(dissenting):
I had understood recent cases to support the principle that Article 10, Uniform Code of Military Justice, 10 USC § 810, violations are to be tested for prejudice. The Court did this in United States v Parish, 17 USCMA 411, 38 CMR 209 (1968); in United States v Hawes, 18 USCMA 464, 40 CMR 176 (1969); in United States v Keaton, 18 USCMA 500, 40 CMR 212 (1969); in United States v Przybycien, 19 USCMA 120, 41 CMR 120 (1969); in United States v Pierce, 19 USCMA 225, 41 CMR 225 (1970); in United States v Mladjen, 19 USCMA 159, 41 CMR 159 (1969); and in United States v Marin, 20 USCMA 432, 43 CMR 272 (1971).
I consider Marin little different from this case. Marin, like Hubbard, suffered no harm in the preparation of his defense. Both records reflect compensatory sentencing action.
Although compensatory sentencing action does not excuse the failure of officials at Quantico to follow up their being notified that Hubbard was in jail and to remove him to Quantico, I still believe dismissal of charges is a drastic and unsatisfactory remedy. See United States v Keaton, supra. It frees offenders against military law but it does not punish those responsible for the delay. When no prejudice other than the pretrial confinement itself results, and when a military judge declares he is crediting pretrial confinement against the confinement he otherwise would adjudge, this impresses me as being a satisfactory intermediate remedy. Accordingly I would affirm the decision of the Court of Military Review.