(dissenting):
I dissent. The operative facts causing me to separate from my brothers are uncomplicated. During a study conducted by the Comptroller’s Office of those drawing Basic Allowance for Quarters (BAQ), it was discovered that the accused was receiving BAQ while living in Government furnished quarters. On 3 February 1975, this was reported to Master Sergeant Morrow who examined the accused’s Personal Financial Records. There he found that the accused had recertified his entitlement to BAQ on 30 January 1975. He brought this information to the base comptroller, and it was decided to request an investigation by the Office of Special Investigations (OSI) to determine if the accused had received the money in “good faith.” The following day the OSI began the investigation, and Sergeant Morrow was advised not to discuss the indebtedness with the accused.
After a period of some eight months, during which he asked the OSI several times whether he could discuss the matter with the accused, Sergeant Morrow was finally given permission to do so. However, Sergeant Morrow also called the base legal office and inquired as to the appropriateness of the interview. Receiving clearance there too, he called in the accused.
At the interview, which was conducted in the presence of another member of the comptroller’s office, Sergeant Morrow informed the accused of the overpayment of BAQ, of the periods of overpayment and of the amount of overpayment. He advised the accused of the methods of repayment. Without any advisement of rights, he then asked the accused that “if he had any questions to please speak up and ask them, because we were talking about a large sum of money, and the period of the overpayment went back quite a ways.” The accused responded as indicated in the majority opinion. That Sergeant Morrow suspected the accused of an offense at the time is obvious. He testified that the accused’s conduct “seemed improper, in that Sergeant Mraz had recently recertified his entitlements; and also it seemed unusual that a person with Sergeant Mraz’ length of service would not be aware that he was not entitled to BAQ.”
*270In overruling the defense objection to the accused’s statement, the military judge relied upon the holding of the Army Court of Military Review in United States v. Duncan, 46 C.M.R. 1096 (A.C.M.R.1973), pet. denied, 46 C.M.R. 1323 (1973), to the effect that when a question “was not designed to elicit incriminating information,” there was no requirement for “threshold advice to the individual regarding his right to remain silent.” While I agree that, in the factual setting of Duncan, the proposition is correct, I do not believe that Duncan controls the situation here.1 First, in Duncan, the questioner did not suspect the accused of any offense; there was at least an equal possibility that the accused and his friends were legitimately in the particular location. Secondly, the gist of the question there was designed to give the questioner some information as to what was happening, rather than soliciting information about the happening of a series of events about which the questioner was already familiar.
I believe that the instant case is more similar to United States v. Doyle, 9 U.S.C. M.A. 302, 26 C.M.R. 82 (1958). There the accused was the unit representative for a fund raising drive, and as such, received contributions from members of the unit. He filed reports acknowledging receipt of contributions, but the records of the fund did not reflect the deposit of the reported amount with the fund. The accused claimed to have remitted the money and to have receipts for the money orders he used. An officer appointed to “track down” the missing funds called the accused several times and requested to see the receipts or have him produce their numbers. The accused was, at best, evasive in his replies. At no time was the accused advised of his rights. The law officer overruled an objection to the admission of the investigator’s testimony on the ground that her efforts were only an administrative attempt to locate the missing funds.
In reversing the Court held:
One could hardly read her testimony and accept her conclusion that she never suspected the accused of any offenses unless suspicion means to her proof beyond all doubt. . . . [I]n fairness to the witness, it may well be that she understood her suspicions of larceny had to be fixed at the time of the first telephone conversation. Again, it may be that she concluded an administrative determination had been ordered and her individual beliefs were unimportant as she was carrying out orders of her superiors. But neither of those reasons would insulate her from the requirement to warn when she did suspect irregularities on the part of the accused. As we understand Article 31, it is applicable when any interrogator subject to the Code first suspects a person of an offense. In this instance, if Lieutenant Corbett’s suspicions were not aroused at the time of her first conversation with the accused, but later she had reasons to believe otherwise, then the duty to warn him of his rights arose as soon as doubt crept in.
26 C.M.R. at 90.
Here, Sergeant Morrow must have suspected the accused of having committed an offense. See United States v. Doyle, supra. And, the accused’s response to his question cannot be captioned “spontaneous” or unexpected. See United States v. Workman, 15 U.S.C.M.A. 228, 35 C.M.R. 200 (1965); United States v. Ballard, 17 U.S.C.M.A. 96, 37 C.M.R. 360 (1967). The factual environment preceding the interview is such that Sergeant Morrow was put on notice that almost anything the accused might say would be incriminating, at least by implication. United States v. Anglin, 18 U.S.C. M.A. 520, 40 C.M.R. 232 (1969); United States v. Nowling, 9 U.S.C.M.A. 100, 25 *271C.M.R. 362 (1958); cf. United States v. Henry, 21 U.S.C.M.A. 98, 44 C.M.R. 152 (1971).
Under these circumstances I believe the Government should either have selected a means which would foreclose any incriminating admissions from the accused (i. e., such as simply advising the accused of the repayment options by letter), forego the use of any incriminating statements made by the accused in response to questions, or advise the accused of his rights in a proper manner. I do not see how the last could have hindered Sergeant Morrow in the performance of his responsibilities in any way, and it would have secured the protection mandated by Article 31.
As I see it, the problem here arose when Sergeant Morrow sought to elicit a response from the accused. Up to this point, I agree with the majority that no warning was required. But, knowing the fact of overpayment and the circumstances of the length and amount of overpayment, when Sergeant Morrow encouraged the accused to respond, using the language he did, he must have anticipated that the accused might respond in an incriminatory manner.2 At that point he was questioning “one whom he suspect[ed] of an offense,” despite his own disclaimers of seeking anything more than an acknowledgement of understanding. See United States v. Woods, 22 U.S.C.M.A. 369, 47 C.M.R. 124 (1973). And, in my opinion, the clear language of Article 31 required a warning of rights.
I would answer the directed question in the affirmative and order a rehearing.
. In that case, two policemen were checking out the presence of an automobile parked at the rear of the installation officer’s club. As they approached the automobile, one of the policemen asked the driver (the accused): “What are you up to?” The accused stated that the occupants were drinking wine. Post regulations prohibited possession of alcoholic beverages in that particular area. A search of the vehicle disclosed marijuana in addition to the wine. The holding of the court is apparently grounded on the lack of suspicion in the questioner, a factual situation different from that in the instant case.
. The majority distinguishes the case of United States v. Seay, 24 U.S.C.M.A. 8, 51 C.M.R. 58, 1 M.J. 202 (1975), from the instant case on, the ground that the regulation in Seay implied that the commander should question the accused concerning his outstanding debts whereas here the regulation merely required Sergeant Morrow to inform the accused of the debt and of his options for repayment. As shown above, I conclude that Sergeant Morrow suspected the accused of an offense directly related to the subject of the interview. Consequently I feel that the language quoted from Seay by the majority is apposite to my position. I see the distinct difference found by the majority in the advising of rights and the questioning of individuals. Here, however, there was no need to question the accused in the broad manner adopted by Sergeant Morrow. If he sought only to establish understanding of the accused’s rights, he could have limited the accused’s response simply by telling him that all that was required from him was a suggested method of repayment. Further, I do not feel that the subjective intent of the questioner is necessarily controlling; indeed, an objective look at the entire spectrum of the situation that existed at the time of the interview is what is required.