to that waiver now. You said, do you want counsel, and he said, no I don’t want counsel. Then you said, do you want to make a statement?
A: I asked him, did he want to make a statement, and he said no, but he would answer some of the questions. And I went on asking, you know, where he got it from and—
Later, during this same testimony, Agent Robinson also related:
Q: Did you explain to him there was any difference between a written statement and an oral statement?
A: I explained to him that if he would make a statement that this would be — I’d ask him questions, this would be written down and he would give me, along with his answer, and then he would have to sign it after, *270after the, you know, the initial questioning had finished. This would all be typed up on the 2800 or something like a witness statement.
Q: What about his answering questions? What did you tell him about that?
A: Well, I told him that anything he said could be held against him. He, Girard cooperated as far as answering the questions.
When further pressed on cross-examination as to the specifics of his advice and the exact sequence of events relative thereto, Agent Robinson further explained:
Q: After you read him this and then you asked him, do you want to make a statement, his reply was no, is that correct?
A: Right, sir.
Q: Now why didn’t you stop and not ask him any questions at that time?
A: Why did I stop?
MJ: Why did you not stop?
A: Why did I not stop asking him?
MJ: Right.
A: Questions? Okay, after I read him his rights and he told me that he didn’t want, you know, a counsel well then—
Q: You figured he wanted to talk?
A: Well, yeah, you know, he said he would answer any questions, you know.
Q: When was that? Was this prior to your saying "Well, do you want to make a statement?”
A: Sir, after I read him everything off that card and explained it to him, this is when I asked him, after he said no, that he understood the card, the. rights and the waiver, and he waiv-ered his rights, that’s when I began to ask him questions. I didn’t ask you — I didn’t ask him any questions—
Q: When did you ask him, did you want to make a statement and his reply was no? After you finished reading that?
A: After I finished reading.
A: He didn’t say that no he didn’t want to make, you know, sign a statement or make a written statement, in so many words.
Q: What do you mean "in so many words?”
A: You know, like I asked him, do you want to sit here and I ask you the questions and have somebody else write them down, then this is typed up on the necessary paper and he would sign it.
Q: So you asked him did he want to make a statement after all this had been read?
A: Yes.
Q: And he replied to that — no?
A: No.
Q: That he didn’t want to make a statement, and you decided to go into it a little further?
A: Well, you know, he’d already said that he would answer any questions, that he’d answer some of them.
Later in the trial, when again called to the stand to testify before the court members on this issue, Agent Robinson reiterated that he read the appellant his rights verbatim from the card. He further explained:
WIT: ... I read this and then I turned to him and I asked him, I said "Do you understand the meaning of counsel?” He said "Yes.” I said "Do you want counsel?” He said "No.” I said "Do you want to make a statement now?” I told him what the statement was. I said "This is where I ask you questions and the questions are written down. The answers to the questions are written down and later they are typed up and put on a certified witness statement.” He said he didn’t want to make a statement. I asked him would he consent to be questioned. He said "Yes, I’ll answer some of your questions.” And that was it.
A: I read the whole thing to him from front to back and then I asked him the question, did he understand the meaning of counsel, and did he want a counsel present. I also asked him did he want to make a statement. I explained to him what the word statement, you know, what type of *271statement that I was talking about, and if he would consent to questioning.
Q: Now when did you ask him — is this what you are saying? That you said these particular things after you read this?
A: After I read the whole thing.
Q: Now when, Mr. Robinson, when you asked him whether he wanted to make a statement, what did he say?
A: He said, no, he didn’t want to make a statement.
Q: Well, did you try to explain to him about what, did you stop at that time? Excuse me.
A: Well, like I explained to him, I said "Do you want to make a statement?” And I’d already explained to him what type of statement that I was talking about.
Q: When had you done that?
A: After I read the front and back of the card, sir.
Q: Well, did you ask him first whether he wanted to answer questions before you asked him anything about a statement?
A: No, only from what I read off the card.
Q: Did you ask him did he want to answer questions?
A: I asked him in the reading of the card, sir. It states in there, you know, that you can stop answering questions, you know, so forth and so on.
A: The next thing I asked him, I said "Do you want to make a statement?”
Q: What was his reply?
A: Well, then I explained to him first what I was talking about when I said statement, you know, like I’ll ask you questions and somebody will write them down and you’ll answer my questions that I ask you, and this will be typed up on a 28 — a witness statement, and you’ll have to sign it. He said no. I said, "Well, will you consent to being questioned?” He said "I’ll answer some of your questions.” And then I began to ask him questions.
Q: Then you started asking him questions?
A: Yes.
Q: Did you tell him at that point in time, Mr. Robinson, did you then try to explain to him that both an oral and a written statement could be used against him in court?
A: No, I didn’t, only from what I read.
Q: That’s the way you left it then after you asked him whether he wanted to answer questions, you started asking questions, without distinguishing between the oral and the written, and also explaining to him that both could be introduced against him in court?
A: Yes, sir, after I’d read, you know, after I’d read it to him, and I asked him just the questions that I just related to you that I asked him, as far as explaining counsel, lawyer and did he want to make a statement. I didn’t—
MJ: What counsel is trying to get at, Mr. Robinson, did you differentiate between an oral statement made to you, that is questions and answers, and the written statement?
A: No, the only statement that I asked him about was the written statement and I explained that to him. I didn’t go into asking, telling him that the oral statement, you know, could be held against him, etcetera.
Agent Harrell also testified for the Government in support of its burden to establish a proper warning of the appellant’s rights. In thus testifying that he was present in the interrogation room and heard Agent Robinson read the appellant his rights, Agent Harrell stated that the appellant declined to make a written statement when Agent Robinson asked him whether or not he wished to make a statement. When Agent Robinson later asked the appellant if he would answer questions, however, Agent Harrell related that the accused replied that he would answer some questions. According to Agent Harrell’s further testimony, moreover, Agent Robinson did' not explain to the appellant that either an oral or written statement could later be used against him.
The foregoing extracts of Agent Robinson’s trial testimony, particularly those *272portions relating to his advice about the possible distinction between later use of written or oral statements as evidence against the appellant and subsequent criminal proceedings, is at best ambiguous. To a certain extent it is also evasive. In any event, however, this much appears clear. When originally warning the appellant of his rights, Agent Robinson, by reading them verbatim from the card, stated to appellant, "Any statement you may make may be used as evidence against you in a criminal trial.” In later explaining what he meant by the word "statement,” Agent Robinson unequivocally stated to the appellant that he was only referring to a written statement, signed by the appellant, in which the questions and the responses had been recorded. This testimony likewise contains no conflict as to the fact that the appellant refused to make such a statement. The only ambiguities in the' prosecution’s evidence as supplied by Agent Robinson’s testimony relate to the possible effect and sequence of events relative to the question, likewise ostensibly read directly from the card, wherein Agent Robinson asked, "Do you consent to being questioned?” Although the appellant apparently then indicated that he would answer some questions and did in fact do so, the Government’s own evidence is both contradictory and ambiguous with respect to the critical issues in this case of whether the appellant’s initial assertion of his right against self-incrimination should have precluded further interrogation or whether the appellant was affirmatively misled into believing that only a signed written statement could later be used against him.
We confronted an almost identical factual situation in United States v Bollons, 17 USCMA 253, 38 CMR 51 (1967). The evidence presented by the Government in attempting to meet its burden of establishing a proper predicate for the admission in evidence of certain pretrial statements of the accused in that case was likewise unclear and uncertain. An OSI agent named Rielly, after fully advising the accused of his rights, interrogated him for at least a couple of hours. During that interrogation, according to Rielly’s trial testimony, the accused made certain statements in response to some of his questions but also answered several others by stating that he did not want to make any statement that could later be used against him and did not want to incriminate himself. Rielly’s testimony was ambiguous on the crucial question of the time sequence between the appellant’s assertion of his right to remain silent and the continuation of the interrogation. In rejecting the Government’s argument that the facts merely disclosed that the accused, with full knowledge of his rights, engaged in an absolutely voluntary conversation with Agent Rielly in which he determined to exercise his rights only on a selective basis, we held that the statements of the accused should not have been admitted in evidence because Agent Rielly’s testimony did not clearly and convincingly demonstrate that the statements were made before the accused’s assertions of his right to remain silent. In writing for an unanimous Court, Judge Quinn there stated:5
Whether Rielly’s testimony requires the conclusion, as the accused contends, that he asserted his right to remain silent prior to any interrogation need not detain us. The burden is on the Government to establish the proper predicate for the admission in evidence of an inculpatory pretrial statement by the accused. United States v Lake, 17 USCMA 3, 37 CMR 267. In our opinion, that burden was not met because it does not convincingly appear that the incriminating statements were made before the accused asserted his right to remain silent.
Although recognizing that some of Agent Robinson’s testimony in the case at bar is not clear, the majority opinion attempts to resolve those inherent ambiguities in the Government’s own proof by simply asserting that the testimony of the appellant was not found credible by the court below. In so finding, my brothers apparently further conclude, despite their recognition of the inherent ambiguities in Agent Robinson’s trial testimony, that his advice would not have misled a *273person of ordinary intelligence. With neither the prosecution nor the defense directly presenting any evidence on this issue at trial, moreover, their principal opinion thus finds that the appellant was such a person of ordinary intelligence and, hence, concludes that he was not misled.
As long recognized by the Supreme Court of the United States, however, the courts of this country " 'indulge every reasonable presumption against waiver’ of fundamental constitutional rights and ... 'do not presume acquiescence in the loss of fundamental rights.’ ” Johnson v Zerbst, 304 US 458, 464 (1938). Given that mandate, even when considering the evidence in this case in the light most favorable to the Government, I am unable to conclude that the Government has here carried its burden to clearly and convincingly demonstrate that the appellant made a voluntary, knowing and intelligént waiver of his right to remain silent as required by Miranda and Tempia. I would accordingly reverse the decision of the United States Army Court of Military Review and allow a rehearing.
See, e.g; United States v Keller, 17 USCMA 507, 38 CMR 305 (1968); United States v Gustafson, 17 USCMA 150, 37 CMR 414 (1967).
See, e.g., United States v Howard, 18 USCMA 252, 39 CMR 252 (1969); United States v Barksdale, 17 USCMA 500, 38 CMR 298 (1968); United States v Mewborn, 17 USCMA 431, 38 CMR 229 (1968); United States v Odenweller, 13 USCMA 71, 32 CMR 71 (1962).
In view of the fact that my brothers and I are apparently in disagreement over the sufficiency of the prosecution’s evidence to establish a proper predicate for the admission of the appellant’s statement into evidence, I find it necessary to set forth verbatim pertinent portions of the testimony, in addition to those portions set forth in the majority opinion, that was presented by the prosecution on this issue.
This apparently refers to a CID form listing an accused’s rights on the upper portion thereof. The lower portion of the form is blank and is apparently used as the place where any subsequently obtained statement or admission obtained from an accused is reduced to writing or transcribed.
United States v Bollons, 17 USCMA 253, 256-57, 38 CMR 51, 54-55 (1967).