dissenting.
I dissent.
I agree with the majority that this case does not involve custodial interrogation that would activate the rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), but I disagree with their statement that neither a violation of the warning requirement of Article 31, Uniform Code of Military Justice, nor the Article 27, UCMJ, right to counsel rule announced in United States v. McOmber, 1 M.J. 380 (C.M.A.1976), are involved. I am unable to break the conversation between appellant and the investigator into such precise segments that I can say that any statement made by appellant after the agent started for his car was “totally the product of appellant’s free will and not in any way then elicited by Agent T”, while a statement made prior thereto may have *530resulted from a subtle form of interrogation and from a violation of appellant’s right to counsel. I believe the lengthy conversation between appellant and the investigator was one continuous attempt by the investigator to obtain an admission from appellant without first advising him of his rights and without affording his counsel the right to be present.
I
Article 31(b), UCMJ provides:
No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
It is undisputed that when the investigator spoke to appellant on the 10th of November he did not first advise him of his rights. Also undisputed is appellant’s status as a suspect. What is disputed is whether the investigator interrogated appellant or requested a statement from him.
I join by brothers in expressing incredulity at the investigator’s explanation of the 2V2 hour conversation as a “chat” or a social encounter. Obviously it was more than that. The majority would classify it as a permissible technique of investigation where the agent was doing nothing more than gaining the confidence of the suspect by showing himself to be a pleasant, trusting human being who for more than two hours kept his word not to discuss the investigation. I think the conversation was a calculated effort not only to gain the appellant’s confidence but to induce the appellant to volunteer a statement or to blunder into a damaging admission. Why else would the investigator first speak to the company commander, then go to the accused and, while proclaiming the prohibition against questioning, prolong the encounter with the suspect for two and one-half hours?
I find Judge Darden’s language from United States v. Borodzik, 21 U.S.C.M.A. 95, 44 C.M.R. 149 (1971), appropriate here:
When conversation is designed to elicit a response from a suspect, it is interrogation, regardless of the subtlety of the approach. (44 C.M.R. at 151).
The discussion Agent Tucker had with the appellant in my opinion was designed to elicit a response or responses concerning appellant’s involvement in the larceny offense. As no warning was given, the admission was inadmissible. Article 31(d), UCMJ.
II
Rejection of the statement was also required by the rule regarding the right to counsel enunciated in United States v. McOmber, supra. In that case the Court of Military Appeals held that:
Once an investigator is on notice that an attorney has undertaken to represent an individual in a military criminal investigation, further questioning of the accused without affording counsel reasonable opportunity to be present renders any statement obtained involuntary under Article 31(d) of the Uniform Code. 1 M.J. at 383.
McOmber involved an investigator’s questioning of an accused on the same offenses about which the investigator had questioned him previously although he knew the accused was represented by counsel in the investigation of those offenses.
In United States v. Lowry, 2 M.J. 55 (C.M.A.1976), the Court of Military Appeals extended the rule of McOmber to proscribe subsequent questioning by an investigator about a related offense when he knew the accused was represented by counsel for the offense for which he was questioned initially. That Court has refused to extend the McOmber rule, however, to a situation where the subsequent questioning concerned an unrelated offense and was by an investigator who did not know the accused was represented by counsel. United States *531v. Harris, 7 M.J. 154 (C.M.A.1979).* Similarly, this Court has declined to extend the rule to questioning by an investigator who should have known but in fact did not know that the accused had counsel. United States v. Roy, 4 M.J. 840 (A.C.M.R.1978). Roy left unanswered the case where the investigator may have acted in bad faith or may have attempted to circumvent MeOmber and Lowry. This case falls within the caveat posed by Roy.
At the time of Agent Tucker’s extended conversation with the appellant, the appellant was pending trial by special court-martial for malingering and AWOL, and charges had been preferred for willful disobedience, dereliction of duty and the very larceny offense that was the subject of the investigation.
Agent Tucker knew appellant was represented by counsel for some offenses, knew the counsel’s name and address, and knew that appellant had not been furnished transportation by his unit to consult with him. The Government cannot now be heard to say that the counsel did not also represent appellant for the larceny offense at that time. Where an accused is represented by counsel for certain pending charges, and where other charges are preferred with a view to consolidation for trial, and where an accused asks but is precluded from seeing his counsel on the new charges, then at least for the purpose of the McOmber/Lowry rule, the accused is represented by counsel for all of the offenses. Cf. United States v. Turner, 5 M.J. 148 (C.M.A.1978). I would hold the statement inadmissible because Agent Tucker failed to afford appellant’s counsel a reasonable opportunity to be present during the extended social chat.
Finding the statement inadmissible, I would set aside the conviction of Additional Charge III.
This case differs from United States v. Harris, 7 M.J. 154 (C.M.A.1979), in two important respects. First, Harris was given a complete Article 31 /Tempia warning. Here the appellant was given no warning. Second, the investigator in Harris inquired and was told that Harris did not have counsel. Here the investigator inquired if appellant had seen a counsel, was told he had been unable to see him, and was advised of the counsel’s name and address.