Opinion of the Court
The accused was convicted upon two specifications of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 XJSC § 885, and sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for two years. Intermediate appellate tribunals having affirmed the findings and sentence, we granted the accused’s petition for review to determine two issues:
Whether the instructions upon the sentence were prejudicially erroneous.
Whether the law officer erred in holding the burden was on the defense to show prejudice in the event of failure to comply with the provisions of Article 33.
The first issue does not require extended discussion. Prior to the deliberations upon the sentence the law officer advised the court that “if the sentence does not include a dishonorable or bad-conduct discharge, the court shall not adjudge:
“a. Forfeiture of pay at a rate greater than two-thirds of his pay per month.
“b. Forfeiture of pay in an amount greater than two-thirds of his pay for six months.”
In United States v Villa, 10 USCMA 226, 27 CMR 300; United States v Genuario, 10 USCMA 260, 27 CMR 334; and United States v Jobe, 10 USCMA 276, 27 CMR 350, it was held that this instruction is not prejudicially erroneous unless the record of trial affirmatively indicates it had a measurable impact upon the sentence. Since those cases have fixed the law, and since no such affirmative indication is presented by this record, the first assignment is without merit.
The circumstances giving rise to the second issue commenced to evolve upon the arraignment of the accused. Prior to entering his pleas the accused, through counsel, moved to dismiss both specifications and the charge, predicating his motion upon the claim of denial of the right to a speedy trial. The facts presented and the arguments urged in support of this motion were limited to the period following conclusion of the second absence. As to this, it was shown that the absence terminated April 12, 1958, and the accused was confined early the following morning at L. G. Hanscom Field, Bedford, Massachusetts. On April 25, 1958, he was transferred to his home station, Lockbourne Air Base, Ohio, where he was again confined pending disposition of charges preferred that day. These charges were received by the convening authority located at Westover Air Base, Massachusetts, and referred for trial on June 12, 1958. By letter dated July 10,1958, defense counsel directed a “Request for Speedy Trial” to the convening authority inviting the latter’s attention to the original date of confinement — April 12, 1958. Thereafter, on July 16, the trial counsel of the court-martial to which the charges were referred was relieved and another was
Viewed in the light of Articles 10 and 33 of the Code, 10 USC §§ 810 and 833, the defense counsel argued, these facts showed that the accused was deprived of a substantial right and dismissal of the charges was required.
In response, the trial counsel declared :
. . As a matter of common knowledge, I am sure the law officer knows that frequently, in cases of this nature, there is some degree of delay experienced, necessitated by obtaining both records and evidence. The present trial counsel' before this court was not appointed as trial counsel until the 16th day of July 1958 and, on the 17th day of July 1958, served this accused . . . Since reference to me as trial counsel, there has been, at most, thirteen days delay. In my view, this is not an unconscionable delay, nor was the preferring and receipt of charges. Perhaps, the investigating of the offenses, referral, etc., is a little longer than is desirable. However, I am not in a position to fully explain this aspect because I do not have full knowledge of why such delay may have been occasioned. So, unless there is some showing that this delay is going to substantially prejudice the rights of the accused, I do not see how the motion made by the defense counsel can possibly be sustained.
“Finally, I want to point out the defense made the request for speedy trial on the 10th of July 1958. Only some thirteen days, certainly not an unconscionable period, has gone by since this request. On these points, I urge defense counsel’s motion be denied.”
The law officer then offered the defense a continuance for the purpose of procuring the deposition of a missing witness — ostensibly a prosecution witness — but counsel declined, expressing his opposition to any further delays. Thereupon, he asked whether counsel desired to offer any evidence “that the accused’s substantial rights have been materially prejudiced.” Counsel declared he had no witnesses he wished to call at the moment. At this, the law officer made his ruling in the following language:
“LAW OFFICER: The law officer wishes to state that, of course, he is in full agreement with the principles referenced in the Federal Constitution, and in the Uniform Code of Military Justice, pertaining to providing a prompt trial for the accused. However, in the absence of any further evidence to indicate specifically that the accused’s substantial rights have been materially prejudiced as a result of the referenced delay, the motion will be denied.”
When this ruling was announced, the accused entered a plea of not guilty to each specification of the charge, but guilty of absence without leave, in violation of Article 86 of the Code, supra, 10 USC § 886.
A motion to dismiss is properly addressed to the law officer under Article 51(b), 10 USC § 851. His ruling thereon is predicated upon the exercise of his sound discretion as applied to the facts before him, and is reviewable only for abuse. United States v Richard, 7 USCMA 46, 21 CMR 172; United States v Hounshell, 7 USCMA 3, 21 CMR 129. However, when his ruling proceeds from an erroneous understanding of the applicable law, the accused may well be harmed and thus have a firm basis for obtaining relief from appellate tribunals. Illustrative of this principle is United States v Berry, 6 USCMA 609, 20 CMR 325. There the law officer announced diametrically opposed standards purporting to fix the burden of proving the legality of a search. This Court noted that this produced confusion, and set aside the findings to which the ruling pertained, holding “a conviction should not rest upon uncertainty and confusion concerning the correct principles of law applicable to a vital part of the case.”
An improper standard was applied by
Article 10, supra, provides in pertinent part:
. . When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.”
This Article reiterates “the right to a speedy and public trial” guaranteed by the Sixth Amendment to the United States Constitution. United States v Hounshell, supra.
Articles 33 and 98 of the Code, supra, 10 USC §§ 833 and 898, give emphasis to the importance of this right. The former provides:
“When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.”
Article 981 of the Code, supra, provides sanctions for unnecessary delays, or failures to enforce or comply with any provision of the Code regulating court-martial proceedings at any stage.
From these provisions, read in the light of the intent of Congress as ascertained from the views of the framers of the Code, set out in our opinion in United States v Hounshell, supra, it is clear that whenever it affirmatively appears that officials of the military services have not complied with the requirements of Articles 10 and 33, supra, and the accused challenges this delict by appropriate motion, then, the prosecution is required to show the full circumstances of the delay. Of course, an accused is not automatically entitled to a dismissal of all charges against him. Rather, the law officer must decide, from all the circumstances, whether the prosecution has proceeded with “reasonable dispatch.” United States v Callahan, 10 USCMA 156, 27 CMR 230.
In the instant ease, the law officer was aware of the date the accused was originally confined, when charges were preferred, referred for trial and served upon the accused. One hunded and eight days had elapsed before the accused was produced before a court-martial for arraignment. Obviously, each successive step was taken only after substantial delay. But, rather than explain these deficiencies, trial counsel, after conceding that the required pretrial steps had taken “a little longer than is desirable,” lightly dismissed them with the assertion that he had no knowledge of the circumstances thereof. The law officer reflected a similar approach to the problem for he immediately called upon the accused to establish specific prejudice. When no. further evidence was advanced by the, defense, he denied the motion before him. By these pronouncements he demonstrated his misconception of the effects of Articles 10 and 33. Rather than require the prosecution affirmatively to justify the delays, he called upon the accused to establish specific prejudice. This shifting of the burden of proof, or explanation, prevented the' establishment of the circumstances of the delays at the trial level — the only satisfactory forum for conducting truly adversary proceedings, and for testing the validity of evidence in the time-honored process of cross-examination. By this action the law officer curtailed the development of all the circumstances essential to a proper determination of whether or not the lapse of time was due to purposeful or oppressive design
It is urged, however, that the accused, by his entry of a plea of guilty, lost any right to complain on appeal concerning this error and its effect on the trial proceedings. Judge Latimer and I do not believe his plea had that effect, for one of the principal purposes of the right to a speedy trial is to avoid oppressive delay which might well lead a defendant to conclude that his best interests would be served by judicially confessing his guilt. People v Chirieleison, 3 NY 2d 170, 143 NE 2d 914 (1957). Cf. People v Sweeney, 409 Ill 223, 99 NE 2d 143 (1951). While the Federal courts have not decided this precise issue, it is worthy of note that the cases involving this constitutional right have involved pleas of guilty and no argument of waiver was predicated thereon. Shepherd v United States, supra; Parker v United States, 252 F 2d 680 (CA 6th Cir) (1958). Thus, we conclude the law officer’s error was not vitiated by the accused’s later plea.
However, as indicated in his dissent, Judge Latimer is of the opinion the delay in this case raises no issue of denial of a speedy trial. Chief Judge Quinn joins with me in the conclusion that error is present. Nevertheless, he is of the view, as indicated in his separate opinion, that the law officer’s action herein was purged of prejudice by the plea of guilty to the lesser offense and he would return the record to the board of review for affirmance of findings of guilty of absence without leave and reassessment of the sentence. Although I agree with neither position, the practical result thereby reached is to return the case to the board.
Accordingly, the decision of the board of review is reversed and the record of trial is returned for affirmance of findings of guilty of absence without leave and reassessment of sentence or direction of a rehearing on the desertion charge.
1.
“Any person subject to this chapter who — -
(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or
(2) knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused;
shall be punished as a court-martial may direct.”