(concurring in the result):
Since this case should go back for a rehearing, I believe this Court has a responsibility to comment upon a clearly erroneous ruling by the Court of Military Review and reversible error in the military judge’s instructions. I also believe that the majority misses an opportunity to reconcile Issue I with Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), by misapplying the law-of-the case doctrine. As a result, the majority fails to point out revers*274ible error in Issue II concerning the instructions on attempted unpremeditated murder.
ISSUE I
FACTS
Appellant, Private Maruca, and Mr. Henry met at a bar, became extremely intoxicated, and went to Mr. Henry’s house where Mr. Henry performed allegedly nonconsensual sexual acts on Maruca. Thereafter, appellant became so incensed over Mr. Henry’s acts that he set fire to Henry’s bed while he was sleeping. He lived. When the soldiers returned to their unit, they told their non-commissioned officer (NCO) that Maruca had been raped but did not tell the NCO about setting fire to Mr. Henry’s bed. On July 29, 1989, appellant related the same version to agents of the Criminal Investigation Comr mand (CID). On August 8, 1989, appellant was called into the CID office. As was done on July 29, he was again advised of his Article 31, Uniform Code of Military Justice, 10 USC § 831, rights and told that he was suspécted of misprision of felony, i.e., homosexual rape. During part of the rights’ warning, he invoked his right to remain silent and requested an attorney. Thereafter, appellant was released.
On August 30, 1989, appellant was apprehended, again advised of his rights, and this time informed that he was suspected of attempted murder, aggravated arson and larceny. He waived his rights, admitted that he had set fire to Mr. Henry’s sofa, but denied any intent to kill Mr. Henry. The Court of Military Review held that there was a violation of Edwards v. Arizona, 451 U.S. 477,101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), even though they recognized that appellant was suspected of different offenses. More significantly, they did not discuss the effect of the break in custody from August 8 until August 30.
DISCUSSION
A. Law of the Case Doctrine
The majority does not discuss the Edwards issue because of the law-of-the-case doctrine, i.e., government appellate counsel failed to challenge the correctness of the ruling of the Court of Military Review. The “law of the case” doctrine, however, does not apply if the decision below would create “manifest injustice,” Dobbs v. Zant, — U.S. -,-, 113 S.Ct. 835, 836, 122 L.Ed.2d 103 (1993), or was “clearly erroneous,” Shore v. Warden, Stateville Prison, 942 F.2d 1117, 1123 (7th Cir.1991). “Manifest injustice” and “clearly erroneous” are concepts equally applicable to decisions favoring the Government and to decisions favoring the defense. Here, the Edwards issue was briefed by the Government; the law-of-the-case doctrine evoked by the majority was not. At a minimum it would be appropriate for us to specify this issue and have it fully briefed. This is especially persuasive in view of the various ramifications for judicial economy and the administration of appellate review for both the defense and the prosecution. The majority cites for its proposition of the law of the case, United States v. Sales, 22 MJ 305, 307 (CMA 1986). The issue in that ease was one of multiplicity. Based on the confusion in that area and the reluctance to tackle the issue, I do not believe that that case is determinative for us.
In recent years appellate defense counsel have questioned the independence of the Judge Advocates General because they have certified more issues on behalf of the Government than on behalf of the defense. United States v. Mitchell, 39 MJ 131, 139-40 (CMA 1994). The majority appears to send a message that in order to present an issue, the Government must have it certified. Apparently, briefing an issue in the context of issues raised by appellate defense counsel is not sufficient to preserve issues. The logic of this approach is particularly elusive since the unintended consequences of the majority’s approach will be more certification of issues on behalf of the Government. Cf United States v. Schoof, 37 MJ 96 (CMA 1993).
It may make sense to apply the law-of-the-case doctrine when there has not been a factual context to review, Luce v. United States, 469 U.S. 38,105 S.Ct. 460, 83 L.Ed.2d 443 (1984), or when the issue has not been *275briefed by the parties. However, it seems illogical to otherwise have an intermediate appellate court bind a higher appellate court. New York Life Ins. Co. v. Hosbrook, 130 Ohio St. 101, 196 N.E. 888 (1935). This is especially true here where the. intermediate appellate court applied the harmless-error test and disposed of the case without addressing the Edwards issue.
As to the Edwards issue, I believe the Court of Military Review was “clearly erroneous” in terms of the precedents of the Supreme Court, as well as of this Court, United States v. Schake, 30 MJ 314, 319 (CMA 1990) (6-day break in custody “dissolve[s]” Edwards claim; Chief Judge Everett, concurring in the result, relied on the break in custody and the opportunity to consult counsel to distinguish Edwards, id. at 321); United States v. Fassler, 29 MJ 193 (CMA 1989) (court noted accused still in custody at time of second interview); United States v. Brabant, 29 MJ 259, 263 (CMA 1989) (suspect not given a “break in custody” between two interviews although there is no discussion of this “custody”). The decision below is also contrary to those of federal and state courts, United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992), citing United States v. Skinner, 667 F.2d 1306 (9th Cir.. 1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983) (yielding the expression, a “Skinner Break”); Dunkins v. Thigpen, 854 F.2d 394 (11th Cir.1988), cert. denied, 489 U.S. 1059, 109 S.Ct. 1329, 103 L.Ed.2d 597 (1989) (pre-Roberson [Arizona v. Roberson, 486 U.S. 675,108 S.Ct. 2093,100 L.Ed.2d 704 (1988)] case holding Edwards inapplicable); Willie v. State, 585 So.2d 660, 667 (Miss.1991) (following other courts, Mississippi held that the Edwards/Roberson rule has no effect after there is “a non-contrived, non-pretextual break in custody where the defendant has reasonable opportunity to contact his attorney____”); State v. Norris, 244 Kan. 326, 768 P.2d 296, 301-02 (1989) (claiming right to counsel does not bar later interrogation for an unrelated offense conducted after release from custody); Bussard v. State, 296 Ark. 556, 759 S.W.2d 24 (1988) (interrogation, 4 years after murder defendant’s pretrial escape and after Miranda warnings, and defendant agreed to make a statement about the escape and associated car theft but not about the murder for which he had originally had counsel, was proper; defendant no longer had counsel and had been at liberty for 4 years); State v. Sadler, 85 Or.App. 134, 735 P.2d 1267, modified, 86 Or.App. 152, 738 P.2d 601 (1987).
B. Edwards v. Arizona
In Edwards, the Supreme Court held that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
451 U.S. at 484-85, 101 S.Ct. at 1884-85 (emphasis added; footnote omitted).
Both Edwards and Minnick v. Mississippi, 498 U.S. 146, 111- S.Ct. 486, 112 L.Ed.2d 489 (1990), involved continuous custody. The purpose of Edwards is to prevent police from badgering a suspect into waiving his rights or to prevent police overreaching. Griffin v. Lynaugh, 823 F.2d 856, 861 (5th Cir.1987). This is because our system of justice is predicated on the concept that if police respect individual rights, cf. Sanders v. State, 182 Ga.App. 581, 356 S.E.2d 537 (1987), this ensures the accuracy of statements admitted at trial. Additionally, in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204,115 L.Ed.2d 158 (1991), the Court noted in dictum the requirement for continuous custody to trigger Edwards, stating:
If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where *276the suspect executes a waiver and his statements would be considered voluntary under traditional standards.
501 U.S. at 177, 111 S.Ct. at 2208 (emphasis added).
Finally, the Government is not relieved of its duties under Edwards if there is a contrived pretextual break in custody. Willie v. State, 585 So.2d 660 (Miss.1991).
Thus, the presence of a break in custody rendered the August 30 statement admissible.
ISSUE II
FACTS
The military judge first instructed the court members that the offense of attempted murder included the element “that this act was done with specific intent to commit the offense of unpremeditated murder.” (Emphasis added.) The military judge went on to list the elements of unpremeditated murder, to include “at the time of the killing the accused had the intent to kill or inflict great bodily harm upon Mr. John D. Henry.” The Government conceded this instruction was erroneous. Answer to Final Brief at 16. He then instructed on the meaning of the term “great bodily harm.”
Subsequently, a panel member noted that the specification of Charge I stated “with premeditation.” In response, the military judge stated, “You may consider my instruction on unpremeditated — attempted unpremeditated murder to be a lesser included offense of premeditated murder.” He then instructed the panel on the elements of premeditated murder.
DISCUSSION
Article 51(c), UCMJ, 10 USC § 851(c), requires the military judge to instruct court members on all the elements of the charged offenses. RCM 920(e)(7), Manual for Courts-Martial, United States, 1984, states, additionally, that the military judge shall provide the members with “[s]uch other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given.”
Article 80, UCMJ, 10 USC § 880, defines an attempt as an “act, done with specific intent to commit an offense ..., amounting to more than mere preparation and tending, even though failing, to effect its commission.” For a conviction of attempted murder to be sustained, this Court has repeatedly held that there must be a specific intent to kill. See, e.g., United States v. Allen, 21 MJ 72, 73 (CMA. 1985). Specific intent to kill requires proof either of a premeditated design to kill or an intentional act, the natural and probable consequences of which will result in death. Para. 43c(2)(a) and (3)(a), Part TV, Manual, supra. Thus, it is apparent that,
[although a serviceperson may be convicted of murder if he commits homicide without an intent to kill, but with an intent to “inflict great bodily harm,” see Article 118(2), ..., [this] state[ ] of mind do[es] not suffice to establish attempted murder.
United States v. Roa, 12 MJ 210, 212 (CMA 1982).
Significantly, the panel found SPC Grooters guilty of the specification of Charge I, but excepted the words “with premeditation” and returned a finding of not guilty to the excepted words. Thus, it is apparent that the panel relied on the lesser-ineluded offense of attempted unpremeditated murder. A finding of an intent to inflict great bodily harm would not support that conviction, although the panel was instructed that it could convict SPC Grooters on that basis.
As the Army Court of Military Review held in a similar case:
Where a military judge erroneously instructs on the requisite intent [for attempted murder by including the instruction on intent to inflict great bodily harm] there is an appreciable risk that any findings of guilty were tainted and remedial action must be taken. This is true even though the trial defense counsel concurred in the military judge’s instructions. The military judge has a sua sponte duty to fully in*277struct on the elements of the offense. A failure to so instruct amounts to “plain error” and corrective action must be taken.
United States v. DeAlva, 34 MJ 1256, 1258 (1992) (citations omitted).
Under the circumstances of this case, I would find plain error and reverse on this ground only.