(concurring):
The principal opinion does an admirable job of supporting my brothers’ conclusion that the trial judge did the right thing for the wrong reason. I write because the law does not preclude us from — but rather directs us toward — adopting a standard of review which avoids such after-the-fact justifications or rationalizations altogether in the present case. “[Sjimplicity ..., fairness ..., and the elimination of unjustifiable expense and delay” dictate a threshold inquiry. Rule for Courts-Martial 102, Manual for Courts-Martial, United States (1995 ed.) [hereinafter R.C.M.]
I would require the appellant to show substantial or presumptive prejudice before we consider whether or not the military judge erred in denying the defense motion to dismiss for want of a speedy trial under R.C.M. 707 or the Sixth Amendment.1 Because the trial judge, my brothers, and I could find neither substantial nor presumptive prejudice to the appellant on the facts of this case, I join the panel in concluding that Assignment of Error I is without merit and explain my independent reasoning below. See Art. 66, UCMJ, 10 U.S.C. § 866.
My rationale allows me to decline to join in either my brothers’ efforts to defend an unconditional requirement for contemporaneous rulings on delays or, in the alternative, our higher court’s effort to identify “stays and delays [which] are excludable” under R.C.M. 707 without contemporaneous approval. Compare United States v. Thompson, 44 M.J. 598 (N.M.Ct.Crim.App.), certificate of review filed, 44 M.J. 278 (1996), and United States v. Dies, 42 M.J. 847, (N.M.Ct.Crim. App.1995), rev’d, 45 M.J. 2, No. 95-5007 (C.A.A.F. June 5, 1996) with United States v. Dies, 45 M.J. 2, No. 95-5007 (C.A.A.F. June 5,1996), and United States v. Powell, 38 M.J. 153 (C.M.A.1993). These efforts may be necessary in other cases, but not in this one.
The findings or sentence in this case “may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” Art. 59, UCMJ, 10 U.S.C. § 859. See also United States v. Niles, 45 M.J. 455 (1996)(specter of tactical advantage). R.C.M. 707’s remedy of dismissal “with ... prejudice to the government’s right to reinstitute court-martial proceedings against the accused ... at a later date” is one of these substantial rights. R.C.M. 707’s lesser remedy of “dismissal ... without prejudice” is not. R.C.M. 707(e)(2). Compare United States v. Kossman, 38 M.J. 258 (C.M.A.1993), with Daniel P. Shaver, Restoring the Promise of the Right to Speedy Trial to Service Members in Pretrial Arrest and Confinement, 147 Mil. L. Rev. 84 (1995)(questioning the court’s decision in Kossman).
Dismissal without prejudice under R.C.M. 707 remedies the denial of a speedy trial by further delaying the trial, or prejudices the government’s case when new proceedings are otherwise barred. When we attempt to retroactively dismiss charges or specifications without prejudice, we choose the oxymoron to which our phrases will be added. “Where the circumstances of delay [in trial] are not excusable ... it is no remedy to compound the delay by starting all over. Kossman, 38 M.J. at 262. See also Annette M. Sansone, Annotation, When May Dismissal for Violation of Speedy Trial Act (18 U.S.C.S. §§ 3161-3171) be with Prejudice to Government’s Right to Reinstate Action, 98 A.L.R. Fed. 660 (1990).
*548This does not mean that the lesser remedy under R.C.M. 707, dismissal without prejudice, has no utility. Compare Kossman, 38 M.J. at 262 (Wiss, J., dissenting). There are many foreseeable tactical reasons to seek this relief and many foreseeable reasons, including docket management and pretrial confinement, to grant such relief. Because R. C.M. 707 provides for this remedy, trial judges and convening authorities ought to apply it correctly just as they do the hundreds of other provisions of the Manual For Courts-Martial, everyday, all over the world. See United States v. Edmond, 41 M.J. 419, judgment vacated and case remanded on other grounds,—U.S.-, 116 S. Ct. 43,133 L.Ed.2d 10 (1995).
We, on the other hand, cannot always do in the cool of the evening what could, or even should, have been done in the heat of the day. In this case, review is statutorily mandated, but R.C.M. 707 cannot provide a remedy “contrary to or inconsistent with” the statutory scheme established by the Congress. Art. 36, UCMJ, 10 U.S.C. § 836; see also Art. 56 and 66, UCMJ, 10 U.S.C. §§ 856, 866.
Our power is limited by statute and reason. The appellant did not demonstrate substantial prejudice to his defense or presumptive prejudice based on “the interval between accusation and trial.” Doggett, 505 U.S. at 651, 112 S.Ct. at 2690. There is no claim which “trigger[s] a speedy trial analysis” or warrants “dismissal with prejudice of the affected charges.” We should not further consider the alleged denials of any administrative, statutory, or constitutional right to a speedy trial. Id.; Kossman, 38 M.J. at 262.
Though we put the procedural issue to rest differently, I specifically join the majority in affirming the legal and factual sufficiency of the evidence and the appropriateness of the appellant’s sentence.
. U.S. Const, amend. VI [hereinafter Sixth Amendment]. Out of respect for inspired efficiency, I have adopted the principal opinion’s shorthand for Rule for Courts-Martial 707, Manual for Courts-Martial, United States, 1984, with Change 5 [hereinafter R.C.M. 707]. United States v. Anderson, 46 M.J. 540 n. 2 (N.M.Ct. Crim.App.1997). See also Art. 59, Uniform Code of Military Justice, 10 U.S.C. § 859 (1994)[here-inafter UCMJ], Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).