                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                   Anthony L. JONES, Lance Corporal
                     U.S. Marine Corps, Appellant

                               No. 02-0060

                    Crim. App. No. 200100066
       United States Court of Appeals for the Armed Forces

                        Argued December 7, 2004

                          Decided May 10, 2005

    GIERKE, C.J., delivered the opinion of the Court, in which
 EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
                        dissenting opinion.

                                  Counsel

For Appellant: Captain Richard A. Viczorek, USMC (argued);
Commander George F. Reilly, JAGC, USN, and Major Eric P.
Gifford, USMC (on brief).

For Appellee: Major Robert M. Fuhrer, USMCR (argued);
Commander Charles N. Purnell, JAGC, USN, and Captain Glen R.
Hines Jr., USMC (on brief); Colonel R. M. Favors, USMC, Colonel
William K. Lietzau, USMC, Commander R. P. Taishoff, JAGC, USN,
and Lieutenant Christopher J. Hajec, JAGC, USNR.

Military Judge:    J. F. Havranek




  This opinion is subject to editorial correction before final publication.
United States v. Jones, No. 02-0060/MC


Chief Judge GIERKE delivered the opinion of the Court.

       The lower court found excessive post-trial delay, but

declined to grant relief because it determined that the delay

did not prejudice Appellant and that the sentence was

appropriate.    Like the lower court, we conclude that the

unexplained post-trial delay in this case was unreasonably

lengthy.    The key issue before this Court is whether the

unreasonable post-trial delay prejudiced Appellant as a matter

of law.    Appellant’s own declaration and declarations from three

officials of a potential employer indicate, with various degrees

of certainty, that he would have been considered for employment

or actually hired if he had possessed a discharge certificate

(DD-214).    We hold that these unrebutted declarations were

sufficient to demonstrate prejudice.

                               I. BACKGROUND

       On January 11, 2000, in accordance with Appellant’s pleas,

a special court-martial found him guilty of two specifications

of unauthorized absence and two specifications of missing

movement by design, in violation of Articles 86 and 87 of the

Uniform Code of Military Justice (UCMJ).1      The military judge

sentenced Appellant to a bad-conduct discharge, confinement for

45 days, and reduction to pay grade E-1.       As the lower court




1
    10 U.S.C. §§ 886, 887 (2000).

                                         2
United States v. Jones, No. 02-0060/MC


noted, Appellant’s “uncontested special court-martial lasted

just 55 minutes.”2

     “Even though the verbatim record of trial is only 37 pages

in length, it took over 6 months, until [July 17,] 2000, for the

record to be transcribed, authenticated, and served on

Appellant’s trial defense counsel.”3         Another sixty-six days

would pass before the staff judge advocate issued the Rule for

Courts-Martial 1106 recommendation.          That document was not

served on the defense counsel until October 2, 2000 -- 265 days

after the trial ended.      Finally, on October 27, 2000 -- 290 days

after trial -- the convening authority acted.         In accordance

with the pretrial agreement, the convening authority suspended

all confinement in excess of thirty days for a period of twelve

months from the date of the convening authority’s action.

     But the convening authority’s action did not end the delay

in this case.    The Navy-Marine Corps Court did not receive the

record of trial until January 9, 2001 -- seventy-four days after

the convening authority acted and two days short of a year from

the date of trial.

     In October 2001, the Navy-Marine Corps Court affirmed the

findings and sentence in an unpublished opinion, rejecting


2
  United States v. Jones, No. NMCM 200100066, 2003 CCA LEXIS 155,
at *3, 2003 WL 21785470, at *1 (N-M. Ct. Crim. App. June 19,
2003).
3
  Id.



                                         3
United States v. Jones, No. 02-0060/MC


Appellant’s argument that he was entitled to relief based on the

unreasonably lengthy post-trial delay.       This Court later set

aside that decision and remanded the case for further

consideration of the sentence’s appropriateness in light of

United States v. Tardif,4 which was decided after the lower

court’s initial review of Appellant’s case.      In June 2003, the

Navy-Marine Corps Court again affirmed the findings and

sentence.5   This Court then granted Appellant’s petition for

review6 and later specified an additional issue concerning

whether the lower court erred by concluding that Appellant’s

showing of prejudice arising from the post-trial delay was “too

speculative.”7

     Before the lower court, Appellant submitted a declaration

concerning his post-trial activities, as well as three

declarations from officials of a potential employer.      In May and

June of 2000, Appellant completed a course of study at a truck

driver’s school and received a truck driver’s license.      In July

2000 -- a bit more than four months after he went on appellate

leave and approximately six months after his court-martial --



4
  United States v. Jones, 57 M.J. 443 (C.A.A.F. 2002) (citing
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002)).
5
  United States v. Jones, No. NMCM 200100066, 2003 CCA LEXIS 155,
2003 WL 21785470 (N-M. Ct. Crim. App. June 19, 2003).
6
  United States v. Jones, 59 M.J. 222 (C.A.A.F. 2003).
7
  United States v. Jones, 60 M.J. 287 (C.A.A.F. 2004).




                                         4
United States v. Jones, No. 02-0060/MC


Appellant applied for a job with U.S. Xpress Enterprises, a

national trucking company.

     A declaration from Mr. Joseph Fuller, the director of U.S.

Xpress’s Driver Services Department, stated that Appellant had

applied for a position as a driver.           Mr. Fuller explained that

under company policy, job applicants who were in the military

must provide “a form DD-214, Proof of Discharge Certificate.

Since Anthony Jones was unable to provide such documentation, we

were unable to complete a check of his employment background in

order to process his application.            As such, he was not

considered for employment.”       Mr. Fuller was aware of Appellant’s

court-martial conviction and pending bad-conduct discharge.

Nevertheless, “Under our current company policy, Anthony Jones

would not have been excluded from consideration for employment

based solely upon the adverse discharge from the armed forces.

Instead, our company would evaluate the underlying conduct that

led to the offenses.”      Mr. Fuller observed that “given the

uniquely military offenses committed by Anthony Jones and,

assuming that he was otherwise qualified, he would have been

seriously considered for employment during the summer of 2000

had he possessed a DD-214.”       Appellant also presented a

declaration from Ms. Afton Yazzie, an Assistant Instructor with

U.S. Xpress.    She stated that Appellant participated in a

company orientation program in July 2000.           He was invited “to



                                         5
United States v. Jones, No. 02-0060/MC


attend the orientation based upon his initial application and

qualifications.     Persons attending the company orientation are

generally hired upon successful completion as they are pre-

screened to ensure that they have the proper licensing and

background requirements.”       But Appellant’s “employment

application had been flagged as he was missing required proof of

past employment.”     Ms. Yazzie’s declaration stated that “[d]ue

solely to his inability to meet this requirement, he was told

that he could not complete orientation and a decision on his

employment with U.S. Xpress was deferred until he could provide

a DD-214.”    She also explained that Appellant applied again

later in 2000 and twice in 2001, but each time “the decision was

made that his lack of a DD-214 prevented his employment.”        The

final declaration was from Ms. Brenda Cole, an orientation

instructor with U.S. Xpress.       Ms. Cole’s declaration was the

most certain of the three.       She specifically stated, “I can

personally attest that had Anthony Jones provided a DD-214 in

July 2000, he would have been hired as a truck driver with U.S.

Xpress at the conclusion of the orientation program.”         She also

recounted that as Appellant “was leaving the orientation, one of

our recruiters told him to reapply for employment once he

received his DD-214 and he would be hired.”

     A position with U.S. Xpress would have produced an average

salary of $3,500 to $4,000 per month, in addition to substantial



                                         6
United States v. Jones, No. 02-0060/MC


employee benefits.     When Appellant did not obtain a position

with U.S. Xpress, he obtained alternative employment as a

delivery truck driver earning about $7 to $10 per hour working

part-time or through temporary agencies.

     The Government presented no information to rebut any of

these declarations.

     The Navy-Marine Corps Court found that the post-trial delay

in this case was “excessive.”8           As that court explained, “Each of

the various processing steps took weeks or months to accomplish

[what] we would reasonably expect a command to accomplish in

days or weeks.”9     The lower court also emphasized its displeasure

with “the 11 weeks it took to mail the record” to that court.10

     Given this finding of unexplained excessive post-trial

delay, the central legal issue then became whether the delay had

prejudiced Appellant.      The Navy-Marine Corps Court held that it

did not.   The court concluded that “the degree of prejudice is

simply too speculative to convince us that Appellant is entitled

to relief.”11    The court reasoned that “[v]irtually all persons

whose court-martial sentence includes a bad-conduct discharge

who do not waive appellate review of their case live for a

lengthy period in civilian life without possession of the DD[-]



8
   Jones, 2003 CCA LEXIS 155 at *7, 2003 WL 21785470 at *3.
9
   Id. at *18, 2003 WL 21785470 at *6.
10
    Id., 2003 WL 21785470 at *6.
11
    Id. at *23, 2003 WL 21785470 at *10.

                                         7
United States v. Jones, No. 02-0060/MC


214.”12   While stating that “this is a close case,” the court

reiterated that “Appellant has not demonstrated that he is

entitled to relief, either under Article 59(a), UCMJ, or Article

66(c), UCMJ.”13

                              II. DISCUSSION

     Appellant’s trial lasted fifty-five minutes and resulted in

a thirty-seven-page record of trial.         Yet 363 days elapsed

before the record was docketed with the Navy-Marine Corps Court.

The Navy-Marine Corps Court found that this unexplained delay

was excessive.     We similarly conclude that the unexplained post-

trial delay was facially unreasonable.         This conclusion serves

as a trigger for a more extensive due process review.

     United States v. Tardif14 discussed the Courts of Criminal

Appeals’ authority to address unreasonable and unexplained post-

trial delay under their Article 66 authority to ensure an

“appropriate sentence.”      Toohey v. United States15 discussed an

appellant’s constitutional due process right to a speedy post-

trial review, a right separate and distinct from the “sentence

appropriateness” review under Article 66.        Our review of this

case deals solely with the Toohey constitutional due process

review.


12
   Id. at *23-*24, 2003 WL 21785470 at *8 (quoting United States
v. Dupree, 37 M.J. 1089, 1092 (N.M.C.M.R. 1993)).
13
   Id. at *24, 2003 WL 21785470 at *8.
14
   57 M.J. 219 (C.A.A.F. 2002).
15
   60 M.J. 100 (C.A.A.F. 2004).

                                         8
United States v. Jones, No. 02-0060/MC


       Determining whether post-trial delay violates an

appellant’s due process rights turns on four factors:       (1) the

length of the delay; (2) the reasons for the delay, (3) the

appellant’s assertion of the right to a timely appeal; and (4)

prejudice to the appellant.16       As we have explained, the “length

of delay” factor serves two functions:       “First, the length of

delay is to some extent a triggering mechanism, and unless there

is a period of delay that appears, on its face, to be

unreasonable under the circumstances, there is no necessity for

inquiry into the other factors that go into the balance.”17

Second, “if the constitutional inquiry has been triggered, the

length of delay is itself balanced with the other factors and

may, in extreme circumstances, give rise to a strong presumption

of evidentiary prejudice affecting the fourth Barker factor.”18

Because we conclude that the post-trial delay in this case was

facially unreasonable, we will analyze the remaining three

factors.

       The Government has offered no justification for the

appellate delay in this case, and the record fails to disclose

any.


16
   Id. at 102 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
17
   Id. (quoting United States v. Smith, 94 F.3d 204, 208-09 (6th
Cir. 1996) (internal quotation marks omitted)); Barker, 407 U.S.
at 530 (1972).
18
   60 M.J. at 102 (quoting Smith, 94 F.3d at 209) (interal
quotation marks omitted); Doggett v. United States, 505 U.S.
647, 657 (1992).

                                         9
United States v. Jones, No. 02-0060/MC


     The record also reflects that Appellant complained about

the delay in post-trial processing.       The lower court found that,

“on two or more occasions,” Appellant “contacted a junior member

at his unit, explained the problems that he was having in

obtaining employment because of the delay in obtaining his DD-

214, and made clear his desire to move the process along more

rapidly.”19   The lower court also noted that the record “contains

a series of letters and faxes documenting Appellant’s subsequent

efforts to engage the Marine Corps, his U.S. Senator, and his

appellate defense counsel in expediting the processing of his

case.”20

     In our view, the most critical issue in this case is

whether the excessive post-trial delay prejudiced Appellant.21

Unlike the lower court, we conclude that it did.

     Whether Appellant has established prejudice is a legal

question subject to de novo review.22      We have often recognized

interference with post-military employment opportunities as a


19
   Jones, 2003 CCA LEXIS 155, at *21, 2003 WL 21785470, at *7.
20
   Id.
21
   Of course, in the exercise of their unique Article 66(c)
sentence appropriateness powers, the Courts of Criminal Appeals
retain the authority to grant sentence relief for unexplained
and unreasonable post-trial delay even absent prejudice. See
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002).
22
   See United States v. Diaz, 45 M.J. 494, 496 (C.A.A.F. 1997)
(“We hold that a de-novo-review standard to assess prejudice
[is] required by Article 59(a), UCMJ, 10 USC § 859(a) . . . .”);
Tardif, 57 M.J. at 228 (Sullivan, S.J., dissenting) (“We review
a Court of Criminal Appeals decision on prejudice resulting from
post-trial delay on a de novo basis.”).

                                     10
United States v. Jones, No. 02-0060/MC


form of prejudice that warrants relief for unreasonable post-

trial delay.23    The record indicates that as a result of the

unreasonable post-trial delay, Appellant has suffered this form

of prejudice.

       Ms. Cole’s declaration affirmatively stated that, based on

her personal knowledge, Appellant would have been hired by U.S.

Xpress if only he had a DD-214.          If that were the only document

that Appellant had submitted, it would seem unquestionable that

he has established that the unreasonable post-trial delay

prejudiced him.     But, in addition to his own declaration,

Appellant submitted two more declarations from U.S. Xpress

officials.    One of these, executed by the director of the Driver

Services Department, stated that had Appellant had his DD-214,

he would merely “have been seriously considered for employment.”

     The Government argues that Appellant was not prejudiced by

the excessive delay in this case.         At oral argument, the

Government observed that the commercial driver’s license that

Appellant presented in support of his prejudice claim was issued

in October 2000, several months after U.S. Xpress considered him

for a position.     The Government also observes that Appellant

applied for a position with U.S. Xpress approximately six months


23
  See, e.g., United States v. Sutton, 15 M.J. 235 (C.M.A. 1983);
United States v. Gentry, 14 M.J. 209 (C.M.A. 1982) (summary
disposition); United States v. Clevidence, 14 M.J. 17 (C.M.A.
1982).



                                     11
United States v. Jones, No. 02-0060/MC


after his court-martial ended.           Even if the post-trial review

had been handled with utmost speed, the case would certainly

have remained on appellate review at that point and Appellant

would not have had his DD-214.

     We conclude, however, that Appellant has demonstrated on-

going prejudice.     His declaration -- which the Government has

never rebutted -- indicated that U.S. Xpress officials told

Appellant that he should contact them again once he received his

DD-214.   Ms. Yazzie’s declaration indicated that Appellant

reapplied to U.S. Xpress in the fall of 2000, January 2001, and

May 2001.    Ms. Yazzie also indicated that Appellant “was, and

still is to my knowledge, invited to apply again once he obtains

a DD-214.”    So Appellant’s ability to have his employment

application considered by U.S. Xpress was prejudiced after he

obtained the commercial driver’s license attached to his

declaration24 and after he likely would have received a DD-214 if

only his post-trial review had been completed within a

reasonable time.

     No speculation is necessary to conclude that the unrebutted

declarations establish that the unreasonable post-trial delay

prejudiced Appellant.      Nor do the declarations conflict on this


24
  We also note that Appellant may have previously received
another commercial driver’s license issued before he attended
the U.S. Xpress orientation.




                                     12
United States v. Jones, No. 02-0060/MC


point:    all four agree that Appellant would have been considered

for a position with U.S. Xpress if he had his DD-214.      The issue

in this case is whether Appellant was prejudiced by the

unreasonably lengthy delay, not whether he had a guaranteed

offer of employment.      In America, there are employers willing to

give a second chance to ex-convicts, whether civilian or

military, who have paid their debt to society.      In this case,

the delay prejudiced Appellant’s opportunity for a second

chance.    We hold that such interference with the opportunity to

be considered for employment constitutes prejudice for purposes

of the fourth due process factor listed above.

     Despite the four unrebutted declarations Appellant has

submitted to demonstrate prejudice, the dissent engages in

unsupported supposition to reject their import.      The simple

answer to the dissent’s speculation is that the Government had

an opportunity to rebut the declarations but did not do so.

Three of the four declarations at issue were executed by

officials of U.S. Xpress, who have no apparent connection to

either party in this case.       If, as the dissent supposes, U.S.

Xpress would not have offered Appellant a position if its hiring

officials were aware of the extent of his unauthorized absences,

then the Government could have obtained and submitted to the

lower court evidence demonstrating that point.      The Government

did not.   Rather, the Government provided no counterevidence to



                                     13
United States v. Jones, No. 02-0060/MC


the lower court either before or after that court attached the

four declarations to the record.          It is, therefore, appropriate

to accept the content of the unrebutted declarations, rather

than guessing as to what the declarants would have said if they

hypothetically had access to the information that the dissent

discusses.    This is consistent with our well-established

approach to supplementing the factual record with affidavits

while the case is on appeal:       “if the affidavit is factually

adequate on its face to state a claim of legal error and the

Government either does not contest the relevant facts or offers

an affidavit that expressly agrees with those facts, the court

can proceed to decide the legal issue on the basis of those

uncontroverted facts.”25      This is such a case.     By considering

these unrebutted declarations, which were already attached to

the record by order of the lower court, we are not engaging in

fact-finding.    Rather, we are applying the law to unrebutted

facts contained within the record, which is a standard role of

an appellate court.26

     We also disagree with the dissent’s suggestion that in lieu

of presenting a DD-214, Appellant could have satisfied his

potential employer by providing an affidavit from his defense


25
  United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).
26
  See generally 1 Steven Alan Childress & Martha S. Davis,
Federal Standards of Review § 2.18 (3d ed. 1999).




                                     14
United States v. Jones, No. 02-0060/MC


counsel explaining his status or a copy of his record of trial.

Mr. Fuller’s declaration indicates that it was the lack of the

form itself –- and not the absence of information from that form

–- that disqualified Appellant as a prospective employee.         Some

employers’ insistence that veterans applying for jobs present a

DD-214 is understandable.       They may be reluctant to devote time

and money to train a prospective employee without documentation

demonstrating that the individual is no longer on active duty.

But regardless of whether Appellant’s potential employer should

have required a DD-214 as a condition of employment, it appears

that the potential employer did.          The unreasonable post-trial

delay in this case prevented Appellant from satisfying that

requirement.

       We therefore conclude that Appellant was prejudiced by the

facially unreasonable post-trial delay.         Balancing the four

factors, we hold that the post-trial delay violated Appellant’s

due process rights.      The same evidence that supports the due

process test’s prejudice factor also demonstrates prejudice for

purposes of Article 59(a), UCMJ.27         Accordingly, Appellant is

entitled to relief.

                                III. REMEDY

       Because this case involves a finding of legal error

accompanied by Article 59(a) prejudice, we may order a remedy


27
     10 U.S.C. § 859 (2000).

                                     15
United States v. Jones, No. 02-0060/MC


ourselves rather than remanding the case for that purpose.           We

consider ordering relief ourselves to be particularly

appropriate to bring a close to the overly prolonged post-trial

proceedings in this case.       Formulating such a remedy is an

exercise of authority under Article 59(a) to eliminate material

prejudice to Appellant’s due process rights; it is entirely

distinct from the Court of Criminal Appeals’ Article 66(c)

sentence appropriateness powers.

     In Tardif, we considered whether a court that finds

unexplained and unreasonable post-trial delay can grant relief
                                          28
“short of dismissal of the charges.”           We noted that Dunlap v.

Convening Authority29 adopted a universal remedy for unreasonable

post-trial delay:     dismissal of the charges and specifications.

But in Tardif, we also recognized criticisms of “the draconian

remedy required by Dunlap and its progeny.”30        We cited with

approval the pre-Dunlap rule that “denial of the right to speedy

trial resulted in dismissal of the charges only if reversible

trial errors occurred and it was impossible to cure those errors

at a rehearing because of the excessive post-trial delay.”31


28
   Tardif, 57 M.J. at 224. We cite Tardif only for its
discussion of the appropriate remedy for unreasonable post-trial
delay. Id. at 224-25. The bases of our ruling are the Fifth
Amendment’s Due Process Clause and Article 59(a).
29
   23 C.M.A. 135, 48 C.M.R. 751 (1974).
30
   See 57 M.J. at 224.
31
   Id. (citing United States v. Timmons, 22 C.M.A. 226, 227, 46
C.M.R. 226, 227 (1973)).



                                     16
United States v. Jones, No. 02-0060/MC


       In Tardif, we noted that “appellate courts are not limited

to either tolerating the intolerable or giving an appellant a

windfall.”32       Rather, in cases involving unreasonable post-trial

delay, courts should “tailor an appropriate remedy, if any is

warranted, to the circumstances of the case.”33

        In this case, an appropriate remedy is to disapprove the

bad-conduct discharge.       Appellant pleaded guilty, and nothing

that has occurred since trial has suggested that the findings

are not accurate.       Setting aside the findings would be a

windfall for Appellant.

       Setting aside the bad-conduct discharge is a remedy more

proportionate to the prejudice that the unreasonable post-trial

delay has caused.       The post-trial delay has had an adverse

effect on Appellant’s ability to find employment.       Removing the

bad-conduct discharge’s adverse effect on Appellant’s employment

opportunities may help to restore him to the position he would

have been in had the post-trial review been accomplished with

reasonable speed.

                                IV. DECISION

       The portion of the United States Navy-Marine Corps Court of

Criminal Appeals’ decision affirming the bad-conduct discharge

is reversed.       The bad-conduct discharge is set aside.   The


32
     Id. at 225.
33
     Id.



                                     17
United States v. Jones, No. 02-0060/MC


remainder of the Navy-Marine Corps Court of Criminal Appeals’

decision, which affirmed the findings and confinement for forty-

five days (as partially suspended by the convening authority)

and reduction to pay-grade E-1, is affirmed.




                                     18
United States v. Jones, No. 02-0060/MC


     CRAWFORD, Judge (dissenting):

     The majority converts the dicta in United States v. Shely,

16 M.J. 431, 433 (C.M.A. 1983), to a holding in this case.    Cf.

United States v. Williams, 55 M.J. 302, 305 (C.A.A.F. 2001).

But see United States v. Hudson, 46 M.J. 226, 227 (C.A.A.F.

1997)(“The legal standard applicable to such delay is

demonstration by appellant of some real harm or legal prejudice

as a result of the delay.”)(citing United States v. Jenkins, 38

M.J. 287 (C.M.A. 1993)); Shely, 16 M.J. 431; Jenkins, 38 M.J. at

288 (“An appellant seeking such relief must demonstrate some

real harm or legal prejudice flowing from that delay.”) (citing

Shely).    We are moving farther and farther away from the

mainstream judicial standard of requiring a showing of actual

prejudice to a substantial right of the accused.   Speculative

prejudice appears to be sufficient for the majority to grant

relief.   Accordingly, I respectfully dissent.

     In concluding that Appellant has suffered prejudice, the

majority disregards not only our precedent requiring a showing

of actual prejudice, United States v. Jenkins, but also common

sense.    None of the affiants had full knowledge of Appellant’s

military record when they executed their affidavits.    Nor do

those affidavits -- read separately or together -- raise more
United States v. Jones, No. 02-0060/MC


than a mere inference that Appellant would have been employed

but for the absence of a DD Form 214.1

        There are three carefully crafted affidavits in this case

from:    Ms. Brenda Cole (an orientation instructor), Mr. Joseph

Fuller (director, Driver Services Department), and Ms. Afton

Yazzie (an assistant orientation instructor).      No affiant claims

to have had hiring authority and only Mr. Fuller acknowledges

Appellant’s pending bad-conduct discharge.    Ms. Cole, who claims

no connection to the hiring process, sagely swears “that had

Anthony Jones provided a DD [Form] 214 in July 2000, he would

have been hired as a truck driver with U.S. Xpress at the

conclusion of the orientation program.” (Emphasis added.)       Ms.

Yazzie -- also unconnected to the hiring decision and claiming

no source of knowledge other than Appellant -- avers, in various

ways, that the absence of a DD Form 214 prevented a hiring

decision in Appellant’s case.     Mr. Fuller, whose job title

implies hiring authority, avers only that “given the uniquely

military offenses committed by Anthony Jones and, assuming that

he was otherwise qualified, he would have been seriously

considered for employment during the summer of 2000 had he

possessed a DD [Form] 214.”    (Emphasis added.)



1
  See Dep’t of Defense Instruction 1336.1, Certificate of Release
or Discharge from Active Duty, DD Form 214/5 Series (Jan. 6,
1989, incorporating through Change 3, Feb. 28, 2003).

                                   2
United States v. Jones, No. 02-0060/MC


     The common ground shared by these affidavits is not an

unqualified statement that Appellant would have been hired as a

truck driver had he possessed a DD Form 214.   What these

affidavits share is a carefully woven series of exceptions,

exclusions, and restrictions wide enough through which to drive

a truck.   Regarding in particular the statement of Mr. Fuller --

the one affiant who even implies having hiring authority – one

need look no further than the plain words of the affidavit to

discern its true character.   The phrases “Anthony Jones would

not have been excluded from consideration for employment based

solely upon the adverse discharge” and “assuming that he was

otherwise qualified, he would have been seriously considered for

employment” were likely crafted less to suggest the legal

prejudice required by this Court, and more to negate any

inference of factual prejudice that might potentially be alleged

by Appellant in a civil court.

     There is simply no indication in any of these documents

that any of these individuals was aware of Appellant’s repeated

absences from work, his service record, or his financial

difficulties.   Far from suggesting that the Government

“interfered” with Appellant’s employment opportunities,

everything we are asked to consider compels a conclusion that

Appellant concealed his absences, service record, and financial

difficulties to secure even the shrewdly worded affidavits he


                                 3
United States v. Jones, No. 02-0060/MC


offers this Court.   In that regard, Mr. Fuller’s reference to

Appellant’s “uniquely military offenses” sheds welcome light on

the characterization Appellant may have lent his past, absent

documentation to the contrary.   Mr. Fuller noted that Appellant

was “unable to provide such documentation . . . [as to] his

employment background in order to process his application.”

Since Appellant’s military record would contain all of his

absences -- not just the absences to which he pleaded guilty --

it is not difficult to understand why Appellant failed to

disclose his personnel records, or his record of trial, or seek

an alternative to the DD Form 214.

     Although the majority accurately quotes Mr. Fuller’s

affidavit in the background section of the lead opinion, I

cannot agree with the majority’s later, implicit, factual

determination that Mr. Fuller’s qualifying phrase, “assuming

that he was otherwise qualified” is entitled to no weight in

evaluating whether Appellant “would have been seriously

considered for employment.”   Not surprisingly, the factual

finding of prejudice collapses when you consider the statement,

”assuming he was otherwise qualified,” and Mr. Fuller’s guarded

inclusion of that qualifying phrase compellingly invites the

conclusion of no error.

     The majority cannot engage in factual findings.   As we

recently explained, “[i]n Ginn, we announced . . . six


                                 4
United States v. Jones, No. 02-0060/MC


principles to be applied by the courts of criminal appeals in

disposing of post-trial, collateral, affidavit-based claims,

such as ineffective assistance of counsel. . . .”      United States

v. Singleton, 60 M.J. 409, 410 (C.A.A.F. 2005).       This

explanation correctly limits the scope of Ginn to the “courts of

criminal appeals,” and, offers no support to the proposition

that this Court may exercise fact-finding power when examining

these post-trial affidavits.    When “applying the law to

unrebutted facts” “already attached to the record by order of

the lower court,” __ M.J. (14), I prefer first, to consider

authorities pertinent to criminal proceedings,2 second, to

distinguish the “record of trial”3 from the appellate record, and

third, to ensure that fact is distinguished from opinion.      In

this latter regard, when post-trial affidavits contain

statements riddled with exceptions and qualifications, I do not

question the Government’s decision not to rebut them -- such

statements speak for themselves.       What I believe we cannot do is

depart from Article 67, Uniform Code of Military Justice, 10

U.S.C. § 867 (2000), to “fill in the gaps” in those affidavits

by use of selective quotation or otherwise.      If there is fact-

finding to be done, we must, as a matter of law, leave that to

2
  See, e.g., 2 Steven Alan Childress & Martha S. Davis, Federal
Standards of Review ch. 7 (3d ed. 1999) (discussing criminal
appeals principles).
3
    See Rules for Courts-Martial 1103(b)(2).

                                   5
United States v. Jones, No. 02-0060/MC


the lower courts.    To the extent that I have propounded

conclusions or scenarios inconsistent with those offered by the

majority, I have done so only to emphasize that the plain,

unredacted words of the affidavits, including the artfully

placed qualifications and exceptions, are logically suggestive

of factual conclusions other than those accepted by the majority

as “unrebutted facts.”    As such, they comprise, at best, grounds

for a hearing pursuant to United States v. DuBay, 17 C.M.A. 147,

37 C.M.R. 411 (1967).

     At the very least, if there is a factual issue, this case

should be remanded to the court of criminal appeals, which has

the power to analyze affidavits and if, as the majority

indicates, further evidence is needed, such evidence could be

gathered by the parties and submitted to a court that has fact-

finding authority.

       The DD Form 214 is a one-page document that would show

Appellant’s punitive discharge, his schooling, his time in

service, etc., as well as his “bad time.”   The record clearly

shows that Appellant’s record is anything but stellar as to

being present for work.   Appellant was charged with six

specifications of being absent from his place of work without

proper authority during the following periods of time:

     April 16-20, 1999 (Friday-Tuesday);

     May 5-11, 1999 (Wednesday-Tuesday);


                                  6
United States v. Jones, No. 02-0060/MC


     June 15, 1999 (Tuesday);

     July 29-30, 1999 (Thursday-Friday);

     September 14-15, 1999 (Tuesday-Wednesday); and

     September 23-27, 1999 (Thursday-Monday).

     In addition, Appellant intentionally missed the overseas

movements of his battalion on the USS Peleliu on April 19 and

May 7, 1999.   Pursuant to an offer to plead guilty, the

Government withdrew four of the six specifications alleging

Appellant’s absence from his place of duty.   Furthermore, the

record demonstrates that Appellant had exhibited poor financial

management by having written a number of bad checks.

     Rather than the bare-bones DD Form 214, Appellant was in

possession of the record of trial, which would have provided the

background for these offenses and his military record.     There is

no indication that Appellant sought the assistance of defense

counsel for an affidavit explaining his status, sought

assistance from the convening authority, or gave the potential

employer a copy of his record of trial, which contained his

service records from which the DD Form 214 is completed.    It

does not take much common sense to explain why Appellant did not

implement any of these steps to disclose fully and accurately

his military record to U.S. Xpress.   Does anyone reasonably

believe that the hiring manager for U.S. Xpress would look




                                 7
United States v. Jones, No. 02-0060/MC


favorably upon an employment/military record such as

Appellant’s?

     Common sense compels me to conclude that an individual

absent from work as much as Appellant would not be a truck

driver with this firm.   That same common sense should tell this

Court that an employer seeking a dependable and financially

responsible employee would not look favorably upon Appellant’s

military record, with or without a DD Form 214.   If the employer

had full knowledge of Appellant’s military record -- the

disclosure of which was under Appellant’s control -- and was

still willing to aver that Appellant would have been hired but

for the lack of a DD Form 214, then I would agree that Appellant

had met his burden of demonstrating actual prejudice.   However,

that is clearly not the case here.   Any “prejudice” was

manufactured by Appellant’s own inaction in failing to give his

prospective employer all the information Appellant possessed.

Appellant has failed to meet his burden to demonstrate that the

hiring authority at U.S. Xpress, with full knowledge of

Appellant’s military record, would have hired him but for the

lack of a DD Form 214.   Thus, I agree with the court below that

Appellant’s claim of prejudice is too speculative and that he

has “not demonstrated the necessary prejudice to entitle him to

relief for the unreasonable and unexplained post-trial delay . .

. in the processing of his record of trial.”   United States v.


                                 8
United States v. Jones, No. 02-0060/MC


Jones, No. NMCM 200100066, 2003 CCA LEXIS 155, at *2, 2003 WL

21785470, at 1 (N-M. Ct. Crim. App. June 19, 2003).

     “This Court has long recognized” the right to a speedy

post-trial review of the findings and sentence at a court-

martial.   Diaz v. Judge Advocate General of the Navy, 59 M.J.

34, 37 (C.A.A.F. 2003).    We also recognize the “constitutional

right to a timely review guaranteed . . . under the Due Process

Clause.”   Id. at 38.    The Supreme Court has not faced the

question of whether the United States Constitution guarantees a

speedy criminal appeal, but the federal courts have held that

there is such a right.    However, absent a showing of actual

prejudice, they have not granted relief.    See, e.g., Elock v.

Henderson, 28 F.3d 276, 279 (2d Cir. 1994)(finding no violation

of due process in an eight-year delay between conviction and

appeal because there was no actual prejudice); Heiser v. Ryan,

15 F.3d 299, 303-04 (3d Cir. 1994)(refusing to grant relief due

to failure to show prejudice after a thirteen-year delay between

conviction and appeal); United States v. Mohawk, 20 F.3d 1480,

1485-88 (9th Cir. 1994)(finding no prejudice in a ten-year

delay).    In Jenkins, we held that an appellant “seeking . . .

relief (from a post-trial delay) must demonstrate some real harm

or legal prejudice flowing from that delay.”    38 M.J. at 288.

In support of this proposition, the Court, in a unanimous per

curiam decision, cited Shely, 16 M.J. 431.     The burden rests on


                                   9
United States v. Jones, No. 02-0060/MC


Appellant to show prejudice.   United States v. Hudson, 46 M.J.

at 227.   Appellant cannot spoil the evidence by withholding

information from a potential employer and still claim prejudice.

     A servicemember normally does not receive a DD Form 214

until he or she has exhausted his or her appellate remedies.

Thus, most of the appellants before this Court do not yet have a

DD Form 214, and would have no reason to expect to have one

before their appeals are complete.   If we permit relief on the

ground that this appellant did not have a DD Form 214, the same

rationale will apply to hundreds of cases on appellate review

where there has been an imposition of a punitive separation.     At

the very least, given the critical nature of the information

known to Appellant and contained in the record of trial, one

would expect that a DuBay hearing would be a prerequisite to

relief, at which Appellant would be required to demonstrate

that, in light of all pertinent information, he would have been

hired but for the absence of a DD Form 214.

     Thus, I respectfully dissent.   Appellant has not met his

burden to show actual prejudice and has failed to take

reasonable action to resolve his own problems.   Further, a

finding of prejudice would open the door to similarly weak and

speculative claims from many appellants before this Court.




                                10
