(concurring in the result):
I concur in the result reached by the majority. Using the majority’s standard as enunciated in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971), and United States v. Marshall, 22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973), and subsequent decisions,1 I reach the same conclusion.
I do find in this case that there was noncompliance with Article 33, Uniform Code of Military Justice, 10 U.S.C. § 833. Our disposition of this case makes it unnecessary to address the proper remedy for this violation. See United States v. Mason, 21 U.S.C.M.A. 389, 45 C.M.R. 163 (1972) (Duncan, J.).
The Congress provided ample protection for speedy trial under the Uniform Code of Military Justice. I believe that Article 10, UCMJ, 10 U.S.C. § 810, read in conjunction with Article 33, UCMJ, 10 U.S.C. § 833, provides a more than adequate basis for the expedient disposition of criminal matters. If those charged with the subsequent obligation to proceed to trial do so in an unreasonable manner, they should be charged under Article 98, UCMJ, 10 U.S.C. § 898, which states as follows:
Any person subject to this chapter who—
(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or
(2) knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused;
shall be punished as a court-martial may direct.
The real culprit that endangers the military society in the area of speedy trial is not the accused or any judicial tribunal that dismisses the case for want of a speedy trial.2 The culprits are those persons in command charged with the responsibility of enforcing and acting within the purview of the Uniform Code of Military Justice. The way to protect the military society from the “guilty” accused who has not been provided a speedy trial is to enforce by prosecution those who chose to ignore the obligation to their society mandated by the Uniform Code of Military Justice.
. See United States v. Henderson, 1 M.J. 421 (1976).
. See Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).