(concurring in the result):
I concur in the result, but I disagree with the majority’s determination that the right of an accused in confinement to consult counsel requires that counsel be appointed in a capacity that contemplates no termination of the relationship until other counsel is substituted and he is allowed formally to withdraw. See United States v. Palenius, 2 M.J. 86 (C.M.A.1977).
Before development of the Miranda/Tempia1 rule, this Court recognized the right of the individual to consult counsel when questioned by a law enforcement agent before trial. United States v. Gunnels, 8 U.S.C. M.A. 130, 23 C.M.R. 354 (1957). After Miranda/Tempia, the Court stated there were “[significant differences . . . between formal proceedings, in which counsel has entered an appearance for the accused, and the informal, transient procedures of an investigation.” United States v. Estep, 19 U.S.C.M.A. 201, 202, 41 C.M.R. 201, 202 (1970). The majority have explicitly reaffirmed that an accused may be entitled to consult counsel before trial for a particular purpose, without that counsel representing him as his attorney in all subsequent proceedings in the matter. United States v. Booker, 5 M.J. 238 (C.M.A.1977).
Certainly, an accused should be allowed to consult counsel as to the circumstances of his confinement, but he is not entitled under the Uniform Code of Military Justice to formal appointment of counsel, with counsel assuming all the duties such appointment entails. United States v. Palenius, supra.
In United States v. Bielecki, 21 U.S.C.M.A. 450, 452, 45 C.M.R. 224, 226 (1972), the Court stated:
During this term of court, we have twice considered questions relating to the pretrial right of a serviceman to consult with a lawyer while confined. United States v. Adams, 21 U.S.C.M.A. 401, 45 C.M.R. 175 (1972); United States v. Mason, 21 U.S.C.M.A. 389, 45 C.M.R. 163 (1972). Like Bielecki, the appellants in those cases expressed several times a desire to have legal counsel made available. The essence of both cases is that, alone, pretrial confinement or its equivalent is *228not a “critical stage” of the accusatory process that would entitle a member of the armed forces to the assistance and advice of counsel.
In Gerstein v. Pugh, 420 U.S. 103, 123, 95 S.Ct. 854, 867, 43 L.Ed.2d 54 (1975), the United States Supreme Court held that a judicial determination of probable cause was required for pretrial detention, but counsel for the defendant at that time was not required because:
To be sure, pretrial custody may affect to some extent the defendant’s ability to assist in preparation of his defense, but this does not present the high probability of substantial harm identified as controlling in Wade and Coleman.
See Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). Bielecki, therefore, is consistent with the Supreme Court’s determination that, under the Sixth Amendment, confinement alone is not a “critical stage” of a criminal proceeding that demands appointment of counsel for the prisoner. See also Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).
I cannot accept the majority’s promulgation of a rule, in the exercise of this Court’s supervisory authority, to require formal appointment of counsel. In my opinion, the majority’s reliance on McPhail v. United States, 1 M.J. 457 (C.M.A.1976), is misplaced. The nature of the Court’s supervisory power was defined2 in that case as follows:
Assuredly, there are limits to our authority, even as the highest court in the military justice system. See Noyd v. Bond, supra at 695 n. 7, 89 S.Ct. 1876. Whatever those limits are, as to matters reasonably comprehended within the provisions of the Uniform Code of Military Justice, we have jurisdiction to require compliance with applicable law from all courts and persons purporting to act under its authority. See Collier v. United States, 19 U.S.C.M.A. 511, 42 C.M.R. 113 (1970); Johnson v. United States, supra.
Id. at 463 (emphasis added).
In the present case, the majority extend our supervisory power to create a procedural rule that has no foundation in the Constitution or any provision of the Uniform Code or Manual for Courts-Martial.3 They refer to Articles 10 and 33 of the Code4 and perceive that they “foresee early assignment of military counsel.” Both articles deal with speedy disposition of the proceedings, not the appointment of counsel. Articles 27 and 32 of the Code5 set forth an accused’s right to counsel at the command level: Article 27 assures the right to counsel before general and special courts-martial; Article 32 assures the right to representation at the formal hearing conducted by the investigating officer. This Court has held that an accused’s right to the assistance of counsel during pretrial interrogation by a law enforcement agent is assured by the Constitution. United States v. Tempia, supra; see para. 140a (2), Manual for Courts-Martial, United States, 1969 (Revised edition). Further, if the accused’s ability to prepare his defense is, in fact, impaired by conditions of confinement imposed by the Government, he has appropriate remedies which do not, however, require that he have appointed counsel. See United States v. Parish, 17 U.S.C.M.A. 411, 416, 38 C.M.R. 209, 214 (1968).
Additionally, I cannot agree with the majority’s declaration that the failure to appoint counsel “more than a brief period” after the accused enters into confinement “must be deemed prejudicial.” Until now, the only consequence of the failure to provide counsel at a preliminary but critical stage of the proceedings against an accused has been to preclude the Government from using, at trial, evidence obtained from the *229accused during that flawed interval. This is the rule applied in regard to “custodial interrogation” situations; in regard to a pretrial lineup at which the accused is entitled to the presence of counsel, Kirby v. Illinois, supra; and by the Supreme Court, in the exercise of its supervisory powers, when a defendant is not arraigned within the requisite time and an incriminating statement is obtained from him. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). I am not convinced that there is need for, or justification of, the rule adopted by the majority. As the majority conclude no relief is required, I join in the disposition of this case.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).
. For modification of my view of the Court’s supervisory power, see my separate opinion in Stewart v. Stevens, Misc. Docket 77-134, 5 M.J. 220 (C.M.A.1978).
. Manual for Courts-Martial, United States, 1969 (Revised edition).
. Articles 10 and 33, Uniform Code of Military Justice, 10 U.S.C. §§ 810 and 833.
. Articles 27 and 32, UCMJ, 10 U.S.C. §§ 827 and 832.