
    UNITED STATES, Appellee v THOMAS W. SMITH, Private U. S. Army, Appellant
    No. 27, 258
    September 21, 1973
    
      Colonel Arnold I. Melnick, Captain Joseph J. Aronica, and Captain Lawrence I. Wagner were on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel Ronald M. Holdaway, Major Thomas P. Burns, III, Captain M. Douglas Deitchler, and Captain James F. Motley were on the pleadings for Appellee, United States.
   OPINION OF THE COURT

Darden, Chief Judge:

One hundred and nine days elapsed between the accused’s confinement on January 8, 1972, and his trial on April 27, 1972. Forty-five days passed before completion of the Article 32 report and 61 days expired before the report was finally forwarded by the last intermediate level of command to the officer exercising general court-martial jurisdiction. The charges were not referred to trial until an additional 17 days had passed and the case was not brought to trial until another month had elapsed.

Although defense counsel sought dismissal of the charges at trial, the Government in response offered nothing to explain the delay beyond the normal administrative processing of any case. This is insufficient to sustain the heavy burden that it must bear in explaining delay beyond the period of 90 days which we specified in United States v Burton, 21 USCMA 112, 44 CMR 166 (1971). See also United States v Marshall, 22 USCMA 431, 47 CMR 409 (1973).

The findings of guilty and sentence are set aside and the decision of the U. S. Army Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. The charges are ordered dismissed.

Judges Quinn and Duncan concur.  