1 M.J. 299 | United States Court of Military Appeals | 1976
Lead Opinion
OPINION OF THE COURT
This petitioner was convicted on July 14, 1975, of three marihuana offenses for which he was sentenced to a bad-conduct discharge, 18 months’ confinement, and reduction in grade. Aware that he was disqualified to act on the results of trial due to a grant of immunity, the convening authority forwarded the record to an equivalent authority at Ft. Carson, Colorado, for reviewing action, which was accomplished on October 20, 1975. During the elapsed period of 98 days, the petitioner was continuously in confinement and, thus, after the 90th day there arose “a presumption of a denial of speedy disposition of the case” which placed upon the Government “ ‘a heavy burden . to show diligence.’ ”
. Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 138, 48 C.M.R. 751, 754 (1974); see United States v. Slama, 23 U.S.C.M.A. 560, 50 C.M.R. 779, 1 M.J. 167 (1975).
Concurrence Opinion
(concurring):
I concur in the opinion of the Court with the following additional observations. I view the 90-day Dunlap standard as the time frame within which the normal processing of a convening authority’s action must be accomplished. Upon proper showing, the disqualification of a convening authority which necessitates additional processing time could constitute an “extraordinary circumstance” sufficient to overcome the presumed denial of speedy disposition. See, e. g., United States v. Beach, 23 U.S.C.M.A. 480, 50 C.M.R. 560, 1 M.J. 118 (1975); United States v. Johnson, 23 U.S.C.M.A. 91, 93, 48 C.M.R. 599, 601 (1974); United States v. Marshall, 22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973). However, the present record evidences nothing more than the convening authority’s disqualification coupled with the mere transfer of the record of trial to another jurisdiction. There has been no showing that this process was responsible for the substantial delay in taking action on the appellant’s case. Thus, I join the majority in concluding that the presumed Dunlap violation has not been rebutted and hence that the charges must be dismissed.