dissenting:
I dissent.
I believe the majority opinion in this case has misapplied the law to the facts in this case.
In United States v. Burton1 the United States Court of Military Appeals held that, “when the defense requests a speedy disposition of the charges, the Government must respond to the request and either proceed immediately or show adequate cause for any further delay. A failure to respond to a request for a prompt trial or to order such a trial may justify extraordinary relief. See Petition of Provoo, D.C., 17 F.R.D. 183, 200 (1955), affirmed, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955).”
An examination of the citation to Provoo, supra, would appear to indicate the rule was based upon the court’s viewpoint that it possessed the inherent power to dismiss a case or take other action on the findings and/or sentence for want of prosecution when there is unnecessary delay in bringing an accused to trial.
In United States v. Johnson2 this Court considered a situation in which there was a speedy trial issue involving two separate *919sets of charges. The original charges required 118 days to process to trial. The additional charges required 82 days of that period. This Court dismissed both sets of charges under the Burton rules. The Court’s action on the additional charges was based upon the second facet of the Burton rule. The appellant made a demand for speedy trial and the Court held that the Government responded promptly3 by setting the case for trial two weeks later. A crowded docket caused an additional two weeks delay thus 29 days after the demand for trial was made the appellant was tried for the offenses charged.
This Court ordered the charges dismissed after determining that the Government had failed to show adequate cause for delay. This Court further noted that in making the determination to dismiss that it examined not only the period between the demand and trial but also the period that preceded the demand as they determined that only in that manner could the subsequent period (post-demand processing time) be placed in perspective.4
It is never permissible for the Government to proceed in a leisurely fashion in the processing of charges against an accused.5 Where the Government is on notice of a demand for speedy trial, a close examination of the Government’s diligence must be made.6 In determining whether or not the Government was diligent, brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive. The touchstone for measurement of compliance with provisions of the Code is not constant motion but reasonable diligence in bringing the charges to trial.7
Turning to the case before us, the appellant was placed in pretrial confinement on 29 June 1975 having been identified as a participant in a robbery. He had confessed to participation in the crime and was immediately charged with the offense with others. The charges and allied papers were received by the special court-martial convening authority on 7 July 1975 (9)8 who endorsed them to the general court-martial *920convening authority recommending a bad-conduct discharge special court-martial. The general court-martial authority directed the special court-martial convening authority to hold an Article 32 investigation (18) and the Article 32 investigating officer was appointed on 21 July 1975 (21). The Article 32 officer required that the victim who was enroute to an overseas assignment be returned to the post and testify concerning the charges. Two separate hearings were held on the case. All told, a period of 37 days was consumed in conducting the Article 32 investigation and producing the reports thereon.9
As the charges against Coopwood (a co-accused) and the appellant were initially consolidated, a report was rendered on each individual and returned to special court-martial convening authority who in turn forwarded them to the general court-martial authority on the 57th day. The appellant’s counsel initially discussed the possibility of an offer to plead guilty with the staff judge advocate on 23 July 1975. Following this discussion appellant submitted an offer to plead guilty on 1 August 1975. During the period of discussion and including the date of the original submission, an Article 32 investigation convened by the special court-martial convening authority was in progress. This offer to plead guilty was not presented to the convening authority but was subsequently retyped on two occasions in order to change the signature block to accommodate a change in the general court-martial convening authority.
At the outset it might appear that the Government may have been negligent in not quickly processing the appellant’s offer to plead guilty. However, the case had not yet arrived at the general court-martial level nor had any disposition been made as to the level of trial. It obviously was inappropriate to present an offer to plead guilty to any convening authority until after the case had been referred for trial. If such action had been taken, it could have been argued that the convening authority may have been swayed by the offer to plead guilty to refer a case to trial without fulfilling the requirements of paragraph 35b of the Manual.10 In any case, the staff judge advocate did not present the matter and avoided a potential issue.
The fact that the offer to plead guilty was not presented to the convening authority until 16 September 1975 does not imply to this writer negligence or a lack of interest in the appellant’s case. Convening authorities at large installations are not available at every moment. In any case the pretrial agreement was presented to the convening authority after the principal Article 39(a) session and prior to the beginning *921of the trial. I do not believe it had any bearing on the issue of delay.
The appellant made his demand for speedy trial on the 60th day and the demand was duly presented to the staff judge advocate who took it with him when he discussed the referral of the charges with the convening authority. However, the staff judge advocate did not specifically discuss the appellant’s demand although he advised the convening authority that the case had to be tried rapidly. The convening authority referred the charges to trial on the 66th day. There was no reply in writing to the appellant’s demand.11 However, the trial counsel docketed the case for trial the following day (67). Trial was set and commenced 12 days later (79). A total of 19 days elapsed from the date the appellant made his demand for speedy trial. During this period a pretrial advice was written, an Article 39(a) docketing session was held, and the parties made their last minute preparations for trial.
In applying the foregoing rules to the facts in this case we are required to determine whether or not the Government has shown adequate cause for delay. In applying the second facet of the Burton rule I do not disagree with the view as expressed in footnote five of the majority opinion that the tests or criteria set forth in the opinions of the United States Court of Military Appeals in Burton, supra, and Johnson, supra, are compatible. However, at this point we part company. The majority opinion states that “In trying to determine whether the Government has shown an adequate cause for any delay in complying with a demand for immediate trial, it may be necessary to examine what it has done to prepare the case for trial prior to such demand. In other words, was the post-demand delay occasioned by pre-demand failures? It is only when we look at the earlier period that the subsequent one is put in perspective. United States v. Johnson, 49 C.M.R. 13 at 16.”12 The logical consequence of this application of the foregoing rule results in the appellate courts making a determination based essentially upon the pre-demand period of pretrial processing. In other words, if the pretrial processing in the pre-demand period indicates that certain required processing was not done as rapidly as it should have been and those actions preclude immediate trial after demand and result in delay, the appellate courts will then determine whether or not the Government has been diligent and their reasons for delay are adequately based on the entire pretrial processing of the case. I believe the foregoing to be an improper application of the law.
As I have heretofore noted, the second facet of the Burton rule is bottomed on the inherent power of the Court to dismiss or modify the finding and sentence based upon the Government’s apparent failure to prosecute.
It is my view that the application of the majority opinion’s rule of law in those cases in which a violation is found could only result in a determination of a lack of diligence during pretrial processing which in effect would constitute a violation of Article 10, UCMJ, requiring dismissal of the charges as a remedy.13
I believe that the second rule enunciated in Burton and as clarified in Johnson, supra, requires an examination of the Government’s diligence in the post-demand period of the pretrial processing. A review of the pre-demand period is useful only for the limited purpose to explain or otherwise clarify the basis for the delay during the post-demand period.
*922The standard for diligence is not increased merely because a demand for speedy trial is made. The statement in Johnson that the Government is on notice that delays from that point forward are subject to close scrutiny and must be abundantly justified means only that the appellant having called attention to his desire for immediate trial the Government cannot delay such trial without reasonable cause.
Here, the Government tried the appellant within 12 days after his case was referred for trial and 19 days after his demand for trial. In Johnson, supra, the case was docketed for trial two weeks after the demand for speedy trial was made and the Court determined that such action was a proper response. As heretofore noted, only after a subsequent two week delay caused by docketing problems did the Court determine a violation of the second facet of the Burton rule had occurred in that case.
That type of factual situation is not before us in this case. Here, the Government moved as rapidly as was reasonable under the circumstances following the appellant’s demand for trial to bring the appellant’s case to trial.14 I believe that they have shown adequate cause for the delay in this case and were generally diligent in the pretrial processing of this case. I would affirm the findings and sentence as approved by the convening authority. Accordingly, I must respectfully dissent.
. 21 U.S.C.M.A. 112, 118, 44 C.M.R. 166, 172 (1971).
. 49 C.M.R. 13 (A.C.M.R.1974).
. The term “promptly” was extracted from this Court’s opinion in United States v. Johnson, supra. The Court was not concerned with the initial docketing date but apparently determined that the violation occurred by reason of the subsequent two-week delay after the original trial date was set.
. Upon certification, the United States Court of Military Appeals affirmed the decision of this Court in United States v. Johnson, 23 U.S.C. M.A. 397, 50 C.M.R. 279, 1 M.J. 101 (1975), quoting with approval a portion of this Court’s opinion as follows:
“Appellant had been in pretrial confinement 89 days at the time he submitted his demand for trial, 59 of these days having elapsed after commission of the offenses alleged in the Additional Charge. Charges had been in the staff judge advocate’s office for a month when the appellant made his demand, and considering the lengthening pretrial confinement, the prosecutor should have been completely familiar with the case. As shown from the stipulated chronology, the delay between demand and trial was caused primarily by the congestion of the trial docket. Contributing were the TDY and emergency leave of the resident judge. Another judge was finally brought in to hear the case. In the absence of a showing that no other judges were available to try the case on 23 February 1973, the originally scheduled trial date, or that the docket could not have been rearranged to accommodate this trial, we conclude that the Government did not show adequate cause for delay. Cf. United States v. Reitz, 22 U.S.C.M.A. 585, 48 C.M.R. 179 (1974)”
That court further commented with reference to the original Burton decision stating “we attempted to provide notice that a close examination of the Government’s diligence would be made not only in those cases where the pretrial confinement exceeded 90 days but also in those in which a confined accused had demanded a prompt disposition of the charges against him. In addition, the court said that this “court gave careful consideration to the totality of the delay on the additionally preferred offenses particularly insofar as that delay related to the Government’s showing of diligence both before and after the accused made his demand for speedy trial.”
. United States v. Johnson, supra.
. Id. at page 283, 1 M.J. 101.
. United States v. Tibbs, 15 U.S.C.M.A. 350, 35 C.M.R. 322 (1965).
. For ease of discussion the total days consumed in pretrial processing will be shown in parenthesis where appropriate.
. The Article 32 officer was not a lawyer. The appellant and his co-accused Coopwood were processed together. However, the appellant waived the Article 32 investigation initially. At the time his waiver was received by the Article 32 investigator, the appellant also forwarded a request for witnesses and a few days were consumed sorting out the appellant’s respective requests. The record reflects that the Article 32 investigator had some serious reservations concerning the evidence supporting the charges against this appellant. He investigated until he was satisfied that he had determined the appellant’s degree of participation and that the charges were well founded. Undoubtedly, a lawyer could have performed the task within a shorter time period and expedited the case. In addition, it must be remembered that in the military criminal justice system the preliminary pretrial processing is conducted by military officers. Although legal advice is available upon request, there is no reason to believe that the commanders concerned in this case had a lawyer at their elbow. In addition, the Article 32 investigator’s interest in determining the degree of appellant’s participation in the crime could have been a material factor in the general court-martial convening authority’s determination whether he would accede to the recommendation of the special court-martial convening authority for trial by a BCD special court-martial. In this instance, the Article 32 officer was meticulous in his endeavors and rendered an abbreviated report concerning the appellant notwithstanding his proffered waiver. As noted, this writer believes the Article 32 investigating officer performed his duties as required and demanded by the Uniform Code of Military Justice.
. Paragraph 35b, Manual for Courts-Martial, United States, 1969 (Revised edition).
. Convening authorities should respond in writing to demands for speedy trial. Such responses not only advise an accused of the steps being taken to accommodate his desire to speed his case to trial but also places upon the record the steps and actions they have taken for the edification of the appellate courts.
. Footnote 5, page 4, majority opinion.
. See United States v. Hubbard, 21 U.S.C. M.A. 131, 44 C.M.R. 185 (1971).
. I note that in virtually every case that we review on a speedy trial issue, the pretrial processing could have been expedited in some manner. The standard of diligence is that enunciated in Tibbs, supra, not whether the case could have been processed faster.