Opinion of the Court
DARDEN, Judge:
In this case the Court’s concern is with whether the accused was denied his right to a speedy trial.
A special court-martial tried the accused Pierce on November 26, 1968, approximately thirteen months after the end of his absence without leave that lasted approximately fifteen months. Certified defense counsel represented the accused at trial. After a plea of guilty and without defense counsel’s having made an issue of the delay, the court sentenced the accused to a bad-conduct discharge and reduction from pay grade E-4 to pay grade E-3 (no confinement or forfeitures). Pierce’s record showed two previous convictions by special courts-martial for absence without leave in his then current enlistment.
Before the court deliberated on the sentence, the accused and his mother-in-law testified to the circumstances of his absence. At the start of Pierce’s absence his father-in-law was suffering from a lung ailment later diagnosed as cancer. The [226]*226family decided to move from Norfolk, Virginia, to Jacksonville, Florida. By his employment at a service station in Jacksonville, Pierce supported not only his own wife and child but five of his wife’s relatives. Near the end of the terminal illness of the father-in-law, the family decided to move back to Norfolk. After returning to Norfolk, Pierce wrongfully used a found credit card to get money to support the family. The record is unclear on whether he was arrested for such wrongful use before he ended his absence without leave. In any event, the unauthorized absence ended on October 24, 1967, Pierce was restricted for two days and then confined until November 30, 1967. From then until his trial November 26, 1968, he was not restricted, except for one day of restriction in December of 1967. After release from confinement he was restored to full duty completely free of restriction. During the time before his civilian and military trials he helped to rewrite a supply manual, duty for which a superior officer commended him.
A civilian court sentenced him, apparently in early October 1968, to five years of probation for twenty-three counts of wrongful use of the credit card and required him to make restitution at the rate of $50.00 a month. The amount required to be restored was approximately $800.00 resulting from the credit card violations and about $1,100.00 in attendant court costs.
The military charge sheet against the accused is dated October 22, 1968. That his trial occurred on November 26, 1968, we noted above.
The trial record contains no direct or express discussion of why Pierce’s military trial was delayed for more than a year. We are urged to hold that although no speedy trial issue was raised at trial the Government was nonetheless obligated to provide in the record an explanation of the time lapse.
In many earlier cases this Court has expressed its profound concern that Articles 10 and 33 of the Uniform Code of Military Justice, 10 USC §§ 810 and 833, respectively, be complied with. United States v Schalck, 14 USCMA 371, 34 CMR 151 (1964); United States v Williams, 16 USCMA 589, 37 CMR 209 (1967); and United States v Parish, 17 USCMA 411, 38 CMR 209 (1968).
Since the case before us was tried by special court-martial, Article 33 is inapplicable here. The pertinent statutory requirement in this instance is the second sentence of Article 10, Code, supra:
“. . . When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.”
Standing alone these words provide no adequate clue to the application of such a requirement when an accused is released after early confinement but is not promptly tried. In some instances the accused could benefit from a delay in his military trial until after a trial by a civilian court had occurred. This could have been such an instance, but because no issue was made at trial we are insufficiently informed to decide. A sentence involving confinement or forfeitures, or both, could have complicated or perhaps completely frustrated the provision for restitution that may have been crucial to his receiving only a probationary sentence for the twenty-three counts of wrongfully using a credit card. This is true irrespective of which trial came first; the arguments of trial defense counsel concentrated on the1 harmful consequences to the accused of a sentence involving confinement.
Our decision here may have important consequences because of the probability that as a result of the decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), members of the armed forces often will be liable for trial by [227]*227court-martial either before or after a trial by a civilian court. An ostensible right can be converted into a handicap if military authorities precipitately decide on a military trial, the results of which can complicate or limit the negotiation of the terms of a settlement of the civilian offense.
In United States v Ewell, 383 US 116, 120, 15 L Ed 2d 627, 86 S Ct 773 (1966), Mr. Justice White outlined for the majority the fundamental considerations in the right to speedy trial:
“. . . This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.”
In this case the only pretrial restraint occurred during the period immediately after the accused returned to military control. During this time the charges were being considered. Once the preliminary inquiries had been completed the' accused had no restraint placed upon his liberty. The testimony of the accused at trial showed that his “anxiety and concern” were attributable not to the absence charged but to the length of confinement possible as a result of his civilian crimes. The delay here did not impair the ability of the accused to defend himself — in fact it is more likely that he benefited from it.
If an accused suffers little pretrial confinement and makes no issue at trial of a delay in his being summarily charged and tried, to avoid a remand when such an issue is raised on appeal must the Government introduce some evidence into the record* of the considerations that caused a delay of trial? Such a result would require risky judgments of whether such evidence should be introduced when the trial occurred one week, one month, or three months after the offense was known. These judgments would be complicated by many variables such as the length and nature of the pretrial confinement or restriction. Courts-martial would tend to become guessing games.
We are persuaded that even if there were a prima facie violation of Article 10 in this case, the accused was not harmed because of the delay in his military trial and that the failure of his qualified legal counsel to raise the issue at trial resulted from a recognition that the delay was perhaps beneficial to the accused. In so deciding we are aware that the accused did not have counsel during his confinement and much of the wait before military trial. Consequently, his failure to demand a speedy trial during that period is understandable. But if there were a valid issue of speedy trial it should have been raised at the trial, Schalek, Jennings,
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Opinion of the Court
DARDEN, Judge:
In this case the Court’s concern is with whether the accused was denied his right to a speedy trial.
A special court-martial tried the accused Pierce on November 26, 1968, approximately thirteen months after the end of his absence without leave that lasted approximately fifteen months. Certified defense counsel represented the accused at trial. After a plea of guilty and without defense counsel’s having made an issue of the delay, the court sentenced the accused to a bad-conduct discharge and reduction from pay grade E-4 to pay grade E-3 (no confinement or forfeitures). Pierce’s record showed two previous convictions by special courts-martial for absence without leave in his then current enlistment.
Before the court deliberated on the sentence, the accused and his mother-in-law testified to the circumstances of his absence. At the start of Pierce’s absence his father-in-law was suffering from a lung ailment later diagnosed as cancer. The [226]*226family decided to move from Norfolk, Virginia, to Jacksonville, Florida. By his employment at a service station in Jacksonville, Pierce supported not only his own wife and child but five of his wife’s relatives. Near the end of the terminal illness of the father-in-law, the family decided to move back to Norfolk. After returning to Norfolk, Pierce wrongfully used a found credit card to get money to support the family. The record is unclear on whether he was arrested for such wrongful use before he ended his absence without leave. In any event, the unauthorized absence ended on October 24, 1967, Pierce was restricted for two days and then confined until November 30, 1967. From then until his trial November 26, 1968, he was not restricted, except for one day of restriction in December of 1967. After release from confinement he was restored to full duty completely free of restriction. During the time before his civilian and military trials he helped to rewrite a supply manual, duty for which a superior officer commended him.
A civilian court sentenced him, apparently in early October 1968, to five years of probation for twenty-three counts of wrongful use of the credit card and required him to make restitution at the rate of $50.00 a month. The amount required to be restored was approximately $800.00 resulting from the credit card violations and about $1,100.00 in attendant court costs.
The military charge sheet against the accused is dated October 22, 1968. That his trial occurred on November 26, 1968, we noted above.
The trial record contains no direct or express discussion of why Pierce’s military trial was delayed for more than a year. We are urged to hold that although no speedy trial issue was raised at trial the Government was nonetheless obligated to provide in the record an explanation of the time lapse.
In many earlier cases this Court has expressed its profound concern that Articles 10 and 33 of the Uniform Code of Military Justice, 10 USC §§ 810 and 833, respectively, be complied with. United States v Schalck, 14 USCMA 371, 34 CMR 151 (1964); United States v Williams, 16 USCMA 589, 37 CMR 209 (1967); and United States v Parish, 17 USCMA 411, 38 CMR 209 (1968).
Since the case before us was tried by special court-martial, Article 33 is inapplicable here. The pertinent statutory requirement in this instance is the second sentence of Article 10, Code, supra:
“. . . When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.”
Standing alone these words provide no adequate clue to the application of such a requirement when an accused is released after early confinement but is not promptly tried. In some instances the accused could benefit from a delay in his military trial until after a trial by a civilian court had occurred. This could have been such an instance, but because no issue was made at trial we are insufficiently informed to decide. A sentence involving confinement or forfeitures, or both, could have complicated or perhaps completely frustrated the provision for restitution that may have been crucial to his receiving only a probationary sentence for the twenty-three counts of wrongfully using a credit card. This is true irrespective of which trial came first; the arguments of trial defense counsel concentrated on the1 harmful consequences to the accused of a sentence involving confinement.
Our decision here may have important consequences because of the probability that as a result of the decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), members of the armed forces often will be liable for trial by [227]*227court-martial either before or after a trial by a civilian court. An ostensible right can be converted into a handicap if military authorities precipitately decide on a military trial, the results of which can complicate or limit the negotiation of the terms of a settlement of the civilian offense.
In United States v Ewell, 383 US 116, 120, 15 L Ed 2d 627, 86 S Ct 773 (1966), Mr. Justice White outlined for the majority the fundamental considerations in the right to speedy trial:
“. . . This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.”
In this case the only pretrial restraint occurred during the period immediately after the accused returned to military control. During this time the charges were being considered. Once the preliminary inquiries had been completed the' accused had no restraint placed upon his liberty. The testimony of the accused at trial showed that his “anxiety and concern” were attributable not to the absence charged but to the length of confinement possible as a result of his civilian crimes. The delay here did not impair the ability of the accused to defend himself — in fact it is more likely that he benefited from it.
If an accused suffers little pretrial confinement and makes no issue at trial of a delay in his being summarily charged and tried, to avoid a remand when such an issue is raised on appeal must the Government introduce some evidence into the record* of the considerations that caused a delay of trial? Such a result would require risky judgments of whether such evidence should be introduced when the trial occurred one week, one month, or three months after the offense was known. These judgments would be complicated by many variables such as the length and nature of the pretrial confinement or restriction. Courts-martial would tend to become guessing games.
We are persuaded that even if there were a prima facie violation of Article 10 in this case, the accused was not harmed because of the delay in his military trial and that the failure of his qualified legal counsel to raise the issue at trial resulted from a recognition that the delay was perhaps beneficial to the accused. In so deciding we are aware that the accused did not have counsel during his confinement and much of the wait before military trial. Consequently, his failure to demand a speedy trial during that period is understandable. But if there were a valid issue of speedy trial it should have been raised at the trial, Schalek, Jennings, and White1 notwithstanding — keeping in mind that here we are concerned only with the operative effect of Article 10, Code, supra. Cf. United States v Przybycien, 19 USCMA 120, 41 CMR 120 (1969), and United States v Hawes, 18 USCMA 464, 40 CMR 176 (1969).
Our holding here should not be misunderstood as constituting a relaxation of the emphasis on speedy trial. The general-record of the armed forces on speedy trial requires no apology when this record is compared with the practice that exists in some civilian jurisdictions, even after an allowance for the greater likelihood of pretrial bail in those jurisdictions. We nonetheless would like to see military procedure as the exemplar of prompt action in bringing to trial those members of the armed forces charged with offenses.
Though this defect was not raised on [228]*228appeal,2 we note that the sentencing instructions do not include advice that the court should vote on proposed sentences “beginning with the lightest” as required by paragraph 766(2) of the Manuals for Courts-Martial, United States, 1951, and 1969 (Revised edition). We have described this requirement as “essentially” a part of military due process, and this omission normally requires reversal of a sentence, for “[a] court, uninstructed as to this procedure, may well believe that the voting could properly commence with consideration of the most severe proposed sentence.” United States v Johnson, 18 USCMA 436, 437, 40 CMR 148 (1969). In that case the sentence included a dishonorable discharge, total forfeitures, and confinement at hard labor for two years.
In United States v Newton, 18 USCMA 562, 40 CMR 274 (1969), the same instructional deficiency resulted in reversal of a sentence that consisted of a bad-conduct discharge, total forfeitures, confinement at hard labor for thirty-six months, and reduction. We took the same action in United States v Conner, 19 USCMA 74, 41 CMR 74 (1969), where that accused received a bad-conduct discharge, confinement at hard labor for four months, and forfeiture of $97.00 per month for the same period; in United States v Dues, 19 USCMA 130, 41 CMR 130 (1969), where the sentence included a bad-conduct discharge, confinement at hard labor for six months — reduced to four by the convening authority — and forfeiture of $75.00 per month for the same period— reduced by the supervisory authority to $73.00 per month; and in United States v McDowell, 19 USCMA 151, 41 CMR 151 (1969), involving an accused who was sentenced to a bad-conduct discharge and confinement at hard labor for five months — reduced to four by the supervisory authority.
Convinced by the evidence and the defense argument that Pierce needed a source of income to aid in his family’s survival and in the restitution of funds wrongfully taken, for which he was tried by civilian authorities, the court-martial sentenced this accused to only a bad-conduct discharge and reduction to the pay grade of E-3. For an unauthorized absence that exceeded a year’s duration, a lesser sentence, even if preceded by complete instructions, can hardly be conceived. Under the circumstances in this case, Pierce has not suffered a deprivation of a substantial right justifying invocation of the “plain error” rule. Cf. United States v Flippen, 16 USCMA 622, 37 CMR 242 (1967); United States v Stephen, 15 USCMA 314, 35 CMR 286 (1965); Himmelfarb v United States, 175 F2d 924 (CA 9th Cir) (1949), certiorari denied, 338 US 860, 94 L Ed 527, 70 S Ct 103 (1949); Freeman v United States, 158 F2d 891 (CA 9th Cir) (1946), certiorari denied, 331 US 805, 91 L Ed 1827, 67 S Ct 1187, 1188 (1947); Berry v United States, 253 F2d 875 (CA DC Cir) (1958) ; United States v McNeil, — F2d — (CA DC Cir) (decided October 31, 1969); Rule 52(a), Federal Rules of Criminal Pi’ocedure; and Article 59(a), Uniform Code of Military Justice, 10 USC § 859.
Accordingly, the decision of the board of review is affirmed.
Chief Judge Quinn concurs.