United States v. Beach

23 C.M.A. 480, 1 M.J. 118, 50 C.M.R. 560, 23 USCMA 480, 1975 CMA LEXIS 738

• Court: United States Court of Military Appeals
• Decided: July 18, 1975
• Docket: No. 28,831
• Status: Published

Opinions

OPINION OF THE COURT

Fletcher, Chief Judge:

In this case, the accused complains of the 143-day delay in bringing him to trial,¹ relying on our decision in United States v Burton, 21 USCMA 112, 44 CMR 166 (1971). A statement of the facts is unnecessary. Our examination of the record, the arguments in the briefs, and the contentions made on oral argument and reargument cause us to conclude that the Government has not established the existence of "really extraordinary circumstances beyond such normal problems as . . . [are] caused by difficulties usually encountered in the processing of charges for trial.” United States v Marshall, 22 USCMA 431, 435, 47 CMR 409, 413 (1973). As no unusual factors² were presented in this case, the Court of Military Review erred in affirming the findings and sentence.

The decision of the United States Navy Court of Military Review is reversed. The Charge and its specification are ordered dismissed.

Senior Judge Ferguson concurs.

1 The actual delay amounted to 159 days, but appellate defense counsel concede the Government did not bear sole responsibility for the delay exceeding 143 days.

2 While not necessary to the disposition of this case, we are concerned with the staff judge advocate’s destruction of the investigating officer’s request for a sanity examination which constituted a part of the official proceedings in this case. See Manual for Courts-Martial, United States, 1969 (Rev.), para. 121; ABA Code of Professional Responsibility, EC 1-5, DR 1-102(A)(5).