(concurring):
Except for footnote 3,1 fully concur in the opinion of Judge Albertson but write separately to discuss the military judge’s alternate theory. The issue is whether the military judge erred as a matter of law in ruling that the R.C.M. 707(a)(1) 120-day speedy trial clock constructively started to run on the day of preferral, rather than on the day of notice of preferral (as is expressly provided in that rule), because the Government intentionally manipulated the date of notification to avoid triggering R.C. M. 707 and could have notified the accused on the date of preferral. The Government argues that the military judge erred because R.C.M. 707(a)(1) does not begin to run until notice of preferral of charges under R.C.M. 308 notwithstanding the requirements of Article 30(b), UCMJ, and R.C.M. 308(a) that the accused shall be informed of the charges against him “as soon as practicable” and the holding of the Court of Military Appeals in Thomas v. Edington, 26 M.J. 95 (C.M.A.1988), that “... ‘as soon as practicable’ modifies and relates to the date charges are preferred— not to some later date such as the date the convening authority makes a decision to prosecute.” 1
*720I
The military judge created a doctrine of constructive notification of preferral of charges and then utilized R.C.M. 707 to evaluate the delay between preferral and trial. He held, in effect, that the Government did not promptly notify the accused of the preferral of charges, that they should have done so, and as a matter of legal fiction did so on the date of preferral when they could have done so. A legal fiction signifies “any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.” H. Maine, Ancient Law 25 (1888). A legal fiction is the same as a constructive doctrine. Black’s Law Dictionary 386 (4th ed. 1968). Although legal fictions have often been criticized,2 they are common in military law.3 I believe that the military judge erred as a matter of law for two reasons in creating this legal fiction.
IA
There is no statute, MCM provision, or appellate decision which recognizes such a legal fiction. R.C.M. 707(a) states that “[t]he accused shall be brought to trial within 120 days after the earlier of: (1) notice to the accused of preferral of charges under R.C.M. 308; or (2) the imposition of restraint under R.C.M.' 304(a)(2)-(4)____” On its face, then, the MCM speedy trial rule is triggered by notification of preferral or by pretrial restraint, but not by mere preferral. R.C.M. 308(a) is based, in part, on Article 30(b), UCMJ, Appendix A21-20, MCM, 1984, and states that “[t]he immediate commander of the accused shall cause the accused to be informed of the charges against the accused and the name of the person who preferred the charges and of any person who ordered the charges to be preferred, if known, as soon as practicable ” (emphasis added). Article 30 and R.C.M. 308 do not contain a constructive notice of preferral provision. Article 30(b), UCMJ, is one of the accused’s fundamental rights because it permits him to begin preparing his defense.4 It does not necessarily follow, however, that any delay in notice of preferral is to be tested under R.C.M. 707(a)(1), a purely MCM provision which, on its face, is only triggered by notice of preferral. Although the Court of Military Appeals and this Court have consistently condemned delay in the disposition of charges,5 neither Court has recognized a *721doctrine of constructive notification of preferral to evaluate this type of delay.
IB
Courts create legal fictions and constructive doctrines when they believe that the strict application of a rule will violate the public policy or principle behind the rule and result in injustice. The operation of the rule, therefore, must be modified or changed to reach the correct result. A legal fiction must be invoked or even created because no other rule is at hand to preclude this injustice. Here, the military judge created the legal fiction of constructive notification of preferral because he believed that the Government’s delay in notifying the accused of preferral should be evaluated under the MCM speedy trial rule. This legal fiction thus enabled him to find as a matter of law that notification of preferral occurred on the date of preferral when he also expressly found as a matter of fact that notification actually occurred on a much later date. Yet the prerequisite for the creation of a legal fiction in this case was not present; it was not needed to fill a void. Accordingly, the second reason why the military judge erred in creating this legal fiction is that other legal principles exist with which to evaluate delay that occurs before notification of preferral. Legal fictions must be strictly based on necessity; their invocation or invention can only be justified as a last recourse.
In abolishing the demand prong of United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971), the Court of Military Appeals reasoned that any purpose served by that prong was now fully met by three sets of protections. First, incarcerated accused must be brought to trial within 90 days under the 90-day prong of Burton. Second, all accused must be brought to trial under R.C.M. 707(a) within 120 days of notice of preferral or imposition of restraint. Third, any claim of denial of a Sixth Amendment speedy trial will be examined under the four-part analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). United States v. McCallister, 27 M.J. 138 (C.M.A. 1988).
This list of protections does not clarify, however, when Sixth Amendment speedy trial protection begins in military practice and what protections, if any, apply before this point. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court addressed the question whether dismissal of a Federal indictment was constitutionally required by a three-year delay between the occurrence of the alleged criminal acts and the filing of the indictment. The District Court dismissed the indictment, citing the Sixth Amendment. The Supreme Court, however, reversed and held that the speedy trial provision of the Sixth Amendment is engaged by a formal indictment/information or actual arrest and holding to answer a criminal charge, but not by delay which precedes these events. Id. at 320, 92 S.Ct. at 463. Six years later, the Supreme Court citing Marion held in United States v. Lovasco, 431 U.S. 783, 788, 97 S.Ct. 2044, 2047, 52 L.Ed.2d 752 (1977), that the statute of limitations is the “primary guarantee against bringing overly stale criminal charges,” but acknowledged that the Due Process Clause of the Fifth Amendment has a limited role to play in protecting against oppressive delay. Indeed, the Supreme Court further observed in Marion, 404 U.S. at 313, 92 S.Ct. at 459, that the Courts of Appeals that “have considered the question in constitutional terms have never reversed a conviction or an indictment solely on the basis of the Sixth Amendment’s speedy trial provision where only pre-indictment delay was involved (citations omitted).” The Supreme Court based this conclusion on the express language of the Sixth Amendment (i.e., it only applies when a criminal prosecution has begun and then only to actual accused, not putative accused), the fact that prejudice ordinarily begins after an accusation has been made public by indictment/information or arrest, and the fact that investigatory delay may benefit the accused.
*722The Sixth Amendment speedy trial protection begins in federal civilian practice upon formal indictment/information or upon arrest and holding to answer. Marion, 404 U.S. at 320, 92 S.Ct. at 463. The military functional equivalent of arrest and holding to answer is the imposition of pretrial restraint under R.C.M. 304(a)(3) and (4) [i.e., arrest and pretrial confinement). The President chose imposition of pretrial arrest or confinement as the triggering events for the 90-day Burton-inspired speedy trial clock. R.C.M. 707(d). The military functional equivalent of indictment/information, however, is not so easy to determine. There is no indictment or information in the military justice system. In fact, the Fifth Amendment exempts the military justice system from the requirement for a grand jury indictment in the case of capital or otherwise infamous crimes. Moreover, there are significant differences between federal civilian criminal procedure and military criminal proce-' dure in the stages that precede the presentation of evidence on the merits and the stages that follow the findings {i.e., the verdict) even though the two systems are quite similar during the merits.
In United States v. Gray, 26 M.J. 16, 23 (C.M.A.1988), Judge Cox stated in a concurring opinion that “speedy trial accountability does not begin until the charges are finalized by notification to an accused under R.C.M. 308,” citing with approval the opinion of Senior Judge Mitchell in the opinion below. United States v. Gray, 21 M.J. 1020, 1024 (N.M.C.M.R.1986). Chief Judge Everett and Judge Sullivan decided Gray without specifically addressing this question. On the other hand, the Court of Military Appeals observed in United States v. McGraner, 13 M.J. 408 (C.M.A.1982) (Everett, C.J., with Cook, J., and Fletcher, J., concurring), that “under some circumstances extensive delay in preferring charges might justify a due process claim by the accused,” citing Marion. This implies that the Sixth Amendment speedy trial protection arises upon preferral of charges rather than notification. The draftsmen of MCM, 1984, state that R.C.M. 707 is based on ABA Standards, Speedy Trial (1978); that it is generally similar to 18 U.S.C. § 3161 et seq., the Federal Speedy Trial Act; and that it is “... intended to protect the speedy trial rights under the Sixth Amendment and Article 10.” Appendix A21-37, MCM, 1984. This implies that the Sixth Amendment speedy trial right begins in military practice upon notification of preferral or pretrial restraint. There is thus some confusion as to when the Sixth Amendment speedy trial protection begins in military practice. Although R.C.M. 707 is designed to protect the right to a speedy trial in the military justice system, it goes beyond the constitutional and codal requirements. See Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972) (speedy trial rule created by legislature with fixed starting point, stated period, and recognized exclusions not constitutionally required). I conclude that the President did not intend to evaluate delay which occurs before notice of preferral with the mechanical dismissal rules he promulgated in R.C.M. 707, but rather was satisfied by this delay being evaluated by other principles — the denial of military due process standard discussed in the lead opinion or by various prejudice-oriented provisions.
II
The standards for evaluating delay in the disposition of charges or allegations under investigation (i.e., prospective charges) in military practice appear to be as follows:
(1) the denial of military due process standard applies to the deprivation of any fundamental right or substantial procedural requirement related to a fundamental right;
(2) the Sixth Amendment, as interpreted in the four-part balancing test in Barker v. Wingo, applies to delay after preferral or to delay after notice of preferral, depending on which is the inception point of the Sixth Amendment speedy trial right in military practice;
(3) the Due Process clause of the Fifth Amendment, as interpreted in the three-*723part balancing test in Marion and Lovasco, applies to all oppressive delay;
(4) the Statute of Limitations in Article 43, UCMJ, applies to delay which precedes receipt of preferred charges by an officer exercising summary court-martial jurisdiction over the command;
(5) Article 10, UCMJ, applies to accused in pretrial arrest or confinement;6
(6) the 90-day Burton rule applies to accused in pretrial confinement;
(7) the 90-day rule in R.C.M. 707(d) applies to accused in pretrial arrest or confinement;
(8) the 120-day rule in R.C.M. 707(a)(2) applies to accused in pretrial restraint under R.C.M. 304(a)(2H4); and
(9) the 120-day rule in R.C.M. 707(a)(1) applies to accused after notification of preferral under R.C.M. 308.
The fact that the inception point of Sixth Amendment speedy trial protection has not been clearly established in military practice and that Fifth Amendment Due Process and Sixth Amendment speedy trial protection may overlap7 is not important. The prejudice-oriented balancing tests in Barker v. Wingo, on the one hand, and Lovasco and Marion, on the other, are similar.8 With respect to the Fifth Amendment due process approach, the accused must demonstrate actual prejudice as a result of the delay before the Government is required to explain the delay. Speculative prejudice will not suffice. See, e.g., United States v. Lovasco; United States v. Lieberman, 608 F.2d 889 (1st Cir.1979), cert. denied, 444 U.S. 1019, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980). Actual prejudice may include death of a witness, loss of evidence, inability to locate a witness, and actual memory loss by the accused or a defense witness. The 90-day prong of Burton and R.C.M. 707, on the other hand, are mechanical rules which place the burden on the Government and presume prejudice. Under either the Fifth Amendment or the Sixth Amendment standard the military judge must examine the length of the delay, the reasons for the delay,9 and whether the accused suffered actual prejudice thereby. The accused’s demand for a speedy trial is also relevant under Barker v. Wingo.
In conclusion, I believe that the military judge tortured R.C.M. 707 by using it to evaluate delay to which it was never meant to apply, but that he correctly applied the denial of military due process standard and dismissed the affected charges.
. In Thomas v. Edington the petitioner argued that his command purposely did not notify him of preferral because of its policy to delay the triggering mechanism of the speedy trial requirements in R.C.M. 707(a). The Court of Military Appeals held that it “need not decide this case based upon the alleged Navy policy," however, because the petitioner had received “actual notice” of preferral more than 120 days before trial had begun. Id., at 96. The military judge found in the case sub judice that the accused first received notice of preferral of charges on 6 May 1988 when the Staff Judge Advocate for the Commander Naval Surface Warfare Group served him with a copy of the charge sheet. The first Article 39(a), UCMJ, session was held seven days later on 13 May 1988, and the military judge dismissed Charges I-VIII on 1 June 1988. Thus, the actual notice doctrine of Thom*720as v. Edington is of no avail in this case. Cf. United States v. Angel, 28 M.J. 600 (N.M.C.M.R. 1989) (en banc) (where actual notice was determinative).
. See, e.g., Shaughnessy v. United States, 345 U.S. 206, 220, 73 S.Ct 625, 633, 97 L.Ed. 956 (1953) (Jackson, J.) ("It overworks legal fiction to say that one is free in law when by the commonest of common sense he is bound.”); Haddock v. Haddock, 201 U.S. 562, 630, 26 S.Ct. 525, 552, 50 L.Ed. 867 (1906) (Holmes, C.J.) ("... fiction always is a poor ground for changing substantial rights."); and J. Bentham, "Letters on Scotch Reform,” 5 Works 3, 13 (1808) (“Fiction [in law] is a wilful falsehood, uttered by a judge, for the purpose of giving to injustice the color of justice.”).
. See, e.g., United States v. Santiago-Davila, 26 M.J. 380 (C.M.A.1988) (constructive joint possession of drug paraphernalia); United States v. McDonagh, 14 M.J. 415 (C.M.A.1983) (constructive enlistment); United States v. Hicks, 24 M.J. 3 (C.M.A.1987) (constructive force in rape); United States v. Graves, 20 M.J. 344 (C.M.A. 1985) (constructive possession of stolen property); United States v. Harris, 19 M.J. 331 (C.M.A. 1985) (constructive knowledge of accused’s request for counsel); United States v. Ortiz, 25 M.J. 840 (N.M.C.M.R.1988) (constructive force for rape); United States v. Mullens, 24 M.J. 745 (A.C.M.R.1987) (stipulation as constructive fraud on the court); and United States v. Davis, 20 M.J. 1015 (A.C.M.R.1985) (constructive denial of assistance of counsel, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Legal fictions may also be created by statute or executive order. See, e.g., Article 67(c)(2), UCMJ (constructive service of decisions of the Courts of Military Review); R.C.M. 907(b)(2)(D)(iii) (constructive condonation of desertion).
. United States v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R. 74 (1951). See also Article 49(a), UCMJ (right of accused and United States to take depositions arises upon preferral).
. For recent condemnations see, e.g., United States v. Carlisle, 25 M.J. 426, 428 (C.M.A.1988) ("On day 1, everyone associated with a case should know what day will be number 120.”); United States v. Ruhling, 28 M.J. 586 (N.M.C. M. R. 1988) (Rubens, J., concurring with reservations) (while the Government may lawfully use all of the time to which it is entitled under *721R.C.M. 707(a) or (d) to bring the case to trial, it is often not prudent to do so).
. This article is arguably broader than the Sixth Amendment, United States v. Powell, 2 M.J. 6 (C.M.A.1976), but the standards for evaluating a violation have not been established beyond that found in the language of the statute itself — “... immediate steps shall be taken____”
. Fifth Amendment due process protection does not end when Sixth Amendment protection begins.
. See Pearson and Bowman, “Unreasonable Prepreferral Delay," 10 A.F. JAG Rptr. 73 (June 1981).
. This includes whether the Government notified the accused as soon as practicable; if not, why not; and whether the Government intended to deprive the accused of any fundamental right or substantial procedural requirement related to a fundamental right.