concurring:
This case is another in the continuing saga involving the question of post-trial delays.
This court in United States v. Ward, 48 C.M.R. 588 (1974), recognized that the Court of Military Appeals in 1973 had not afforded any relief for post-trial delays of 180 days, 212 days, or 244 days (United States v. Timmons, 22 U.S.C.M.A. 226, 46 C.M.R. 226; United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484; and United States v. Jefferson, 22 U.S.C.M.A. 554, 48 C.M.R. 39), however, held that the 774 day delay in Ward, of which 650 were attributable to the supervisory authority, “made a mockery of the appellate review process provided for by the Uniform Code of Military Justice,” and that “it violated due process of law.” 48 C.M.R. at 589. The findings and sentence were therefore disapproved and the charges dismissed.
The present case involves a 413 day post-trial delay, of which 328 days is attributable to the supervisory authority. Thus, the post-trial delay in this case is more than half of that in Ward and is almost twice as much as that in Gray and Jefferson, placing this case in between those which have afforded no relief and that which granted total relief by setting aside the findings and sentence.
The Court of Military Appeals addressed the problem of pretrial delay when a defendant is in confinement in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971), and established a presumption of prejudice that arises after 90 days. Failure on the part of the government to rebut the presumption requires the dismissal of the charges. The Court of Military Appeals has also addressed the question of post-trial delay pending the convening authority’s action in Dunlap v. Convening Authority, 23 U.S.C.M.A. 138, 48 C.M.R. 751 (1974) by stating, similar to Burton, that if an accused is in post-trial confinement and the convening authority does not take action within 90 days a presumption of prejudice will arise. Failure on the part of the government to overcome this presumption requires disapproval of the findings and sentence and a dismissal of the charges.
Thus, it is clear that the continued confinement of an accused for more than 90 days awaiting trial or the convening authority’s action is presumptively prejudicial, a substantial deprivation of rights, to the extent that the drastic remedy of dismissal of findings and sentence must be imposed in the absence of the government bearing a very heavy burden of overcoming the presumption.
The question that remains unanswered to date deals with the problems of those cases in which there is substantial post-trial delay when the accused is not in confinement for more than 90 days, and those cases in which a substantial majority of the delay is attributable to the supervisory authority following action by the convening authority.
It is my opinion that the drastic remedy of a disapproval of valid findings and the dismissal of charges should not be resorted to except in those cases where demonstrable and substantive prejudice to the defendant is present as a result of post-trial delay or in flagrant cases involving deprivation of due process such as that found in Ward, *1118supra. The present case fits neither of these exceptions. I believe, however, that the military justice system and the Coast Guard ought not to condone or tolerate unexplained, apparently unnecessary, post-trial delays of the magnitude found in this case, i. e. 413 days, particularly where a substantial part of this delay is attributable to the supervisory authority — 328 days in this case.
It is my opinion that this Court should, as the Court of Military Appeals has done, provide guidance in the form of a “rule” to solve the problem of post-trial delays. I can conceive of very few cases, or circumstances, where a supervisory authority could not with reasonable diligence take action within six months of the time a record of trial, as acted on by the convening authority, has been received. Therefore, I believe this Court should formulate a “rule”, analogous to that of Burton and Dunlap, to the effect that a presumption of prejudice will arise in any case in which a supervisory authority fails to take action within six months of the time the record of trial, as acted upon by the convening authority, is received. Unlike Burton and Dunlap, this presumption would not be contingent upon confinement of an accused; and unlike Burton and Dunlap the prejudice arising under this presumption would only extend to a disapproval of the sentence. The government, and society, should not be deprived of an otherwise valid conviction; on the other hand however, the government should be penalized, or stimulated, depending upon how one looks at it, through a disapproval of the sentence in those cases where a supervisory authority without apparent reason or justification “sits on a case” for more than six months.