(concurring in the result):
I
At the original Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a), hearing — of which only a summarized record was prepared — the Government offered a stipulation of fact. The stipulation commenced with a recital that the parties had “agreed ... that the following facts constitute a chronology of essential facts with regard to the present case”; and then it listed various events from March 18, 1984 — “Date of alleged rape” — through July 11, 1984 — “Trial commences at McGuire AFB, NJ.” The remaining evidence before the judge at this hearing consisted of copies of a defense request for delay on March 30,1984; a defense request for speedy trial on June 19,1984, and related correspondence; and a second speedy trial request on June 27, 1984. Also, the military judge had received a written motion to dismiss wherein the defense contended that (a) petitioner’s pretrial confinement exceeded 90 days, which triggered a presumption of a violation of Article 10 of the Uniform Code, 10 U.S.C. § 810, see United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971); and (b) regardless of the pretrial confinement, the Government failed in its “obligation to move forward ... with reasonable diligence in all cases,” see United States v. Rowsey, 14 M.J. 151 (C.M.A. 1982), quoting United States v. Rowsey, unpublished opinion at 2 (A.C.M.R. 1981); United States v. Johnson, 1 M.J. 101 (C.M.A. 1975).
On the basis of these documents and after extensive oral argument, the military judge made 13 “essential findings of fact.” The first eight findings led up to the ninth finding, wherein the judge stated:
There being no evidence before this court of further defense-caused delays, the total number of days of pretrial confinement for which the goverment must account is 90. On the basis of United States versus Burton, 44 CMR 166, a presumption of a violation of the accused’s Article 10, UCMJ, right to a speedy trial exists. As the Court of Military Appeals noted in Burton, this presumption places a heavy burden on the government to show diligence in disposition of the charges.
Finding 10 referred to the defense requests for speedy trial and the absence of any response thereto other than the referral of charges for trial. Finding 11 listed several events between March 28 and the referral of charges on June 28 which were “insufficient to support the government’s burden of proving diligence.” Finding 12 observed that “the only appropriate remedy for denial of the right to speedy trial is dismissal”; and then finding 13 stated that, “[t]his court finds that the Burton presumption applies in this case, that the government has not met the heavy burden placed upon it by the rule, that the accused has been denied his right to a speedy trial, and the charges must be dismissed.” The conclusion ordered dismissal of the charges and specifications.
II
From my reading of this record, I conclude that all the judge’s findings and his conclusion are tainted by his erroneous premise — namely, that the Burton presumption is triggered by 90 days of pretrial confinement, rather than by pretrial confinement in excess of 90 days. Although, in finding 11, the judge stated that certain *59events “are insufficient to support the government’s burden of proving diligence,” this determination must be interpreted in light of finding 9, which stated that the Burton presumption of an Article 10 violation “places a heavy burden on the government to show diligence in disposition of the charges.” (Emphasis added.) It is not clear that the judge would have decided that the Government had failed to carry its burden if that burden had not been “heavy” because of his erroneous invocation of the Burton presumption.
Under Article 62(a), UCMJ, 10 U.S.C. § 862(a), as it existed until August 1, 1984, a convening authority could return a record to the court-martial for reconsideration of rulings not amounting to a finding of not guilty. Thus, the convening authority properly asked the judge to reconsider his dismissal of the charges for denial of a speedy trial because this ruling was tainted by a legal error in computing the threshold of pretrial confinement for applying a Burton presumption. United States v. Ware, 1 M.J. 282 (C.M.A. 1976).1
Since all of the judge’s material findings and his conclusion were affected by his initial error of law, he was obligated to reconsider all of those findings and the conclusion, and to apply the proper legal standard in making new findings and his conclusion. This indeed is part of the “further appropriate action” referred to in Article 62(a). Therefore, in the present case, the judge was obligated to redetermine whether the Government was diligent without imposing a “heavy burden” due to misapplication of the Burton presumption.
I see no legal barrier in Article 62(a) to the judge’s reception of additional evidence in reconsidering his findings or his conclusion. A judge who is under a misapprehension of law may exclude or not invite certain evidence because he does not believe it is material in making his ruling. When his ruling is reversed on appeal because of his legal error, I believe that in subsequent proceedings he should be free to consider additional evidence which then appears material in view of the correction of his earlier error. Likewise, I assume that Congress intended that a judge who, upon reconsideration under Article 62(a), decides that he has made a legal error in his ruling, would be free to consider further evidence— whether from the Government or defense — that appeared material to the issues to be decided upon reconsideration. Thus, I conclude that in this case the military judge — after determining upon reconsideration that he had made a legal error which tainted his initial ruling — was not precluded by Article 62(a) from receiving additional evidence which, in his independent discretion, he believed material to the issues then confronting him.2
Ill
A
At the initial hearing the stipulation of fact consisted of “a chronology of essential facts with regard to the present case.” According to the Manual for Courts-Martial, United States, 1969 (Revised edition), “Unless it is properly withdrawn or is ordered stricken from the record, a stipulation of fact that has been received in evidence may not be contradicted by the parties thereto.” Para. 54f. Accord R.C.M. 811(e), Manual for Courts-Martial, United States, 1984; Kealy v. Harter, 682 F.2d 198, 201 (8th Cir. 1982); Aero Spacelines, Inc. v. United States, 530 F.2d 324, 334, 208 Ct.Cl. 704 (1976); American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230, 1244 (3d Cir. 1975); A. Duda & Sons Cooperative Association v. United States, 504 F.2d 970, 975 (5th Cir. 1974); United *60States v. Campbell, 453 F.2d 447, 451 (10th Cir. 1972).
So far as I can determine, none of the evidence that the Government adduced at the hearing on reconsideration contradicted any recital of an event in the stipulation of fact. However, by offering evidence of additional facts, the Government indirectly contradicted the prefatory statement in the stipulation that it “eonstitute[d] a chronology of essential facts.” (Emphasis added.) By its offer of evidence, the Government was asserting that other facts were also “essential” to a proper decision of petitioner’s motion to dismiss.
In some respects, the term “essential” relates to a legal concept. Therefore, in my view this type of contradiction does not fall within the Manual prohibition against contradicting a stipulation of fact. Nonetheless, if the parties have agreed that a stipulation shall be the exclusive method for presenting evidence on all or some of the issues in a case, then that agreement must be honored unless the court sets it aside for some good reason.
In this case, I do not interpret the stipulation as being intended to impose a limitation on the means of proof to be used by the parties on the speedy-trial motion. Indeed, I believe the stipulation was merely intended to afford the parties a convenient means for saving time and effort for all involved in the trial. Moreover, there is no indication that, because of reliance on the stipulation, the defense was lulled into failing to obtain available witnesses to rebut the evidence offered by the Government at the hearing on reconsideration. Thus, despite the stipulation of fact that was entered initially, the judge, in his discretion, was free to receive additional evidence on the issues to be decided upon reconsideration.
B
In his findings on reconsideration, the military judge found that “[t]he implied reasons for the delay advanced by the government, through the stipulated chronology of events, are not good reasoná to justify delaying a court-martial when the accused is in pretrial confinement.” However, at the hearing on reconsideration the Government offered evidence that there had been a need to analyze thoroughly certain physical evidence; and, because of this need, “there was adequate cause for the delay” and “the delay was not unreasonable.” Therefore, the judge vacated his original ruling and denied the defense motion to dismiss for lack of speedy trial.
If, on reconsideration, the military judge had ruled solely on the basis of the evidence before him at the original hearing, the Government would have lost. Thus, petitioner argues that it was an abuse of discretion for the judge to allow trial counsel to change the outcome by offering the additional evidence at the reconsideration hearing.
To some extent, admission of this evidence might be justified on the ground that, because of the erroneous legal premise on which the original hearing proceeded, the Government did not recognize the materiality of the evidence and so did not seek to offer it. A more basic justification for receiving the evidence is that, because at this point in the proceedings there had been no finding of not guilty and no evidence had been offered on the merits, Harrison was not entitled to the benefits of former jeopardy. Although the judge would have been entitled to exclude the additional evidence if he concluded that the prosecution failed negligently to arrange for its presentation at the initial proceeding, I do not believe that he was required to exclude this evidence even if he concluded that it could readily have been offered at the original hearing.
IV
Neither Article 62(a) nor the Government’s reliance on the stipulation of fact at the first hearing precluded the military judge from receiving additional evidence after he decided on reconsideration that he had committed legal error at the original hearing. Therefore, I join in denying the petition for extraordinary relief.
. Under the current Article 62, the Government could appeal such a ruling to the Court of Military Review. See R.C.M. 908, Manual for Courts-Martial, United States, 1984.
. Trial counsel argued “that matters that would otherwise not be applicable for excused time lags when you’re applying the extraordinary standard are nevertheless the very factors that you look to when you’re trying to determine reasonable diligence in proceeding, which the government advocates is the appropriate test in this — in this particular case.”