United States v. Brewer

11 M.J. 228, 1981 CMA LEXIS 14258

• Court: United States Court of Military Appeals
• Decided: June 29, 1981
• Docket: No. 38,824; ACM 22574
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

The Judge Advocate General of the Air Force certified (9 M.J. 16) the two questions that follow:

I. WAS THE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT THE PRESUMPTION OF DENIAL OF SPEEDY DISPOSITION PRESCRIBED IN DUNLAP V. CONVENING AUTHORITY, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974) APPLIED IN THIS CASE?

II. IF ISSUE I IS ANSWERED IN THE AFFIRMATIVE, WAS THE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT THE GOVERNMENT WAS RESPONSIBLE FOR' MORE THAN 90 DAYS BETWEEN THE DATE OF TRIAL AND THE DATE OF ACTION?

We answer the first question in the affirmative.¹ The Court of Military Review (9 M.J. 509) correctly followed the dictates of Dunlap v. Convening Authority, 23 U.S.C. M.A. 135, 48 C.M.R. 751 (1974).

The rationale of United States v. Banks, 7 M.J. 92 (C.M.A.1979), became the standard for testing post-trial delay as to all cases tried on or after June 18, 1979.²

We answer the second question in the negative. We hold that the Government was diligent.³

The decision of the United States Air Force Court of Military Review is reversed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Military Review for action in accord with this decision.

1 . See United States v. Johnson, 7 M.J. 473 (C.M.A.1979); United States v. Mosley, 7 M.J. 209 (C.M.A.1979); United States v. Tucker, 7 M.J. 209 (C.M.A.1979); United States v. Sawyer, 7 M.J. 195 (C.M.A.1979).

2 . For an exc silent discussion of the question of effective date in United States v. Banks, 7 M.J. 92 (C.M.A.1979), read United States v. Johnson, 10 M.J. 213 (C.M.A.1981) (Cook, J.).

3 . United States v. Mitchell, 10 M.J. 220 (C.M.A. 1981); United States v. Johnson, 10 M.J. 213, 216, 219 (C.M.A.1981) (Everett, C. J., and Fletcher, J., concurring in the result).