(concurring in the result):
I write separately to express my disagreement with the majority’s conclusion that the circumstances triggered the presumption of a denial of a speedy trial. United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376 (1974); United States v. Bur*228ton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).
An Article 39(a)1 session was conducted on February 20. During this session, military defense counsel requested a continuance for the purpose of obtaining a civilian defense counsel. Trial counsel pressed for the earliest possible trial date, but defense counsel urged a date no earlier than March 6. The hearing was adjourned to that day; and it reconvened as scheduled. Immediately, the defense moved to dismiss the charges because the appellant had allegedly been denied a speedy trial. Trial counsel acknowledged that all of his witnesses had not been available on February 20, the date of the initial Article 39(a) session, but referred to the defense representation that the accused needed time to retain civilian counsel. However, the accused had later decided to proceed without civilian defense counsel.
While conceding that a continuance had been granted on February 20 at his request, appellant nevertheless submits that the resultant delay is still chargeable to the Government. Unlike my brothers, I reject the interpretation of the Burton-Driver presumption upon which the appellant’s argument is predicated.
The Court’s language in Burton bears repeating:2
For offenses occurring after the date of this opinion, however, we adopt the suggestion of appellate defense counsel that in the absence of defense requests for continuance, a presumption of an Article 10 violation will exist when pretrial confinement exceeds three months. In such cases, this presumption will place a heavy burden on the Government to show diligence, and in the absence of such a showing the charges should be dismissed.
Appellant concludes from this statement and from United States v. Driver, supra, that a defense-requested continuance is not chargeable to the accused unless the Government is at that time actually prepared for trial. The part of Driver he relies upon is the following excerpt in which the Court overruled a determination by the Court of Military Review that a delay obtained by the defense was not excludable from the Burton computation:3
Although the Court of Military Review may be correct in holding that not every defense request for delay should be chargeable to accused, this exclusion does not apply when a continuance or delay is granted solely for the convenience and benefit of the accused. This determination is confirmed by the opinion in United States v. Marshall, 22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973). . . . Rather, as set out above, continuances or delays granted only because of a request of the defense and for its convenience are excluded from the 3-month period.
Appellant’s reliance on the quoted language is misplaced. The Court did not make ex-cludability of defense-requested delay dependent upon whether the delay was solely for its own benefit; the Court’s comments merely acknowledged the factual state of the record.4
As noted in Burton, “defense requests for continuance” are excludable in computing the pretrial confinement chargeable to the Government. The present case involves a legitimate defense request for a continuance, not a mere acquiescence in a trial date *229selected by the Government. See United States v. Wolzok, 23 U.S.C.M.A. 492, 50 C.M.R. 572, 1 M.J. 125 (1975); United States v. Reitz, 22 U.S.C.M.A. 584, 48 C.M.R. 178 (1974). In United States v. Beach, 23 U.S.C.M.A. 480, 481, 50 C.M.R. 560, 561, 1 M.J. 118, 119 (1975), both the majority and dissenting opinions observed that the Government was not accountable for a part of the delay as to which the defense shared the responsibility with the Government. Indeed, the circumstances of the present case clearly reflect that the purpose of the Burton presumption (to insure an accused is accorded a speedy trial) would not be served by including the delay requested by the defense in the Government’s period of accountability. To so include such period would not only require the Government to incur the expense of obtaining witnesses, but also inconvenience such witnesses for a trial date which the defense affirmatively seeks to avoid.5 Under such circumstances, the purpose of the Burton presumption ceases to exist as the trial did not commence on the scheduled date at the request of the defense. Accordingly, in my opinion, the delay necessitated by the defense request for a continuance was properly excluded from the period of the Government’s accountability. Reduced by this period, the time of accountability was only 86 days (November 26, 1974 to February 20, 1975)6 and the Burton-Driver presumption was inapplicable.
Independent of the presumption of prejudice, the record reveals no unreasonable or oppressive delays. I, therefore, conclude the appellant was accorded a speedy trial,7 and join my brothers in affirming the decision of the United States Army Court of Military Review.
. Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a).
. United States v. Burton, 21 U.S.C.M.A. 112, 118, 44 C.M.R. 166, 172 (1971) (emphasis added) (footnote omitted).
. United States v. Driver, 23 U.S.C.M.A. 243, 245, 49 C.M.R. 376, 378 (1974).
. The language of Driver is restated to some extent in United States v. Johnson, 1 M.J. 294 (1976), and United States v. Schilf, 1 M.J. 251 (1976). However, neither case involved a continuance which was necessitated by the request of the accused. Schilf involved a situation where the defense requested a delay as a result of “trickery” by the Government in an attempt to avoid the Burton presumption; and the delay in Johnson was occasioned by the request from counsel of a co-accused.
. As the defense, in fact, requested a continuance in the present case, there was no issue as to whether the Government reasonably relied upon a defense desire that the trial be delayed. However, I caution the Government that where no request for a defense continuance is made at trial, the Government must demonstrate, on the record, that it was not prepared for trial because it relied on a defense position that a delay in the proceeding would benefit the accused.
. See United States v. Manalo, 1 M.J. 452 (1976).
. In view of my conclusion that there was no presumption of a denial of a speedy trial, I And it unnecessary to address the question of whether the present case involves extraordinary circumstances sufficient to overcome such a presumption.