Opinion of the Court
Kilday, Judge:
Appellant was arraigned before a general court-martial convened at Fort George G. Meade, Maryland, charged with attempted robbery and attempted murder while perpetrating a robbery, in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880, and robbery, in violation of Article 122, Uniform Code of Military Justice, 10 USC § 922. He pleaded not guilty as charged but, with reference to- the attempted robbery and robbery specifications, he pleaded guilty only to assault, in violation of Article 128 of the Uniform Code, supra, 10 USC § 928. He was found not guilty of attempted murder but guilty of the remaining specifications as charged and sentenced to a bad-conduct discharge, total forfeitures, and confinement at hard labor for three years. Intermediate appellate authorities affirmed the findings and sentence.
We granted review to determine whether the appellant was denied military due process and his right to a speedy trial by the undue delay between his initial confinement and his trial.
Once again we are faced with the vexatious problem of determining the impact on the trial of a case because of the failure by military authorities to comply with the provisions of Articles 10 and 33 of the Code, supra, 10 USC §§ 810, 833.1 See United States [413]*413v Williams, 16 USCMA 589, 37 CMR 209; United States v Schalck, 14 USCMA 371, 34 CMR 151.
The basic procedural facts bearing on this issue are not in dispute for they were agreed to by both counsel in a stipulation (Prosecution Exhibit 1) utilized by them in arguing before the law officer when trial defense counsel moved for dismissal of all charges and specifications on the ground that Parish had been denied a speedy trial, in violation of the Sixth Amendment to the Constitution and of Articles 10 and 33 of the Code, supra. The basis for counsel’s motion stems from the following facts.
The alleged offenses were committed on August 23, 1966, and Parish was ordered into confinement by his commanding officer, Lieutenant D, on the same day. He was interviewed by a military investigator on August 25th, at which time he gave a statement which was admitted into evidence at his trial. Therein, the appellant recounted his activities of the evening in question. He stated he was quite drunk when he returned to the barracks. There he obtained a .22 caliber revolver from his locker, went outside and pointed it at Specialist Four D, who was guarding the mess hall. He ordered the former over to his car and on arrival asked for money. Specialist Four D showed him an empty wallet. He then demanded the car keys, whereupon the soldier refused and started to run. As he did so, he tripped and fell and Parish ran away. Later, while still on base, Parish encountered a person in civilian clothes (later identified as Private E-2 H). He drew the revolver again and ordered this person to drive him off base, which he did. After leaving Fort George G. Meade, Parish ordered the man out of the car and drove away. He wrecked the car and did not remember anything until he was in a police station. In answer to questions propounded by the investigator, the appellant denied that the pistol was loaded or that he had ammunition for it. He also denied that he took any money from the man in civilian clothes or that he attempted to run over this man with his car.
On September 21, 1966, Lieutenant J took over as company commander and two days later the military investigators completed their interviews of witnesses. Their final report, dated October 3, 1966, was received by Lieutenant J on October 5, 1966. Included therein were statements of the victims of the alleged offenses, both dated August 23, 1966, and one (undated) from the Maryland State Trooper who initially apprehended Parish on August 23d. An interim progress report was furnished to the appellant’s commanding officer on August 24, 1966.
On October 12, 1966, charges (attempted robbery and robbery) were read to the appellant. Subsequently, on October 23d, an attempted murder charge was added and Parish so informed on October 25th. The Article 32 officer, appointed October 28th, completed his investigation on November 2d. The charges were redrawn on November 8th, read to the appellant on the same day, and a new Article 32 report submitted on the 18th. On December 8th, the charges were referred to the officer exercising general court-martial authority, appellant was served on the 12th, and trial was held on January 4, 1967.
Essentially, the stipulated chronology of events reflects that there was a lapse of some fifty days between the date of [414]*414confinement (August 23d) and the date the original charges were read to the accused (October 12th); thirteen days later (October 25th) he was informed of an additional charge; nine days thereafter (November 3d) the charges were forwarded to the convening authority; and trial was held sixty-two days after referral (January 4, 1967). The total elapsed time between confinement and trial was 134 days. We are primarily concerned with the period of time between the confinement and the original reading of the charges — fifty days. The Code specifically requires (Article 10, supra) that immediate steps be taken to inform a confined accused of the charges and to try him or to dismiss the charges and release him. If not released, charges are to be forwarded to the officer exercising general court-martial authority (convening authority) within eight days, if practicable; if not practicable, a written report explaining the delay should also be submitted (Article 33, supra). In each instance, the burden of compliance with these codal provisions is on the accused’s commanding officer.
Before the law officer, the Government, in answer to defense counsel’s motion to dismiss, presented a stipulation from Lieutenant D and the testimony of Lieutenant J, the aforementioned unit commanders. The gist of their testimony was that they were both inexperienced and not aware of the specific provisions of the Code now under scrutiny. Lieutenant D, just out of Officer Candidate School, was an interim commander (eight weeks) and in his stipulation he asserted that he was waiting for the completed report of the Criminal Investigations Detachment, as directed by someone (unknown) from the staff judge advocate’s office; that when Lieutenant J took over the unit prior to its receipt,2 he briefed him on the case. The latter acknowledged having been informed that Parish was in custody, suspected of robbery and attempted robbery. He also waited for the Criminal Investigations Detachment report since his predecessor had indicated he should. He had served a tour in Vietnam but had never before handled a court-martial. Both admitted to having received instructions in military justice, Lieutenant D while in Officer Candidate School and Lieutenant J while participating in the Reserve Officers’ Training Course and again while taking the Signal Corps Officers’ Basic Course at Fort Gordon. Lieutenant D visited Parish in the stockade on two occasions, once to pay him and again for an unrecalled reason, but on neither occasion did he speak with him about his reason for being confined. The first time Lieutenant J saw the appellant was on the occasion on which he read to him the original charges.
Trial counsel admitted that the initial delay was substantial but contended it was not unreasonable in view of the inexperience of the officers involved.
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Opinion of the Court
Kilday, Judge:
Appellant was arraigned before a general court-martial convened at Fort George G. Meade, Maryland, charged with attempted robbery and attempted murder while perpetrating a robbery, in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880, and robbery, in violation of Article 122, Uniform Code of Military Justice, 10 USC § 922. He pleaded not guilty as charged but, with reference to- the attempted robbery and robbery specifications, he pleaded guilty only to assault, in violation of Article 128 of the Uniform Code, supra, 10 USC § 928. He was found not guilty of attempted murder but guilty of the remaining specifications as charged and sentenced to a bad-conduct discharge, total forfeitures, and confinement at hard labor for three years. Intermediate appellate authorities affirmed the findings and sentence.
We granted review to determine whether the appellant was denied military due process and his right to a speedy trial by the undue delay between his initial confinement and his trial.
Once again we are faced with the vexatious problem of determining the impact on the trial of a case because of the failure by military authorities to comply with the provisions of Articles 10 and 33 of the Code, supra, 10 USC §§ 810, 833.1 See United States [413]*413v Williams, 16 USCMA 589, 37 CMR 209; United States v Schalck, 14 USCMA 371, 34 CMR 151.
The basic procedural facts bearing on this issue are not in dispute for they were agreed to by both counsel in a stipulation (Prosecution Exhibit 1) utilized by them in arguing before the law officer when trial defense counsel moved for dismissal of all charges and specifications on the ground that Parish had been denied a speedy trial, in violation of the Sixth Amendment to the Constitution and of Articles 10 and 33 of the Code, supra. The basis for counsel’s motion stems from the following facts.
The alleged offenses were committed on August 23, 1966, and Parish was ordered into confinement by his commanding officer, Lieutenant D, on the same day. He was interviewed by a military investigator on August 25th, at which time he gave a statement which was admitted into evidence at his trial. Therein, the appellant recounted his activities of the evening in question. He stated he was quite drunk when he returned to the barracks. There he obtained a .22 caliber revolver from his locker, went outside and pointed it at Specialist Four D, who was guarding the mess hall. He ordered the former over to his car and on arrival asked for money. Specialist Four D showed him an empty wallet. He then demanded the car keys, whereupon the soldier refused and started to run. As he did so, he tripped and fell and Parish ran away. Later, while still on base, Parish encountered a person in civilian clothes (later identified as Private E-2 H). He drew the revolver again and ordered this person to drive him off base, which he did. After leaving Fort George G. Meade, Parish ordered the man out of the car and drove away. He wrecked the car and did not remember anything until he was in a police station. In answer to questions propounded by the investigator, the appellant denied that the pistol was loaded or that he had ammunition for it. He also denied that he took any money from the man in civilian clothes or that he attempted to run over this man with his car.
On September 21, 1966, Lieutenant J took over as company commander and two days later the military investigators completed their interviews of witnesses. Their final report, dated October 3, 1966, was received by Lieutenant J on October 5, 1966. Included therein were statements of the victims of the alleged offenses, both dated August 23, 1966, and one (undated) from the Maryland State Trooper who initially apprehended Parish on August 23d. An interim progress report was furnished to the appellant’s commanding officer on August 24, 1966.
On October 12, 1966, charges (attempted robbery and robbery) were read to the appellant. Subsequently, on October 23d, an attempted murder charge was added and Parish so informed on October 25th. The Article 32 officer, appointed October 28th, completed his investigation on November 2d. The charges were redrawn on November 8th, read to the appellant on the same day, and a new Article 32 report submitted on the 18th. On December 8th, the charges were referred to the officer exercising general court-martial authority, appellant was served on the 12th, and trial was held on January 4, 1967.
Essentially, the stipulated chronology of events reflects that there was a lapse of some fifty days between the date of [414]*414confinement (August 23d) and the date the original charges were read to the accused (October 12th); thirteen days later (October 25th) he was informed of an additional charge; nine days thereafter (November 3d) the charges were forwarded to the convening authority; and trial was held sixty-two days after referral (January 4, 1967). The total elapsed time between confinement and trial was 134 days. We are primarily concerned with the period of time between the confinement and the original reading of the charges — fifty days. The Code specifically requires (Article 10, supra) that immediate steps be taken to inform a confined accused of the charges and to try him or to dismiss the charges and release him. If not released, charges are to be forwarded to the officer exercising general court-martial authority (convening authority) within eight days, if practicable; if not practicable, a written report explaining the delay should also be submitted (Article 33, supra). In each instance, the burden of compliance with these codal provisions is on the accused’s commanding officer.
Before the law officer, the Government, in answer to defense counsel’s motion to dismiss, presented a stipulation from Lieutenant D and the testimony of Lieutenant J, the aforementioned unit commanders. The gist of their testimony was that they were both inexperienced and not aware of the specific provisions of the Code now under scrutiny. Lieutenant D, just out of Officer Candidate School, was an interim commander (eight weeks) and in his stipulation he asserted that he was waiting for the completed report of the Criminal Investigations Detachment, as directed by someone (unknown) from the staff judge advocate’s office; that when Lieutenant J took over the unit prior to its receipt,2 he briefed him on the case. The latter acknowledged having been informed that Parish was in custody, suspected of robbery and attempted robbery. He also waited for the Criminal Investigations Detachment report since his predecessor had indicated he should. He had served a tour in Vietnam but had never before handled a court-martial. Both admitted to having received instructions in military justice, Lieutenant D while in Officer Candidate School and Lieutenant J while participating in the Reserve Officers’ Training Course and again while taking the Signal Corps Officers’ Basic Course at Fort Gordon. Lieutenant D visited Parish in the stockade on two occasions, once to pay him and again for an unrecalled reason, but on neither occasion did he speak with him about his reason for being confined. The first time Lieutenant J saw the appellant was on the occasion on which he read to him the original charges.
Trial counsel admitted that the initial delay was substantial but contended it was not unreasonable in view of the inexperience of the officers involved. He argued that “the Government is not made up of perfect people, I think the test is whether the Government acted reasonably and in good faith as opposed to acting maliciously or with gross negligence and apathy under all the facts and circumstances.”
In United States v Hounshell, 7 USCMA 3, 21 CMR 129, we had before us a case where that accused was in confinement some sixty-nine days before he was informed of the charges against him. There the issue was thoroughly discussed but we held that the right was waived by failure of individually retained civilian counsel to raise the issue at trial. While doing so, however, we quoted extensively from the Hearings before the House Armed Services Committee, 81st Congress, 1st Session, on HR 2498, pages 906-908, which clearly indicated that Congress did not intend the military practice to be different from the regular Federal criminal court procedure. As noted therein, when Article 10 was before the Committee, questions were raised as to the meaning of the word “immediate,” and a suggestion was made that perhaps a specific time [415]*415should be inserted. The drafters of the Code, who were then testifying, informed the Committee that Article 10 was designed to assure an accused of a speedy trial but not one which is so speedy that he is unable to prepare his defense. In addition, the Committee was assured that a serviceman would not languish in confinement in view of a combination of Articles 33 and 983— the latter, a new provision, which made it an offense to engage in any unnecessary delay. As expressed by Mr. Larkin, General Counsel, Department of Defense:
“So in addition to providing that there be an immediate processing of the charges, if anybody unnecessarily delays doing it, he himself becomes liable to an offense, you see.” [Hearings, supra, at page 907.]4
See, also, United States v Wilson, 10 USCMA 337, 27 CMR 411. In United States v Brown, 10 USCMA 498, 28 CMR 64, we held that the law officer erred in requiring the defense to show that it was materially prejudiced by the delay. We there stated that by his action the law officer shifted the burden to the defense, when it is properly a function of the prosecution to affirmatively justify the delay, and prevented a determination of whether or not the lapse of time was due to purposeful or oppressive design on the part of the prosecution or to a lack of reasonable diligence. Cf. United States v Schalck, supra, on this latter point.
The case at bar is more in point with that which pertained in United States v Williams, supra, although in that ease the delay was longer and the accused was only in restriction (arrest). As we noted in Williams, that accused’s battalion adjutant, in explaining the passage of time, stated that he “ ‘was unfamiliar with the regulation that states you must give your full attention to these things.’ ” (16 USCMA, at page 593.) So, too, here, the company commanders involved were unfamiliar with the pertinent codal safeguards. In addition, the prosecution in this ease called as a witness the post judge advocate. The latter testified that he first saw the charges on October 17th. He “was concerned about the case because it seemed there was an unreasonable delay between the time the man was placed in confinement and the time charges were actually prepared the first time.” He called Lieutenant J and learned that the preparation of the charges had been delayed until the CID investigation was completed. “This is clearly an improper procedure and as a result of this case and another case which was going on at the same time a meeting was called by the Post Commander in his office at which representatives from the various parts of the command involved in this discussed this problem as well as the problem in another case.” The witness testified that he is available to commanders for advice and replied to counsel’s inquiry on cross-examination that this was not such a case as would cause him to advise delay in preferring charges pending receipt of a CID report. Of his knowledge, he was not aware that anyone in his office had advised Lieutenant D to delay the charges. Had such been given, he testified, “I think it would be highly improper advice.”
The military investigator testified that he is, by internal regulation, required to submit a first progress report in two days. This he did and a copy was forwarded to Parish’s unit. A completed or second progress report is required in thirty days. Commanding officers can and most often do prefer charges based on the first report, according to the witness. There was, in [416]*416his opinion, sufficient data in the first report to institute charges of robbery, attempted robbery, and aggravated assault. On many occasions, commanders involved ask to see any available statements of an accused or the witnesses. Had either of these lieutenants made such a request it would have been honored.
In asserting substantial prejudice by reason of the delay, defense counsel alleged that he had lost the services of two witnesses: one, a go-go girl, who had danced extensively with the appellant on the night in question and the other, a bartender in the place where the accused drank. Counsel believed that both could testify as to the accused’s drunkenness. It was asserted at trial that he was too drunk to form the specific intent to rob or to murder. This was the basis for his plea of guilty to the lesser included offense of assault. Since counsel was not appointed until November 1st, the day before the initial Article 32 was conducted, earlier effort to secure the witnesses could not be made. Later efforts were negative, the girl having disappeared and the bartender could not recall. Of interest is the fact that the State Trooper who arrested the accused noticed the odor of alcohol on his breath four hours after midnight, the latest hour at which he could have purchased a drink. Not having these witnesses, the defense was limited to the unsubstantiated testimony of the accused on the merits as to the amount he drank that evening (Scotch with a beer chaser — total cost about $13.00), and the testimony of an Army physician that a hypothetical person of accused’s size, general condition, and his recent consumption of food, who drank that much would normally have an alcohol content in his blood of between .25 and .35 percent — “a state of moderate to marked intoxication. It [.25 percent] is .1 of 1% while the legal accepted level for intoxication in this State is .15%.35% is getting into the range of complete unconsciousness.”
The right to a speedy trial is relative, and whether or not an accused has been denied the right to a speedy trial depends upon the facts and circumstances of each case. United States v Brown, 13 USCMA 11, 32 CMR 11, and cases cited therein. In determining whether there has been a denial of such a fundamental right, we will examine into whether there has been a purposeful or oppressive design on the part of the Government to delay the trial and whether the Government has proceeded with reasonable diligence in bringing the charges to trial. United States v Brown, supra. As we noted in United States v Smith, 17 USCMA 55, 58, 37 CMR 319:
“. . . An apparently satisfactory explanation for a particular delay might be revealed as unreasonable in the light of specific harm to the accused occasioned by the delay. United States v Broy, 14 USCMA 419, 421-422, 34 CMR 199; Woody v United States, 370 F2d 214 (CA DC Cir) (1966); cf. United States v Hammond, 360 F2d 688 (CA2d Cir) (1966), certiorari denied, 385 US 918, 17 L ed 2d 142, 87 S Ct 227 (1966).”
Under the circumstances of this case, we are constrained to hold that the appellant was prejudiced by the delay between his confinement and the imposition of charges. See Code, supra, Article 33. The Government contends that the delay was reasonable because the accused was informed by the investigator within two days of the offenses of which he was suspected (cf. United States v Tibbs, 15 USCMA 350, 35 CMR 322, and the delay thereafter in filing charges was due to the inexperience of the officers involved. We do not agree. In United States v Tibbs, supra, we were concerned with an accused who was caught in the post exchange, which he had forcibly entered, and was apprehended with stolen merchandise in his pockets. He was confined on July 2d, charges were filed July 17th, and he was so informed on July 25th. As we there observed, he was at once aware of the precise wrongs with which he was charged [417]*417and could little benefit from specific notice immediately after arrest or confinement. In this case, the suspected aggravated assault, of which he was informed by the investigator, was much later (October 25th) charged as attempted murder, an offense of which he had no foreknowledge, a vast difference from the situation found in Tibbs.
As to the inexperience of the officers involved, we do not believe this is a legally or factually sufficient explanation. Whether they thought they were doing their job is irrelevant. The plain fact of the matter is that the delay occurred. Whether there are in existence any controls to prevent such occurrences has not been specifically drawn to our attention. It would seem there should be. The conference by the post commander is in keeping with the act of locking the barn door after the horse is stolen. We are not here passing judgment on Lieutenants D and J or on anyone else who might have been responsible. That is not within our province.
In view of the action we take in this case, we need not consider whether the subsequent passage of time before trial adversely affected the appellant. Suffice it to note that the “corrected” charges on which he was tried (January 4, 1967) were not read to him until November 8th. Formal service, with notice of referral to a general court-martial, was made on December 12th.
Inasmuch as we find prejudicial error in this case, the appellant’s conviction for robbery and attempted robbery must be set aside. In addition, since a plea of guilty does not deprive an accused of the protection afforded him by Articles 10 and 33 of the Code, supra (United States v Tibbs, supra), his plea of guilty to the lesser included offense of assault is similarly infected and cannot be affirmed.
Accordingly, the decision of the board of review is reversed. The-record of trial is returned to the Judge Advocate General of the Army. The charges are ordered dismissed.
Judge Ferguson concurs.