1 M.J. 452 | United States Court of Military Appeals | 1976
OPINION OF THE COURT
Pursuant to Article 67(b)(2) of the Uniform Code of Military Justice, 10 U.S.C. § 867(b), the Judge Advocate General of the Navy has certified two questions regarding the Court of Military Review’s interpretation of the 90-day speedy review standard announced in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974).
Counsel for both parties acknowledge that the crux of the issue is whether the first day of post-trial restraint should be counted in determining if 90 days have elapsed before the convening authority takes his final action. The Government urges retention of the “24-hour clock” method of calculation under which the first day of restraint is the day after restraint is imposed. The Government correctly notes that this Court utilized this method of computation in deciding both United States v. Driver, 23 U.S.C.M.A. 243, 244, 49 C.M.R. 376, 377 (1974), and United States v. Reitz,
[The Government’s] . . . approach is supported by the logic of the Court’s language in Dunlap. Webster’s Third New International Dictionary of the English Language Unabridged, 1971 edition, includes this relevant definition: “ ‘of’ . . . used to indicate something from which position or reckoning is defined.” Thus, the Court’s phrase, “within 90 days of the date of such restraint” shows that the date of restraint is the point from which the 90-day period is reckoned. The day after this date is thus the first day. Indeed, if we were to substitute the phrase and figure “within one day” for the Dunlap phrase “within 90 days,” reason would demand that the reviewing authority be given the next day after the date of restraint to act. If he were to act on the same day, he would be enjoined to act “on the date of such restraint.” Adding eighty-nine days to this hypothetical formulation gives the result that we have already discussed; day one is the day after the date of imposition of restraint and the reviewing authority must act no later than day ninety.
To counter the Government’s argument, the accused relies primarily upon Article 57(b), U.C.M.J., which provides:
Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial. [Emphasis added.]
We are in accord with the Navy court’s resolution of the question in Murray which adopts the well-recognized general rule that “the day of the event is to be excluded while the last day of the period is to be included.” Fogel v. Commissioner, 203 F.2d 347, 349 (5th Cir. 1953), citing Sheets v. Selden’s Lessee, 69 U.S. (2 Wall.) 177, 190, 17 L.Ed. 822 (1865). Even assuming Article 57’s use of the word “from” mandates that both the day of sentencing and the day of release are to be counted,
Our resolution of the first specified issue makes it unnecessary to address the second issue which questions whether the Court of Military Review correctly determined that the accused had been denied a speedy review under Dunlap.
The decision of the United States Navy Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Military Review for action not inconsistent with this opinion.
. Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 138, 48 C.M.R. 751, 754 (1974), provides that “a presumption of a denial of speedy disposition of the case will arise when the accused is continuously under restraint after trial and the convening authority does not promulgate his formal and final action within 90 days of the date of such restraint after completion of trial.”
. Article 1003, Department of the Navy Corrections Manual, SECNAVINST 1640.9, adopts such an interpretation of Article 57, Uniform Code of Military Justice, 10 U.S.C. § 857. See Taylor v. Brown, 147 U.S. 640, 13 S.Ct. 549, 37 L.Ed. 313 (1893).