(dissenting):
19. In my view, this appeal presents two principal questions. The first concerns the proper legal test to be applied to a claim that an accused was denied due process as a result of pre-preferral delay. I do not agree with the majority’s answer to that question. Further, if one assumes for this discussion that the majority is correct in its answer, then the military judge applied an incorrect test, and the appropriate remedy is a remand so that the military judge may apply the correct one to the facts of the case — not for the majority to do so ab initio.
20. The second concerns the scope of claimed prejudice to the accused that may be considered in resolving such a claim. I do agree with the majority’s implicit answer to this question. The military judge exceeded that scope, however, so I believe that, again, the appropriate remedy is a remand to the military judge for consideration of the accused’s contention under proper construction of the law — not for this Court to perform this task in the first instance. Accordingly, I dissent.
I
21. Before a court will entertain an accused’s claim that he was denied due process because of pre-preferral delay, the accused must demonstrate that he suffered actual prejudice as a result. See Part II, infra. In the face of such a showing, what is the appropriate legal test to be applied in connection with the Government’s reasons for the delay? In other words, regarding the causes of the delay, who has the burden to show what?
22. The majority states that “[mjost of the federal courts, relying on [United States v.] Lovasco[ 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977),] and [United States v.] Marion[, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ], have held that the defendant has the burden of proof to show an egregious or intentional tactical delay and actual prejudice.” 41 MJ at 452 ¶ 13. In support, the majority drops a footnote that cites cases from the Fifth, Ninth, and Tenth Circuits. In fact, the circuits are split on this issue, with some circuits expressly rejecting that view of the teachings of Marion and Lovasco.
23. For instance, in Howell v. Barker, 904 F.2d 889, 895 ¶¶ 20-22 (4th Cir.1990), the majority discussed and resolved this question as follows:
Therefore, in both Lovasco and Marion, the Supreme Court made it clear that the administration of justice, vis-a-vis a defendant’s right to a fair trial, necessitated a case-by-case inquiry based on the circumstances of each case. Rather than establishing a black-letter test for determining unconstitutional preindictment delay, the Court examined the facts in conjunction with the basic due process inquiry: “whether the action complained of ... violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’ ... and which define ‘the community’s sense of fair play and decency.’” Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048 (citations omitted); see United States v. Automated Medical Laboratories, 770 F.2d 399, 404 (4th Cir.1985).
Applying these principles of due process to the ease at hand, we cannot agree with the position taken by the State of North Carolina and those other circuits which have held that a defendant, in addition to establishing prejudice, must also prove improper prosecutorial motive before securing a due process violation. Taking this position to its logical conclusion would mean that no matter how egregious the prejudice to a defendant, and no matter how long the preindictment delay, if a defendant cannot prove improper prosecutorial motive, then no due process violation has occurred. This conclusion, on its face, would violate fundamental conceptions of justice, as well as the community’s sense of fair play. Moreover, this conclusion does not contemplate the difficulty defendants either have encountered or will encounter in attempting to prove improper prosecutorial motive.
The better position, and the one previously taken by this Circuit in United States v. Automated Medical Laboratories, supra, is to put the burden on the defen*459dant to prove actual prejudice. Assuming the defendant can establish actual prejudice, then the court must balance the defendant’s prejudice against the government’s justification for delay. Automated Medical Laboratories, 770 F.2d at 403-04. “The basic inquiry then becomes whether the government’s action in prosecuting after substantial delay violates ‘fundamental conceptions of justice’ or ‘the community’s sense of fair play and decency.’” Id. at 404 (citations omitted).
24. Over a decade earlier, the Seventh Circuit had expressed similar reasoning in reaching the same conclusion in United States v. King, 593 F.2d 269, 271-72 ¶¶ 9-11 (1979) (citation and footnote omitted):
If, on remand, it is determined that the defendants have suffered actual prejudice as a result of the pre-indictment delay, the reasons for the delay will have to be considered by the district court. Lovasco, supra, 431 U.S. at 790, 97 S.Ct. at 2049. Although the Supreme Court in Marion indicated that a “delicate judgment” would be required “[t]o accommodate the sound administration of justice to the rights of the defendant to a fair trial,” it left that judgment to the circumstances of each case. Id. ...
Two of the questions left unanswered are (1) given actual prejudice resulting from the delay, what sort of purpose or reason behind the delay must be shown to give rise to a due process violation, and (2) who bears the burden of proof on this issue. Some courts have seemed to require the defendant to prove that issuance of the indictment was purposefully delayed in an attempt by the Government to gain a tactical advantage over the defendant. See, e.g., United States v. Francisco, 575 F.2d 815, 817 (10th Cir.1978) ... Others have read Lovasco as only requiring the defendant to prove actual prejudice, after which showing it is up to the court to balance the reasons asserted by the Government against the prejudice asserted by the defendant. See, e.g., United States v. Brand, 556 F.2d 1312, 1317 n. 7 (5th Cir. 1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1237, 55 L.Ed.2d 763 (1978).[1] We believe *460that the latter view is the better one and most closely follows the balancing analysis employed by the Supreme Court in Lovasco.
In order for the court to weigh the competing interests correctly, it is necessary for it to be fully apprised of the reasons asserted by the Government as necessitating the pre-indictment delay. These reasons can best be put-forward by the Government. Accordingly, once the defendant has proven (1) actual prejudice (2) resulting from the delay, the burden shifts to the Government to show why the delay was necessary....
25. Upon the logic reflected iñ the opinions quoted above, I believe that the more sensible approach and the one which is more sensitive to the nature of the due process inquiry is as follows: Once an accused has shown actual prejudice, the court will balance the nature of that prejudice against whatever reasons are offered by the Government to explain the delay. The court will ask itself, given the balance under the circumstances of the case before it, whether the Government’s prosecution after substantial delay violates “fundamental conceptions of justice” or “the community’s sense of fair play and decency.” See United States v. Lovasco, supra at 790, 97 S.Ct. at 2049 ¶ 11.
26. Thus, unlike the majority, I would not place the burden on the accused to divine and demonstrate the Government’s reasons for its delay in preferring charges; that does not seem to me to be common sense. Also apparently unlike the majority, I would not block myself as a matter of law from finding a denial of due process in any particular case just because the delay resulted from something like the Government’s gross negligence or recklessness, as opposed to bad motive.
27. As to this latter point, it may be that the majority anticipates that such scenarios would constitute “egregious” delay and so could be remedied under its standard. See generally United States v. Vogan, 35 MJ 32, 34 ¶ 8 (CMA1992) (Due Process Clause of Fifth Amendment “may be applicable to protect an accused against egregious trial delays”). I would prefer, instead, simply to follow the approach of looking at whatever reasons the Government offers in the course of considering whether continued prosecution in a particular case violates due process as described in Lovasco, rather than using uncertain labels like “egregious.” I am convinced that this approach best reflects Lovasco ’s balancing analysis that is designed to permit a court to make a “delicate judgment” in each individual case that will “accommodate the sound administration of justice to the rights of the defendant to a fair trial.” United States v. Marion, 404 U.S. at 325, 92 S.Ct. at 466 ¶ 16.
28. From the military judge’s written ruling, which is attached as an appendix to the Chief Judge’s separate opinion, the military judge seems to have performed the balancing test that I would adopt. He wrote: “These cases require a court to evaluate a claimed violation of the Fifth Amendment Due Process Clause by looking to any actual prejudice to the accused and considering the reasons for delay.” Accordingly, I would find in favor of the military judge on this first question.
29. The majority, however, embraces the more difficult intentional-delay test. Under these circumstances, it would seem appropriate for the majority to remand the case to the military judge for reconsideration of appellant’s motion based upon what the majority now holds is the correct legal standard. Without explanation, though, the majority itself proceeds to apply this test for the first time to the evidence in this case. In my opinion, that usurps the .military judge’s *461function and the right of appellant to have his motion decided upon correct legal principles in the trial forum.
II
30. As indicated earlier, the predicate to any need to evaluate the Government’s reasons for delay is a showing by an accused of actual prejudice resulting from the delay. The elements of prejudice that are considered in civilian courts relate only to impact on the accused’s ability to prepare and present a defense. See United States v. Lovasco and United States v. Marion, both supra. In this case, however, the military judge — as is clear from his written ruling — considered not only those factors but, as well, other aspects of “prejudice” which the military judge decided had peculiar impact on the personal and professional life of a military accused versus a civilian defendant.
31. Before this Court can review the correctness of the judge’s dismissal ruling, it must necessarily decide whether those factors properly may be weighed in a Fifth Amendment due process analysis or, instead, whether they are limited to a Sixth Amendment speedy-trial analysis (not in issue here) because they have nothing to do with the accused’s ability to present a defense. I have a sense from the majority’s opinion that it views the appropriate scope of the search for prejudice in a Fifth Amendment context to be limited to factors affecting an accused’s ability to prepare and present a defense. On the basis of the concerns ventilated in Lovasco and consistent with the manner in which other Federal courts have applied Lovasco, I agree.
32. That being the ease, again I suggest that the appropriate remedy is a remand to the trial court so that the military judge can evaluate appellant’s motion under a proper understanding of the legal parameters of his consideration.2 A trial forum is the appropriate place for a motion to be considered and decided under correct legal principles, and the ruling there would seem to be reviewable only for an abuse of discretion. See United States v. Fuzer, 18 F.3d 517, 519 ¶ 9 (7th Cir.1994). That is a highly deferential standard, and conceptually it would not seem to square with the majority’s assumption of the function of not only deciding the proper legal principles but also being the first forum to apply them in a particular case.
Ill
33. In summary, then, I would hold that the military judge applied the correct legal test to resolve appellant’s due process claim but, in considering prejudice to appellant, erred in defining the scope of factors to be considered. On this basis, I would remand the case to the military judge for reconsideration in light of this holding.
. The decision of the Fifth Circuit in Brand was cited by that same circuit in its 1982 opinion in United States v. Townley, 665 F.2d 579, cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). There, the court wrote:
We should, at this point, briefly note a contention advanced by the government in brief but not urged at oral argument. Based om statements to that effect by way of dicta in some of our decisions, the government initially suggested that, even if actually prejudiced, an accused could not prevail upon his due process claim unless he also proves that the delay resulted from intentional tactical delay or harassment on the part of the government. To the contrary, an earlier decision of this circuit has noted, consistent with holdings in earlier decisions of this circuit, that Lovasco and Marion do not stand for the proposition "that governmental interests not amounting to an intentional tactical delay will automatically justify prejudice to a defendant.” United States v. Brand, supra, 556 F.2d at 1312, at 1317 (n. 7). Here, the Lovasco balancing test would be reduced to mere words, if indeed the government’s 41-month delay in bringing the indictment were excusable, whatever the prejudice caused the defendant, simply by showing that the government was negligent, however grossly, and not bad-intentioned.
665 F.2d at 582 ¶ 10 (footnote omitted). The majority correctly cites last year's Fifth Circuit opinion in United States v. Byrd, 31 F.3d 1329, 1339, as containing language requiring the defendant to prove intentional tactical delay by the Government. Curiously, the Byrd opinion makes no reference to Townley or Brand and contains no analysis of this question — rather, it makes the statement that is quoted by the majority.
In sole support of its assertion, Byrd cites (¶ 23) two other 1994-vintage Fifth Circuit cases, United States v. Neal, 27 F.3d 1035, and United States v. Beszborn, 21 F.3d 62, 65-66. Beszborn cited only United States v. Amuny, 767 F.2d 1113 (5th Cir. 1985), while Neal cited Amuny as well as United States v. Delario, 912 F.2d 766, 769 (5th Cir.1990).
Following the Delario line first, that case relied upon United States v. Carlock, 806 F.2d 535 (5th Cir. 1986), which in turn cited United States v. Ballard, 779 F.2d 287, 293 (5th Cir.), cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986), which in turn cited United States v. Amuny, supra. In a footnote (18), the Ballard opinion offered a “see also ” reference to Townley — which, it will be recalled, had analyzed and expressly had rejected this standard — and to United States v. Hendricks, 661 F.2d 38, 40 (5th Cir. 1980); more about Hendricks in a moment.
Now, in tracing the history of Amuny — the case solely relied upon by Beszbom (¶ 13) and cited along with Delario in Neal, the line is short. *460Amuny, after stating the test, cited Townley —but only for the prejudice element — and Hendricks — for the bad-motive element. (¶ 18) Amuny contains no hint why it would cite Townley for the prejudice element but entirely ignore the fact that that case had specifically rejected the bad-motive element as illogical; instead, for the bad-motive element of the test, Amuny relied only upon Hendricks. Not only did Hendricks predate Townley and therefore would seem to have been overcome by it, but Hendricks itself simply stated that the defendant there had “produced no evidence even tending to show that the delay was a deliberate tactical maneuver by the government” — with no authority at all cited as support. ¶ 4.
In these circumstances, it would seem that any effort to discern the Fifth Circuit’s position on this issue is problematic.
. I agree with the Chief Judge that the military judge’s findings "do provide some evidence of legally cognizable prejudice____” 41 MJ at 453 ¶ 18. How that prejudice balances against the Government’s reasons for delay, of course, is a matter for the military judge to consider on remand. Regrettably, the majority is unwilling to give the military judge that opportunity.