(concurring):
Executive Order 12,473, 49 Fed.Reg. 17152 (1984), is permissive in its wording concerning court-martial processes begun prior to August 1, 1984. Accordingly, I reluctantly accept the parties’ agreement that RCM 707 applies in this case. Cf. *71United States v. Facey, 26 MJ 421, 424 (CMA 1988); United States v. Leonard, 21 MJ 67 (CMA 1985). Moreover, I agree with Judge Cox’ resolution of appellant’s speedy-trial claim under this rule.
Yet, I disagree somewhat with the method utilized by the majority opinion to resolve the Burton-Driver question. See n. 7 of the majority opinion at 66. Particularly, I do not find that this body of law should be or is modified in the present case. However, because of the conditional nature of Judge Cox’ opinion on this matter, I can join him in concurrence.
Normal practice under Article 10, Uniform Code of Military Justice, 10 USC § 810, and the decision of this Court in United States v. Burton, 21 USCMA 112, 44 CMR 166 (1971), and its progeny is that defense-requested delay is chargeable to the defense. See United States v. Matthews, 16 MJ 354, 362 (CMA 1983); United States v. Colon-Angueira, 16 MJ 20, 22 (CMA 1983). As was said in United States v. Cole, 3 MJ 220, 225 (CMA 1977):
While defense-requested delays or continuances generally are attributable to the defense as the party which benefits therefrom, a showing that the prosecution could not have proceeded any earlier at any rate compels the conclusion that the defense-requested “delay” did not in fact delay the proceedings at all and the responsibility for the pertinent time period remains where it started: on the shoulders of the Government.
(Footnote omitted.) There was no showing by the defense or finding by the judge in appellant’s case that the Government could not have proceeded during these periods. Accordingly, I would charge these periods to appellant without modifying Burton or its descendants.
Otherwise, I agree with the majority opinion.