United States v. Jackson

Opinion of the Court

In each of the decided cases herein, the Judge Advocate General of the Army has certified the identical question. 9 M.J. 42, 117 (1980). The question is:

WHETHER THE POST-TRIAL PROCESSING TEST FOR PREJUDICE ENUNCIATED IN UNITED STATES V. BANKS, 7 M.J. 92 (C.M.A. 1979), APPLIES WHERE A TRIAL WAS CONCLUDED PRIOR TO THE DATE OF THE BANKS DECISION, THE ACTION OF THE CONVENING AUTHORITY WAS NOT TAKEN WITHIN THE TIME PRESCRIBED BY DUNLAP V. CONVENING AUTHORITY, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), AND *420THE ACCUSED HAD THE OPPORTUNITY TO DEMONSTRATE PREJUDICE FROM AN ALLEGED DENIAL OF SPEEDY POST-TRIAL PROCESSING DURING THE COURSE OF APPELLATE REVIEW.

We answer the question in the negative.1 In each of the three cases under consideration here the Army Court of Military Review correctly follows the dictates of Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974).

The rationale of United States v. Banks, 7 M.J. 92 (C.M.A. 1979), became the standard for testing post-trial delay as to all cases tried on or after June 18, 1979.2

The decision of the United States Army Court of Military Review in all three cases is affirmed.

(dissenting):

In my opinion in United States v. Johnson, 10 M.J. 213 (C.M.A. 1981), I explained the reasons for my view that, after this Court’s decision in United States v. Banks, 7 M.J. 92 (C.M.A. 1979), the rule established in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), had no further vitality. I still find no basis for dismissing charges of which an accused was found guilty simply because of a 90-day delay in post-trial review by the convening authority. Therefore, I must dissent.