           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                             Senior Airman DUSTIN R. HELPAP
                                    United States Air Force

                                        ACM S32017 (recon)

                                            21 August 2014

          Sentence adjudged 6 December 2011 by SPCM convened at Ramstein Air
          Base, Germany. Military Judge: Jefferson D. Brown.

          Approved Sentence: Bad-conduct discharge, confinement for 6 months,
          forfeiture of $400.00 pay per month for 6 months, reduction to E-1, and a
          reprimand.

          Appellate Counsel for the Appellant: Major Zaven T. Saroyan.

          Appellate Counsel for the United States: Captain Matthew J. Neil;
          Captain Richard J. Schrider; and Gerald R. Bruce, Esquire.

                                                  Before

                             ALLRED, SARAGOSA, and TELLER
                                 Appellate Military Judges

                                   OPINION OF THE COURT
                                  UPON RECONSIDERATION

                    This opinion is subject to editorial correction before final release.



PER CURIAM:

       In accordance with his pleas, the appellant was convicted at a special court-martial
of three specifications of failure to go, two specifications of disrespect towards a superior
noncommissioned officer, one specification of willfully disobeying a lawful order, one
specification of wrongful use of cocaine, and one specification of incapacitation for
proper execution of duties, in violation of Articles 86, 91, 112a, and 134, 10 U.S.C.
§§ 886, 891, 912a, 934. A panel of officer members sentenced the appellant to a
bad-conduct discharge, confinement for seven months, forfeiture of $400.00 pay per
month for seven months, reduction to the grade of E-1, and a reprimand. The convening
authority approved only a bad-conduct discharge, confinement for six months, forfeiture
of $400.00 pay per month for six months, reduction to E-1, and a reprimand.

                                   Procedural History

         On 25 January 2013, The Judge Advocate General of the Air Force appointed
Mr. Laurence M. Soybel to the position of appellate military judge on the Air Force
Court of Criminal Appeals pursuant to Article 66(a), UCMJ, 10 U.S.C. § 866(a). At the
time of this appointment, Mr. Soybel, a retired Air Force officer and former appellate
military judge, was serving as a civilian litigation attorney in the Department of the Air
Force. On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority under
title 5, United States Code, section 3101 et seq.,” issued a memorandum that “appoint[ed]
Mr. Laurence M. Soybel, a civilian employee of the Department of the Air Force, to
serve as appellate military judge on the Air Force Court of Criminal Appeals.”
Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric Fanning,
(25 June 2013).

      When the appellant’s case was initially before us, the appellant raised one issue:
whether the military judge erred by denying him pretrial confinement credit when the
Government failed to hold his pretrial confinement hearing within seven days, as required
by Rule for Courts-Martial (R.C.M.) 305, after the justification for the initial delay
ceased to exist.

       On 1 April 2013, we issued a decision affirming the findings and a modified
sentence. United States v. Helpap, ACM S32017 (A.F. Ct. Crim. App. 1 April 2013)
(unpub. op.). Mr. Soybel was a member of the panel that issued that decision pursuant to
his apparent appointment by The Judge Advocate General. This Court then sua sponte
reconsidered its decision and issued another decision after Mr. Soybel’s appointment by
the Secretary of Defense. That decision, issued on 18 July 2013, again affirmed the
findings and a modified sentence. United States v. Helpap, ACM S32017 (recon) (A.F.
Ct. Crim. App. 18 July 2013 (unpub. op.).

        The appellant moved to vacate the decision on the basis of Mr. Soybel’s
participation. On 31 October 2013, our superior court dismissed the petition for review
without prejudice. United States v. Helpap, 73 M.J. 92 (C.A.A.F. 2013) (mem.). On
15 April 2014, our superior court issued its decision in United States v. Janssen, 73 M.J.
221, 225 (C.A.A.F. 2014), holding that the Secretary of Defense did not have the
legislative authority to appoint appellate military judges and that his appointment of
Mr. Soybel to this Court was “invalid and of no effect.”

      In light of Janssen, we granted the motion for reconsideration on 29 April 2014
and permitted the appellant to file a supplemental assignment of errors. The appellant


                                            2                                  ACM S32017
submitted a supplemental assignment of errors asserting he is entitled to relief due to
excessive post-trial processing delays. With a properly constituted panel, we have
reviewed the appellant’s case, to include the appellant’s previous and current filings and
the previous opinions issued by this Court.

                                                      Background

       The appellant was a Senior Airman (E-4) in the 86th Security Forces Squadron,
Ramstein Air Base, Germany. After the conduct that led to the charges in this case, the
appellant was placed in pretrial confinement on 3 October 2011. The next day, he was
sent to the hospital and admitted into the intensive care unit. Finding good cause, the
Pretrial Confinement Review Officer (PCRO) delayed the hearing until 11 October 2011,
nine days after his initial confinement because the doctors treating the appellant did not
think he would be able to attend until then.1 However, on 7 October 2011, a Friday
before a 3-day holiday weekend, the Government emailed trial defense counsel and
informed him the appellant would be released from the hospital that day and wanted to
know if they could still keep the Tuesday, 11 October 2011, pretrial confinement hearing
date. Trial defense counsel replied he could not respond until he spoke with his client, so
the Government attorneys were instructed to make the appellant available to defense
counsel that day. It is unclear why, but that did not happen.

        Despite numerous attempts to contact his client at the confinement facility and
inquiries to the base legal office that day as well as the following three-day weekend, trial
defense counsel was unable to speak to his client until 0900 on 11 October 2011; about
one hour before the delayed hearing. At the hearing, trial defense counsel objected to the
delay because the grounds for it ended on Friday, 7 October 2011. Trial defense counsel
never made a direct request to the hearing officer to change the date of the hearing to an
earlier date.

       At trial, the defense asked for three-to-one credit for the two days of delay in
holding the appellant’s seven-day hearing. The military judge awarded no credit for the
delay, finding that initially good cause existed for the delay and the defense could have,
but did not, ask the PCRO to reconsider his decision to delay the hearing once the reason
for the delay ceased to exist. Citing R.C.M. 305(k), he also found there was no abuse of
discretion in the Government’s failure to reschedule the hearing to an earlier date.

                                   Pretrial Confinement under R.C.M. 305

      Rule for Courts-Martial 305(i)(2) requires that, “within [seven] days of the
imposition of [pretrial] confinement, a neutral and detached officer . . . shall review the
probable cause determination and necessity for continued pretrial confinement.” If good

1
    The record is not clear who requested the delay, but it does not appear it was the defense.


                                                             3                                    ACM S32017
cause exists, this period can be extended to ten days. R.C.M. 305(i)(2)(B). Rule for
Courts-Martial 305(j)(2) requires the military judge to order administrative credit under
R.C.M. 305(k) “for any pretrial confinement served as a result of an abuse of discretion”
or in violation of certain sections of the rule, including the rule pertaining to seven-day
hearings. Under subsection (k), the remedy for violations of R.C.M. 305(i) is one day of
administrative credit for each day of violation. If the military judge also finds an abuse
of discretion or unusually harsh conditions, he or she can order administrative credit in
addition to credit given for the R.C.M. 305(i) violations. R.C.M. 305(k).

       R.C.M. 305(k) specifies how the administrative credit is to be applied. It is
applied against confinement first. Id. If there was none, or an insufficient amount to
offset all of the administrative credit, then the credit is applied against hard labor without
confinement, then restriction, fine, and forfeiture of pay, in that order. Id.

                                    Standard of Review

        Our standard of review for matters pertaining to the facts and law involved in a
pretrial confinement issue is de novo.          See United States v. Cole, 31 M.J.
270 (C.M.A. 1990); United States v. Roach 66 M.J. 410 (C.A.A.F. 2008);
c.f. United States v. Smith, 53 M.J. 168 (C.A.A.F. 2000). However, the facts in this case
are not in dispute.

        While the military judge properly credited the appellant for his time served in
pretrial confinement, we find that, under the facts of this case, the appellant was entitled
to additional administrative credit for the two days of delay in holding his seven-day
confinement review. However, we do not find that the remedy should be setting aside the
appellant’s bad-conduct discharge.

        The rule requires a hearing to review the imposition of pretrial confinement by day
seven after it begins and allows an extension to day ten if good cause is shown. The
burden of proof is on the Government to show compliance with R.C.M. 305. See
United States v. Dent, 26 M.J. 968, 969 (A.C.M.R. 1988); see also United States v.
Shelton, 27 M.J. 540, (A.C.M.R. 1988). Here, because of the appellant’s hospitalization,
it appears the Government arranged for the delay and notified defense counsel of it. The
appellant’s hospitalization clearly constitutes good cause to justify the delay. The
question then becomes is the extension to day nine still valid when the good cause ceases
to exist on day five?

       Under the circumstances of this case, the Government did not meet its burden of
proof of compliance with R.C.M. 305. The primary reason for this is that the
Government has not shown good cause continued after the appellant was released from
the hospital on day five of his pretrial confinement. It provided no reason either in the
record or on appeal justifying the continuation of the extension when the initial reason for


                                              4                                   ACM S32017
it no longer existed. If good cause existed, despite the appellant’s release from the
hospital on day five, none was provided.

        The Government’s argument on appeal echoes the military judge’s finding at trial;
that the defense did not contact the PCRO and request that he revisit the issue of whether
good cause still existed. As a result, the judge found that “the defense failed to show that
there was not good cause for setting and keeping the hearing on day nine.” The
Government also argues that the burden was on the defense to contact the PCRO about
whether good cause exists, but he abdicated his responsibility to do so and that, by not so
doing, he “invited error.” Fortunately, the emails between trial defense counsel and
Government counsel are part of the record. A detailed review of the facts reveals the
opposite.

       On day five, the appellant’s first sergeant notified Major S, an assistant staff judge
advocate in the 86 AW/JA office, that the appellant would be released from the hospital
by that afternoon. He indicated in his 7 October 2011 email, “We are prepared to return
him to Mannheim OR hold here if the PTC occurs today.” Major S forwarded this email
to Captain S, the defense counsel, asking, “Do you have an issue with keeping the
hearing on Tuesday2 at 0900L? If you do, let me know ASAP and I will pass it on to the
PCRO.” The defense counsel replied that he would have to speak to his client “before
[he could] make that determination.” In response, Major S replied and copied two
captains in the legal office, “Understood. K[] or J[], please work with the unit to make
sure [the appellant] gets the opportunity to contact [his defense counsel] before he goes
back to Mannheim today.” The next contact from the legal office was on the morning of
the hearing, which occurred on day nine of the appellant’s pretrial confinement,
informing the defense his client would be made available to consult.

       From this email exchange it is clear: 1) the appellant was available to attend his
hearing by day five of his pretrial confinement; 2) it was the Government that desired the
continued extension and was asking the defense if he concurred; 3) the Government also
told defense counsel it would relay his response to the PCRO; 4) the Government told
defense counsel that it would put him in contact with his client so he could respond to the
Government’s preference for the continued delay; 5) after this initial email exchange,
evidence of the Government’s efforts to put defense counsel in contact with his client fell
into the proverbial black hole, and the defense heard nothing from the legal office until an
hour or so before the hearing started on day nine.

        Given these facts, we hold the Government did not meet its burden of showing
compliance with R.C.M. 305. Its argument that trial defense counsel abdicated his
responsibility and invited error is unsupported by the facts. It was the Government that
failed to put trial defense counsel in contact with his client after it suggested continuation

2
    Tuesday was day nine of the appellant’s pretrial confinement.


                                                           5                      ACM S32017
of the extension. Trial defense counsel was attempting to fulfill his responsibility by
discussing the continued delay with his client, but the Government failed to facilitate that
contact after it said it would. Regarding the Government’s argument that trial defense
counsel failed to contact the PCRO, it was the Government who informed trial defense
counsel that it would pass his response to the PCRO. Although it is true trial defense
counsel could have contacted the PCRO himself, the Government told him it would relay
his response. Besides, trial defense counsel would have had nothing to say to the PCRO
until he spoke with his client—an event he was dependent upon the Government for
arranging.

       In pretrial confinement situations, the Government is usually holding all of the
cards and has the power to control what occurs with respect to the conditions of pretrial
confinement and the seven-day hearing process. It certainly did in this case. Based on
the above, we hold the Government did not meet its burden to show compliance with
R.C.M. 305, and the appellant is entitled to relief.

                                    Appropriate Relief

      Our standard of review for pretrial confinement credit is de novo. United States
v. Zarbatany, 70 M.J. 169, 174 (C.A.A.F. 2011) (quoting United States v. Spaustat,
57 M.J. 256, 260 (C.A.A.F. 2002)).

        The appellant argues the two-day delay in his seven-day hearing now warrants the
dismissal of his bad-conduct discharge. We disagree. While the present case does not
involve the conditions of pretrial confinement, Zarbatany and its application of remedies
under R.C.M. 305(k) provides an excellent analytical framework. Under Zarbatany, the
relief due “to remedy a violation, if any, requires a contextual judgment, rather than the
pro forma application of formulaic rules.” Zarbatany, 70 M.J. at 176. The factors we
consider are “the nature of the . . . violations, the harm suffered by the appellant, and
whether the relief sought is disproportionate to the harm suffered or in light of the
offenses for which the appellant was convicted.” Id. at 176-77 (citing United States v.
Harris, 66 M.J. 166, 169 (C.A.A.F. 2008)).

       Here we have a relatively small violation that occurred and, considering the
seriousness of the offenses committed, setting aside the bad-conduct discharge would be
a disproportionate to a two-day delay.

       Because the appellant has completed his confinement there can no longer be an
additional one-for-one day of administrative credit applied towards the adjudged




                                             6                                   ACM S32017
confinement. Consequently, we are left offsetting the two days of administrative credit
against the alternative forms of punishments, as detailed in R.C.M. 305(k).3

       Even though the appellant’s seven-day hearing was held two days beyond when it
should have been held, it was determined that he should remain in pretrial confinement.
That decision was not challenged on appeal and six months of confinement was approved
by the convening authority, so he did not spend any excess time in confinement because
of the delay. Thus, his harm, if any, was strictly procedural and minor. In light of the
facts of this case, we set aside one month of the approved forfeitures, which more than
offsets the two days of administrative credit.

                                      Appellate Review Time Standards

       We review de novo whether an appellant has been denied the due process right to
speedy post-trial review and whether any constitutional error is harmless beyond a
reasonable doubt. United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). A
presumption of unreasonable delay arises when appellate review is not completed and a
decision is not rendered with 18 months of docketing the case before this court.
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The Moreno standards
continue to apply as a case continues through the appellate process. United States v.
Mackie, 72 M.J. 135, 135 (C.A.A.F. 2013). The Moreno standard is not violated when
each period of time used for the resolution of legal issues between this court and our
superior court is within the 18 month standard. Id. at 136; United States v. Roach,
69 M.J. 17, 22 (C.A.A.F. 2010).

        This case was docketed for appeal on 1 February 2012. This Court rendered its
initial decision on 1 April 2013 and its reconsideration opinion on 18 July 2013. Both
were under the 18-month standard established in Moreno. As stated above, our superior
court recently decided that one of the judges who participated in that decision was not
properly appointed. See United States v. Janssen, 73 M.J. 221 (C.A.A.F 2014).
Accordingly, we have considered the appellant’s court-martial before a properly
constituted panel and have issued this decision. The time between our superior court’s
action and this decision has not exceeded 18 months; therefore the Moreno presumption
of unreasonable delay is not triggered.

       Additionally, Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate
courts to grant sentence relief for excessive post-trial delay without the showing of actual
prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif,
57 M.J. 219, 224 (C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24
(C.A.A.F. 2006). In United States v. Brown, 62 M.J. 602, 606-07 (N.M. Ct. Crim. App.

3
  Under United States v. Zarbatany, 70 M.J. 169, 175 (C.A.A.F. 2011), Rule for Courts-Martial 305(k) is not the
sole source of remedies, and we are at liberty to craft others if appropriate.


                                                      7                                          ACM S32017
2005), our Navy and Marine Court colleagues identified a “non-exhaustive” list of factors
to consider in evaluating whether Article 66(c), UCMJ, relief should be granted for
post-trial delay. Among the non-prejudicial factors are the length and reasons for the
delay, the length and complexity of the record, the offenses involved, and the evidence of
bad faith or gross negligence in the post-trial process. Id. at 607. We find there was no
bad faith or gross negligence in the post-trial processing. The reason for the delay was to
allow this Court and our superior court to fully consider a constitutional issue of first
impression about whether the Secretary of Defense has the authority under the
Appointments Clause4 to appoint civilian employees to the service courts of criminal
appeals. We conclude that sentence relief under Article 66, UCMJ, is not warranted.

                                                  Conclusion

       The approved findings and only so much of the approved sentence as provides for
a bad-conduct discharge, confinement for six months, forfeiture of $400 per month for
five months, reduction to E-1, and a reprimand are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant remains. Articles 59(a)
and 66(c), UCMJ. Accordingly, the approved findings and the sentence, as modified, are

                                                  AFFIRMED.



                      FOR THE COURT


                      LEAH M. CALAHAN
                      Deputy Clerk of the Court




4
    U.S. CONST. art. II, § 2, cl. 2.


                                                      8                         ACM S32017
