OPINION OF THE COURT
This case, which results from an offense that occurred after our decision in United States v Burton,
For offenses occurring after the date of this opinion ... in the absence of defense requests for continuance, a presumption of an Article 10 violation will exist when pretrial confinement exceeds three months. In such cases, this presumption will plаce a heavy burden on the Government to show diligence, and in the absence of such a showing the charges should be dismissed. [Footnote omitted.]
At the trial of this case, the accused moved to dismiss all chаrges and specifications because of his contention that he had been denied a speedy trial. After considering a chronology of the processing of the case and the testimony of several witnesses, the military judge denied the motion.
At the Article 39(a) session requested by the dеfense to litigate the issue, the Government, in an attempt to show diligence, introduced a chronology and the testimony of Staff Sergeant Dersan, Captain Rucker, and Chief Warrant Officer Kane.
Sergeant Dеrsan testified that part of the delay between February 23, when the accused was placed in pretrial confinement at Fort Ord, and March 21, when the charges were re-preferred, resulted becausе the statements of witnesses were not forwarded with the charge sheet and the witnesses had in the meanwhile been reassigned to other organizations at Fort Ord. Captains Rucker, the courts and boards officer, testified that although he had advised the accused’s unit commander about the correct form in which the charges should he prepared, the charges were incorrect when Captain Rucker reсeived them on March 8. The Article 32 investigation was not completed and forwarded to the officer exercising general court-martial jurisdiction until April 19.
The second substantial period of delay was from Aрril 19, when the case was received in the Office of the Staff Judge Advocate, to June 8, the date of the reference to trial. Chief Warrant Officer Kane, the administrative officer in the Office of the Staff Judge Advocate, testified that most of this delay was attributable to the preparation of the pretrial advice. Only two trial counsel were available to prepare pretrial advices and this duty was in addition to their heavy trial responsibilities. Other causes of delay during this period were the illness of the staff judge advocate, an injury to the deputy staff judge advocate, and the convening authority’s absenсe from the command.
The wording of the granted issue relates to the denial of a speedy trial in violation of the Sixth Amendment to the Constitution of the United States and Articles 10 and 33 of the Uniform Code of Military Justice, 10 USC §§ 810 and 833. But the duration of the pretrial delay in this case is hardly long enough to present a serious constitutional issue. In Barker v Wingo,
In deciding Burton itself and in deciding other pre-Burton cases reaching us since the time of that decision, we have cоnsidered such factors as the length of delay, a demand for prompt trial by the person accused, the reason for the delay, and prejudice to the accused. See United States v Winston,
Before the Court of Military Review the Government argued that before Burton it was obligated to show reasonable diligence and that Burton did not change the burden of proof but only imposed on the Government an affirma
The delays that occurred in the instant case were not for the extraordinary reasons necessary to extend the 3-month allowance in Burton. Defects in the drafting of charges, failurе to secure statements of witnesses before their reassignment to other organizations at the same base, too few officers assigned to the preparation of the pretrial advice, illness or injury of the staff judge advocate and his assistant, and absence of the convening authority are all conditions or circumstances for which the Government is responsible and for which allowance was mаde in the establishment of the 3-month standard.
Another aspect of this subject deserves comment. Article 33 of the Code requires that in the case of a person held for trial by general court-martial, the commanding officer must forward the charges, the report of the Article 32 investigation, and allied papers to the officer exercising general court-martial jurisdiction within 8 days after the accused is ordered into confinement. If this is not practicable, the commanding officer must report in writing to the convening authority the reasons for the delay. This 8-day reference evidences a congressional expectation that the Article 32 investigation and actions associated with it should normally be accomplished within 8 days, with an escape clause if the complicated nature of the investigation makes suсh speed impractical. In this case the 8-day limitation was substantially exceeded, but instead of providing an explanation of the longer period, the commanding officer forwarded only a list of dates on which the several stages were completed. This scarcely qualifies as an explanation of the type Article 33 contemplates.
Despite the indication in the Burton opinion that dismissal of charges was the approрriate remedy when an Article 10 violation occurs, appellate government counsel argue that the dismissal to which Article 10 refers is a dismissal by the commander without prejudice to further proceedings and that this remedy should not be applied by appellate courts in a way that bars further proceedings. According to this view, Article 10 contemplates dismissal before convening of the court and once the trial begins, the remedy of dismissal under Article 10 is superseded by the trial procedures. At this point, the argument continues, Article 59(a) controls and a dismissal is warranted only if actual prejudice to the accused’s substantial rights is found.
Since a violation of the Burton standard normally will involve a delay not long enough to constitute a constitutional violation, we agree with government counsel that the decision in Strunk v United States,
In United States v Hubbard,
At the risk of redundancy we iterate that when a Burton violation has been raised by the defense, the Government must demonstrate that really extraordinary circumstances beyond such normal problems as mistakes in drafting, manpower shortages, illnesses, and leave contributed to the delay. Operational demands, a combat environment, or a convoluted offense are examples that might justify a departure from the norm. Absent these or similar circumstances, the delay beyond 90 days cannot be justified by a showing that it was caused by difficulties usually encountered in the processing of charges for trial. As no unusual factors were presented in this case, the Court of Military Review erred in affirming the findings and sentence.
The decision of the U. S. Army Court of Military Review is set aside. The charges and their specifications are ordered dismissed.