(concurring):
I believe the present state of our law in the speedy trial arena as set forth in Senior Judge Kastl’s opinion requires the result which we reach in this case.1 That is not to say I agree with where the law stands. Cf. United States v. Raichle, 28 M.J. 876, 880 (A.F.C.M.R.1989) (Judge Blommers concurring).
My brothers seem to be saying that dismissal of the charges was an improper action on the convening authority’s part under the circumstances present in this case. I disagree. There are several reasons why charges might be dismissed, with a determination that no further action is contemplated being just one of them. See R.C.M. 306(c)(1), 401(c)(1), as well as the Discussion under each rule. The Discussion section under Rule 401(c)(1) includes the following guidance:
A charge should be dismissed when it fails to state an offense, when it is unsupported by available evidence, or when there are other sound reasons why trial by court-martial is not appropriate.
* * * * * *
Charges may be amended in accordance with R.C.M. 603.
It is appropriate to dismiss a charge and prefer another charge anew when, for example, the original charge failed to state an offense, or was so defective that a major amendment was required (see R.C.M. 603(d)), or did not adequately reflect the nature or seriousness of the offense.
There were perfectly justifiable and proper bases for dismissal and subsequent reinstitution of the charges in this case, as it turned out. The offenses relating to use of cocaine and the pay allowances entitlement fraud (larceny) were changed to reflect more accurately the nature and seriousness of the misconduct. Other offenses were added. The changes also constituted major modifications to the charges, which could well have required dismissal of the original charges and repreferral in order to proceed to trial. R.C.M. 603(d) provides: “Changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew.” See also R.C.M. 603(a).
In addressing accountability for time delays, R.C.M. 707(b)(2) provides: “If charges are dismissed, if a mistrial is granted, or— when no charges are pending — if the accused is released from pretrial restraint for a significant period, the time under this rule shall run only from the date on which *754charges or restraint are reinstituted.”2 See also MCM, App. 21 at A21-37 (1984) (Analysis for Rule 707(b)(2)). Thus, there is a procedural basis under our rules for “stopping of the sand in the speedy trial hourglass.”
In my judgment, our law should be postured so that a dismissal of charges for a legitimate reason stops the ticking clock unless it appears that the Government did so to “buy time,” or that the accused’s ability to prepare fully for trial was adversely affected by the delay (prejudice). See generally Article 46, UCMJ, 10 U.S.C. § 846; R.C.M. 701, 703. As Senior Judge Kastl points out, there are no such indications in this record. I believe that is what the drafters and the President intended in promulgating Rule 707(b)(2). The test I would apply is as follows: when this issue is raised at trial, the Government must establish by clear and convincing evidence (1) that charges were not dismissed to thwart the requirement contained in R.C.M. 707(a); and (2) that there has been no prejudice to the accused’s substantial rights as a result of the delay between dismissal and reinstitution of charges. Article 59(a), UCMJ, 10 U.S.C. § 859(a). This test would be a fair balance between the accused’s right to a speedy trial and the Government’s interests in insuring that court-martial charges are properly investigated, supported by the evidence and adequately reflect the nature and seriousness of the offenses involved. Such a test should also allay Senior Judge Kastl’s concern that dismissal and later reinstatement of charges could be used to circumvent the 120-day rule. Applying this test, and based upon the record before us, I would affirm the approved findings of guilty and the sentence.
However, I do not believe my recommended method of resolving the issue in question has a supportable basis considering present military case law. I therefore concur in the result reached by this Court.
. In this regard I note that the appellant was in a student training status at the time her drug involvement came to light in January 1988. She was removed from training and placed in her unit’s Facility Management section where she performed clean-up and maintenance duties (sometimes referred to as the “weeds and seeds” detail). She remained in that status until the date of her trial some 13 months later. A promotion she was due was also withheld. See United States v. Britton, 26 M.J. 24, 26 (C.M.A.1988) where Judge Cox stated: “Dismissal, mistrial, and a break in pretrial restraint all contemplate that the accused no longer faces charges, that conditions on liberty and pretrial restraint are lifted, and that he is returned to full-time duty with full rights as accorded to all other servicemembers."
. No form of "pretrial restraint,” as that term is defined under military law, was imposed upon this appellant. R.C.M. 304.