(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I agree with that portion of the principal opinion which orders a rehearing for the failure to explain on the record the reason for excusing a court member after accused’s arraignment. Uniform Code of Military Justice, Article 29, 10 USC § 829; United States v Metcalf, 16 USCMA 153, 36 CMR 309; United States v Greenwell, 12 USCMA 560, 31 CMR 146. I disassociate myself from the remainder of the opinion, however, as it approves the direction by the convening authority that the court-martial reconvene and try the accused after it had dismissed the charges for lack of speedy trial.
For many years,, this Court has sought to remove the convening authority from the trial of a case, once charges have been referred. It has reinforced the independence of law officers and their counterparts in special courts-martial and brought to these one-time arbitrary tribunals a truly judicial atmosphere, Now, in *539one quick decision, our work and that of the Congress is set at naught, and the convening authority is left free to reinstitute the trial of judicially dismissed charges at will. No longer will law officers or presidents be able to regard themselves as acting in judicial capacities. They will now know that any ruling in favor of an accused which serves to terminate the trial is subject to approval by the convening authority and, lacking such, is as meaningless as if it were never entered. Certainly, Congress intended no such result when it enacted Code, supra, Article 62, 10 USC § 862, and I cannot be a party to construing it in such a manner as to set back the administration of military justice to the days which led to the Code’s enactment.
An examination of the record now before us affords an excellent example of what this means to judicial determinations below. When this special court-martial initially convened at Subic Bay on November 23, 1966, defense counsel moved to dismiss the charges on the basis of denial of accused’s right to a speedy trial. In support thereof, it was stipulated the offense was allegedly committed on September 9, 1966, the evidence secured on September 10, 1966. Charges were not sworn until October 27, 1966, and accused was not informed thereof until October 28, 1966. They were referred for trial on October 31, 1966.
It further appeared that the victim of the alleged offense had departed Subic Bay with his ship on September 10. He returned on October 1. He went absent without leave on October 14 and returned October 20. He again absented himself on October 25 and remained in that status until November 15. While there was no demand for trial, counsel for accused was appointed only a week prior to convening of the court-martial.
On the foregoing facts, the president, ruling subject to objection by any member, dismissed the charges. A member objected, but the court, in closed session, “two-thirds of the members concurring,” sustained the motion to dismiss. Accordingly, the court adjourned.
In short, this judicial forum heard evidence from both sides; found the facts; and took action in accord with what it necessarily believed, namely, that there had been a period of substantial delay in processing and trying any charges against the accused, amounting to a denial of his right to immediate prosecution.
The convening authority, however, disagreed. On December 14, 1966, some three weeks later, he ordered the court-martial reconvened. The letter directing such action set forth substantially the same chronology as that shown in the record and stated in part:
“2. The undersigned disagrees with the ruling of the court in granting the defense motion to dismiss. There was nothing in the record to suggest any oppresive [sic] design or lack of reasonable diligence on the part of the government, and, while the trial counsel admitted to ‘brief periods of inactivity,’ these do not appear to have been inordinately excessive or unreasonable under the circumstances. Furthermore, it does not appear that the claimed delay impaired the accused’s defense, and, that although the accused was placed in confinement on or about the date of the alleged offense, he was so confined not in any way connected with the instant charge. Moreover, the record indicates that the accused, either himself or through his originally appointed defense counsel or present defense counsel, never made known any desire for an earlier hearing. It is also to be noted that a substantial part of the delay was due to obtaining the physical transfer to Subic Bay of a material witness, SR Timothy L. BRANDMAN, USN, the alleged theft victim, from his ship, the USS EVANS, the situs of the instant alleged offense, which involved a period of 21 days, and the subsequent recalcitrance of this witness shortly after his arrival in Subic Bay in going on an unauthorized absence on two occasions for a *540total period of 27 days.” [Appellate Exhibit II.]
The convening authority then directed a reconvening of the court and reconsideration of its ruling in the premises. He thereafter attached a precis of legal authorities which he had considered in taking his action and which, he stated, “may be considered by the court.” To say that it reads like a brief for the prosecution is an understatement.
The court did, in fact, reconvene and reconsider its dismissal of the charges. Though no further evidence was offered by the Government in explanation of the delay, the matter was argued by both sides. On this occasion, the court denied the defense motion. Thereafter, on grounds not relevant here, a joint motion for mistrial was granted.
On December 21, 1966, another court-martial convened to hear accused’s case. Again, a motion for dismissal, based on lack of speedy trial, was made and denied. Thereafter, a motion for continuance was granted in order to obtain the attendance of two defense witnesses whom the convening authority had refused to procure “for economic and legal reasons.”
On January 27, 1967, the court again convened. After once more denying a defense motion for dismissal of the charges, premised on our decision in United States v Schalck, 14 USCMA 371, 34 CMR 151, the court proceeded to trial on the merits.
The convening authority subsequently took his action on the record without commenting as to the matter of delay in preference of the charges. The supervisory authority, however, considered the delay “excessive but not prejudicial.”
From the foregoing, it will be seen that the evidence on the issue was presented to the court by counsel for the respective parties, and it concluded the Government had not borne its burden of explaining the untoward delay in preferring charges and bringing accused to trial. It thus found accused had been denied a speedy trial.
The convening authority did not purport to claim the court had no basis for its conclusion or, indeed, that it had done more than wrongly interpret the evidence presented it. Rather, acting on the same basis, he simply overturned its factual conclusion and arrived personally at a different result, causing him to direct the court to reconvene and reconsider its action.
My brothers purport to find a basis for his action in Code, supra, Article 62(a), which provides:
“(a) If a specification before a court-martial has been dismissed on motion and the ruling does not amount to a finding of not guilty, the convening authority may return the record to the court for reconsideration of the ruling and any further appropriate action.”
In essence, the majority declare that this provision of the Code is to be likened to 18 USC § 3731, giving the United States the right to appeal, under certain circumstances, a judgment of dismissal to either the Supreme Court or the Court of Appeals. Thus, it is said the Government here, upon having the charge dismissed for denial of a speedy trial, was entitled to appeal to the convening authority and, in appropriate cases, of which this is one, secure reversal. No authority is cited for this conclusion and, in my opinion, there is no basis for so construing the Article. Rather, it appears to be a limited continuation of the convening authority’s power to require a court-martial to reconvene and reconsider an erroneous action on its part, predicated on a clear mistake of law.
Thus, upon discussion of the proposed Article, Congress was informed that the situation to which it referred was one in which the law officer “is in error” as, for example, when he incorrectly computed the time in determining whether a statute of limitations had run. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1178. The same example is given in the report on the bill, with the added notation that it applied “when, in fact, *541the convening authority is able to prove beyond any doubt that the statute of limitations had not run.” House Report No. 491, 81st Congress, 1st Session, page 29. The provision was taken from earlier Manual regulations, which permitted the convening authority a like power on questions of law, but not on issues of fact. Thus, the Manual for Courts-Martial, U. S. Army, 1949, declares, at paragraph 64f:
. . To the extent that the court and the appointing authority differ as to a question which is solely one of law, such as a question as to the jurisdiction of the court, the court will accede to the views of the appointing authority; but if the matters as to which the appointing authority disagrees are issues of fact, . . . the court will exercise its sound discretion in reconsidering the motion.” [Emphasis supplied.]
It was intended that Code, supra, Article 62, be limited in precisely the same manner, for this Manual provision “now has statutory recognition.” Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 84. Indeed, the same explanation is embodied in the Manual for Courts-Martial, United States, 1951, paragraph 67f.
This brings me to the nub of the problem before us. We have repeatedly stated that the right to a speedy trial is relative, must be determined in light of all the circumstances, and turns upon the facts of each case. United States v Brown, 13 USCMA 11, 32 CMR 11; United States v Batson, 12 USCMA 48, 30 CMR 48; United States v Callahan, 10 USCMA 156, 27 CMR 230. Indeed, in United States v Brown, supra, at page 13, Judge Kilday declared:
“. . . In this area as in many others, each case turns on its own facts. . . .”
More recently, we have specifically declined to review decisions below regarding speedy trial on the ground that they were predicated on a factual basis. Thus, in United States v Smith, 17 USCMA 427, 38 CMR 225, we upheld the action of the board of review in dismissing the charges for lack of speedy prosecution. Judge Kilday, speaking for the Court, found, at page 430:
“There is every reason to interpret the board of review’s action in light of the question initially posed. We are compelled to believe that when asked if accused’s restriction constituted restraint ‘in fact,’ the board’s response was intended to answer that limited inquiry and no more.”
Again, in United States v Parish, 17 USCMA 411, 38 CMR 209, at page 416, we stated the issue of speedy trial was one óf fact, depending “upon the facts and circumstances of each case,” and referred to the delay there as “the plain fact of the matter.” Id., at page 417. See also United States v Lamphere, 16 USCMA 580, 37 CMR 200.
In the case before us, the court members were presented with the evidence bearing on the issue: The length of the delay; the circumstances bearing on the return and repeated absences of the witness; the apparent inability of command to initiate proper charges; and other considerations relevant to its determination of the ultimate factual issue as to the denial of speedy trial. The president ruled that the delay was excessive and the accused had been denied his right to prompt preference of charges and equally prompt trial thereon. The court members voted on the question, and his determination was sustained by a two-thirds vote. In short, the court made findings of fact and took action thereon. United States v Smith; United States v Lamphere; United States v Brown, all supra. Such being the case, the convening authority had no power under Code, supra, Article 62, to direct reconsideration of the matter. He did not disagree on an issue of law. His letter makes clear that he simply disagreed on the facts and inferences to be drawn therefrom. Under the authorities cited, I believe he had no such power to overrule the *542court members and cause the trial to proceed.
I register my disagreement for this reason. My brothers today construe Code, supra, Article 62, most broadly, allowing both matters of law and fact to be reexamined by the convening authority in the face of the granting of a motion to dismiss, and this is done despite the clear intent to limit him to matters of law, demonstrated both in the legislative history and the Manual for Courts-Martial, United States, 1951. Cf. United States v Smith, 13 US CM A 105, 32 CMR 105. In effect, then, the convening authority’s judgment may in the future be substituted for that of the court in many areas heretofore thought to be the exclusive province of the latter. I regard this as a marked inroad on their judicial independence and a long step backwards in the administration of military justice. In short, I believe we here take a step with far-reaching consequences as well as one which is not sanctioned by law. Accordingly, I dissent.
I join in reversing the board of review, but I would also sustain the original action of the trial court and dismiss the charges, on the basis of its factual finding.