(dissenting):
I dissent.
With the decision in this case, little remains of the rule which we laid down in United States v Brown, 10 USCMA 498, 28 CMR 64, and the door is opened wide for complete disregard by the armed forces of the Congressional commands of Uniform Code of Military Justice, Articles 10 and 33, 10 USC §§ 810, 833. No recital of generalities can disguise the effect of the principal opinion herein.
The accused was found guilty of desertion, in violation of Code, supra, Article 85, 10 USC § 885, and sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for two years, and reduction to the grade of basic airman. With some reduction in sentence, intermediate appellate authorities affirmed, and we granted review on issues concerning whether the accused was denied a speedy trial.
At the trial, defense counsel moved for dismissal of the charges on account of the delay in affording accused a hearing. Initially, the law officer *85peremptorily denied the motion. However, when his attention was directed by the defense to our opinion in United States v Brown, supra, he withdrew his action and held an out-of-court hearing on the matter. There, the trial counsel presented a stipulation which recited that accused had been apprehended and confined in a civilian jail and finally returned to military control on October 9, 1959. Defense counsel then stated that accused was originally confined by civil authorities at Dublin, Georgia, for vagrancy on April 6, 1959. On August 27, 1959, he was interviewed by an Air Police investigator and admitted his identity and status as an absentee from the armed forces. Therafter, he was tried by civil authorities, convicted of vagrancy, and sentenced. Apparently, his punishment was completed on October 9, 1959, for, on that date, he was returned to Air Force control at nearby Warner Robins Air Force Base, Georgia, where, as a suspected deserter, he was obviously confined. Finally, and for undisclosed reasons, he was returned to Keesler Air Force Base, Mississippi, the station from which he originally departed, and placed in its stockade on October 27, 1959. Charges were preferred and read to the accused on December 7, 1959. The pretrial investigation was commenced on approximately December 10, 1959. On the same date the investigating officer dispatched certain inquiries to a Deputy Sheriff in Dublin, Georgia, relative to the accused. The investigation was then held in abeyance until January 11, 1960, on which date the investigating officer was discharged from the Air Force and the answers to the inquiries which he had made to the Deputy Sheriff were received. Approximately two weeks later, another investigating officer was appointed, and the investigation was completed on January 26, 1960. The charges and allied papers were ultimately received by counsel on January 29, and the trial commenced on February 10, 1960. No complaint is made concerning the delay beyond January 29.
It is apparent that the report of the investigating officer was presented to the law officer and that he considered its contents in arriving at his decision, for both counsel referred to the document during the hearing on the motion. It, however, is of little assistance to the Government, for it merely confirms the chronology outlined above and expands upon it by showing that statements of certain apparently material witnesses were not obtained until January 11, and January 22, 1960, whereas the morning report extracts actually used in the trial were completed on December 7, 1959.
From the foregoing, it is clear beyond cavil that accused was returned to military control at Warner Robins Air Force Base, Georgia, on October 9, 1959, as a known absentee from the armed forces. Delay, completely unexplained by the record, occurred until January 29, 1960, a period of 112 days. If the time between receipt of the case by counsel and the actual trial is added, the Government’s procrastination is extended to 124 days.
The period between accused’s initial confinement and the preference of charges involved fifty-nine days, forty-one of which passed after his return from Warner Robins Air Force Base to Keesler Air Force Base. The investigation of the charges, which necessitated obtaining three morning report extracts and two statements, required forty-seven days. Review, preparation of the advice, and the reference of the charges occupied the balance of the period.
Code, supra, Article 10, provides pertinently:
“. . . When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong > of which he is accused and to try him or to dismiss the charges and release him.”
Code, supra, Article 33, provides:
“When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, *86forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.”
It is clear that one of the things with which Congress was most seriously concerned were the extensive delays involved in trying accused under the Articles of War and the Articles for the Government of the Navy. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 906-907. Aware that military personnel have no recourse to processes such as bail, the legislation quoted supra was enacted in order to offer “assurance that the cases will be speedily processed.” House Hearings, supra, at page 907; United States v Hounshell, 7 USCMA 3, 21 CMR 129. Our subsequent decisions, particularly that in United States v Brown, supra, sought to add substance to the right thus conferred upon the accused by the Congress.
In the Brown case, we were confronted with a situation similar to that presented here. It involved 108 days of unexplained delay. There, we reviewed the provisions of Code, supra, Articles 10 and 33, and concluded, at page 503:
“From these provisions, read in the light of the intent of Congress as ascertained from the views of the framers of the Code, set out in our opinion in United States v Hounshell, supra, it is clear that whenever it affirmatively appears that officials of the military services have not complied with the requirements of Articles 10 and 33, supra, and the accused challenges this delict by appropriate motion, then, the 'prosecution is required to show the full circumstances of the delay. Of course, an accused is not automatically entitled to a dismissal of all charges against him. Rather, the law officer must decide, from all the circumstances, whether the prosecution has proceeded with ‘reasonable dispatch.’ United States v Callahan, 10 USCMA 156, 27 CMR 230.” [Emphasis supplied.]
Further reference to the Brown opinion will show that the trial counsel there sought to “explain” the delay in the same manner as the Government’s representative did in this case — namely, by stating that it was a “matter of common knowledge” that desertion cases involved delay because of the necessity of obtaining records and evidence. The facts there also demonstrated an unexplained transfer of the accused, as here, between two Air Force Bases for trial. Thus, in my view, no distinction can be drawn between the two cases and reversal is equally required here.
Turning to the principal opinion, I invite attention to the contrast, between its reasoning and the matters established beyond cavil in the record. Thus, it is implied that accused’s identity as a member of the armed forces was questionable at the time of his delivery to Warner Robins Air Force Base and that this issue needed investigation. The record, however, uncontrovertedly establishes that accused gave his name and service number to Air Police Investigator Black-man on August 27, 1959, and confessed that he was a member of the Air Force absent without leave. Blackman’s statement also reveals that, by this date, a cheek of accused’s fingerprints had conclusively demonstrated his identity. Thus, on the date he was turned over to the Air Force, there was no longer any question of his status. Moreover, no such excuse was made at the trial for the delay.
Secondly, emphasis is placed upon the necessity to determine exactly what offense had been committed by the accused at the time of his apprehension by civil authorities. I point out again that accused was interrogated by Air Force investigators on August 27, 1959, and turned over to authorities from Warner Robins on October 9, 1959. To say that these Government agents were unaware of the fact that he was held, tried, convicted, and sentenced for vagrancy is simply ridiculous. Moreover, even assuming that the Air Force *87lagents were not so inquisitive, a factor ■ belied by their appearance at the Dublin jail specifically to question accused, ; it is clear that the delay between con-ifinement and preference of charges did not involve that matter, for the only correspondence with the Dublin au'■thorities shown to have occurred is that between the initial investigating officer and the Deputy Sheriff. Finally, I suggest that utilization of forty-one days to determine why accused was initially apprehended is simply unconscionable.
Lastly, no attempt is made to set .forth the circumstances of the delay, as a whole, between the preference of charges and their ultimate reference .for trial. My brothers simply content themselves with the declaration that “the periods of relative inactivity are neither so long nor so numerous as to be demonstrably unreasonable.” Aside from the fact that we have heretofore placed the burden upon the Government to show that the delay incurred was reasonable, see United States v Brown, supra, I am at a loss to understand how one may conclude that a morning report desertion case requires forty-seven days for formal investigation alone, especially when the extracts are from local commands and prepared prior to appointment of the investigating officer. To the contrary, I would hold that the unexplained period smacks of oppressive and dilatory tactics deserving of the strongest condemnation.
In sum, I am of the view that the Government in this case presented to the law officer no explanation of the inordinate delay between accused’s confinement and his trial. I am reinforced in this belief by the staff judge advocate’s tardy attempt to support the record by inclusion in his review of various statements of persons not called as witnesses at the trial in order to justify the law officer’s ruling. True, the accused may be guilty of desertion and deserving of punishment, but that is no reason for us to depart from the soundly reasoned concepts set forth in United States v Brown, supra, and to do away with the only means whereby the mandate of Congress may be enforced and the accused assured of a reasonably swift trial. In the absence of provision for peacetime bail, there is no other way to make the services comply with the legislative command.
I would reverse the decision of the board of review and order a rehearing, at which the Government would be free to explain any reasons why this accused was not afforded a prompt trial.