(concurring in the result):
The standard applicable to allegations of appellate delay was announced in United States v. Green, 4 MJ 203, 204 (CMA 1978). That is, once a case has been acted upon by a convening authority, it is “at the appellate level.” Dismissal of the charges “is appropriate only” when some error in the trial proceedings requires a rehearing, and appellant “would be ... prejudiced ... at a rehearing” because of the delay and “ ‘no useful purpose would ... be served by continuing the proceedings.’ ” (Citations omitted; emphasis added). None of appellant’s allegations of prejudice relates to a denial of his appellate rights or to prejudice at a rehearing.
The well-established rule is that
[t]he founders of this country wrote into the Sixth Amendment to the Constitution the right to a speedy and public trial. That right has been recognized in military law (see Article 10, Uniform Code of Military Justice, 10 USC § 810), but in neither the military nor the civilian law has such a privilege on appeal been so jealously guarded.
United States v. Richmond, 11 USCMA 142, 145, 28 CMR 366, 369 (1960).
On appeal, an appellant is stripped of his presumption of innocence. A record has been made, and there is no possibility of loss of evidence or witnesses due to delay. “Thus, while the importance of prompt appellate review of a conviction should not be deprecated, the constitutional and statutory bases for insisting on such action are less obvious than for compelling speedy trials.” United States v. Johnson, 10 MJ 213, 218 (CMA 1981) (Everett, C.J., concurring in the result). “[Wjhile no one would agree that the” Government may try an accused without constitutionally required diligence, the same concerns do not apply after trial, for the Government “need not provide any appeal at all.” Ross v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341, 351 (1974).
At the initial end of the spectrum of cases in the military appellate process are those cases involving inordinate and unexplained delay before the convening authority has acted on the findings and sentence.
In United States v. Gray, 22 USCMA 443, 47 CMR 484 (1973), and United States v. Timmons, 22 USCMA 226, 46 CMR 226 (1973) , this Court held that post-trial delay alone (delay between the date of trial and the date convening authority acts) will not require relief on otherwise proper findings and sentence. Judge Duncan explained:
[Bjefore ordering a dismissal of the charges because of post-trial delay there must be some error in the proceedings which requires that a rehearing be held and that because of the delay appellant would be either prejudiced in the presentation of his case at a rehearing or that no useful purpose would otherwise be served by continuing the proceedings ____
22 USCMA at 445, 47 CMR at 486. He went on to quote these comments from United States v. Timmons, 22 USCMA at 228, 46 CMR at 228:
Whatever reason might exist to deplore post-trial delay generally, we are loathe to declare that valid trial proceedings are invalid solely because of delays in the criminal process after trial.
In an effort to cure long delays prior to a convening authority’s action, this Court established a 90-day rule of presumed prejudice for an appellant who remained in post-trial confinement without having had his case acted upon by the convening authority. The only available relief was dismissal of the charges. See Dunlap v. Convening Authority, 23 USCMA 135, 48 CMR 751 (1974) (11-month delay from date of original trial until case referred to trial on re*75hearing). The presumption of prejudice was based upon the role which the convening authority plays in a court-martial. The rationale was that a convening authority remains so close to the proceedings that the Government must move diligently within 90 days after trial, similar to the previous 90-day speedy-trial rule from United States v. Burton, 21 USCMA 112, 44 CMR 166 (1971), to ensure that a confined appellant suffers no prejudice from any delayed relief. Although this Court expressed its disfavor with such delay and continues to do so, “the draconian rule”1 was later abandoned, and “applications for relief because of delay of final action by the convening authority” had to “be tested for prejudice.” United States v. Banks, 7 MJ 92, 94 (CMA 1979).
Apparently this Court’s disfavor for excessive post-trial delays was not enough to encourage the Government to be more diligent in providing expeditious actions by convening authorities. In United States v. Clevidence, 14 MJ 17 (CMA 1982), it was necessary to dismiss charges where there was a delay of 313 days between the date of trial and the supervisory authority’s action. Central to this Court’s decision was that Clevidence, who was not confined but was instead on appellate leave, had satisfactorily alleged that the post-trial delay had prejudiced him in trying to obtain employment since he had never received his discharge certificate. Id. at 19. See also United States v. Sutton, 15 MJ 235 (CMA 1983) (343-day delay between convening authority’s action and supervisory authority’s action warranted dismissal where appellant unable to obtain civilian employment).
In both Clevidence and Sutton, Judge Cook offered strong, prophetic dissents. Although “appalled” by the inordinate and “unexplained” post-trial delay, 15 MJ at 237, he took issue with the prejudice found in Clevidence, stating:
The ... accused’s alleged difficulty in obtaining “good” employment because of the possibility of being returned to active duty — is highly speculative, easy to assert and difficult, if not impossible, to disprove. No doubt we will see more of such assertions in future cases.
14 MJ at 20.
At the other end of the spectrum of appellate process are those cases which are delayed once they reach the appellate court level. In United States v. Green, supra, 4 MJ at 203 (Cook, J.), this Court held that, although the Army failed to forward appellant’s petition for review to this Court for over 240 days after the Court of Military Review had ruled on the case, the delay did not warrant reversal or dismissal because appellant could allege no prejudice. This Court reiterated that Dunlap predicated the presumption of prejudice from post-trial delay as applying to the convening authority “because of the conjunction of his responsibilities with those of the court-martial.” For “a delay at the appellate level,” however, “the doctrine of Timmons still controls.” 2 4 MJ at 204.
The delay in this case was unexplained and unjustified. Although such mismanagement of a case is fortunately the exception rather than the standard practice, an inexcusable delay has at one time or another permeated all of the services.3 Unfortunately, even this Court has had occasion to experience the unavoidable or inexplicable delay. Appellate government counsel are left to stand before us, conjecturing that a record of trial was lost aboard a submarine beneath a polar ice cap, left in a foxhole during maneuvers, or discarded in a squad*76ron’s hangar. Military justice deserves better.
The appropriate remedy, the only remedy available to appellant, however, is to have his case heard on appeal. The United States Navy-Marine Corps Court of Military Review and this Court have afforded him that relief. He is entitled to nothing further.
. United States v. Clevidence, 14 MJ 17, 19 (CMA 1982).
. In United States v. Tucker, 9 USCMA 587, 589, 26 CMR 367, 369 (1958), decided several years before Timmons, this Court held that delay over 1 year in forwarding a petition for review from the command to this Court warranted dismissal. Chief Judge Quinn warned that "[u]nexplained delays ... should not be tolerated by the services, and they will not be countenanced by this Court.” A number of prejudicial errors had occurred in the trial proceedings.
. See United States v. Clevidence, supra (Coast Guard); United States v. Green, 4 MJ 203 (CMA 1978) (Army); cf. United States v. Veilleux, 1 MJ 811 (AFCMR 1976) (Air Force).