(concurring in part and dissenting in part):
As to the timeliness of the convening authority’s post-trial review, discussed in point I of the principal opinion, I agree that the Court of Military Review correctly determined “the Dunlap rule simply does not apply”1 because the accused was released from post-conviction restraint. I do not concur in the implication in footnote 5 that convening authorities in the field have tended to apply Dunlap in a way that is so alien to the spirit of the case that a more rigid rule may be required. Every flexible standard, whether it be probable cause for the issuance of a warrant, determination of the effectiveness of defense counsel, or, as here, assessment of the promptitude of prosecution, generates some cases that can be resolved only on appeal. I am not, therefore, distressed by what I have seen of the application of Dunlap.
I concur with the disposition of the certified question discussed in point II for the reasons stated by the Court of Military Review. That court did not reach the question whether a convening authority can, on. his own initiative, reconsider a denial of an application for deferment, if such reconsideration occurs within a reasonable time after the original action; it held only that he could not do so “at a much later time.”2 The majority commend the reasoning of the Court of Military Review as “sound,” but later say that “once a deferment request is considered and denied, the accused must again request a deferment before a release from confinement qualifies as such and thereby tolls the running of the confinement portion of the adjudged sentence.” If that statement is intended to prohibit reconsideration of denial even an hour or a day after its promulgation, I believe it improperly restricts the convening authority.
Although our own rules do not so provide, this Court has on numerous occasions recalled a previous ruling on its own motion. See, e. g., United States v. Sanchez, 23 U.S.C.M.A. 650 (1975); United States v. Aharonian, 23 U.S.C.M.A. 649 (1975). The rules of the Courts of Military Review expressly allow reconsideration of a decision by that court, on its own motion not just on application of a party. Rule 19, Rules of Practice and Procedure, Courts of Military Review, 40 C.M.R. at XXXVIII. A similar rule obtains in a number of the Federal civilian courts. Rule 12, U.S. Court of Appeals (5th Cir.); Rule 3(b), U.S. Court of Appeals (6th Cir.); Rule 68(d), U.S. Court of Claims. Commenting generally on the right of a judicial and quasi-judicial authority to reconsider on its own motion, this Court held that there is “inherent” power to do so, and that the power can be exercised, unless prohibited by statute or the tribunal has lost jurisdiction over the subject matter. United States v. Reeves, 1 U.S.C.M.A. 388, 390, 3 C.M.R. 122, 124 (1952). The matter in issue is so connected with, and dependent upon, the court-martial proceedings that I believe the same rule applies to it. In my opinion, therefore, reconsideration by the convening authority, on its own motion and within a reasonable time of his original *53decision, is not contrary to the language, or intention, of Article 57(d), Uniform Code of Military Justice, 10 U.S.C. § 857(d), or any supplementary provision in the Manual for Courts-Martial. See Manual for Courts-Martial, United States, 1969 (Rev.), paragraphs 88/ and g.3
In regard to point III, I have no disagreement with the majority’s generalization that the Judge Advocate General of an armed force should not be a “conduit for command influence,” but I disagree emphatically with the implication that what the Judge Advocate General did here requires measures to prevent its “recurrence.” In my judgment the Judge Advocate General’s actions were consistent with his statutory responsibilities and do not call for the censure implied by the majority. See Articles 6, 26, 67(g), and 74, UCMJ, 10 U.S.C. §§ 806, 826, 867(g), and 874, respectively.
Turning to the majority’s action on the trial judge’s ruling on the defense motion to reopen the Article 32 investigation, which is covered in point IV of the principal opinion, I believe their decision is wrong because it does not take account of significant legal differences between the unavailability of a witness for a trial and his unavailability for a preliminary hearing. At trial, subject to certain limited conditions of necessity, an accused has a constitutional right to confront the witnesses against him. The fact that a witness is at a place distant from the situs of trial is, therefore, not itself sufficient reason to deny the accused the right to confront and cross-examine the witness in person. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); United States v. Gaines, 20 U.S.C.M.A. 557, 43 C.M.R. 397 (1971); United States v. Davis, 19 U.S.C.M.A. 217, 41 C.M.R. 217 (1970). However, there is no constitutional right to confront a witness during the investigative stage of the criminal proceedings, so determination of the witness’ availability for personal testimony at an investigative hearing may properly depend upon circumstances that would not apply in regard to appearance at trial. The Air Force Court of Military Review has recognized and consistently applied this difference in regard to the availability of a witness for the purpose of an Article 32 investigation. In three cases, it has held that absence of a witness from the place of an investigative hearing under Article 32 justified a finding of unavailability; in one of these cases, the nature of the absence virtually duplicates that present in this case. The cases are: United States v. Cox, 48 C.M.R. 723 (A.F.C.M.R. 1974), petition denied, 23 U.S.C.M.A. 616 (1974); United States v. Chavez-Rey, 49 C.M.R. 517 (A.F.C.M.R.1974), and United States v. Lemons, 49 C.M.R. 521 (A.F.C.M. R.1974), companion cases reversed by this Court on another ground, 23 U.S.C.M.A. 412, 50 C.M.R. 294,1 M.J. 34 (1975).
In Cox, the issue of witness’ availability at an Article 32 hearing was the only one raised by the accused in his petition for grant of review filed in this Court; in the other cases the question was presented in one of a number of assignments of error, but this Court granted review only upon another point, upon the basis of which the cases were reversed. A majority of the court has remarked that “denial of a petition is of no precedential value and should not be cited ... or relied upon as authority.” United States v. Mahan, 1 M.J. 303, 307 (1976). I take a different view of the matter, but my reasons are not relevant to the point of my disagreement with the majority here. Suffice it to say that, as the accused is a member of the Air Force, all the cited cases are of precedential value, and the principles of law and the facts upon which they were decided must be examined *54by this Court in determining the legality of their affirmance of the trial ruling. For myself, I am satisfied that the cases are correct in their determination that, while the absence of a witness from the place of trial is not alone justification for denying an accused the constitutional right to confront the witness at trial, the legitimate absence of a witness from the situs of a hearing by an Article 32 investigating officer is, itself, sufficient reason to find that the witness is unavailable to testify in person, within the meaning of Article 32.
Cox and this case are almost identical in their operative facts. There, the Article 32 hearing was held in Puerto Rico, the situs of the offenses. The investigating officer did not call a major Government witness “because he was then on leave in the United States.” United States v. Cox, supra at 724. Here, the place of the Article 32 hearing was Udorn, Thailand, which was also the place of the commission of the alleged offenses; the witness was on regular duty at Homestead Air Force Base, Florida. As the majority refer to Cox with apparent approval, and there is not a scintilla of evidence that the witness was transferred from Thailand to the United States “to prevent . . . [his] appearance at the Article 32 investigation,”4 in my opinion, Cox and the other mentioned cases impel the conclusion that the decisions of both the Article 32 investigating officer and the trial judge as to the availability of the witness were correct. That conclusion is, I believe, also supported by the legislative consideration of Article 32.
During the hearings on the Uniform Code, Congressman Norblad, a member of the Subcommittee of the House Armed Services Committee considering the draft bill, commented on the absence of a witness as affecting availability, as follows:
I think the one important factor to keep in mind on this is that this is not the trial. It is merely the preliminary investigation to satisfy the officer investigating that there is probable cause that the man did commit the crime and there is enough evidence to warrant that he should be put on trial.
They are not trying to decide whether he is guilty or innocent. So I don’t think it is so important here as it is in the trial of the case to have the witnesses available.
Hearings on HR. 2498 Before a Subcomm. of the House Comm, on Armed Services, 81st Cong., 1st Sess. 997 (1949).
Mr. Felix Larkin, one of the principal representatives of the Department of Defense for presentation of the draft bill to the subcommittee, seemed at one point in his presentation to confuse the difference between producing a witness for a preliminary hearing and producing him at trial. Eventually, however, he acknowledged that the fact a witness was present in a foreign country made him “unavailable” for an investigation conducted in the United States. Hearings on H.R. 2498, supra at 998. Further, in response to a question by Congressman Anderson as to how “far away” a witness has to be to be unavailable within the meaning of Article 32, Mr. Smart, counsel to the subcommittee, suggested an analogy to the deposition procedure provided by Article 49(d)(1) of the Code and indicated that “100 miles may be construed as a reasonable distance” that would alone render the witness unavailable for the hearing. Hearings on H.R. 2498, supra at 996.
The report of the full Committee on Armed Services to the House indicates that the committee did “not intend to endorse any provisions which will bring added delays and unnecessary technicalities” into the system of military justice. Considering that, as to an incarcerated accused, the Government has only 90 days to complete all essential pretrial proceedings and bring him to trial or incur a heavy burden of rebutting a presumption of prejudicial delay,5 I believe that to apply for an Article 32 investigation *55the same criterion of availability for a witness at a preliminary investigation as is required by the Constitution for a witness at trial would defeat the declared intention of Congress. Although the discussions of the matter during the hearings were incomplete, in my opinion, they demonstrate that Congress considered the presence of a witness at a place distant from that of the Article 32 hearing made him unavailable for that hearing. In my opinion, the majority’s decision is contrary to that understanding and incorporates into the preliminary procedure conditions of delay and “unnecessary technicalities” that Congress sought to avoid. Considered with the 90-day speedy trial requirement, the majority’s ruling needlessly imperils future prosecutions. It is not required by the legislative discussion on, or the text of, Article 32, and I cannot agree with it.
My conclusion as to the correctness of the ruling below requires some further comment on an aspect of the issue not mentioned in the several opinions of the Air Force Court of Military Review. In the civilian community, a grand jury, whose investigative function is like that of the Article 32 investigating officer in that it determines whether a crime has probably been committed and whether the accused probably committed it, can consider, and return an indictment on, hearsay evidence alone. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). Military law accords an accused a greater right in an Article 32 investigation in that he is entitled to cross-examine the witnesses against him “if they are available.” Article 32(b), UCMJ. The Code does not indicate who has authority to determine the availability of a witness, but the Manual provides that “[ojrdinarily, application for the attendance of any witness subject to military law will be made to the immediate commanding officer of the witness”. MCM, paragraph 34d I do not construe the Manual provision as prohibiting the Article 32 investigating officer from determining availability, especially when the commanding officer of the witness is also at a distant place. True, a military witness is always subject to orders and can readily be transferred from one place to another, but the availability of process to authorize transfer is not tantamount to availability for transfer within the meaning of Article 32.
One further matter remains for consideration. Conceding the witness’ unavailability at the Article 32 hearing does not necessarily mean that the accused could not question him before trial. There are at least two courses available to him to obtain such examination: he can proceed formally, as provided by Article 49, to take the deposition of the witness; or, he can, as the accused did here, examine the witness informally when he comes to the place of trial. If defense counsel is unable to pursue either course, and, therefore, believes himself unprepared to cross-examine the witness at trial, he can properly apply to the trial judge for a continuance for that purpose. Commendably, the trial judge in this case recognized the potential problem and before ruling on the defense motion specifically inquired of defense counsel whether he had examined the witness. Defense counsel replied in the affirmative, and made no request for a continuance for further preparation for trial.
On the record, I discern no possibility of prejudice to the accused as a result of the unavailability of Sergeant West for the Article 32 investigation. I would, therefore, affirm the decision of the United States Air Force Court of Military Review.
. United States v. Ledbetter, 1 M.J. 746, 748 (1975).
. Id.
. I recognize, as United States v. Reeves, 1 U.S.C.M.A. 388, 3 C.M.R. 122 (1952), points out, that events subsequent to the original decision may legally prevent reconsideration, even though a reasonable time has not yet elapsed. For example, in the interim between the initial denial of the application for deferment and reconsideration, the accused may have left the jurisdiction of the convening authority. Arguably, the authority to reconsider in that instance may be lost by virtue of the provisions of paragraph 88f, Manual for Courts-Martial, 1969 (Rev.). The filing of a petition for review of the denial with an appellate court, as in Collier v. United States, 19 U.S.C.M.A. 511, 42 C.M.R. 113 (1970), may have the same effect.
. United States v. Chavez-Rey, 49 C.M.R. 517, 519 (A.F.C.M.R.1974).
. United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376 (1974).