(concurring in the result):
In regard to the principal period of time here in question (31 August 1988 to 18 January 1989), I believe this is a proper case for the application of R.C.M. 707(c)(3). It states that exclusions from the 120-day rule include: “Any period of delay resulting from a delay in a proceeding or a continuance in the court-martial granted at the request or with the consent of the defense.” (Emphasis added.) It would appear that taking depositions of key witnesses was beneficial to both parties in this case. They were requested by the defense, *881and the Government acquiesced. How unfortunate. And, it need not have done so. Article 49(c)(2), UCMJ, 10 U.S.C. § 849(c)(2); R.C.M. 405(g)(1)(A); Mil.R. Evid. 804(a)(5). It is interesting to note that at the Article 39(a) session called to hear motions, the defense indicated on the record that it was not prepared to proceed to trial on the merits.
I can not disagree with Senior Judge Lewis’ assessment of military case law. As I see it, the highlighted portion of Rule 707(c)(3) has been judicially legislated out of existence. I have one concern with the apparent per se rule we presently have; it may lead to prosecutorial gamesmanship regarding when charges are preferred. That undermines the spirit of our rules. See MCM, Part I, paragraph 3 (1984); R.C. M. 102; Mil.R.Evid. 102. I hope my concern proves to be unfounded.