dissenting:
The problem facing this court is whether a rule established in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971), applies to this case. This question presupposes, on the part of the answerer, a knowledge of what the rule is and means. Whatever it is or means, it is not categorical, such that a “violation” of the rule can occur. It is conditional. It is expressed in the form: “If a certain set of circumstances exists, a presumption arises which forces the Government to bear successfully a heavy burden of explanation or to face a flat dismissal of the charges.” The presumption, we know, is that a speedy trial has been denied to the accused. In the most recent formulation, the rule is phrased thus:
“. . . ‘in the absence of defense requests for a continuance, a presumption of an Article' 10 violation will exist when pretrial confinement exceeds 90 days.’ ” United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376 (1974).
The instant case, unlike the “Driver” case, does not touch on “defense requests” at all, but the court here sees the additional, novel question as “pretrial confinement by whom and for what?”
This assumes a view of the rule that is not implicit in the precise wording of its “Burton” formulation or its “Driver” clarification. The Federal Income Tax laws are notable for frustrating those affected, with “exemptions” and “deductions”, but they must respond to a need in us for such matters, for as soon as we are confronted with a “rule” we perceive cause to debate over “exemptions” from this or from that so as to render the rule inapplicable, or applicable but not controlling for some other reason. The view of this court is that *1113the question is: “Is time spent in confinement imposed by civilian officials deductible from the total time elapsed, such that, if the remainder is 90 days or less, the ‘Burton’ rule does not apply and no presumption of an Article 10 violation arises?” I am not at all sure that this framing of the issue does not beg a more fundamental question. The question begged deals with the essence of the rule. I conceive that more than one possible answer exists and I submit that the meaning adopted should be one that is not only fair and equitable but also relatively certain of application, not likely to result in an infinite series of challenges and ad hoc appellate rulings.
A language problem already exists. The words: “exception,” “accountable,” “de-
ductible,” “chargeable,” have already injected an uncertainty into the statements, with different speakers using the same terms in differing contexts. I would like to deal with a couple of these instances in clearing the ground for establishing on a rational basis what I think is, or may well be, the rule.
The decisions in United States v. Swartz, 44 C.M.R. 403 (A.C.M.R. 1971) and United States v. Steverson, 45 C.M.R. 649 (A.F.C. M.R. 1972) have been argued and discussed. Both, like this case, dealt with a situation in which a military prisoner was turned over to civilian authorities and confined for their purposes until returned to military custodians. The Army court held the “Government” accountable for full term of confinement; the Air Force court held the “Government” not “accountable” for the time in civilian confinement. This court believes that we are free to choose between the two as we find one or the other more persuasive (the Air Force position, as it happens). I do not think the matter is that simple.
Both these cases were decided, in legal contemplation, before the rule announced in the “Burton” case existed. The new rule, I think, required a new meaning for “accountable.” The 90-day consideration has injected a potential of new values. Thus, I think, the Army decision is greatly increased in weight by virtue of the “Burton” case rule because if there was “accountability” ascribable when the time period was indefinite it is strengthened by the “90-day” measuring scale, while the Air Force decision is weakened because it was not set up against a rigid, determined requirement. What “accountability” means now requires new thinking, at least.
The rule we deal with is a judge-made rule. Its application cannot be analogized to that of a statute. Particularly, here, I refer of course to the new “Speedy Trial Act,” which has indeed stated periods of time for deduction from total time but which also has no reference to confinement as a consideration. The meaning of this rule must be deduced from its own genesis. “Speedy trial” itself is not dealt with by the rule but only speedy trial when confinement before trial is involved. Confinement was a matter of primary concern because of the unavailability of bail in the military system. (There is room to doubt that sufficient analysis of the “bail” concept and the traditional military methods and possibilities has been undertaken, but speculation in this direction is not appropriate here.) For this reason, the existence of the “military hold” on a prisoner detained by civilian authorities becomes something to think about although not necessarily to be exhaustively studied for purposes of fixing a general rule or principle of conduct. Then, too, the issue here involves the admitted belief that Article 10 was intended to place heavier strictures on the military than were then prevailing in the civilian jurisdictions. For this reason, the obvious is reaffirmable; that the 90-day rule does not present to the military a carte blanche for delay nor should it appear to extend an invitation to test endurance before the presumption arises.
The first statement of the rule provided for delay caused by defense request not as an “exception” to the rule but as an integral condition of application, regardless of the variety of language since used to discuss it: chargeable, deductible, attributable, accountable, and the like. A postulate *1114that I concede, made necessary by the context of the rule, is that the beginning of any period to be considered must involve military custody or confinement or connection of the custody or confinement to a military interest. Then the rule is, as I see it, or insofar as it is open to interpretation, should be, that the time period from its beginning to its end is one entire consideration. No “deductions,” to attempt to reach by arithmetic subtraction a diminution of time below 91 days, are appropriate or permissible to prevent the application of the rule and the raising of the presumption.
The element of time spent in custody of some other Governmental agency in connection with matters which may well be the subject of possible military action or which just as well may have no connection with the military at all becomes a fact which is part of the circumstances which the prosecution may use to rebut the presumption raised.
The test then would be, for this case, has the Government, with a voluntary surrender of custody of one more than suspected of certain formulated offenses to a civilian authority, maintaining a “military hold” on the party designed to prevent release on bail, on probation, or even after acquittal, using an additional period of 68 days after obtaining body custody of the person before trial, adequately explained under the standards set in the “Burton” and “Marshall” decisions, the lengthy confinement before trial? No attempt to do so appears in the record.
Since the majority, by mechanically applied subtraction, finds that no presumption of improper delay has arisen, the burden is seen to be upon Appellant to have challenged the delay by demand for trial. Appellant, although he had civilian counsel who tried to influence the Federal court proceedings by pointing up the military justice amenability of his client, had no military counsel at all until trial defense counsel was appointed and made available on 24 February 1975.
An “investigation” into Appellant’s conduct was begun on 4 September 1974. It was “closed” on 17 December 1974. After Appellant was apprehended on 8 October 1974 it was expected that any bad cheeks uttered after those which were already known would be disclosed in four to six weeks from that date. This would bring the time needed for a reasonable degree of certainty that all outstanding offenses were accounted for to about 15 November 1974. Although this is the date to be computed for the completion of the “investigation,” on the evidence of the responsible investigator, no explanation appears for holding the “investigation” open until 17 December. The confinement of Appellant, no matter in whose custody nor for what reason did not hinder the investigative efforts; to the contrary, it gave a day certain as the terminal date for outstanding bad checks. (The 90-day period, of course, has nothing to do with the date on which the Government had completed assembling its case.) When to this are added the turning over of Appellant to two other, local jurisdictions after his Federal court release, and the effort of Trial Counsel to argue “brief periods of inactivity” (from pre-“Burton” perspective) in connection with Christmas holidays and many persons not being “around,” there appears a picture of inexplicable delay.
I recognize again the apparent need of demand for a speedy trial under other-than-“Burton” conditions but, while I adhere to the view that the basic principle of the rule is, or should be, as I have construed it, I see, in sum, three reasons for dismissing the charges in this case:
(1) The full and complete application of the “Burton” rule;
(2) The inclusion of the civilian confinement period in computing the total time even if, as the majority has it, certain periods may be “deducted” before the 90 days may be counted, since the 50 days considered were chargeable to the inscrutable convenience of the Coast Guard; and
(3) The general theory of denial of a speedy trial, despite the absence of specific demands for trial since Appellant did not have the benefit of an *1115appointed counsel familiar with the rights of the party and the chess-moves requisite to involve Article 10 in other-than-“Burton” situations.
Finally, I may say that I see no reason to chop up the offenses so as to accord “Burton” protection to the AWOL but not to the other offenses. If I am wrong about the meaning of the rule, it just does not operate at all and no presumption arises as to anything.