(concurring in the result):
In a previous case, I expressed my concern over the broad application of the “bright line rule” of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), within the military community. See United States v. Harris, 19 M.J. 331, 341 (C.M.A.1985) (Cox, J., concurring in the result). This concern is intensified in the present case where the facts more clearly demonstrate the unique military problems which can result from an inflexible approach to this rule.
Captain Kozak, who elicited the incriminating responses from appellant, was his company commander. He interviewed appellant at the stockade pursuant to his command responsibility for a member of his unit who was confined. See paras. 2-26 and 2-6/(l), Fort Lewis Supp. 1 to AR 190-47, Military Police Area Confinement Facilities (Apr. 28, 1976). He was not a policeman and was not acting ostensibly in a law-enforcement capacity. Captain Kozak was not informed by the military police, appellant, or anyone else that appellant had earlier exercised his right to counsel. Finally, he fully advised appellant of his rights under Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831, which the latter waived.
In this context, applicability of the “bright line rule” of Edwards v. Arizona, supra, is doubtful. Quite simply, we are not dealing with the police practices condemned in that decision and its progeny. Moreover, the inflexible application of this rule in the above context might seriously undermine the important, if not vital, relationship between a company commander and a member of his unit. See United States v. Harris, supra at 342 n. 3. Of course, the latter concern would be less compelling if Captain Kozak intended to act as a law-enforcement agent when he visited appellant. In any event, as indicated in the lead opinion, this case might be resolved on narrower grounds not yet adequately addressed by the court below. Accordingly, I am prepared to assume applicability of Edwards v. Arizona, supra, and its progeny to the present case.
I agree with the conclusion of the lead opinion that this case should be remanded for consideration of the specific questions stated therein. At the present time, however, I cannot join the lead opinion in holding that the trial judge and the lower court erred in ruling the statement was admissible. The question whether appellant or Captain Kozak initiated the discussions between them concerning the charged offenses is certainly critical in determining admissibility of appellant’s statement. See Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (1983). This question is not relevant in determining whether appellant previously invoked his right to counsel. See Smith v. Illinois, 105 S.Ct. 490 (1984). However, it is a relevant and necessary inquiry pertaining to whether a subsequent waiver by appellant was valid. Id. at 495. Accordingly, although the finding of waiver by the lower court was incomplete, its determination of admissibility may still be correct depending on the resolution of the initiation question. See Oregon v. Bradshaw, supra 103 S.Ct. at 2834-35.