concurring:
I write only to emphasize that our decision in this case does not seek to establish a new rule concerning post-trial delays at the appellate level in any way contrary to the precedent established by our superior court (now the U.S. Court of Appeals for the Armed Forces) and discussed by our dissenting brother, Judge Keating. Rather we have chosen to exercise what Judge Cox in writing for the Court in United States v. Cole, 31 M.J. 270, 272 (C.M.A.1990), has referred to as our “awesome, plenary, de novo power of review” under Article 66 of the Uniform Code of Military Justice to “affirm only ... such part or amount of the sentence[ ] as ... [we] find[ ] correct in law and fact and determinen, on the basis of the entire record, should be approved.” 10 U.S.C. § 866(e) (1988).
When Judge Cox wrote his concurrence in United States v. Dunbar, 31 M.J. 70, 74 (C.M.A.1990), which Judge Keating refers to at some length in his dissent, Judge Cox mentioned that unexplained and unjustified delays occur at the appellate level from time to time in all of the services and even before that Court. Id. at 75-76. Judge Cox also pointed out that the only remedy available to an accused in such a situation is to have his case heard at the appellate level. Id. (citing United States v. Green, 4 M.J. 203 (C.M.A.1978), and United States v. Timmons, 22 C.M.A. 226, 46 C.M.R. 226 (1973)). Within *795the scope of our powers of review, that is exactly what we have done.
In this same context, Judge Cox also indicated how appellate Government counsel are often left in such cases to conjecture before the Court about “a record of trial ... lost aboard a submarine beneath a polar ice cap, left in a foxhole during maneuvers, or discarded in a squadron’s hangar ... [and that] [m]ilitary justice deserves better.” Id. There is no such conjecture in this case. The record was literally across the hall from this Court for 5 years. I do not think the Judge Advocate General has the unlimited discretion under either Article 65 or Article 66 of the Code to hold a record of trial indefinitely before referring the record to this Court for review, particularly, as Senior Judge Reed points out, when the assignment of appellate defense counsel awaits our receipt of the record. The relief proposed by Judge Keating—to set aside the second action and return the record of trial for a new action—is a remedy for an error that occurred 5 years after the convening authority initially acted on the case. It is not in any way a remedy for the delay that led to that error.