Opinion
Darden, Judge:
Tried before a general court-martial at Camp Pendleton, California, on a charge of desertion, the appellant was convicted of absence without leave and sentenced to a bad-conduct discharge, total forfeitures, and confinement at hard labor for seven months. Intermediate appellate review left the findings and sentence unchanged. This Court granted review to consider the appellant’s complaint that he was denied his right to a speedy trial.
During the early moments of his trial, Marin unsuccessfully moved for dismissal of the charge on the above ground. A supporting stipulation of fact attached to the record as an appellate exhibit shows that Marin was apprehended by civilian authorities in Brooklyn, New York, on August 28, 1969, and confined in the Riker Island Jail until September 6, 1969. He was then transferred to the Brooklyn Navy Yard and confined in the Naval Brig until transferred to the Marine Corps Base Brig, Quantico, Virginia, on September 18, 1969. On October 15 he was transferred to and confined in the brig at the Naval Training Center, Great Lakes, Illinois. On October 23, 1969, he was sent to the Camp Pendle-ton Brig, where he remained until January 22, 1970, awaiting trial.
This chronology shows further that while confined on September 6, 1969, Marin was informed of the offense of which he was suspected; that on November 14, 1969, formal charges were preferred and he was so informed; that on November 13, 1969, an Article 33 report and a request for counsel were forwarded to the office of the staff judge advocate; that on December 3, 1969, both the report and request for counsel were received by the staff judge advocate’s office; that on December 5, 1969, counsel was informally designated and a counsel letter prepared; that on December 19, 1969, the accused submitted a waiver of Article 32 investigation to the parent organization ; that the commanding general approved a request from Marin’s unit for extended confinement of him; that on December 31, 1969, the Commanding Officer, Student Company, [434] Schools Battalion, forwarded a recommendation for trial by general court-martial ; that the recommendation for trial was received by the office of the staff judge advocate on January 5, 1970, with staff judge advocate advice being prepared four days later; and that on January 12, 1970, the commanding general referred the case for trial by general court-martial, with trial beginning January 22, 1970.
Trial defense counsel’s concern about lack of speedy trial centered on the delay in moving Marin to Camp Pendleton, the delay attending the forwarding of pertinent papers to the office of the staff judge advocate at Camp Pendleton, and the total time required to bring the appellant to trial. At the trial the processing of this case at Camp Pendleton itself was unchallenged.
Like a dissenting member of the United States Navy Court of Military Review, appellate defense counsel argues that the basis for denial of the appellant’s motion below was insufficient. He asserts that the Government described only what occurred without explaining why the events consumed the stated amount of time. On the other hand, appellate Government counsel and the majority of the United States Navy Court of Military Review take the position that no “purposeful, vexatious or unreasonable delay” occurred in this case. They conclude that the appellant was the victim of neither error nor prejudice.
Judge Barian, the dissenting member of the Court of Military Review, pointed out that the Article 33 report did not contain a report in writing to the officer exercising general court-martial jurisdiction of the reasons for the delay in the case. We agree with his thought that in many instances a bare chronology is unhelpful to reviewers who must pass on speedy trial issues. Although accounting for each day that elapses between significant events in a court-martial proceeding may not be practical in an Article 33 report, each official in the chain of communication ought to explain obvious prolongations of the time attributable to the step for which he is responsible.
Fifty-seven days elapsed between this appellant’s apprehension and his return to California. Appellate defense counsel vigorously assails this slowness, which the Government attempts to explain by ascribing it to procedures then in effect for consolidating absentees and returning them to the west coast by Government-operated air transport over which the Marine Corps had little control.
Except for this period and the delay between the forwarding of the Article 33 report and its receipt at the office of the staff judge advocate, the rest of the one hundred forty-seven-day interval between apprehension and trial seems to be reasonably accounted for in the chronology.
A person who has remained beyond military control for almost a year can scarcely expect that immediately upon his apprehension officials will abandon all other activity to arrange special transportation to return him to the base he left. After a generous margin of understanding for the policies prescribing consolidated movements and use of Government transportation not under Marine Corps control, we still do not understand why the movement of this appellant from Brooklyn to California consumed fifty-seven days. Similarly, we are perplexed that the charges forwarded on November 13 were received at the office of the staff judge advocate on the same base not until twenty-one days later. Satisfactory explanations for both of these periods of delay may exist; if so, the explanations should have been furnished in compliance with the requirement of Article 33 that if it is not practicable for a commanding officer to forward charges within eight days after an accused is confined he shall report in writing to the convening authority the reasons for the delay.
The normal difficulty in appellate review of speedy trial issues is accentuated when convening authorities fail to require commanding officers to re[435] port in writing the reasons why charges are not forwarded within eight days of the accused’s arrest or confinement, as Article 83 requires. We are reluctant to reverse otherwise faultless convictions because of a failure to comply with Article 33. Excusing the guilty because an official has not discharged this statutory duty is an awkward way of striving for justice. But the unsatisfactory nature of the remedy does not foreclose dismissal in egregious cases. United States v Goode, 17 USCMA 584, 38 CMR 382 (1968); United States v Parish, 17 USCMA 411, 38 CMR 209 (1968).
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Opinion
Darden, Judge:
Tried before a general court-martial at Camp Pendleton, California, on a charge of desertion, the appellant was convicted of absence without leave and sentenced to a bad-conduct discharge, total forfeitures, and confinement at hard labor for seven months. Intermediate appellate review left the findings and sentence unchanged. This Court granted review to consider the appellant’s complaint that he was denied his right to a speedy trial.
During the early moments of his trial, Marin unsuccessfully moved for dismissal of the charge on the above ground. A supporting stipulation of fact attached to the record as an appellate exhibit shows that Marin was apprehended by civilian authorities in Brooklyn, New York, on August 28, 1969, and confined in the Riker Island Jail until September 6, 1969. He was then transferred to the Brooklyn Navy Yard and confined in the Naval Brig until transferred to the Marine Corps Base Brig, Quantico, Virginia, on September 18, 1969. On October 15 he was transferred to and confined in the brig at the Naval Training Center, Great Lakes, Illinois. On October 23, 1969, he was sent to the Camp Pendle-ton Brig, where he remained until January 22, 1970, awaiting trial.
This chronology shows further that while confined on September 6, 1969, Marin was informed of the offense of which he was suspected; that on November 14, 1969, formal charges were preferred and he was so informed; that on November 13, 1969, an Article 33 report and a request for counsel were forwarded to the office of the staff judge advocate; that on December 3, 1969, both the report and request for counsel were received by the staff judge advocate’s office; that on December 5, 1969, counsel was informally designated and a counsel letter prepared; that on December 19, 1969, the accused submitted a waiver of Article 32 investigation to the parent organization ; that the commanding general approved a request from Marin’s unit for extended confinement of him; that on December 31, 1969, the Commanding Officer, Student Company, [434] Schools Battalion, forwarded a recommendation for trial by general court-martial ; that the recommendation for trial was received by the office of the staff judge advocate on January 5, 1970, with staff judge advocate advice being prepared four days later; and that on January 12, 1970, the commanding general referred the case for trial by general court-martial, with trial beginning January 22, 1970.
Trial defense counsel’s concern about lack of speedy trial centered on the delay in moving Marin to Camp Pendleton, the delay attending the forwarding of pertinent papers to the office of the staff judge advocate at Camp Pendleton, and the total time required to bring the appellant to trial. At the trial the processing of this case at Camp Pendleton itself was unchallenged.
Like a dissenting member of the United States Navy Court of Military Review, appellate defense counsel argues that the basis for denial of the appellant’s motion below was insufficient. He asserts that the Government described only what occurred without explaining why the events consumed the stated amount of time. On the other hand, appellate Government counsel and the majority of the United States Navy Court of Military Review take the position that no “purposeful, vexatious or unreasonable delay” occurred in this case. They conclude that the appellant was the victim of neither error nor prejudice.
Judge Barian, the dissenting member of the Court of Military Review, pointed out that the Article 33 report did not contain a report in writing to the officer exercising general court-martial jurisdiction of the reasons for the delay in the case. We agree with his thought that in many instances a bare chronology is unhelpful to reviewers who must pass on speedy trial issues. Although accounting for each day that elapses between significant events in a court-martial proceeding may not be practical in an Article 33 report, each official in the chain of communication ought to explain obvious prolongations of the time attributable to the step for which he is responsible.
Fifty-seven days elapsed between this appellant’s apprehension and his return to California. Appellate defense counsel vigorously assails this slowness, which the Government attempts to explain by ascribing it to procedures then in effect for consolidating absentees and returning them to the west coast by Government-operated air transport over which the Marine Corps had little control.
Except for this period and the delay between the forwarding of the Article 33 report and its receipt at the office of the staff judge advocate, the rest of the one hundred forty-seven-day interval between apprehension and trial seems to be reasonably accounted for in the chronology.
A person who has remained beyond military control for almost a year can scarcely expect that immediately upon his apprehension officials will abandon all other activity to arrange special transportation to return him to the base he left. After a generous margin of understanding for the policies prescribing consolidated movements and use of Government transportation not under Marine Corps control, we still do not understand why the movement of this appellant from Brooklyn to California consumed fifty-seven days. Similarly, we are perplexed that the charges forwarded on November 13 were received at the office of the staff judge advocate on the same base not until twenty-one days later. Satisfactory explanations for both of these periods of delay may exist; if so, the explanations should have been furnished in compliance with the requirement of Article 33 that if it is not practicable for a commanding officer to forward charges within eight days after an accused is confined he shall report in writing to the convening authority the reasons for the delay.
The normal difficulty in appellate review of speedy trial issues is accentuated when convening authorities fail to require commanding officers to re[435] port in writing the reasons why charges are not forwarded within eight days of the accused’s arrest or confinement, as Article 83 requires. We are reluctant to reverse otherwise faultless convictions because of a failure to comply with Article 33. Excusing the guilty because an official has not discharged this statutory duty is an awkward way of striving for justice. But the unsatisfactory nature of the remedy does not foreclose dismissal in egregious cases. United States v Goode, 17 USCMA 584, 38 CMR 382 (1968); United States v Parish, 17 USCMA 411, 38 CMR 209 (1968).
Speedy trial issues vary and each must be determined on the circumstances peculiar to it. United States v Hawes, 18 USCMA 464, 40 CMR 176 (1969). Similarly, each ruling of the military judge alleged to be erroneous must be “ ‘separately analyzed.’ ” United States v Freeman, 15 USCMA 126, 129, 35 CMR 98 (1964). The otherwise steady progression toward prosecution of the offense satisfies us that the delays in this case did not hinder the appellant in the preparation or the presentation of his case. Despite the delay in returning the appellant to his unit, he was immediately advised after apprehension of the offense of which he was suspected. He was furnished counsel more than a month before trial and that counsel did not urge any acceleration of the proceedings. During the trial the appellant convinced the court he intended to return to military control and thus avoid conviction for desertion. In doing so, he conceded that his absence was unauthorized. Accordingly, the delay in bringing him to trial did not affect his preparation for defending against the offense charged or the lesser included offense of which he was convicted. United States v Tibbs, 15 USCMA 350, 35 CMR 322 (1965); United States v Hawes, supra; United States v Przybycien, 19 USCMA 120, 41 CMR 120 (1969); United States v Mladjen, 19 USCMA 159, 41 CMR 159 (1969).
The record also demonstrates that the military judge considered the delays in this prosecution in his determination of an appropriate sentence. When trial defense counsel asked the military judge to consider pretrial confinement in determining punishment, the latter replied:
“MJ: In imposing sentence, Private Marin, I want you to know that I am giving full consideration to the length of time that you have spent in pretrial confinement and it is my duty as military judge of this court to inform you that this court sentences you to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for seven months.”
Since the delays that occurred here did not handicap the appellant in preparing his defense, and since the military judge considered the length of pretrial confinement in deciding an appropriate sentence, we affirm the decision of the Navy Court of Military Review.
Chief Judge Quinn concurs in the result.