with whom CRAWFORD, Judge, joins (dissenting):
I disagree with the majority’s resolution of' Issue I. The court below ordered an evidentiary hearing in accordance with United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). An experienced military judge heard the “new evidence” and made detailed findings of fact, including a finding that Lieutenant Colonel (LTC) Henderson’s “memory ... is limited to his impressions of what [the victim] told him, and his sensing of what she meant, rather than her actual responses.” The court below, with independent factfinding power, reviewed the military judge’s findings of fact and concluded that appellant had not met his burden of showing that LTC Henderson’s testimony “would probably produce a substantially more favorable result.” RCM 1210(f)(2)(C), Manual for Courts-Martial, United States (1995 ed.). On this record, I find no abuse of discretion. Accordingly, I dissent.
I also disagree with the majority’s assertion that Issue II is moot. If Issue II has merit, appellant is entitled to dismissal of the charges, not just a new trial. On the merits of Issue II, I believe that appellant is not entitled to relief. There was no “intentional tactical delay” and no prejudice. See United States v. Reed, 41 MJ 449,452 (1995).
I would affirm the decision of the court below in its entirety.