Bouler v. United States

1 M.J. 299, 1976 CMA LEXIS 5782

Opinions

OPINION OF THE COURT

COOK, Judge:

This petitioner was convicted on July 14, 1975, of three marihuana offenses for which he was sentenced to a bad-conduct discharge, 18 months’ confinement, and reduction in grade. Aware that he was disqualified to act on the results of trial due to a grant of immunity, the convening authority forwarded the record to an equivalent authority at Ft. Carson, Colorado, for reviewing action, which was accomplished on October 20, 1975. During the elapsed period of 98 days, the petitioner was continuously in confinement and, thus, after the 90th day there arose “a presumption of a denial of speedy disposition of the case” which placed upon the Government “ ‘a heavy burden . to show diligence.’ ” ¹

On the basis of this time period, the petitioner filed a petition for extraordinary relief. Although afforded the opportunity to rebut the presumption, the Government presented no evidence to show the requisite diligence. The presumption, therefore, has not been overcome. Accordingly, the findings and sentence are set aside, and we direct that the charges be dismissed.

Senior Judge FERGUSON concurs.

Footnotes

1

. Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 138, 48 C.M.R. 751, 754 (1974); see United States v. Slama, 23 U.S.C.M.A. 560, 50 C.M.R. 779, 1 M.J. 167 (1975).