
    UNITED STATES, Appellee v THEODORE C. MOSLEY, JR., Private First Class, U. S. Army, Appellant
    No. 27,549
    December 7, 1973
    
      Colonel Arnold I. Melnick, Captain Lawrence I. Wagner and Captain Dennis D. Daly were on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel Ronald M. Holdaway, Lieutenant Colonel Donald W. Hansen, Captain M. Douglas Deitchler and Captain David A. Schlueter were on the pleadings for Appellee, United States.
   OPINION OF THE COURT

Dakden, Chief Judge:

Although the accused’s pretrial confinement extended to 124 days, the delay before trial was not satisfactorily explained by the Government when the accused moved to dismiss the charges at the trial. As we stated in United States v Burton, 21 USCMA 112, 118, 44 CMR 166, 172 (1971), a presumption of an Article 10, Uniform Code of Military Justice, 10 USC §810, violation exists when the pretrial confinement exceeds 3 months. In the instant case, the Government failed to discharge its heavy burden to show diligence, and the accused is entitled to the dismissal of those charges based on offenses committed after December 17, 1971, the effective date of the Burton rule. United States v Marshall, 22 USCMA 431, 47 CMR 409 (1973).

The decision of the US Army Court of Military Review is reversed. The findings of guilty of Specifications 5, 6, 7, 8, 9, 10, 11, and 12 of Charge I and Charge II and its specification are set aside and the enumerated specifications of Charge I and Charge II and its specification are ordered dismissed. The record of trial is returned to the Judge Advocate General of the Army. The Court of Military Review may reassess the sentence on the remaining specifications of Charge I.

Judge Quinn concurs.

Duncan, Judge

(concurring in part and dissenting in part):

While I agree with my brothers’ application of the Burton rule, with regard to those offenses committed after December 17, 1971, I would also dismiss the remaining offenses in light of the unreasonable delay in bringing them to trial. United States v Mason, 21 USCMA 389, 45 CMR 163 (1972).  