Chief Judge (concurring in the result):
Article 10, Uniform Code of Military Justice, 10 U.S.C. § 810, commands that when a service member “is placed in arrest or confinement prior to trial, immediate steps shall be taken to .. . try him or to dismiss the charges and release him.” To effectuate this mandate, this Court created “a presumption of an Article 10 violation . . . when pretrial confinement exceeds three months.” United States v. Burton, 21 U.S.C.M.A. 112, 118, 44 C.M.R. 166, 172 (1971).
Without deciding whether action of the convening authority is part of a “trial,” the Court later concluded that Congress also was concerned that such action by the convening authority be taken promptly. Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974). Confronted with “many cases where a convening authority’s action has been inordinately delayed,” id. at 140, 48 C.M.R. at 756 (Duncan, C. J., dissenting), we ruled that “a presumption of a denial of speedy disposition of the case will arise when the accused is continuously under restraint after trial and the convening authority does not promulgate his formal *217and final action within 90 days of the date of such restraint after completion of trial.” Relief was given to Dunlap himself; but otherwise the rule of the case was applied prospectively “30 days after the date of” the Dunlap opinion. Id. at 138, 48 C.M.R. at 754.
Five years later, over the dissent of Judge Cook, the Court retreated from the application of this 90-day “presumption” because, as we noted in United States v. Banks, 7 M.J. 92, 93 (C.M.A.1979), “convicted service persons now enjoy protections which had not been developed when Dunlap was decided.” However, the principal opinion did not make completely clear whether the Dunlap presumption would still be applied to cases that were at that time in various stages of post-trial review. The certified question in Banks “asked ... whether ... Dunlap ... required automatic dismissal of charges in this case ‘where the accused received a fair trial free from error, was found guilty beyond a reasonable doubt and where the delay of 91 days in the review of the conviction by the convening authority caused him to suffer absolutely no prejudice.’ ” The Court responded that “inflexible application of the rule to cases such as are included in the certified question shall not be required from and after the date of this decision.” Id. In a footnote, we stated:
Thus in a case such as this, where the Judge Advocate General asks whether the Court of Military Review correctly applied the controlling law in the appellant’s favor, an affirmative answer to the question terminates any legal basis for Government relief and any announced change in the law must be prospective.
Id. n.3. Because of the wording of the certified question, the principal opinion answered it in the affirmative but at the same time ended with the announcement that, “in cases tried subsequent to this opinion, applications for relief because of delay of final action by the convening authority will be tested for prejudice.” Id. at 93-94. Despite this terminal utterance, the Navy Court of Military Review concluded in the case at bar that the rule of Dunlap had expired and need no longer be reckoned with for purposes of appellate review.
The Court’s unwillingness to continue the rigid presumption adopted in Dunlap is understandable. After conviction, an accused is in an entirely different position than he occupied previously. As stated in Ross v. Moffitt, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341, 351 (1974):
But there are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the court, and makes direct arguments to the court and jury seeking to persuade them of the defendant’s guilt.
By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being “haled into court” by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant’s consent, it is clear that the State need not provide any appeal at all.
Because of the different situation that prevails after conviction, the defendant’s entitlement to counsel may be reduced at that stage. Cf. Ross v. Moffitt, supra. And his right to bail may be more limited than before conviction. 18 U.S.C. § 3148. Furthermore, the “speedy trial” guarantee of the Sixth Amendment would not appear *218to include a right to speedy disposition after appeal. Thus, while the importance of prompt appellate review of a conviction should not be deprecated, the constitutional and statutory bases for insisting on such action are less obvious than for compelling speedy trials. Moreover, after trial, the record has been made and there is no possibility of loss of witnesses due to delay, as may occur with delays before trial. Accordingly, delay in disposing of an appeal does not threaten to affect an outcome in the way that delay in trial may do. Therefore, a sound basis exists for abrogating a rule which requires reversal of convictions because the appellate review has exceeded some predetermined maximum time, even though the accused’s guilt has been established by competent evidence beyond a reasonable doubt and no possibility of prejudice can be perceived.
On the other hand, much can be said for the view expressed by Judge Cook in his Banks separate opinion concurring in the result. The very difficulty in demonstrating that prejudice to an accused has resulted from delays in completing the action provides a temptation for a convening authority to lapse into dilatory habits in completing his action. Thus, the demise of the Dunlap presumption may produce a return to the intolerable delays that persuaded the Court to adopt the presumption in the first place. Indeed, to help prevent such an occurrence, the Court should be vigilant in finding prejudice wherever lengthy post-trial delay in review by a convening authority is involved. Moreover, if the problem of post — trial delay occurs frequently in the future, the Court will have to consider resurrecting the Dunlap presumption of prejudice.
If, however, the Dunlap presumption is not to survive-as the majority decided in Ranks-there should be a swift execution, rather than a lingering death. Generally an appellate court applies “the law in effect at the time it renders its decision.” Bradley v. School Board of City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476, 488 (1974). Moreover, from the outset, Dunlap has been an exception to the harmless error principle embodied in Article 59(a), UCMJ, 10 U.S.C. § 859(a). It imposes on military justice the social cost of freeing accused persons whose guilt has been proved in fair trials beyond reasonable doubt. Such a burden should not be borne without some pressing reason.1
In creating its presumption of prejudice Dunlap allowed a 30-day grace period before it became applicable. It has been suggested that, on a principle of reciprocity, the presumption likewise should be terminated on a prospective basis. Such an argument misses its mark. In creating the presumption of prejudice, the Court was justifiably concerned with the reliance by convening authorities on preexisting law. For example, a convening authority might have taken more than 90 days to deliberate on his proposed action because he was unaware any deadline existed. To have applied Dunlap retroactively would have penalized such reliance.
On the other hand, if the termination of the Dunlap principle takes place retroactively and applies to all cases for which appéllate action is pending, no comparable disruption of the expectations and reliance of appellants will have taken place. It is difficult to imagine an act or omission on the part of a convicted accused that would be taken in reliance on the rule that a convening authority must act within 90 days from the end of trial. Of course, if an appellant is undergoing a sentence to post-trial confinement after an illegal conviction, delay in completing action by the convening authority may delay his ultimate vindication and release. However, in such an instance, the primary cause of the continued imprisonment is the unjust conviction, rath*219er than the delay in discovering that the injustice has occurred.
Recently, the Supreme Court has reemphasized that, in determining whether a new constitutional rule of criminal procedure is to be applied prospectively, the foremost — and often decisive-factor is the purpose of the rule. Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980). Only when the purpose of the rule does not clearly favor retroactivity or prospectivity need attention be directed to the extent of reliance by law enforcement authorities on the old standard and the effect on the administration of justice of retroactive application of the new standard.
If a parallel analysis is applied in the case at bar, the conclusion is that Dunlap’s presumption of prejudice should not be applied to any case in which appellate review has not been completed. Nothing in the purpose of the new rule favors prospectivity. Instead, to the extent that the purpose of Banks is to remove an artificial limitation which has no specific constitutional or statutory basis, is at odds with the harmless error principle established by Article 59(a) of the Code, and provides a possible windfall for persons proved guilty of serious crimes after fair trials, retroactivity is called for. Furthermore, no one has relied on the 90-day presumption in such a way that it would be unfair to change it. Finally, no adverse effect on the administration of justice can be foreseen from abolishing the presumption retroactively. To the contrary, the effect should be the salutary one of avoiding the reversal of convictions and dismissal of charges when service members have been found guilty in fair trials by courts-martial. Of course, if the abolition of the Dunlap presumption presages a return to the inordinate delays of yesteryear in accomplishing the action of convening authorities, that development will take place without regard to whether the presumption was abolished retroactively or only prospectively.
The contention is made that to abolish retroactively the Dunlap presumption of prejudice violates the constitutional proscription of ex post facto laws. U.S.Const. art. I, § 9, cl. 3. Of course, since we are not dealing with a statute, there is some question about the applicability of this limitation. Appellate decisions often have retroactive effects, even in criminal cases; and such retroactivity-even when it concerns elements of a crime-has not been viewed as improper. Furthermore, retroactive changes in the mode of trial or the rules of evidence-even when accomplished by statute-generally do not violate the ban on ex post facto laws. Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925). If statutory changes in the procedure for imposing a death penalty do not contravene Article I, section 10 of the Constitution, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), it is unlikely that retroactive abolition of the Dunlap presumption will violate Article I, section 9.
The principal opinion concludes that when Sunday is the 90th day, the Dunlap presumption contemplated a day of grace. In view of the provisions of the Federal Rules of Criminal and Civil Procedure, as well as our own Rules, I accept this interpretation.
. Indeed, quite recently, in a somewhat analogous situation, the Supreme Court rejected an attempt to impose on federal criminal law administration the social cost of acquittals of guilty persons that would have resulted from a proposed extension of the supervisory powers of the federal courts; and yet the law enforcement officials had utilized flagrant tactics. United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980).