(dissenting):
Although not expressly raised as an issue on appeal, I find no violation of the appellant’s 6th Amendment right to a speedy trial. Weighing the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), I find no prejudice to the substantial rights of the appellant, particularly since he was not in pretrial confinement.
Also, I find no violation of Rule for Courts-Martial 707, Manual for Courts-Martial, United States (1995 ed.)[hereinafter R.C.M.] The majority opinion has appeal in logic, and I am concerned about the “learning point” which might be drawn from affirming the military judge’s denial of the appellant’s motion to dismiss. An extension of the Government’s position would be that whenever time is running out, the trial counsel or staff judge advocate should recommend to the convening authority that he or she simply dismiss the charge, and start anew the speedy trial clock. The Government could thereby evade the 120-day time limit by filing a dismissal even as late as the 119th day.
Nonetheless, I feel compelled to follow an earlier decision of this court, United States v. Bolado, 34 M.J. 732, 738 (N.M.C.M.R.1991), affd, 36 M.J. 2 (C.M.A.1192), cert, denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (1993). However, I would choose this occasion to eliminate the confusion resulting from dicta in that opinion, in footnotes 4 and 5, by finding that a convening authority may, for any reason, dismiss charges pursuant to R.C.M. 306(c)(1) and 401(c)(1).
Nothing in the R.C.M. purports to limit the discretion of the convening authority in deciding whether or not to proceed on charges after either preferral or referral. Indeed, the Discussion to R.C.M. 401(c)(1) only suggests that “a charge should be dismissed when it fails to state an offense, when it is unsupported by available evidence, or when there are other sound reasons why trial by court-martial is not appropriate.” Emphasis added.
A dismissal is appropriate even if the convening authority ftdly intends to reinstate the charges. The Discussion to R.C.M. 306(c)(1) states that “dismissal of charges at this stage does not bar later disposition of the offenses under subsection (c)(2) through (5) of this rule.” Similarly, the Discussion to R.C.M. 401(c)(1) states that “it is appropriate to dismiss a charge and prefer another charge anew when, for example, the original charge failed to state an offense, or was so defective that a major amendment was required (see R.C.M. 603(d)), or did not adequately reflect the nature or seriousness of the offense.”
This is so, despite the fact that the impact of a dismissal without prejudice is that the speedy trial clock is reset, beginning anew the 120-day time period within which the accused must be brought to trial. R.C.M. 707(b)(3)(A). Indeed, the time period does *512not begin to run again until the date of re-preferral of charges or the imposition of restraint, whichever first occurs.
Without question, a clear reading of R.C.M. 707(b)(3)(A) and United States v. Britton, 26 M.J. 24, 26 (C.M.A.1988) supports the conclusion that “in no way is the intent to reinstitute charges at a later date inconsistent with an intent to dismiss them presently.” Bolado, 34 M.J. at 738. In that regard, this court’s commentary suggesting that “if further action is contemplated after more than a brief period, dismissal is equally appropriate,” Bolado, 34 M.J. at 738, n. 4 (emphasis added), is merely dicta. Such commentary is inconsistent with the Rules and is not supported by authority.
A dismissed charge (unlike a charge withdrawn after referral) is not in “limbo.” United States v. Mucthison, 28 M.J. 1113, 1115 (N.M.C.M.R.1989); United States v. Lo-renc, 30 M.J. 619, 622 (N.M.C.M.R.1990). Indeed, when a charge is dismissed, it is necessary to reinstitute the charge and commence proceedings anew. Britton, supra, at 26.
In support of my view that the military judge’s ruling which denied appellant’s motion to dismiss for violation of R.C.M. 707 should be affirmed, I look primarily to this court’s decision in Bolado, wherein we opined:
Under R.C.M. 707, the [convening authority] could consider those factors he chose in deciding whether to dismiss the charges, however, that commander was not limited to those considerations and could consider any relevant factor. If a commander decides to dismiss the charges and action is taken that does so, nothing in this Rule permits a trial judge to substitute his judgment for that of the commander regarding the relative merits of the dismissal. The Government bears no burden under the Rules for Courts-Martial to show a proper basis for dismissal of charges. The re-referral of withdrawn charges permits an accused to challenge the withdrawal on the basis that it was for an improper reason, see R.C.M. 604(b); we can find no similar basis for challenging a dismissal of charges.
Bolado, supra, at 738-739 (emphasis added). Curiously, however, this court thereafter noted:
We do not decide whether an otherwise valid dismissal is in essence converted to some other action if done for a proven improper reason or in bad faith and the evidence establishes prejudice to the accused.
Id. at n. 5 (emphasis added). Simply put, the majority opinion in the case sub judice attempts to craft such a conversion.
The “slippery slope” down which the majority proceeds has its genesis in the now disfavored case of United States v. Mickla, 29 M.J. 749 (A.F.C.M.R.1989). In that case, the Air Force Court of Military Review found no “satisfactory reason” for the dismissal of charges. In a subsequent case, however, the same court found that
[cjhange 5 to the Manual establishes a new rule for the running of the speedy trial clock which postdates our holding in Mick-la. Accordingly, to the extent that this decision is contrary to Mickla, that decision is rejected and will no longer be followed as precedent.
United States v. Thomas, 41 M.J. 665, 667 (A.F.Ct.Crim.App.1994). Also distancing itself from the position engendered by Mickla was the Army Court of Military Review in United States v. Hayes, 37 M.J. 769, 772 (A.C.M.R.1993). Acknowledging that “decisions granting pretrial delay will be subject to review for abuse of discretion and for reasonableness of the delay (Citations omitted),” the court stated that “[i]f, however, charges are dismissed, a new 120-day time period shall begin when ... charges are repreferred. (Citation omitted).”
In Hayes, not unlike one of the government’s stated reasons for dismissal in the case before us, the dismissal was “for the purpose of delaying the proceedings to secure additional evidence.” The Hayes court continued, “we cannot say that the convening authority erred in dismissing the charges, given his wide discretion regarding dismissal of charges.” Hayes, 37 M.J. at 772.
Since I find no violation of R.C.M. 707, an analysis of the government’s actions (i.e., ex*513amining the propriety of the reasons for the dismissal) is neither required nor appropriate. Were I so inclined, however, I could point to several “proper” reasons for the convening authority’s decision to dismiss the charge. The record of trial discloses, among other things: (1) a need to obtain additional evidence, e.g. a complete statement from victim A, whose previous statement to an investigator did not yield specifics concerning her generic allegations of abuse; (2) a major change or amendment to the Charge necessitated by the significant difference in the date of the alleged offense against victim C (especially in light of the defense asserted at the first Article 32 hearing); and (3) the likelihood that a new Article 32 hearing would be necessary. Nonetheless, I specifically do not rely on these reasons because, as a matter of law, no such reasons are required. Further, a reliance on such “proper” reasons for a dismissal only serves to give credence to the majority’s unfounded belief that it is necessary to do so.
While it may seem unfair that a convening authority should have virtually unbridled discretion in dismissing a charge, this matter could easily have been remedied by the President in drafting the revision to R.C.M. 707. For example, the convening authority could have been required to state specific and ar-ticulable reasons for a dismissal, subject to review by the military judge for abuse of discretion. However, the President did not so draft R.C.M. 707. Unlike the majority, I would not judicially create a remedy that the President did not clearly intend to provide.
For the reasons set forth above, I would affirm the decision of the military judge which denied the appellant’s speedy-trial motion.