UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          HAIGHT, MULLIGAN, and ALMANZA 1
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                       Private First Class CASEY N. O’BRIEN
                           United States Army, Appellant

                                    ARMY 20130095

                        Headquarters, III Corps and Fort Hood
                            Patricia Lewis, Military Judge
                Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
                Colonel Ian G. Corey, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Heather L. Tregle, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
John K. Choike, JA; Major Matthew T. Grady, JA (on brief).


                                   30 September 2015
                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

ALMANZA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of false official statement, one
specification of assault consummated by a battery, and one specification of unlawful
entry, in violation of Articles 107, 128, and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 907, 928, and 934 [hereinafter UCMJ]. 2 The military judge sentenced

1
    Judge ALMANZA took final action in this case while on active duty.
2
 In addition, appellant was charged with four specifications alleging violations of
Article 120, UCMJ (rape, aggravated sexual assault, and indecent acts), two

                                                                      (continued . . .)
O’BRIEN—ARMY 20130095

appellant to a bad-conduct discharge, hard labor without confinement for three
months, forfeiture of $500 pay per month for three months, and reduction to the
grade of E-1. The convening authority approved only so much of the adjudged
sentence as provided for a bad-conduct discharge, forfeiture of $500 per month for
three months, and reduction to the grade of E-1.

      This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion and relief.

                                   BACKGROUND

       Appellant’s trial concluded on 31 January 2013. The military judge
authenticated the 624-page record of trial on 6 January 2014, 3 and it was served on
appellant on 13 June 2014. The staff judge advocate (SJA) signed his post-trial
recommendation on 13 July 2014, and it was served on appellant on 25 July 2014.
Appellant submitted his post-trial matters pursuant to Rule for Courts-Martial
[hereinafter R.C.M.] 1105 on 11 September 2014. The convening authority took
action on 24 September 2014. This case was docketed with this court on 6 October
2014.

       A total of 601 days elapsed between the date sentence was adjudged and the
date the convening authority took action. Subtracting 32 days of defense delay in
submitting R.C.M. 1105 matters, 569 days elapsed between the date sentence was
adjudged and the date the convening authority took action.

       In his R.C.M. 1105 matters, appellant asserted legal error in that post-trial
processing of his case exceeded 120 days, in violation of United States v. Moreno,
63 M.J. 129 (C.A.A.F. 2006). Although appellant asserted prejudice resulting from
post-trial delay, he does not assert prejudice in his brief before this court. Appellant


(. . . continued)
specifications alleging violations of Article 128, UCMJ (assault consummated by
battery), one specification alleging a violation of Article 130, UCMJ (housebreaking
with intent to commit assault), and three specifications alleging violations of Article
134, UCMJ (assault with intent to commit rape, communicating indecent language,
and a general disorder). The military judge dismissed some of these specifications
before pleas and dismissed the remainder of these specifications after entering
findings.
3
  The military judge dated the authentication, “6 Jan 2013,” but on that same page
acknowledged that she received the record of trial for review on 19 December 2013.
Accordingly, we find that the date of “6 Jan 2013” on the military judge’s
authentication was a mere scrivener’s error and that she authenticated the record of
trial on 6 January 2014.


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O’BRIEN—ARMY 20130095

argues that the convening authority’s disapproval of the hard labor without
confinement portion of his adjudged sentence was not a remedy for the post-trial
delay, and asks this court to set aside either the approved forfeitures or the bad-
conduct discharge.

       In its brief, the government notes several factors contributing to the delay in
this matter but nevertheless “acknowledges that dilatory post-trial processing
occurred in appellant’s case.” The government argues, however, that appellant
already received relief for this delay when the convening authority did not approve
the portion of appellant’s adjudged sentence that provided for three months of hard
labor without confinement. The government also argues that should this court grant
further relief, such relief should be limited to setting aside the adjudged forfeitures.

                              LAW AND DISCUSSION

      Appellant’s assigned error states:

             THE UNEXPLAINED DILATORY POST-TRIAL
             PROCESSING OF APPELLANT’S CASE WARRANTS
             RELIEF WHERE IT TOOK 569 DAYS FROM TRIAL TO
             ACTION.

       We review de novo appellant’s claim that he has been denied his due process
right to speedy post-trial review. Moreno, 63 M.J. at 135. Our superior court has
adopted the four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530
(1972) to determine whether a due process violation has occurred: (1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to
timely review and appeal; and (4) prejudice. Id.

     We presume unreasonable delay when more than 120 days elapse between
completion of an appellant’s trial and action by the convening authority. Id. at 142.

       Appellant asserts no prejudice and we find none. However, we may
nonetheless find a due process violation if “in balancing the other three factors, the
delay is so egregious that tolerating it would adversely affect the public’s perception
of the fairness and integrity of the military justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the lengthy delay, the
government’s concession that “dilatory post-trial processing occurred in appellant’s
case,” and appellant’s raising of the issue of post-trial delay to the convening
authority, we find that the post-trial delay in this case is sufficiently egregious to
find a due-process violation under Toohey. Id.




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O’BRIEN—ARMY 20130095

        We find the convening authority’s disapproval of the adjudged hard labor
without confinement was not intended as a remedy for the post-trial processing delay
in this case. In his post-trial recommendation, the SJA recommended that the
convening authority only approve the sentence of a bad-conduct discharge, the
forfeitures, and reduction to the grade of E-1. After receiving appellant’s R.C.M.
1105 matters, which in relevant part alleged legal error resulting from the delay in
post-trial processing, the SJA in the addendum to his recommendation disagreed
with appellant’s assertion of legal error and stated no corrective action was needed.
In that addendum, the SJA also recommended that the convening authority grant
clemency by only approving so much of appellant’s sentence as provided for a bad-
conduct discharge, forfeiture of $500 per month for three months, and reduction to
the grade of E-1. These facts lead us to conclude that the convening authority’s
decision not to approve the adjudged three months of hard labor without confinement
was an act of clemency, not an act intended to provide relief for the delayed post-
trial processing of appellant’s case.

       As outlined above, despite his approved sentence being less severe than that
adjudged at trial, appellant has not yet received any relief for the undue post-trial
delay in his case. We will provide him that relief by approving only so much of the
sentence as provides for a bad-conduct discharge and reduction to the grade of
E-1.

       We must also review the appropriateness of appellant’s sentence in light of
the lengthy post-trial processing in this case. See UCMJ art. 66(c); United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (Pursuant to Article 66(c), UCMJ, service
courts are “required to determine what findings and sentence ‘should be approved,’
based on all the facts and circumstances reflected in the record, including the
unexplained and unreasonable post-trial delay.”). Upon review of the entire record,
to include, inter alia, the lengthy post-trial delay, the government’s concession, and
the absence of prejudice, we find appellant’s now reduced sentence is appropriate.

                                   CONCLUSION

       The findings of guilty are AFFIRMED. After considering the entire record,
the court AFFIRMS only so much of the approved sentence as provides for a bad-
conduct discharge and reduction to the grade of E-1. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and
75(a).




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O’BRIEN—ARMY 20130095

    Senior Judge HAIGHT and Senior Judge MULLIGAN concur.

                                 FORTHE
                                FOR  THECOURT:
                                         COURT:




                                 MALCOLM H. SQUIRES, JR.
                                MALCOLM H. SQUIRES, JR.
                                 Clerk of Court
                                Clerk of Court




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