Opinion of the Court
Darden, Judge:
This case is before us after a rehearing. The accused was originally tried by a general court-martial convened by the Commanding General, 25th Infantry Division in Vietnam. On May 10, 1968, this Court reversed his conviction for murder and three charges of aggravated assault because pretrial statements had been received in evidence without the Government’s having affirmatively established that Hart had first been warned of his right to counsel before being interrogated. United States v Hart, 17 USCMA 524, 38 CMR 322 (1968). Subsequently, the Judge Advocate General of the Army requested the Commanding General, Fort Leavenworth, Kansas, the officer then exercising general court-martial jurisdiction over the accused, to take appropriate action.1 A rehearing again resulted in a conviction and, after reduction by the convening authority, a sentence of a dishonorable discharge, total forfeitures, confinement at hard labor for nineteen years and seven months, and reduction in grade. A board of review reversed this finding and sentence, holding that the rehearing was a nullity and that the case should have been returned to the original convening authority for further proceeding in compliance with a mandate of this Court and Article 67 (f), Uniform Code of Military Justice, 10 USC § 867. The Judge Advocate General of the Army certified the case for review on the following question:
Was the board of review correct in its determination that failure to transmit the case for rehearing to the convening authority who originally referred the case to trial resulted in jurisdictional error thereby rendering the rehearing proceedings null and void?
The accused cross-petitioned for re[440]*440lief, and two issues were added. They are:
a. Is the decision in United States v Hart, 17 USCMA 524, 38 CMR 322 (1968), res judicata on the question of admissibility of Prosecution Exhibit 1?
b. Whether the law officer erred in admitting in evidence a written pretrial confession of accused (Prosecution Exhibits 1 and 2) and an oral pretrial confession of accused since accused was inadequately advised of his rights to the assistance of a lawyer before he made each of the statements.
The certified question is answered in the negative. In United States v Martin, 19 USCMA 211, 41 CMR 211 (1970), a majority of this Court, relying on United States v Robbins, 18 USCMA 86, 39 CMR 86 (1969), and United States v Landrum, 18 USCMA 375, 40 CMR 87 (1969), determined that failure to transmit a case for rehearing to the convening authority that originally referred the case to trial is not jurisdictional in nature and that the rehearing is not null and void.2
Comparing the trial after reference to other than the original convening authority to the constitutional requirement of trial in the district court of the district in which an offense is committed, the Martin opinion observed :
. . The accused has the right to trial in a particular court, but he may waive the right. He may waive the right expressly, Hoover v United States, 268 F2d 787 (CA 10th Cir) (1959), or he may waive by failing to object to the trial proceedings. United States v Rivera, 388 F2d 545 (CA 2d Cir) (1968), certiorari denied, 392 US 937, 20 L Ed 2d 1396, 88 S Ct 2308 (1968).”
Defense moved for dismissal of the charges at the rehearing, arguing that the convening authority was “limited to the determination of whether or not the evidence aliunde the pretrial confessions was sufficient to warrant a rehearing,” and that in ordering a rehearing the convening authority acted on erroneous advice that evidence previously declared inadmissible could be used at the rehearing. No issue was made of the convening authority’s power to order a rehearing, however. Implicit in the defense theories above is the recognition that the convening authority did have authority and power to convene the rehearing of this case. What was said in Martin, supra, is controlling here.
During their original argument before this Court, appellate counsel for the Government posited that the original record was so incomplete that “it would be premature to assert that the warning was in fact deficient,” and that there is a “significant distinction between an insufficient showing and a showing of insufficiency.” They contended that a rehearing could establish “with certitude” whether Hart was or was not properly warned.
Consistent with this view, Judge Kilday wrote in Hart for a unanimous court:
“. . . At this level, however, the Government, in a well-reasoned brief, analyzed the cases decided by this Court subsequent to United States v Tempia, supra, and conceded ‘that the prosecution showing with regard to the right to counsel warning afforded the appellant was insufficient (see especially United States v Groover (17 USCMA 295, 38 CMR 93), supra; United States v Wood (17 USCMA 257, 38 CMR 55), supra; United States v Stanley (17 USCMA 384, 38 CMR 182), supra; also United States v McCauley (17
[441]*441USCMA 81, 37 CMR 345), supra). Because the Government did not carry its burden to affirmatively establish compliance with Miranda and Tempia, both supra, and the appellant did not consent to the receipt in evidence of the statements, the appellant is entitled to a rehearing.'" [17 USCMA, at page 525.]
He also acknowledged, "Our action in this case is not based on a lack of sufficient evidence in the record to support the findings." (17 USCMA, at page 525.) Giving face value to the language of Hart, prosecution at the rehearing again factually developed the warning advice given this accused, since it was evident that this Court had not finally decided the admissibility of Hart's statements as a matter of law. In the absence of this finality, res judi-cata is inapplicable. United States v Smith, 4 USCMA 369, 15 CMR 369 (1954).
The Smith case is urged upon us as authority that the admissibility of the confession is barred under the doctrine of res judicata. In Smith the law officer ruled a confession inadmissible. On a motion for a finding of not guilty, Smith was acquitted. At a later trial on a different charge the Government sought to use the same evidence. A majority of this Court held that the original determination of inadmissibility prevented use of the statement at the second trial. In that case the law officer had made a decision to exclude a determination that must be viewed as final. In Hart, however, the decision at the trial was to admit the confession. This Court reversed, but we construe the Court's not dismissing the charges as permitting a rehearing on the issue of the extent of the warning about rights to counsel.
The adequacy of the warning given Hart of his right to counsel under Miranda and Tempia3 was first contested in an out-of-court proceeding and later before the members of the court. In each instance, the military judge ruled the warning advice adequate and the statements admissible. Criminal Investigations Detachment agents testified during each proceeding about the taking of the written statement obtained February 1, 1967, and the oral declaration made three days later.
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Opinion of the Court
Darden, Judge:
This case is before us after a rehearing. The accused was originally tried by a general court-martial convened by the Commanding General, 25th Infantry Division in Vietnam. On May 10, 1968, this Court reversed his conviction for murder and three charges of aggravated assault because pretrial statements had been received in evidence without the Government’s having affirmatively established that Hart had first been warned of his right to counsel before being interrogated. United States v Hart, 17 USCMA 524, 38 CMR 322 (1968). Subsequently, the Judge Advocate General of the Army requested the Commanding General, Fort Leavenworth, Kansas, the officer then exercising general court-martial jurisdiction over the accused, to take appropriate action.1 A rehearing again resulted in a conviction and, after reduction by the convening authority, a sentence of a dishonorable discharge, total forfeitures, confinement at hard labor for nineteen years and seven months, and reduction in grade. A board of review reversed this finding and sentence, holding that the rehearing was a nullity and that the case should have been returned to the original convening authority for further proceeding in compliance with a mandate of this Court and Article 67 (f), Uniform Code of Military Justice, 10 USC § 867. The Judge Advocate General of the Army certified the case for review on the following question:
Was the board of review correct in its determination that failure to transmit the case for rehearing to the convening authority who originally referred the case to trial resulted in jurisdictional error thereby rendering the rehearing proceedings null and void?
The accused cross-petitioned for re[440]*440lief, and two issues were added. They are:
a. Is the decision in United States v Hart, 17 USCMA 524, 38 CMR 322 (1968), res judicata on the question of admissibility of Prosecution Exhibit 1?
b. Whether the law officer erred in admitting in evidence a written pretrial confession of accused (Prosecution Exhibits 1 and 2) and an oral pretrial confession of accused since accused was inadequately advised of his rights to the assistance of a lawyer before he made each of the statements.
The certified question is answered in the negative. In United States v Martin, 19 USCMA 211, 41 CMR 211 (1970), a majority of this Court, relying on United States v Robbins, 18 USCMA 86, 39 CMR 86 (1969), and United States v Landrum, 18 USCMA 375, 40 CMR 87 (1969), determined that failure to transmit a case for rehearing to the convening authority that originally referred the case to trial is not jurisdictional in nature and that the rehearing is not null and void.2
Comparing the trial after reference to other than the original convening authority to the constitutional requirement of trial in the district court of the district in which an offense is committed, the Martin opinion observed :
. . The accused has the right to trial in a particular court, but he may waive the right. He may waive the right expressly, Hoover v United States, 268 F2d 787 (CA 10th Cir) (1959), or he may waive by failing to object to the trial proceedings. United States v Rivera, 388 F2d 545 (CA 2d Cir) (1968), certiorari denied, 392 US 937, 20 L Ed 2d 1396, 88 S Ct 2308 (1968).”
Defense moved for dismissal of the charges at the rehearing, arguing that the convening authority was “limited to the determination of whether or not the evidence aliunde the pretrial confessions was sufficient to warrant a rehearing,” and that in ordering a rehearing the convening authority acted on erroneous advice that evidence previously declared inadmissible could be used at the rehearing. No issue was made of the convening authority’s power to order a rehearing, however. Implicit in the defense theories above is the recognition that the convening authority did have authority and power to convene the rehearing of this case. What was said in Martin, supra, is controlling here.
During their original argument before this Court, appellate counsel for the Government posited that the original record was so incomplete that “it would be premature to assert that the warning was in fact deficient,” and that there is a “significant distinction between an insufficient showing and a showing of insufficiency.” They contended that a rehearing could establish “with certitude” whether Hart was or was not properly warned.
Consistent with this view, Judge Kilday wrote in Hart for a unanimous court:
“. . . At this level, however, the Government, in a well-reasoned brief, analyzed the cases decided by this Court subsequent to United States v Tempia, supra, and conceded ‘that the prosecution showing with regard to the right to counsel warning afforded the appellant was insufficient (see especially United States v Groover (17 USCMA 295, 38 CMR 93), supra; United States v Wood (17 USCMA 257, 38 CMR 55), supra; United States v Stanley (17 USCMA 384, 38 CMR 182), supra; also United States v McCauley (17
[441]*441USCMA 81, 37 CMR 345), supra). Because the Government did not carry its burden to affirmatively establish compliance with Miranda and Tempia, both supra, and the appellant did not consent to the receipt in evidence of the statements, the appellant is entitled to a rehearing.'" [17 USCMA, at page 525.]
He also acknowledged, "Our action in this case is not based on a lack of sufficient evidence in the record to support the findings." (17 USCMA, at page 525.) Giving face value to the language of Hart, prosecution at the rehearing again factually developed the warning advice given this accused, since it was evident that this Court had not finally decided the admissibility of Hart's statements as a matter of law. In the absence of this finality, res judi-cata is inapplicable. United States v Smith, 4 USCMA 369, 15 CMR 369 (1954).
The Smith case is urged upon us as authority that the admissibility of the confession is barred under the doctrine of res judicata. In Smith the law officer ruled a confession inadmissible. On a motion for a finding of not guilty, Smith was acquitted. At a later trial on a different charge the Government sought to use the same evidence. A majority of this Court held that the original determination of inadmissibility prevented use of the statement at the second trial. In that case the law officer had made a decision to exclude a determination that must be viewed as final. In Hart, however, the decision at the trial was to admit the confession. This Court reversed, but we construe the Court's not dismissing the charges as permitting a rehearing on the issue of the extent of the warning about rights to counsel.
The adequacy of the warning given Hart of his right to counsel under Miranda and Tempia3 was first contested in an out-of-court proceeding and later before the members of the court. In each instance, the military judge ruled the warning advice adequate and the statements admissible. Criminal Investigations Detachment agents testified during each proceeding about the taking of the written statement obtained February 1, 1967, and the oral declaration made three days later. The record reflects that Hart was advised before his interrogations-the advice was repeated at the beginning of the second interview-that he could have counsel present at these sessions, that counsel meant a lawyer, that this included counsel of his choice or one appointed for him at no expense to him. His interrogator, however, made no specific reference to "civilian" counsel.
While testifying on this limited issue the accused conceded he had informed the agents that he did not desire couñ-sel. Hart stated that he knew he could have defense counsel and "that if he were a military lawyer there would be no charge to me." We consider this statement an acknowledgment of his awareness that one of his options included his securing a civilian lawyer at his own expense.
Such a warning and response meet the requirements of Miranda and Tempia relating to the right to coansel. We find no basis for concluding that the confessions introduced in this case were inadmissible as a matter of law. Neither Miranda nor Tempia mentions the word "civilian" in spelling out necessary lawyer-warning requirements. This Court has said in the past that particular words are not required so long as the substance of the formula is laid out. United States v Mewborn, 17 USCMA 431, 38 CMR 229 (1968). That was done in this case. Accordingly, the decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Army for submission to the Court of Military Review for consideration of the case on the merits.
Chief Judge QUINN concurs.