concurring in part and dissenting in part:
I agree with Senior Judge Jones that the staff judge advocate erred in not advising the new convening authority in this case that appellant’s company commander was of the opinion that appellant should not be eliminated from the service. I also concur with respect to the apprehension and searches. I do not agree, however, that the Government failed to show that the appellant freely, knowingly and intelligently waived his right to counsel. The facts in this case are clearly distinguishable from those in Miranda and Gunnels* on which the Court of Military Appeals relied in deciding Solomon, supra. Here there was no interrogation, custodial or otherwise, prior to the arrival of the CID investigators. Furthermore, when asked on cross-examination why he didn’t tell the CID interrogator that he had asked earlier for a lawyer and hadn’t yet seen one, the appellant replied: “At the time I just didn’t think of it.” See United States v. Brown, 48 C.M.R. 181 (A.C.M.R.1973).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Gunnels, 8 U.S.C.M.A. 130, 23 C.M.R. 354 (1957).