The common question in each of these three cases, which were consolidated for argument and disposition, is the effect of the failure of the accused to object at trial to a delay in bringing him to trial in excess of 3 months, a period which this Court held would presumptively constitute a violation of Article 10, Uniform Code of Military Justice, 10 USC § 810, and require dismissal of the charges. United States v Burton,
In material part, Article 10 of the Uniform Code provides that when an individual is placed in pretrial arrest or confinement, "immediate steps shall be taken ... to try him or to dismiss the charges and release him.” Delay in bringing an incarcerated accused to trial may adversely affect both the accused and the military community. The unavailability of,the accused for duty may impair the efficiency of a command аnd his confinement may have a destructive effect upon his potential for rehabilitation. At the same time, delay can work to an accused’s advantage. Prosecution witnesses may become unavailable or forgetful and, in the military, delay may serve to insulate the accused from dangerous or onerous duties. As a result, "Delay is not an uncommon defense tactic.” Barker v Wingo,
[I]n 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 place a heavy burden on the Government to show diligence, and in the absence of such a showing the charges should be dismissed.
Burton does not command automatic dismissal of charges if the accused is not brought to trial within 3 months of pretrial confinement or arrest. On the contrary, it expressly reaffirmed the analysis of the legislative history of Article 10 set out in United States v Hounshell,
Burton considered the effect of the expiration of more than 3 months between the imposition of pretrial restraint and trial in two situations. In one, the Court expressly indicated that the accused must activate the Government’s obligation to explain its processing of the case; in the other, the Court was not as explicit, but it still left no doubt that the accused had to call the Government to account. Addressing a situation in which 3 months elapsed without trial, the Court recognized that an incarcerated accused might do nothing, but if he "requests a speedy disposition of the charges,” then, said the Court, "the Government must respond to the request and either proceed immediately or show adequate cause for further delay.”
In Goode and Boehm, the accused moved to dismiss the charges against him because of undue and unexplained delay. In Hounshell, no such objection was interposed; we held that if the accused "goes to trial without making any objection to the lapse оf time ... he cannot complain of the delay after he has been convicted.”
As Burton recognized, an accused has two chances to challenge the time required to bring him to trial. He can initiate the challenge before trial, or he can wait until the trial. If he does nothing before trial, his inaction alone will not bar him from raising the matter at trial, Barker v Wingo, supra at 528-9, but if he does not object at trial, the Government need not, as the Court оf Military Review said in the Sloan case* "tilt. . . with ... [a] nonexistent issue.” Burton thus echoed the statement in the Manual for Courts-Martial, United States, 1969 (Rev.) that "Objections based on the lack of speedy trial may be waived by a failure to make a timely motion to dismiss the affected сharges.” MCM, paragraph 687) It also paralleled the general practice in the federal civilian courts. Rule 8, Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, 1971, 28 USCA Rules Appendix at 65, 67 (1973) (now superseded by individual U. S. District Court Rules of the same nature); see Rules 5-7, Plan for Achieving Prompt Disposition of Criminal Cases, U. S. District Court for the Southern District of New York, effective April 1, 1973; United States v Handel,
We have held that a plea of guilty does not deprive an accused of "the protections accorded to him by Article 10” but in many of the cases in which the statement was made, the accused moved before he entered his pleа to dismiss the charges because of untimely prosecution. United States v Tibbs,
. In Sloan, the interval between confinement and trial was 125 days. However, before the Court of Military Review, the accused conceded, аnd the court found, that 34 days of the period were directly attributable to the defense because it had requested a continuance. Subtraction of this interval reduced the time between the imposition of pretrial сonfinement and trial to 91 days. The failure of qualified counsel to challenge at trial the propriety of even this period may have resulted "from a recognition that the delay was perhaps beneficial to thе accused.” United States v Pierce,
The delay in Gill was 168 days. The record indicates that at least part of the delay was occasioned by the defense, and there is a good basis for an inference that the accused was still seeking impor: tant evidence for sentence purposes as late as 10 days before trial so that he might not have been ready for trial during that period. Although the period of remaining delay is longer than in Sloan and Hatton, we cannot conclude that the interests of justice would be served by disregard of the accused’s failure to object at trial.
We answer in the affirmative the certified question in Sloan and Gill, which asks whether "in. light of . . . Burton . . . [was the Army Court of Military Review] correct in holding that, absent evidence indicating a denial of military due process or manifest injustice, an accused who does not object at the time of trial to a delay in excess of three months in bringing him to trial will be precluded from raising the issue at the appellate level,” and we affirm the decision оf the court in each case. We answer in the negative the certified question in Hatton, which asks whether the Court of Military Review was "correct in ordering a limited rehearing concerning a possible denial of speedy trial еven though the accused did not raise the issue either at trial or on appeal,” and we reverse the decision of the court; we return the record to the Judge Advocate General of the Army for resubmission to the court for further proceedings consistent with this opinion.