concurring in part and dissenting in part:
I concur in the view that the Government has rebutted the presumption established in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). Investigative and prosecutorial officials were faced with unusual and extraordinary circumstances. The record discloses that charging authorities, the Article 32 investigating officer, the staff judge advocate, and the military judge all displayed commendable concern for the rights of appellant and demonstrated so by their actions.
Not concurring in the view that neither of the Article 39(a) sessions in this case tolled the period giving rise to the Burton presumption, I prefer to decide the case on alternate grounds: in my view, the second Article 39(a) session, which occurred on the 92nd day of pretrial confinement (computed as in United States v. Manalo, 24 U.S.C. M.A. 297, 52 C.M.R. 8,1 M.J. 462 (1976)) and the 87th day of the Government’s accountability, tolled the Burton presumption.
Although proceedings under Article 39(a) are a session of the court and a part of the trial, Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a); Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 53d, not all Article 39(a) sessions toll the Burton presumption. See United States v. Beach, 23 U.S.C.M.A. 480, 50 C.M.R. 560, 1 M.J. 118 (1975); cf. United States v. Marell, 23 U.S.C.M.A. 240, 49 C.M.R. 373 (1974) (determination of guilt tolls Burton period); United States v. Towery, 51 C.M.R. 727, 2 M.J. 468 (A.C.M.R. 1976) (arraignment, plea, assembly of court with counsel prepared and witnesses available constitute beginning of trial and toll Burton period) (alternative holding). Instead, it is the function and result of the particular Article 39(a) session that are determinative. See United States v. Hill, 2 M.J. 950 at 951 (A.C.M.R. 30 July 1976).
Although the question of guilt or innocence was not addressed at the Article 39(a) session on 26 February (as in Marell), many issues of substance were addressed pursuant to motions made by appellant. Although the prosecution could not proceed at the close of the session (as in Hill and Towery), this was due to the fact that not all of the witnesses had been assembled — a matter not fully within the control of the prosecuting command under the circumstances of this case. The military judge was placed in effective control of the scheduling of further proceedings. While acceding to the Government’s request to try first a co-accused when the witnesses were assembled, he commanded the Government to proceed then with appellant’s trial should the co-accused’s trial not occur as scheduled. Accordingly, substantive and substantial issues presented by appellant were litigated at the Article 39(a) session and, as stated in Hill, the accused had come under judicial scrutiny and the dangers protected against by Article 10, Uniform Code of Military Justice, 10 U.S.C. § 810, thereby had been dissipated. United States v. Hill, 2 M.J. at 952.
JONES, Senior Judge, concurs in the opinion of Judge FULTON.