[412]*412Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused was brought to trial on charges that he stole various craft tools and model kits from the hobby shop of the Naval Receiving Station, Treasure Island, California, and later attempted to set fire to the shop in order to conceal the theft. Before entry of the accused’s plea, defense counsel moved to dismiss the charges on the ground that the accused had been deprived of a speedy trial. The motion was denied. The accused then entered a plea of not guilty to the attempted arson charge and guilty to the larceny specification. The court-martial convicted him of both charges, and imposed a sentence which includes a bad-conduct discharge. On review, the board of review held that the motion to dismiss should have been granted. Relying upon United States v Brown, 10 USCMA 498, 28 CMR 64, it set aside and dismissed the attempted arson charge, but affirmed the findings of guilty on the larceny count on the ground that the accused’s plea of guilty constituted a waiver of the right to a speedy trial. The accused petitioned this Court for review of the correctness of the board of review’s conclusion that the plea of guilty constituted a waiver of the motion to dismiss. We granted the petition.
Initially, the Government conceded that the board of review misconstrued the holding in the Brown case and that the accused’s claim of error was meritorious. Later, it moved to withdraw its concession of error and to file a supplemental brief containing two points. Point “A” argued that the board of review erred in reversing the law officer’s denial of the motion to dismiss. In point “B” the Government contended that the statement in the Brown case as to the effect of the plea of guilty on the motion to dismiss is dictum, and, therefore, not binding on the board of review; it urged reconsideration of the. point. Appellate defense counsel interposed no objection to withdrawal by the Government of its concession of error and to the filing of a supplemental brief, insofar as it pertained to point “B”; they objected to inclusion of point “A” as an indirect attempt by the Government to seek review of the correctness of the board of review’s decision, when it was barred by the lapse of time from filing a certificate of review under the provisions of Article 67 (b) (2) of the Uniform Code of Military Justice, 10 USC § 867. We denied the motion without prejudice to renewal at the time of oral argument. When the case came on for argument, appellate defense counsel renewed the motion to strike.
The issue presented to us by the petition for grant of review is controlled by the Brown case. There, the accused was charged with two specifications of desertion. He moved to dismiss on the ground that he was deprived of a speedy trial. The motion was denied. Thereupon, the accused pleaded not guilty to the charge, but guilty of the lesser offense of unauthorized absence, in violation of Article 86, Uniform. Code of Military Justice, 10 USC § 886. He was convicted of desertion as charged. When the case came to this Court, we divided on whether the law officer applied the correct rule of law in deciding the motion. A majority concluded he had not. We then proceeded to consider the effect of the law officer’s error, in the light of the plea of guilty. The authors of the principal and dissenting opinions concluded that a plea of guilty does not bar the right to challenge, on appeal, the denial of the motion to dismiss because of deprivation of a speedy trial. A statement to this effect is specifically set out in the principal opinion. Thus, the board of review was mistaken in its view of the Brown case.
If the board of review is correct in its conclusion that the accused was deprived of the right to a speedy trial, the Brown case requires dismissal of both charges against the accused. However, if as a matter of law, the board of review is wrong in its reversal of the law officer’s ruling denying the motion, then its affirmance of the larceny charge must stand, with dismissal of the attempted arson charge a [413]*413windfall to the accused, since the Government’s time to seek review by a certificate of review has expired. United States v Smith, 8 USCMA 178, 23 CMR 402; United States v Wille, 9 USCMA 623, 26 CMR 403. The latter alternative brings us to the Government’s supplemental brief, and appellate defense counsel’s motion to strike point “A.” Although the Government challenges the correctness of the board of review’s action, it does not ask for reversal of its decision and reinstatement of the original verdict of the court-martial. It seeks only to sustain the board of review’s decision affirming the larceny charge against the present attack by the accused. In other words, it wants to show that the fact of affirmance of the larceny charge is legally unassailable, although the process of reasoning by which the result was reached by the board of review is wrong. This is a permissible defense to the accused’s prayer for affirmative relief. Accordingly, we deny the motion to strike, and turn to the motion to dismiss which was made at the trial.
We begin by noting there is no dispute as to the facts. The facts presented to the law officer were accepted by the board of review as the basis for its conclusion that the accused was denied a speedy trial. The question then is whether the board of review is correct in concluding that the law officer erred as a matter of law in denying the motion to dismiss. This is a legal question which we may properly consider. United States v Kantner, 11 USCMA 201, 204, 29 CMR 17.
Limiting ourselves, for the purposes of this case, strictly to the evidence available to the law officer (see United States v Richard, 7 USCMA 46, 51, 21 CMR 172; cf. United States v Wilson, 10 USCMA 337, 27 CMR 411), the sequence of events is as follows;
December 7, 1958 — Offenses committed; accused apprehended in the course thereof; confined in the station brig.
February 13, 1959 — Pretrial investigation held.
February 26, 1959 — Report of pretrial investigation and allied papers forwarded by Commanding Officer,. Naval Receiving Station, to Commandant, 12th Naval District, with a statement that the delay in proceedings was due to “a further investigation.”1
March 2, 1959 — Endorsement on Charge Sheet which shows receipt of sworn charges by Commanding Officer, Naval Receiving Station. (In view of the date on which the charges were forwarded to the Commandant, 12th Naval District, and conceded to be correct, this date must be' in error.)
April 14, 1959 — The accused requested trial.
April 23, 1959 — Charges referred' to trial by Commandant, 12th Naval District.
April 24, 1959 — Charges formally served by trial counsel upon accused..
April 30, 1959 — Case came on for trial.
The total time between the commission of the offenses and the date of trial was 144 days. According to defense counsel’s argument, the Commanding Officer of the Receiving Station had officially reported to the Commandant, 12th Naval District, that the delay in completing his report was due to the need for “further investigation.” Defense counsel contended that because the accused had given agents of the Office of Naval Intelligence a statement on December 16 and a second statement on December 18,2
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[412]*412Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused was brought to trial on charges that he stole various craft tools and model kits from the hobby shop of the Naval Receiving Station, Treasure Island, California, and later attempted to set fire to the shop in order to conceal the theft. Before entry of the accused’s plea, defense counsel moved to dismiss the charges on the ground that the accused had been deprived of a speedy trial. The motion was denied. The accused then entered a plea of not guilty to the attempted arson charge and guilty to the larceny specification. The court-martial convicted him of both charges, and imposed a sentence which includes a bad-conduct discharge. On review, the board of review held that the motion to dismiss should have been granted. Relying upon United States v Brown, 10 USCMA 498, 28 CMR 64, it set aside and dismissed the attempted arson charge, but affirmed the findings of guilty on the larceny count on the ground that the accused’s plea of guilty constituted a waiver of the right to a speedy trial. The accused petitioned this Court for review of the correctness of the board of review’s conclusion that the plea of guilty constituted a waiver of the motion to dismiss. We granted the petition.
Initially, the Government conceded that the board of review misconstrued the holding in the Brown case and that the accused’s claim of error was meritorious. Later, it moved to withdraw its concession of error and to file a supplemental brief containing two points. Point “A” argued that the board of review erred in reversing the law officer’s denial of the motion to dismiss. In point “B” the Government contended that the statement in the Brown case as to the effect of the plea of guilty on the motion to dismiss is dictum, and, therefore, not binding on the board of review; it urged reconsideration of the. point. Appellate defense counsel interposed no objection to withdrawal by the Government of its concession of error and to the filing of a supplemental brief, insofar as it pertained to point “B”; they objected to inclusion of point “A” as an indirect attempt by the Government to seek review of the correctness of the board of review’s decision, when it was barred by the lapse of time from filing a certificate of review under the provisions of Article 67 (b) (2) of the Uniform Code of Military Justice, 10 USC § 867. We denied the motion without prejudice to renewal at the time of oral argument. When the case came on for argument, appellate defense counsel renewed the motion to strike.
The issue presented to us by the petition for grant of review is controlled by the Brown case. There, the accused was charged with two specifications of desertion. He moved to dismiss on the ground that he was deprived of a speedy trial. The motion was denied. Thereupon, the accused pleaded not guilty to the charge, but guilty of the lesser offense of unauthorized absence, in violation of Article 86, Uniform. Code of Military Justice, 10 USC § 886. He was convicted of desertion as charged. When the case came to this Court, we divided on whether the law officer applied the correct rule of law in deciding the motion. A majority concluded he had not. We then proceeded to consider the effect of the law officer’s error, in the light of the plea of guilty. The authors of the principal and dissenting opinions concluded that a plea of guilty does not bar the right to challenge, on appeal, the denial of the motion to dismiss because of deprivation of a speedy trial. A statement to this effect is specifically set out in the principal opinion. Thus, the board of review was mistaken in its view of the Brown case.
If the board of review is correct in its conclusion that the accused was deprived of the right to a speedy trial, the Brown case requires dismissal of both charges against the accused. However, if as a matter of law, the board of review is wrong in its reversal of the law officer’s ruling denying the motion, then its affirmance of the larceny charge must stand, with dismissal of the attempted arson charge a [413]*413windfall to the accused, since the Government’s time to seek review by a certificate of review has expired. United States v Smith, 8 USCMA 178, 23 CMR 402; United States v Wille, 9 USCMA 623, 26 CMR 403. The latter alternative brings us to the Government’s supplemental brief, and appellate defense counsel’s motion to strike point “A.” Although the Government challenges the correctness of the board of review’s action, it does not ask for reversal of its decision and reinstatement of the original verdict of the court-martial. It seeks only to sustain the board of review’s decision affirming the larceny charge against the present attack by the accused. In other words, it wants to show that the fact of affirmance of the larceny charge is legally unassailable, although the process of reasoning by which the result was reached by the board of review is wrong. This is a permissible defense to the accused’s prayer for affirmative relief. Accordingly, we deny the motion to strike, and turn to the motion to dismiss which was made at the trial.
We begin by noting there is no dispute as to the facts. The facts presented to the law officer were accepted by the board of review as the basis for its conclusion that the accused was denied a speedy trial. The question then is whether the board of review is correct in concluding that the law officer erred as a matter of law in denying the motion to dismiss. This is a legal question which we may properly consider. United States v Kantner, 11 USCMA 201, 204, 29 CMR 17.
Limiting ourselves, for the purposes of this case, strictly to the evidence available to the law officer (see United States v Richard, 7 USCMA 46, 51, 21 CMR 172; cf. United States v Wilson, 10 USCMA 337, 27 CMR 411), the sequence of events is as follows;
December 7, 1958 — Offenses committed; accused apprehended in the course thereof; confined in the station brig.
February 13, 1959 — Pretrial investigation held.
February 26, 1959 — Report of pretrial investigation and allied papers forwarded by Commanding Officer,. Naval Receiving Station, to Commandant, 12th Naval District, with a statement that the delay in proceedings was due to “a further investigation.”1
March 2, 1959 — Endorsement on Charge Sheet which shows receipt of sworn charges by Commanding Officer, Naval Receiving Station. (In view of the date on which the charges were forwarded to the Commandant, 12th Naval District, and conceded to be correct, this date must be' in error.)
April 14, 1959 — The accused requested trial.
April 23, 1959 — Charges referred' to trial by Commandant, 12th Naval District.
April 24, 1959 — Charges formally served by trial counsel upon accused..
April 30, 1959 — Case came on for trial.
The total time between the commission of the offenses and the date of trial was 144 days. According to defense counsel’s argument, the Commanding Officer of the Receiving Station had officially reported to the Commandant, 12th Naval District, that the delay in completing his report was due to the need for “further investigation.” Defense counsel contended that because the accused had given agents of the Office of Naval Intelligence a statement on December 16 and a second statement on December 18,2 he “doubt[ed] if there was any further investigation after this time.” Without evidence to support the defense doubt, there is no justification for disregarding the commander’s official report on the reason for his delay. The defense statement of the report, although lacking in the details actually recited in the original, is sufficient to [414]*414support the conclusion that there was no oppressive design or lack of reasonable diligence on the Government’s part in the prosecution of the case in the period from December 7 to February-26. United States v Wilson, 10 USCMA 337, 342, 27 CMR 411.
Nothing in the evidence before the law officer shows what steps toward prosecution, apart from the reference of the charges to trial and formal service of the charges upon the accused, were taken by the Government between February 26 and April 30 when the case came on for trial. We take judicial notice, however, that the law officer was aware of, and made some allowance for, the time for receipt of the report by the Commandant of the 12th Naval District from the Commanding Officer of the Naval Station, and the transmittal thereof to his own staff legal officer for recommendation and advice, in accordance with the provisions of Article 34(a) of the Uniform Code, 10 USC § 834. We also recognize that the law officer probably allowed for the minimum period of five days after service of the charges upon the accused, during which, under the Uniform Code, the accused cannot “against his objection, be brought to trial before a court-martial.” Article 35, Uniform Code of Military Justice, 10 USC § 835. Just how much time the law officer allowed the Government for these activities we, of course, do not know; nor need we speculate. Suffice it for our purposes to note that the total time, between the forwarding of the charges and the report of investigation to the Commandant of the 12th Naval District for his action and the date of trial, was just over two months. The question is thus reduced to this:
Considering all the circumstances which include the fact of confinement; the nature of the charges; the background of the accused; the necessity for consideration of the charge and the investigation by the staff legal officer and the submission of his recommendations and advice to the convening authority; consideration of the case by the convening authority; reference of the charges to trial; service of the charges upon the accused by trial counsel; and, finally, passage of the minimum time required by law for bringing on the case after service of the charges, is the accused denied a speedy trial if he is not tried within a period of two months? See United States v Callahan, 10 USCMA 156, 27 CMR 230.
We think not. Unquestionably, pretrial confinement is burdensome. However, the defense does not dispute the validity of the confinement; and the period of confinement is not, in our opinion, so extended as to indicate in any way that the confinement is part of an oppressive design on the part of the Government against the accused. Also, in our opinion, the period is not so long and so free of statutory requirements for the performance of essential preliminary proceedings as to establish, as a matter of law, that there was a lack of reasonable diligence in prosecution. We conclude, therefore, there is ample evidence to support the law officer’s ruling denying the defense motion to dismiss because of the purported deprivation of a speedy trial. Thus, the board of review erred, as a matter of law, in holding that the law officer abused his discretion in his ruling.
Before concluding our opinion, it is appropriate to reiterate what we said in United States v Wilson, 10 USCMA 398, 403, 27 CMR 472; when the issue of a speedy trial is raised by way of a motion to dismiss, “the facts necessary to a proper disposition of the question should be incorporated in the record.” The allied papers in this case show much more clearly than the evidence presented to the law officer, the actual course of events. All the details should have been presented on the motion to dismiss.
The findings of guilty of larceny and the sentence as approved by the board of review are affirmed.
Judge LatimeR concurs.