United States v. Lewis

OPINION OF THE COURT

The appellant was convicted of wrongful possession and sale of marihuana in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. His approved sentence extends to bad-conduct discharge, confinement at hard labor for four months, forfeiture of $200.00 pay per month for four months and reduction to the lowest enlisted grade.

The appellant asks us to return to the presumption-of-prejudice test announced in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), and dismiss the charges in this case because of the *974132-day delay between trial and the action of the convening authority. However, we are bound by United States v. Banks, 7 M.J. 92 (C.M.A. 1979), which requires a showing of prejudice. We are satisfied that the appellant was not prejudiced by this delay. Nevertheless, it would behoove staff judge advocates from time to time to reflect on Chief Judge Everett’s cautionary words: “[I]f the problem of post-trial delay occurs frequently in the future, the Court will have to consider resurrecting the Dunlap presumption of prejudice.” United States v. Johnson, 10 M.J. 213, 218 (C.M.A. 1981) (Chief Judge Everett, concurring in the result).

The remaining assignments of error have been determined adversely to the appellant.

The findings of guilty and the sentence are AFFIRMED.