dissenting:
I join the majority in expressing dismay over the failure of the Government to act expeditiously in the appellate processing of this court-martial. I disagree only with the remedy the majority adopts to address that failure.
This case, unlike the situation we addressed in our recent decision in United States v. Thomas, 41 M.J. 873 (N.M.Ct.Crim.App.1995) concerns delay entirely at the appellate level. In Thomas, over 22 months elapsed from the date the sentence was adjudged until the date of the convening authority’s action. We relied on the underlying principle stated by the U.S. Court of Military Appeals in Dunlap v. Convening Auth., 23 C.M.A. 135, 48 C.M.R. 751 (1974), that for the purpose of speedy disposition of the charges against an accused, the trial and the action of the convening authority can be regarded as a single stage. See UCMJ art. 60(c)(3), 10 U.S.C. § 860(c)(3) (1988). We then applied the “reasonable diligence” standard of United States v. Tibbs, 15 C.M.A. 350, 353, 35 C.M.R. 322, 325 (1965), and found 5 months to prepare the SJA recommendation and over 9 more months to prepare an “addendum” to that recommendation to be unacceptable and took remedial action on the sentence.
The principle underlying Dunlap does not apply, however, once the ease has been acted upon by the convening authority. In United States v. Green, 4 M.J. 203 (C.M.A.1978), the Court of Military Appeals limited the application of the Dunlap decision to delay occurring prior to the convening authority’s action. The Court quoted language from two earlier cases:
[A]bsent prejudicial error occurring during the court-martial proceedings, an inordinate delay at the appellate level does not justify dismissal of the charges. A dismissal is appropriate only where an accused “would be either prejudiced in the presentation of his case at a rehearing or ... no useful purpose would otherwise be served by continuing the proceedings.”
Green, 4 M.J. at 204 (citation omitted).
The present case also involves a delay at the appellate level and there are no errors in the trial proceedings requiring corrective action. The appellant is therefore, not entitled to dismissal of the charges. United States v. Halcomb, 25 M.J. 750 (N.M.C.M.R.1987), petition denied, 26 M.J. 48 (C.M.A.1988); accord United States v. Dupree, 37 M.J. 1089 (N.M.C.M.R.1993). As to whether he should be granted some other form of relief, such as with respect to the sentence, I would follow the view expressed by Judge Cox in his concurring opinion in United States v. Dunbar, 31 M.J. 70, 74 (C.M.A.1990) (Cox, J., concurring in the result).
In Dunbar, the claim of prejudice was, as it is in this case, based not on any error at trial but on aspects of the appellant’s personal life. The majority found that the appellant had failed to demonstrate that he had been prejudiced and denied relief on that basis. Judge Cox, in his concurring opinion, departed from the majority by relying on Green. He noted that the right to a speedy trial was guaranteed by the Sixth Amend*796ment to the Constitution and in military law by Article 10, UCMJ, 10 U.S.C. § 810 (1988), but that in neither military nor civilian law has such a privilege been provided on appeal. Dunbar, 31 M.J. at 74 (quoting United States v. Richmond, 11 C.M.A. 142, 145, 28 C.M.R. 366, 369 (1960)). He concluded that, although the delay of more than 2% years after the convening authority had acted was unexplained and unjustified, “[t]he appropriate remedy, the only remedy available to ... [Dunbar was] to have his case heard on appeal.” Dunbar, 31 M.J. at 76. I would apply Green and the concurring opinion of Judge Cox in Dunbar to this case to resolve the first assignment of error against the appellant.
As to the second assignment of error, I would grant relief and return the record to the convening authority for a new action. I read Article 66(b), UCMJ, 10 U.S.C. § 866(b) (1988), to create a requirement for mandatory review of certain records of trial by this Court. See Rule for Courts-Martial [R.C.M.] 1201(a). Although not expressly stated in either the Code or the Manual for Courts-Martial, I believe what is contemplated by both is a continuous progression with no detour or stopover between the convening authority and this Court. There is no authority, in my view, for holding in the Office of the Judge Advocate General any record that the convening authority has acted on because the record is incomplete or defective in some respect.6 Likewise, I find no authority for any designee in the office of the Judge Advocate General, other than this Court, to return such a record for a new convening authority’s action, as was done in this case. Contra United States v. Cruz, 38 M.J. 611 (N.M.C.M.R.1993) (holding that the Judge Advocate General need not refer a “defective” record of trial to this Court but can return such a record to the convening authority who can then take a new action).
The Court of Military Appeals has interpreted R.C.M. 1107(f)(2) as depriving the convening authority of jurisdiction of a ease subject to review under Article 66, UCMJ, once the action is published or the accused officially notified thereof. The Court noted that “from that point on, jurisdiction is in the Court of Military Review.” United States v. Montesinos, 28 M.J. 38, 42 (C.M.A.1989). The Court recently refined its holding in Montesinos to recognize the 10 day period during which an accused may waive appellate review under Article 61(a), UCMJ, 10 U.S.C. § 861(a) (1988). United States v. Diaz, 40 M.J. 335 (C.M.A.1994). Both Montesinos and Diaz deal with how a case moves on a “time line” from the convening authority to this Court. “[A] court-martial case follows an orderly procession during which, at any given time, it rests within the power of a single authority.” Diaz, 40 M.J. at 343. That authority is either the convening authority or this Court. Cruz permits an intermediate stop in the office of the Judge Advocate General where “defective” records are held until they are deemed complete and ready for appellate review. I would overrule Cruz and hold that the action of the convening authority dated 3 August 1994 was a nullity.
Finally, the concurring opinion argues that taking remedial action on the sentence is appropriate as an exercise of this Court’s power under Article 66(c) of the UCMJ. I do not question this Court’s authority to reduce sentences in the interest of justice as a discretionary matter. What the majority fails to take into account in this case, however, is the difference between sentence appropriateness and clemency. Article 66(c) “assigns to the Courts of Military Review only the task of determining sentence appropriateness: doing justice.” United States v. Healy, 26 M.J. 394, 395-96 (C.M.A.1988). The responsibility for clemency was placed by Congress in the hands of others empowered to commute, remit, or suspend the sentence or to change the character of a punitive discharge. Healy, 26 M.J. at 396.
*797The remedial action taken on the sentence by the majority in this case departs from the standards for determining sentence appropriateness set for us by the Court of Military Appeals, now the United States Court of Appeals for the Armed Services. “[Sentence appropriateness should be judged by ‘individual consideration’ of the particular accused ‘on the basis of the nature and seriousness of the offense and the character of the offender.’ ” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982) (quoting United States v. Mamaluy, 10 C.M.A. 102, 106-7, 27 C.M.R. 176, 180-81 (1959)). What the majority is doing here has to do with neither the offenses of which the appellant was convicted or of the appellant’s character as an offender. It is, in my view, clemency, pure and simple.
Undoubtedly, Congress intended to entrust clemency to the persons who it believed would be best qualified and in the best position to obtain and evaluate information relevant to clemency—such as the accused’s conduct while in confinement, personal financial burdens confronting the accused or his family, and his present mental and physical condition. We also presume that Congress did not want to duplicate responsibility for the same activity.
Healy, 26 M.J. at 396.
The convening authority is one of those authorized to grant clemency. See UCMJ art. 60(c)(1), 10 U.S.C. § 860(c)(1) (1988). I would remand the record for a new staff judge advocate’s recommendation and action by the convening authority after consideration of the appellant’s clemency package.
. The situation would be different if, in fact, the convening authority had not acted on the case. In that event, this Court would have no statutory jurisdiction to review the findings and sentence or presumably to remand the record. United States v. Diaz, 40 M.J. 335 (C.M.A.1994). Such a record would not have been forwarded under Article 65, UCMJ, 10 U.S.C. § 865 (1988), but simply misrouted, and could be administratively returned to the convening authority without action by this Court.