dissenting in part, concurring in part:
The Opinion of the Court is, in my opinion, too simplistic and fails to recognize and deal with the underlying competing interests inherent in the facts of this case.
The rule of law enunciated in the Opinion of the Court to the effect that the government is not chargeable for any portion of the time that an accused spends in non-military confinement by reason of civilian charges is, in my opinion, incorrect. It is true that the government is not chargeable, or accountable, for a period of confinement by civilian authorities in a situation where a military member is arrested and confined by civil authorities on a civilian charge. United States v. Williams, 12 U.S.C.M.A. 81, 30 C.M.R. 81 (1961). (See, however, United States v. Keaton, 18 U.S.C.M.A. 500, 40 C.M.R. 212 (1969) for a caveat.) I cannot believe, however, that this principle should be applied blindly to a situation in which a military accused held in confinement by military authorities is voluntarily transferred to civilian authorities upon request, for confinement on civilian charges, particularly where there is a “military hold” filed with the civilian authorities.
The Opinion of the Court, in its penultimate paragraph, discusses the relationship between military justice and civilian justice and concludes that the obligation to provide a speedy trial to an accused is essentially the same. There is no question but that the constitutionally based right to a speedy trial applies equally to both systems of justice. However, the absence of any provision for bail in the military justice system has, in part, brought about a more stringent standard for military authorities to try an accused or release him. See, e. g., United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).
The question that must be initially answered in this case can be framed as follows:
“Can the government exclude from accountability a period of confinement by civil authorities on civilian charges when that confinement stems, not from civil arrest, but from the surrender of the military member at a time when he was being held in confinement by military authorities for an offense which the government had substantial information upon which to base preference of a charge, particularly where the civilian confinement is accompanied by a military hold?”
Stated more simply, the question becomes: Can the government interrupt its period of accountability by the simple act of surrendering a military member to civilian authorities for further confinement by them *1111with a military hold attached. In my opinion, the answer is no. This answer is predicated primarily on two factors. First, the fact that at the time the military confinee was transferred to civilian authorities for further confinement, military authorities had substantial information upon which to base the preference of charges and therefore accountability had begun. United States v. Johnson, 23 U.S.C.M.A. 91, 48 C.M.R. 599 (1974). Second, the surrender- of the military confinee to civilian authorities for further confinement on the civilian charge, accompanied by a military hold, insured the continued incarceration of the accused without opportunity for freedom on bail. In other words, had the accused been admitted to bail and released from civilian confinement the military hold would operate so as to result in his immediate return to military confinement.
Therefore, if the case at bar only involved the charge of unauthorized absence a disapproval of the findings and sentence would be compelled by the fact that Reed was apprehended and confined by military authorities for his unauthorized absence and subsequently surrendered with a military hold to civilian authorities for confinement on a federal charge. The time of governmental accountability thus exceeds the 90-day rule without the government having borne the burden of rebutting the presumption of denial of speedy trial. United States v. Burton, supra. United States v. Marshall, 22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973).
This case, however, presents a more complicated situation because Reed was tried not only for the unauthorized absence for which he was apprehended but also 13 specifications of uttering bad cheeks in violation of Article 123a (hereinafter referred to as Charge VI). At the time of Reed’s apprehension and confinement by military authorities for unauthorized absence, and at the time of his surrender to civil authorities, the military authorities were aware, generally, that Reed had been extensively involved in uttering bad checks. The details and extent of his activities, were not known and thus required investigation. At the time Reed was surrendered to civilian authorities, the government had substantial, if not all the, information upon which to base the preference of a charge of unauthorized absence; however, the government did not have sufficient information upon which to base the preference of Charge VI and its 13 specifications. Therefore, the issue arises as to whether or not the concept of severability should, or does, apply in resolving questions of speedy trial.
The Court of Military Appeals has, in two recent decisions, applied the concept of severability with respect to speedy trial. United States v. Ward, 23 U.S.C.M.A. 391, 50 C.M.R. 273,1 M.J. 21 (1975). United States v. Johnson, 23 U.S.C.M.A. 397, 50 C.M.R. 279, 1 M.J. 101 (1975). As pointed out by the Court of Military Appeals in Ward, supra, the underlying problem inherent in a case involving multiple, unrelated charges that have ripened to the preference stage at different times is the clash between an accused’s right to a speedy disposition of charges and his right to have all charges consolidated for trial in a single court-martial rather than multiple courts-martial. (Para. 31g MCM, 1969 Rev.)
The Court, finding that the right of consolidation of charges contained in the Manual was a statement of policy, held that this policy must yield to the Congressional mandate of a speedy trial. The Court indicated that an accused could elect the consolidation of charges into a single trial rather than obtain a speedy trial on the earliest ripening charge. The Court made it clear, however, that the election belonged to the accused and not the government.
The Ward case, therefore, stands for the proposition that in a situation involving multiple, unrelated charges arising, or ripening to the preference stage at different times, the government may not deprive the accused of his right to a speedy trial by assuming an election in favor of consolidation of charges. In my opinion, when the government is faced with a situation such as this, the government is bound by Congressional mandate to proceed speedily on *1112any charges it has substantial information upon which to base such charges, and if the accused desires to delay the prosecution of these charges in favor of his right of consolidation under paragraph 31g of MCM, he must then make an affirmative election waiving any delay of trial attributable to consolidating all charges into a single prosecution.
As stated earlier, at the time Reed was surrendered, with a military hold, to civilian authorities for confinement on civilian charges, military authorities had substantial, if not all the, evidence necessary to prefer the charge of unauthorized absence; however, they did not have sufficient evidence upon which to base preference of Charge VI. This evidence was not in the possession of military authorities until a time when the defendant was unavailable to the military authorities, being in civilian confinement. It should be noted that when the defendant was erroneously set free on bail by the civil authorities, and remained so for 10 days, neither he nor his civilian attorney made any attempt to contact the military authorities to return him to their control. There is an absence of any evidence of a desire on the part of the defendant to have the pending military charges against him speedily disposed of until the conclusion of the civilian matter.
It is my opinion that the finding of guilty of the unauthorized absence must be set aside, since the government failed to overcome the Burton presumption with respect to that charge. It is my opinion, however, that government accountability for Charge VI and its 13 specifications did not commence until the government had acquired substantial evidence upon which to base the preference of charges. A stipulation introduced at trial stated that the government’s investigation was concluded on December 17,1974, and Reed was tried on 27 February 1975. Therefore, the Burton presumption does not arise with respect to this charge. I concur that there has been no deprivation of his right to speedy trial with respect to this charge and the findings on Charge VI, and its specifications should be affirmed.
In reassessing the sentence, it is my opinion, that the sentence awarded by the Court is appropriate for the findings of guilty of Charge VI and its 13 specifications since they involve repeated instances of uttering bad checks, and should therefore be affirmed.