
    UNITED STATES, Appellee v ALBERT A. KAFFENBERGER, Private First Class, U. S. Army, Appellant
    No. 27,280
    October 5, 1973
    
      Colonel Arnold I. Melnick and Captain T. Barry Kingham were on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel Ronald M. Holdaway, Major Thomas P. Burns, III, Captain M. Douglas Deitchler, and Captain David A. Schlueter were on the pleadings for Appellee, United States.
   OPINION OF THE COURT

Darden, Chief Judge:

Ten days after the accused was placed in pretrial confinement, charges were preferred against him. The Article 32 investigation was not completed until an additional 41 days elapsed. Ninety-two days passed before reference of the charges to trial. After spending 104 days in pretrial confinement, the accused was released at the request of his defense counsel, whose scheduled leave delayed the accused’s trial for an additional 22 days.

In United States v Burton, 21 USCMA 112, 44 CMR 166 (1971), we held that a violation of Article 10, Uniform Code of Military Justice, 10 U.S.C. §810, presumptively exists when an accused is confined for more than 90 days without trial and that "this presumption will place a heavy burden on the Government to show diligence.” Id. at 118, 44 CMR at 172. That burden is not met by demonstration of the usual incidents of pretrial preparation. United States v Marshall, 22 USCMA 431, 47 CMR 409 (1973).

In the present case, the Government offered little more than a chronology of events to explain the unwarranted delays in the pretrial stages of this prosecution. This is not enough to discharge the Government’s burden of explanation.

The decision of the U. S. Army Court of Military Review is reversed and the record of trial is returned to the Judge Advocate General of the Army. The charge and its specification are ordered dismissed.

Judges Quinn and Duncan concur.  