(dissenting):
I dissent.
The place for the resolution of the unexplained delay in preference and disposition of the charges against the accused is “at a level where testimony can be taken, witnesses examined, and testimony offered in rebuttal. In this manner the rights and interests of the accused and the Government will be preserved.” United States v Schalck, 14 USCMA 371, 374, 34 CMR 151, 154. At least, we unanimously so declared sixteen months ago when allegations similar to those now before us were first presented on appeal. I adhere to that view, and am unwilling to substitute the purest speculation for a reasoned inquiry into why accused’s trial was delayed for fifty-five days, when defense counsel forcefully brought the matter to the law officer’s attention, the trial counsel alleged the evidence was available, and the law officer arbitrarily disposed of the issue by refusing to make any inquiry “unless the defense can show that the failure to comply with Article 33 is prejudicing him in some way.”
The real problem confronting the Court in this case is, as phrased in the granted assignment of error, whether the law officer properly denied the motion to dismiss “because the defense showed no evidence of prejudice,” and not whether we believe there were reasons for the delay which could have been, but unfortunately were not, shown in the record. The speculative approach of the principal opinion avoids coming to grips with the central issue, i. e., who possesses the burden of explanation once a violation of Code, supra, Articles 10 and 33, 10 USC §§ 810, 833, is shown. Its rationale betrays an impatience with the commands laid down therein by Congress and implicitly suggests no remedy was intended for their enforcement, particularly where the accused, as here, makes the best of a bad situation, and not unsurprisingly argues to the court in mitigation and extenuation that it ought to consider his pretrial confinement in adjudging an appropriate sentence. I am in agreement with none of these propositions and, believing as I do, that the law officer improperly required the defendant to show he was prejudiced by the Government’s sluggishness, I would reverse and remand the case for a further inquiry into the causes for the violations of the Code shown prima facie on this record. United States v Schalck, supra. Hereafter follows the reasoning which leads me to this conclusion.
Following his arraignment, the accused entered a plea of guilty to charges of housebreaking, in violation of Uniform Code of Military Justice, Article 130, 10 USC § 930, and larceny, in violation of Code, supra, Article 121, 10 USC § 921. After inquiry into the plea and receipt of a stipulation of fact, to which further reference will be made, defense formally entered a motion to dismiss the charges on the basis that there had been a violation of due *358process as to the accused in the form of the delay in prosecuting him. The record establishes that he had earlier, and on an informal basis, advised the law officer of his intention so to move. Despite the receipt of the plea, the law officer noted, in light of that circumstance, he would consider the matter. In support of his motion, defense pointed out the accused had been placed in pretrial confinement on July 2; sworn charges were not preferred until July 17; these were not brought to the accused’s attention until July 25; and they were investigated on July 30, received by the staff judge advocate on August 4; referred for trial on August 8; and the court-martial convened on August 26. Thus, a total of fifty-five days’ delay was established. In further explanation, it was pointed out that “no excuse for this delay” had been shown. Defense counsel declared:
“. . . The record indicates there was no problem in obtaining any records of the accused, or evidence; the Military Police report on the incident was completed the 7th of July; the accused made a statement on the 6th of July, and from the 6th of July it was not until the 17th of July before the charges were sworn. . .
The trial counsel conceded “the data the defense has brought forth appears to be correct,” but, not anticipating the motion, stated, “I would have to check into any reason why thére was all this delay.” Regardless of the circumstances, however, he felt that “it . . . [was] not prejudicial to the accused.”
The law officer referred to the stipulation of fact into which accused and his counsel had entered, found that it established accused had been apprehended inside the building into which it was alleged that he had broken, and ruled “there shouldn’t be any question in his mind as to the reason for which he is being held.” He concluded, therefore, there was no violation of Code, supra, Article 10. As to Code, supra, Article 33, he stated he would deny the motion “unless the defense can- show that the failure to comply - with Article 33 is prejudicing him in some way.” He further noted a violation of the mentioned Code section “may give rise to disciplinary action against the people who failed to comply with the statute,” but did not warrant dismissal of the charges. The defense having nothing further to present, the motion was thereafter formally overruled.
Code, supra, Article 10, provides:
“Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, he shall not ordinarily be placed in confinement. 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.” [Emphasis supplied.]
Code, supra, Article 33, with equal clarity, commands:
“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, forward 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 the delay.” [Emphasis supplied.]
It is also worthy of note, in connection with this problem, that Code, supra, Article 30, 10 USC § 830, pertinently declares:
“(b) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as practicable.” [Emphasis, supplied.]
When Congress was considering the passage of the Uniform Code, considerable attention was devoted to the provisions of these three Articles. Hearings before House Armed Services *359Committee on HR 2498, 81st Congress, 1st Session, pages 905-912, 980-988, 1005. The purpose of their enactment was said to be in order to guarantee the speediest trial possible of confined personnel, consistent with protection of their own rights, in answer to frequent complaints that disposition of charges under the Articles of War and the Articles for the Government of the Navy had often been delayed extensively, with the accused — not entitled to hail — left languishing in confinement. Disposition “of the charges as soon as possible and . . . the notification of the accused” were both specifically demanded. House Report No. 491, 81st Congress, 1st Session, page 19. And Code, supra, Article 33, was said to be “intended to insure an expeditious processing of charges and specifications in general court-martial trials. The requirement that the report be made in writing will help insure compliance with this article.” Senate Report No. 486, 81st Congress, 1st Session, page 17.
Our own cases have established the same construction of the Articles. Thus, in United States v Hounshell, 7 USCMA 3, 21 CMR 129, the Chief Judge early declared for a unanimous Court, at page 6:
“. . . To give emphasis to the importance of the right [to a speedy trial], Congress provided that 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, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If the same is not practicable, he shall report in writing to such officer the reasons for delay.’ Article 33, Uniform Code of Military Justice, 50 USC § 604. It further provided that any person responsible for an unnecessary delay in the disposition of a case violates the Uniform Code. . . . Unquestionably therefore the right to a speedy trial is a substantial right. And, if it is denied to the accused, the trial judge can redress the wrong by dismissing the charges. Petition of Provoo, 17 FRD 183, affirmed 350 US 857, 100 L ed (Adv 68), 76 S Ct 101. Cf. United States v Parker, 6 USCMA 75, 85, 19 CMR 201.”
And, in United States v Brown, 10 USCMA 498, 28 CMR 64, when it appeared that the accused was confined in April and not brought to trial until the end of July, and the law officer ruling adversely to the accused on a motion to dismiss for lack of a speedy trial on the basis that defense counsel had not shown material prejudice to Brown’s substantial rights, we reversed, declaring, at page 503:
“From these provisions [Articles 10 and 33], 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 shoio 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.
“In the instant case, the law officer was aware of the date the accused was originally confined, when charges were preferred, referred for trial and served upon the accused. One hundred and eight days had elapsed before the accused was produced before a court-martial for arraignment. Obviously, each successive step was taken only after substantial delay. But, rather than explain these deficiencies, trial counsel, after conceding that the required pretrial steps had taken ‘a little longer than is desirable,’. lightly dismissed them with the assertion that he had no knowledge of the circumstances thereof. The law officer reflected a similar *360approach to the problem for he immediately called upon the accused to establish specific prejudice. When no further evidence was advanced by the defense, he denied the motion before him. By these pronouncements he demonstrated his misconception of the effects of Articles 10 and 33. Rather than require the prosecution affirmatively to justify the delays, he called upon the accused to establish specific prejudice. This shifting of the burden of proof, or explanation, prevented the establishment of the circumstances of the delays at the trial level — the only satisfactory forum for conducting' truly adversary proceedings, and for testing the validity of evidence in the time-honored process of cross-examination. By this action the law officer curtailed the development of all the circumstances essential to a proper determination of whether or not the lapse of time was due to purposeful or oppressive design on the part of the prosecution or to a lack of reasonable diligence. United States v Callahan, supra; Shepherd v United States, 163 F2d 974 (CA 8th Cir) (1947). Prejudice to the substantial rights of the accused is manifest. United States v Berry, supra.” [Emphasis supplied.]
Finally, in United States v Schalck, supra, wherein accused raised for the first time before the board of review the fact that he had been confined for ninety-six days pending his trial, without charges having been preferred against him, a unanimous Court once more stated, at page 374:
. . Article 10 guarantees to an accused his constitutional right to a ‘speedy trial,’ while Article 33 establishes that charges are to be forwarded within eight days after arrest or confinement, or a written explanation given for failure to do so, if not practicable. These provisions are further strengthened by Article 98 of the Uniform Code, 10 USC § 898, which provides punishment for anyone responsible for an unnecessary delay. . . .”
Turning to the evidence presented in this case, and applying the foregoing holdings to the situation reflected by this record, it is obvious that our reversal is compelled. First, the defense counsel made plain on the record an unexplained delay of fifty-five days in the bringing of the prosecution to its final fruition. He clearly showed on the record a delay of fifteen days in the preference of charges, following accused’s confinement on July 2. And nowhere in the record is there any “report in writing . . . [of] the reasons for delay.” Code, supra, Article 33; United States v McKenzie, 14 USCMA 361, 34 CMR 141. Hence, just as in Brown, supra, violations of Code, supra, Articles 10 and 33, are shown, and just as we specifically held in that case, here also, “the prosecution is required to show the full circumstances of the delay.” United States v Brown, supra, at page 503. Again, just as in that case, there was no attempt to make an explanation at all and, in lieu thereof, the law officer expressly ruled that the burden was on the defendant to demonstrate his rights had been materially prejudiced. In the absence of such a showing, as in Brown, supra, he failed to require the necessary explanation by the Government and denied the motion to dismiss the charges. In short, this case is four-square with what we have previously held to be the law and, no matter what the volume of others’ protestations might be, I am firmly convinced that the contrary result which my brothers reach here has the ad hoc effect of wiping that decision from the books.
True it is that the delay here involved totals fifty-five days, while that in Brown amounted to 108 days; that in Schalck, supra, ninety-six days; and that in Hounshell, supra, 284 days, but the question is not how badly the services have broken the law in a particular case but whether they have violated the positive command of Congress at all. Of course, I do not advocate the automatic dismissal of charges in face of any violation of the mentioned Articles, and I so stated on behalf of the Court in United States v Brown, supra. What I do demand is compliance by the armed forces with the law as Congress *361passed it and a proper inquiry by law officers into the facts when a violation of the Code is demonstrated on the record. That was not done here anymore than it was done in Brown or Schalck, both supra, and I would reverse here just as in those cases. If we do not insist upon a consistent approach to this recurring problem of unexplained delay, then the Articles will become a dead letter and accused persons — denied the opportunity for bail — will continue to go without relief until such time as their commanders find it convenient to try them. I submit that Congress intended no such situation to exist under the Code, and I cannot be a party to allowing it once more to rear its medusan head.
Turning to the rationale of the principal opinion, I reiterate that it depends chiefly upon appellate speculation as to the reason for the delay in this case. True it is that the law officer referred to the stipulation of fact regarding the accused’s apprehension in the building into which he had broken, but, at most, such was utilized only to determine that he was aware of the reason for his forced incarceration. I, however, am not satisfied such is sufficient to serve as compliance with the express command of the statute that “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.” (Emphasis supplied.) Code, supra, Article 10.
A similar argument was presented in United States v Schalck, supra, with the Government relying on a form which would indicate accused had been questioned, after proper warning, about his offense. While we did not formally pass on the matter, we pointed out the Government’s “position hardly seems tenable in view of the specific language of Articles 10 and 33.” United States v Schalck, supra, at page 374. Moreover, to say an accused must haye known the nature of his offense because he committed it ignores the presumption of innocence, attributes to him the expertise of an attorney, and once more places on him the burden of personally finding out the reason for his incarceration as opposed to the duty of the Government to inform him thereof. Cf. Code, supra, Articles 10, 33; United States v Brown, supra.
As to the explanation made by the principal opinion of the balance of the delay, I again point out that such is no more than a guessing game at this level as to matters which should have been settled below. Such delays can be found to be “neither unreasonable nor oppressive,” only if such speculation is accepted, and I am unwilling to substitute it, as a basis for reasoned judgment, for a real development of what occurred, particularly when an appropriate motion was made at the trial and an opportunity existed for presentation of any explanatory matter. United States v Brown, supra. Unlike United States v McKenzie, supra, the record here does not show the basis for lack of prosecution, and I suggest it is not our duty to make up the deficiency on the basis of what may have happened. If this is the standard by which appeals are to be measured, then it would be as reasonable for me to conclude each period of delay was deliberately designed to oppress the accused into pleading guilty by keeping him in ignorance of the charges against him and delaying their disposition as long as possible. I do not so find, of course, for such would be as much a guess as the opposite course of my brothers. My point is simply that we must have a record on which to act, and where it is lacking, as here, it is our responsibility to send the case back to the “level where testimony can be taken, witnesses examined, and testimony offered in rebuttal.” United States v Schalck, supra, at page 374. I would so order.
In sum, then, I believe this case is directly governed by our decisions in United States v Brown, supra, and United States v Schalck, supra. In affirming the decision of the board of review, we set aside those cases, even if only on an ad hoc basis. In thus failing to enforce the Congressional mandate contained in Code, supra, Articles 10 and 33, we leave the gate open to lengthier trial delays in the armed *362services and a return to the problems which have existed in the past. I would require the Government to assume the burden of explaining the reasons for apparent violations of the mentioned Articles when they are shown on the record and, absent such, would set aside the findings of guilty and remand the case for that purpose. Believing this to be the proper approach in this case, I cannot join in the decision of my brothers.
I would • reverse the decision of the board of review, and order the case reheard for the limited purpose of determining whether an appropriate explanation existed for the delays here shown and, in light of the matters disclosed, proper action on the motion by the defense counsel to dismiss the charges.