(concurring):
I concur with the principal opinion; but I do so somewhat reluctantly. The language of Executive Order 12473, 49 Fed.Reg. 17152 (1984), which promulgated Manual for Courts-Martial, United States, 1984, appears very susceptible to the interpretation given it by the military judge — who ordered dismissal of the charges pursuant to R. C.M. 707 — and by Judge Coughlin — who dissented from the reinstatement of the charges by the Court of Military Review. The proviso in the Executive Order with respect to a “trial in which arraignment had been had” seems intended to signal that motions to dismiss on speedy-trial grounds or otherwise would be governed by the 1984 Rules for Courts-Martial, if the motions were made in cases where arraignment had not preceded August 1, 1984. This phrasing should have placed the prosecutor on notice that he should arraign the accused before August 1, 1984, if he wanted to avoid the possibility that R.C.M. 707 might apply.
Nonetheless, upon considering R.C.M. 707 in context, I am persuaded that the President did not intend it to apply to cases where the triggering event — preferral of charges or imposition of pretrial restraint — preceded August 1, 1984.* In such instances, an accused must rely on the safeguards available to him prior to the Rules for Courts-Martial. Accordingly, the military judge must now decide whether, apart from R.C.M. 707, the pretrial delay was so excessive that dismissal is appropriate. Cf. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
When a major change is made in legal rules, the drafting of appropriate transition provisions may be a very difficult task; and occasionally— as here — a potential problem may be overlooked by the drafters.