(dissenting):
I, like the other members of the Court, am confounded by my observation of many cases where a convening authority’s action has been inordinately delayed. We have grappled with both the evil and apparent evil which either directly results from or spins off this delay. The case at bar spotlights an extreme example of the problem. Like the plurality, I would like to arrange a rule that would militate against- such unreasonable delay and at the same time preserve the high quality of military justice and the orderly procedures necessary to achieve that end. I fear the rule the Court today announces may go a long way to achieve the former but at a high expense to the latter. I respectfully dissent.
There is a marked dissimilarity between pretrial delay and delay in a convening authority’s action and the harm that may result from each. Appreciating the fact that in a sense "the functions of the court-martial and those of the convening authority in the determination of guilt and in the imposition of sentence are so connected that they can be regarded as representing, for the purpose of speedy disposition of the charges, a single stage of the proceedings against the accused,” significant basic differences are apparent. Looking to the basics of American jurisprudence, the disdain of pretrial delay has received enormous constitutional, statutory, case law and court rule support. On the other hand, the ire for post-trial delay has been largely words, not action.
Confinement before trial of one who is presumed innocent is particularly onerous; even more so in the military where there is no provision for bail. When a trial is delayed, the quality of justice attainable may suffer; as time passes witnesses are often less available and the evidence less fresh. A person in pretrial confinement is further hobbled in his personal efforts in defense. It is these matters that persuaded this Court to rule as it did in United States v Burton, 21 USCMA 112, 44 CMR 166 (1971). Notwithstanding the subtle idea that a trial is incomplete until the convening authority acts, the critical reason for the Burton rule’s existence are not present *141after an accused pleads guilty or is found guilty beyond a reasonable doubt. Recognition that a trial is not complete until the convening authority acts does not alter his function which is essentially review of a conviction and sentence. What the Court does today is provide a means where a person found guilty beyond a reasonable doubt in an error-free hearing may escape any sanction.
Turning now to the majority’s fashioning of a 90-day rule, I am reluctant, under these circumstances, to decide that 3 months is a more appropriate time than 2 months, 4 months, or some other period. Although the desire for a time limit within which a convening authority must act was mentioned by counsel, the issues as to a certain time or the proficuousness of such a rule were not specifically briefed and argued.
Lastly, I’m concerned with the matter of the tribunal which will' litigate the convening authority’s delay issue. The guideline established by the Court presumes a denial of a speedy disposition if the convening authority fails to act "within 90 days of the date of such restraint after completion of trial.” As in Burton, the presumption is rebuttable. See also United States v Marshall, 22 USCMA 431, 47 CMR 409 (1973). In certain instances litigating the issue may require factfinding. In my experience factfinding at the appellate level utilizing multiple affidavits is most often an unsatisfactory substitute for an evi-dentiary hearing with confrontation and cross-examination of witnesses. To place the litigation of such matters before the extremely busy Courts of Military Review or this Court may well have the effect of only substituting one brand of delay for another. In the absence of a procedure for the issue to be litigated before the trial courts, I am uneasy with any new burden at the appellate level of this system.
In accord with United States v Gray, 22 USCMA 443, 47 CMR 484 (1973), and United States v Timmons, 22 USCMA 226, 46 CMR 226 (1973), I remain of the opinion that "[wjhatever reason might exist to deplore post-trial delay generally ... [I am] loathe to declare that valid trial proceedings are invalid solely because of delays in the criminal process after trial.” 22 USCMA at 228, 46 CMR at 228.
The petitioner, as I view it, has not demonstrated that his present confinement while awaiting trial amounts to an abuse of his commander’s discretion. It is now for the trial courts to determine whether pursuant to United States v Burton, supra, and United States v Marshall, supra, the petitioner has been in pretrial confinement without trial for a period of time which will entitle him to a presumption of a violation of Article 10, Uniform Code of Military Justice, 10 USC § 810. If so, and the presumption is not rebutted, his case should be dismissed. I would deny the relief requested.