OPINION
COOK, Judge:
In United States v. Banks, 7 M.J. 92 (C.M.A.1979), the Court terminated the rule promulgated in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), regarding speedy review at the command level of the record of conviction of an accused ordered into post-conviction confinement or placed under other significant restraint. A perceived ambiguity in the Banks opinion has resulted in different applications of its precept by different service appellate tribunals. Compare United States v. Brewer, 9 M.J. 509 (A.F.C.M.R. 1980), certificate for review filed, 9 M.J. 16 (C.M.A.1980), with United States v. Figueroa, 8 M.J. 802 (N.C.M.R.1980), certificate for review filed, 9 M.J. 3 (C.M.A.1980). As authorized by Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), the Judge Advocate General of the Navy has certified two questions to this Court respecting the correctness of the application of Banks by the Court of Military Review in this case.1 (8 M.J. 178).
Writing for this Court in Banks, Judge Perry reviewed the necessity for continua[214]*214tion of the presumption postulated in Dunlap that an accused is prejudiced if, following conviction, he has been continuously confined or otherwise significantly deprived of his freedom and final action on his case is taken at the command level more than 90 days thereafter. He determined that changes in courts-martial procedure since Dunlap made continuation of the presumption inappropriate. Accordingly, he concluded that it should no longer obtain.
Three passages in Judge Perry’s opinion allude to the time the Dunlap presumption would be inoperative. In the first, Judge Perry said:
[Application of the [Dunlap] rule to cases such as are included in the certified question[2] shall not be required from and after the date of this decision.
7 M.J. at 93 (emphasis supplied). The second and third passages appear in the penultimate paragraph of the opinion. The first sentence of the text, which sets out the Court’s affirmative answer to the certified question, includes footnote 3, where Judge Perry stated that “any announced change in the law must be prospective.” Id. This sentence upheld the Court of Military Review’s application of the Dunlap presumption “to the instant case.” The second sentence of 'the text particularized the prospective nature of the decision and declared that “cases tried subsequent to this opinion .. .-will be tested for prejudice. See United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484 (1973).” Id. at 93-94. Gray typified the rule that prevailed prior to promulgation of the Dunlap presumption of prejudice.
Here, the accused was placed in post-conviction confinement on March 5, 1979. Action by the supervisory authority was accomplished on June 4, 1979. Thus, the interval between post-conviction confinement and final command level review was 91 days. Under the Dunlap rule, as applied to the supervisory authority’s review of a special court-martial conviction,3 determination of the timeliness of the review had, therefore, to start with the presumption that the delay was prejudicial to the accused. However, the Court of Military Review refused to apply the presumption. It construed the Banks statement that Dunlap would be inoperative as to “cases tried subsequent to” promulgation of the opinion as merely “an inadvertent use of a phrase normally reserved for rule changes that affect the conduct of the trial itself,” and disregarded it as not indicative of the “real intent of the Court.” United States v. Johnson, NCM 79-1195 (unpublished) (N.C.M.R. Nov. 6, 1979). The court also disregarded the footnote statement that “any announced change in the law must be prospective.” 7 M.J. at 93 n. 3. That left it with the first statement in Banks, specifically that “application of the [Dunlap] rule . . . shall not be required from and after the date of this decision,” which it construed to terminate the Dunlap presumption, notwithstanding that final command action had been completed before publication of Banks on June 18, 1979.
Neither party to a lawsuit has a vested right in existing rules of evidence, but a retroactive change of an evidentiary rule which “alters . . . [an accused’s] situation to his disadvantage,” is impermissible. 16A C.J.S. Constitutional Law § 435. See Government of Virgin Islands v. Civil, 591 F.2d 255 (3d Cir. 1979). Since final action on the accused’s conviction occurred on the 91st day after imposition of post-conviction confinement, a rule that directs disregard of the presumption of prejudice already inherent in that action would raise a serious question whether it violates the constitutional prohibition against ex post facto change in the criminal law. U.S.Const. art. I, § 9, cl. 3.
As Banks twice stressed that termination of the Dunlap presumption was to be [215]*215prospective, understandably it did not consider whether retroactive disregard of a presumption which had become fully operative under previous law would violate the Constitution. However, a number of cases in the posture of Banks were pending in this Court. After promulgation of the Banks. opinion, the Court acted in these cases; in each, it applied the Dunlap presumption: United States v. Terry L. 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); and United States v. Sawyer, 7 M.J. 195 (C.M.A.1979). Broadly viewed, those cases imply that the Court construed Banks as not terminating the Dunlap presumption in a case in which command level review was final before publication of the Banks opinion. So viewed, the Court of Military Review erred in its determination that the Dunlap rule did not apply to this accused’s case. Arguably, however, the successor cases may be viewed as indicating only that they were decided as they were because they were pending before the Court at the time of promulgation of Banks. From that standpoint, they would not necessarily be determinative of this case, which was docketed almost 6 months after publication of Banks. (8 M.J. 178).
Banks declared that the end of the Dunlap presumption “must be prospective”; the decision in the case affirmed application of the presumption to a determination of the timeliness of command action that was final at the time of publication of the opinion. Had the opinion rested on that declaration and decision, it would have left open to doubt whether the Dunlap rule would also apply to a case in which the accused had been under significant post-conviction restraint, but the presumption of prejudice was still inchoate because more than 90 days from imposition of restraint had not yet elapsed. In my opinion, Judge Perry’s final comment on the presumption laid that doubt to rest-Dunlap would be inoperative only as to “cases tried” after
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OPINION
COOK, Judge:
In United States v. Banks, 7 M.J. 92 (C.M.A.1979), the Court terminated the rule promulgated in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), regarding speedy review at the command level of the record of conviction of an accused ordered into post-conviction confinement or placed under other significant restraint. A perceived ambiguity in the Banks opinion has resulted in different applications of its precept by different service appellate tribunals. Compare United States v. Brewer, 9 M.J. 509 (A.F.C.M.R. 1980), certificate for review filed, 9 M.J. 16 (C.M.A.1980), with United States v. Figueroa, 8 M.J. 802 (N.C.M.R.1980), certificate for review filed, 9 M.J. 3 (C.M.A.1980). As authorized by Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), the Judge Advocate General of the Navy has certified two questions to this Court respecting the correctness of the application of Banks by the Court of Military Review in this case.1 (8 M.J. 178).
Writing for this Court in Banks, Judge Perry reviewed the necessity for continua[214]*214tion of the presumption postulated in Dunlap that an accused is prejudiced if, following conviction, he has been continuously confined or otherwise significantly deprived of his freedom and final action on his case is taken at the command level more than 90 days thereafter. He determined that changes in courts-martial procedure since Dunlap made continuation of the presumption inappropriate. Accordingly, he concluded that it should no longer obtain.
Three passages in Judge Perry’s opinion allude to the time the Dunlap presumption would be inoperative. In the first, Judge Perry said:
[Application of the [Dunlap] rule to cases such as are included in the certified question[2] shall not be required from and after the date of this decision.
7 M.J. at 93 (emphasis supplied). The second and third passages appear in the penultimate paragraph of the opinion. The first sentence of the text, which sets out the Court’s affirmative answer to the certified question, includes footnote 3, where Judge Perry stated that “any announced change in the law must be prospective.” Id. This sentence upheld the Court of Military Review’s application of the Dunlap presumption “to the instant case.” The second sentence of 'the text particularized the prospective nature of the decision and declared that “cases tried subsequent to this opinion .. .-will be tested for prejudice. See United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484 (1973).” Id. at 93-94. Gray typified the rule that prevailed prior to promulgation of the Dunlap presumption of prejudice.
Here, the accused was placed in post-conviction confinement on March 5, 1979. Action by the supervisory authority was accomplished on June 4, 1979. Thus, the interval between post-conviction confinement and final command level review was 91 days. Under the Dunlap rule, as applied to the supervisory authority’s review of a special court-martial conviction,3 determination of the timeliness of the review had, therefore, to start with the presumption that the delay was prejudicial to the accused. However, the Court of Military Review refused to apply the presumption. It construed the Banks statement that Dunlap would be inoperative as to “cases tried subsequent to” promulgation of the opinion as merely “an inadvertent use of a phrase normally reserved for rule changes that affect the conduct of the trial itself,” and disregarded it as not indicative of the “real intent of the Court.” United States v. Johnson, NCM 79-1195 (unpublished) (N.C.M.R. Nov. 6, 1979). The court also disregarded the footnote statement that “any announced change in the law must be prospective.” 7 M.J. at 93 n. 3. That left it with the first statement in Banks, specifically that “application of the [Dunlap] rule . . . shall not be required from and after the date of this decision,” which it construed to terminate the Dunlap presumption, notwithstanding that final command action had been completed before publication of Banks on June 18, 1979.
Neither party to a lawsuit has a vested right in existing rules of evidence, but a retroactive change of an evidentiary rule which “alters . . . [an accused’s] situation to his disadvantage,” is impermissible. 16A C.J.S. Constitutional Law § 435. See Government of Virgin Islands v. Civil, 591 F.2d 255 (3d Cir. 1979). Since final action on the accused’s conviction occurred on the 91st day after imposition of post-conviction confinement, a rule that directs disregard of the presumption of prejudice already inherent in that action would raise a serious question whether it violates the constitutional prohibition against ex post facto change in the criminal law. U.S.Const. art. I, § 9, cl. 3.
As Banks twice stressed that termination of the Dunlap presumption was to be [215]*215prospective, understandably it did not consider whether retroactive disregard of a presumption which had become fully operative under previous law would violate the Constitution. However, a number of cases in the posture of Banks were pending in this Court. After promulgation of the Banks. opinion, the Court acted in these cases; in each, it applied the Dunlap presumption: United States v. Terry L. 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); and United States v. Sawyer, 7 M.J. 195 (C.M.A.1979). Broadly viewed, those cases imply that the Court construed Banks as not terminating the Dunlap presumption in a case in which command level review was final before publication of the Banks opinion. So viewed, the Court of Military Review erred in its determination that the Dunlap rule did not apply to this accused’s case. Arguably, however, the successor cases may be viewed as indicating only that they were decided as they were because they were pending before the Court at the time of promulgation of Banks. From that standpoint, they would not necessarily be determinative of this case, which was docketed almost 6 months after publication of Banks. (8 M.J. 178).
Banks declared that the end of the Dunlap presumption “must be prospective”; the decision in the case affirmed application of the presumption to a determination of the timeliness of command action that was final at the time of publication of the opinion. Had the opinion rested on that declaration and decision, it would have left open to doubt whether the Dunlap rule would also apply to a case in which the accused had been under significant post-conviction restraint, but the presumption of prejudice was still inchoate because more than 90 days from imposition of restraint had not yet elapsed. In my opinion, Judge Perry’s final comment on the presumption laid that doubt to rest-Dunlap would be inoperative only as to “cases tried” after Banks. Thus, he assured every accused already subject to post-trial restraint sufficient to start the Dunlap clock running that he would not be disadvantaged by the Banks opinion; that he would be assured appellate consideration of the timeliness of the command level review of his conviction with the benefit of the Dunlap presumption, regardless of whether the full 90-day period had expired or some time yet remained to complete the period. In so doing, Judge Perry granted to accused the same sort of reasonable grace period for termination of the Dunlap rule that the Court had earlier granted to the Government on the imposition of the rule. United States v. Slama, 1 M.J. 167 (C.M.A.1975). I, therefore, answer in the affirmative the first certified question, which, in substance, asks whether the Court of Military Review erred in disregarding the Dunlap rule in its determination of the timeliness of the supervisory authority’s action on the accused’s case. I also answer in the affirmative the second question, which asks, in substance, whether the Dunlap rule applies to a case in which the accused was placed in post-conviction restraint prior to June 18, 1979, the date of the Banks decision, but final action on the conviction was not taken by command until after that date.
My answer to the first certified question does not, itself, require that the decision of the Court of Military Review be set aside and the charges dismissed, as in Banks. The 90th day of the accused’s post-conviction confinement fell on a Sunday. The supervisory authority acted the next day. In United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952), the Court noted that the Uniform Code of Military Justice “contains no provision for eliminating holidays and Sundays in computing periods of time” during which various courts-martial actions are required to be taken. Remarking on the fact that “[i]n many military situations Sundays and holidays are not considered days of rest,” the Court concluded that a Sunday and a holiday that fell within the 5-day period that elapsed between service of charges upon the accused and the day of trial were not ex-cludable, and, therefore, bringing the accused to trial after that period did not [216]*216violate Article 35, UCMJ, 10 U.S.C. § 8354 Nichols favored adoption of the rule in the Federal criminal civilian courts which excludes Sundays and holidays that fall in a time period less than seven days,5 but the Court suggested it lacked authority to “impose it as a matter of law.” Id.
Subsequent to Nichols, the Court often turned to the Federal rules of practice to fill an interstice in military law.6 I need not consider whether the particular rule at issue in Nichols has survived the later cases. Nichols acknowledged that exclusion of a Sunday or holiday from a time period could properly be effected “by statute or rule.” Id. The Dunlap rule was promulgated by this Court. Rule 32(a), Rules of Practice and Procedure of this Court (4 M.J. CXVII), provides, in material part, for including in:
any period of time prescribed ... by order of the Court ... [t]he last day of the period ... unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holiday.
As Rule 32(a) falls within a division of the Rules of Practice and Procedure titled “PRACTICE BEFORE THE COURT,” arguably its application should be circumscribed by the caption, and the rule should not be applied to a Dunlap period which is operative outside proceedings in this Court. However, it cannot be gainsaid that the Dunlap presumption emanated from the Court and, consequently, it should be, and I conclude that it is, freighted with the general rule prescribed by the Court for computations of time. Resultantly, final command action on the accused’s case was timely, and the Dunlap presumption of prejudice was inoperative. Considered without the presumption, the evidence as to the course of command review shows no fair risk of prejudice to the accused.
As their separate opinions indicate, my Brothers have different views as to the meaning and effect of Banks. We all agree, however, that the convening authority’s action was timely, and, therefore, we affirm the decision of the United States Navy Court of Military Review.