(concurring):
I too am not convinced of the providence of the appellant’s guilty plea to aggravated as*619sault under Charge II and the remaining specification. United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247, 1969 WL 6059 (1969). The Chief Judge’s opinion fully explains the circumstances of the case and shortcomings of this plea.
Our next logical action is to determine if a rehearing is in order. Article 66(d), Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 866(d). In this regard, we draw our attention to Assignment of Error III, lack of speedy review.
The appellant was tried and convicted pursuant to his pleas on 23 August 1991. The 62-page record of trial was authenticated, served on the defense counsel at the appellant’s request, and a clemency petition submitted—all by 15 October 1991. The staff judge advocate’s post-trial recommendation of 2 August 1993, required under R.C.M. 1106, Manual for Courts-Martial, United States, 1984, was served on the “alternate defense” counsel only, who requested a 20-day extension which was granted.1 The original trial defense counsel, now a civilian in private practice, was contacted, and, commendably acting pro bono, submitted a 7-page affidavit for clemency asking for clemency action on the punitive discharge and decrying the inordinate delay in the post-trial administration of the case. He noted the delay made his original clemency petition for early release from confinement futile. This assessment of legal error by the defense counsel was not responded to by the staff judge advocate in an addendum. See United States v. Hill, 27 M.J. 293 (C.M.A.1988). The convening authority acted on 14 September 1993. Therefore, over 2 unexplained years passed between the trial ending and the convening authority’s action.
There is a two-tiered approach to the analysis and resolution of allegations of error due to lack of speedy post-trial review. United States v. Dupree, 37 M.J. 1089 (N.M.C.M.R.1993); United States v. Dunbar, 28 M.J. 972, 975 (N.M.C.M.R.1989), aff'd, 31 M.J. 70 (C.M.A.1990); see also United States v. Clevidence, 14 M.J. 17 (C.M.A.1982).
On the first hand, if the inordinate, unexplained delay in the post-trial review occurred prior to the convening authority’s action and there was prejudice, charges would be dismissed. Dupree, 37 M.J. at 1090. “[T]he prejudice need not relate to legal issues but may be personal prejudice to the accused in the form of diminished employment opportunities____” Id. at 1091.
On the other hand, dismissal for prejudice in post-trial review delay that occurs after convening authority’s action has always required “some error in the proceedings which requires that a rehearing be held and that because of the delay appellant would be either prejudiced in the presentation of his case at a rehearing or that no useful purpose would otherwise be served by continuing the proceedings.” United States v. Gray, 22 C.M.A. 443, 445, 47 C.M.R. 484, 486, 1973 WL 14764 (1973) (citation omitted); see also Dupree, 37 M.J. at 1090 (citing Dunbar).
This analysis is continued in United States v. Jenkins, 38 M.J. 287 (C.M.A.1993). “An appellant seeking relief [for unexplained delays in post-trial processing of courts-martial] must demonstrate some real harm or legal prejudice flowing from the delay.” Id. at 288 (citations omitted); United States v. Henry, 40 M.J. 722 (N.M.C.M.R.1994). In Jenkins, the claim of lost employment opportunity (real harm), because of extensive, unexplained post-trial processing delay before convening authority action, was “unsupported by any independent evidence.” 38 M.J. at 289. This same proof problem was faced in Dunbar, and this court suggested a means by which this evidentiary shortcoming could be avoided. 28 M.J. at 980 n. 5.
With regard to Assignment of Error III, the appellant’s case suffers two infirmities, i.e., inordinate, unexplained post-trial delay prior to the convening authority’s action and error at the trial level. Therefore, we must use both tiers in analyzing to resolve the post-trial delay aspect of Assignment of Error III.
In the appellant’s case we have only the trial defense counsel’s affidavit that alleges the appellant lost employment where his *620mother and father worked due to a lack of a discharge. This is not factually sufficient real harm to warrant dismissal of all charges and specifications, in the absence of legal prejudice.
We are setting aside the findings to the assault on a superior petty officer offense and, under appropriate circumstances (having determined that reassessment is inapplicable), would set aside the sentence and return the record for a rehearing. However, based on the above analysis of extended, unexplained post-trial delay, and our having found error at the trial level which requires corrective action, we conclude that “the appellant would be prejudiced in the presentation of his case at a rehearing____” with regard to the assault charge. Dunbar, 28 M.J. at 975. Over 3]/¿ years have passed since the trial, the appellant was released from confinement and placed on appellate leave, and we’re sure the witnesses have scattered. To gather them, if possible, would take great effort and, although not always controlling, more delay. I believe that, both legally and equitably, the charge and specification of assault on a petty officer (in this case an alleged attempt-type battery in which there is no indication in the record that the appellant was ever near the petty officer for the purposes of touching) should be dismissed. United States v. Claxton, 32 M.J. 159 (C.M.A.1991); see also United States v. Parker, 36 M.J. 269 (C.M.A.1993).
. This, notwithstanding the appellant’s right and request on the record to also be served a copy of the recommendation. R.C.M. 1106(f)(1); Record at 60.