            U NITED S TATES AIR F ORCE
           C OURT OF C RIMINAL APPEALS
                      ________________________

                           No. ACM 39023
                      ________________________

                         UNITED STATES
                             Appellee
                                 v.
                    Clarence ANDERSON III
               Major (O-4), U.S. Air Force, Appellant
                      ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 31 May 2017
                      ________________________

Military Judge: Marvin W. Tubbs II.
Approved sentence: Dismissal and confinement for 42 months. Sentence
adjudged 22 April 2015 by GCM convened at Holloman Air Force Base,
New Mexico.
For Appellant: Major Lauren A. Shure, USAF; Captain Allen S. Abrams,
USAF; Brian L. Mizer, Esquire.
For Appellee: Major Jeremy D. Gehman, USAF; Major G. Matt Osborn,
USAF; Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judges MAYBERRY and JOHNSON joined.
                      ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                   United States v. Anderson, No. ACM 39023


SPERANZA, Judge:
    A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of sexual assault, abusive sexual contact, aggravated as-
sault, assault consummated by battery, kidnapping, and wrongfully communi-
cating a threat—in violation of Articles 120, 128, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920, 928, 934. 1 The adjudged and ap-
proved sentence was a dismissal and confinement for 42 months.
    Appellant now asserts six assignments of error: (1) the military judge
abused his discretion in excluding evidence under Mil. R. Evid. 412; (2) the
evidence is factually insufficient to prove the charged offenses; (3) the military
judge erred when he determined he did not have the authority to address ad-
ditional matters and a motion for new trial raised during a post-trial Article
39(a), UCMJ, 10 U.S.C. § 839(a) session; (4) the convening authority abused
his discretion when he denied Appellant’s request for a second post-trial hear-
ing; (5) Appellant was denied his due process right to timely appellate review;
and (6) Appellant was a victim of bribery in violation of 18 U.S.C. § 201, war-
ranting the setting aside of the findings and sentence. 2 We disagree and affirm.

                                 I. BACKGROUND
    Appellant and KA met in 1994 while attending junior college in Alabama.
After going their separate ways, they reconnected in November of 2007 and
were married in February of 2008. The marriage was a rocky one. As KA ex-
plained, “Some days could be really good. He could buy flowers and be the per-
fect gentleman. Some days could be awful.”
    Those awful days included acts of physical abuse. In August of 2009 while
in Alabama, Appellant choked KA. She contacted the police, but when they
arrived she decided not to make a report.
    In November of 2012 while in Florida, Appellant put his hand over KA’s
mouth and nose, confined her in a bathroom, and told her that he knew how to
kill her and blame it on post-traumatic stress disorder. KA’s then-12-year-old
son witnessed portions of this altercation and took photographs of KA. When
KA spoke with the police, they took additional photographs of her. Appellant



1The military judge acquitted Appellant of two specifications of assault consummated
by battery and one specification of kidnapping.
2The sixth issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). Having considered Appellant’s arguments, we summarily reject them as they
do not require additional analysis or warrant relief. See United States v. Matias, 25
M.J. 356 (C.M.A. 1987).


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                  United States v. Anderson, No. ACM 39023


filed for divorce shortly after this incident, but, after going through mediation,
the couple reconciled.
    However, their marriage did not improve. Between 12 and 17 January
2013, Appellant sent KA a series of text messages that, among other things,
stated:
       Not saying I’m not innocent [sic] at all but you started with the
       mail altercation and then threatened me with changing the locks
       and grabbing my uniforms saying they were going to be tossed
       on the lawn. You started it and then I got the best of you. You
       have to take that loss and not run to the police two days later.
       ....
       . . . I don’t like the idea I put my hands on you or that you want
       1/2 my retirement and house.
       ....
       And though I wish the night of Sat, 24 Nov would have never
       happened the[] way we were heading it was bound to happen but
       you started and I got the best of you. What happened in AL was
       in AL. Nothing happened in the truck on the way home. What
       happened in FL was what happened in FL and if I had to go back
       I would have done the same thing because you started it and
       thought it was ok to disrespect me.
   In 2013, Appellant and KA moved to New Mexico where he became a squad-
ron commander and KA became a special education teacher at a local school.
In mid-September 2013, KA reported that Appellant had recently sexually as-
saulted her. She also informed authorities of the prior abuse.

                                II. DISCUSSION
A. Military Rule of Evidence (Mil. R. Evid.) 412
   Appellant argues that the military judge abused his discretion when he de-
nied Appellant’s motion to admit evidence of KA’s sexual relationship with an-
other teacher, JM. After hearing evidence at a closed hearing, the military
judge denied Appellant’s motion. The military judge found that KA did not
have a sexual relationship with JM until after reporting Appellant’s crimes;




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                    United States v. Anderson, No. ACM 39023


therefore, the military judge concluded that evidence of their sexual relation-
ship was not relevant. 3
    After trial, the convening authority granted Appellant’s request for a post-
trial Article 39(a) session to address the facts and circumstances of a payment
made by KA’s mother to JM. 4 By the time of this hearing, KA was no longer in
a relationship with JM. At the hearing, KA maintained that her relationship
with JM began to turn into a dating relationship “some months” after she re-
ported Appellant’s crimes in mid-September of 2013. When pressed on the
meaning of “some months,” she stated, “It wasn’t in a few days. It wasn’t in a
few weeks. It was a period of time after that.” JM had previously testified at a
closed hearing that he was not a “date person” and he did not know when he
started dating KA, but he claimed that they developed a sexual relationship
sometime around Christmas of 2013 or New Year’s Day in 2014. At the post-
trial hearing, JM again stated that he did not know when he began dating KA,
but confirmed they were dating when Appellant confronted him at a high
school basketball game in November or December of 2013. In an unsworn mem-
orandum completed after the post-trial hearing, JM stated that his relation-
ship with KA was “sexual in nature” by “roughly November of 2013.”
   “We review the military judge’s ruling . . . to exclude evidence pursuant to
[Mil. R. Evid.] 412 for an abuse of discretion. Findings of fact are reviewed
under a clearly erroneous standard and conclusions of law are reviewed de
novo.” United States v. Ellerbrock, 70 M.J. 314, 317 (C.A.A.F. 2011) (citation
omitted).
    With three limited exceptions, evidence that an alleged victim engaged in
other sexual behavior is inadmissible. Mil. R. Evid. 412(a), (b). The exception
pertinent to Appellant’s claim permits the admission of evidence if “the exclu-
sion of [it] would violate the constitutional rights of the accused.” Mil. R. Evid.
412(b)(1)(C). This exception includes an accused’s Sixth Amendment 5 right to


3The military judge’s ruling did not address the admissibility of a non-sexual relation-
ship KA may have had with JM prior to her report; however, Appellant did not pursue
this line of questioning at trial.
4 The military judge concluded that KA’s mother provided the money “for the renova-
tions to [JM’s] house for the purpose of ensuring that her daughter and grandchildren
were going to live in a suitable house with sufficient living space,” and not to alter JM’s
testimony. Furthermore, the military judge determined that JM “accepted the pay-
ments for the renovation in preparation to marry [KA] and ultimately merge their
families together,” and not to alter his testimony. Therefore, the military judge reason-
ably concluded that the court-martial “would not probably produce a substantially
more favorable result for the accused” had this information been presented.
5   U.S. CONST. amend. VI.


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                  United States v. Anderson, No. ACM 39023


confront witnesses, including the right to cross-examine those witnesses. Eller-
brock, 70 M.J. at 318.
    Evidence of other sexual behavior must also pass a balancing test as out-
lined in Mil. R. Evid. 412(c)(3) and clarified by United States v. Gaddis, 70 M.J.
248, 250 (C.A.A.F. 2011). The test is whether the evidence is “relevant, mate-
rial, and the probative value of the evidence outweighs the dangers of unfair
prejudice.” Ellerbrock, 70 M.J. at 318. Relevant evidence is any evidence that
has “any tendency to make the existence of any fact . . . more probable or less
probable than it would be without the evidence.” Mil. R. Evid. 401. Evidence is
material if it is “of consequence to the determination of [the] appellant’s guilt.”
United States v. Dorsey, 16 M.J. 1, 6 (C.M.A. 1983) (quotation marks omitted).
   The military judge did not abuse his discretion in excluding evidence of a
sexual relationship between KA and JM. The evidence presented at the Mil. R.
Evid. 412 hearing was that KA and JM were not in a sexual relationship when
KA reported Appellant’s crimes. The military judge’s decision to exclude this
evidence was premised on the timing of the sexual relationship as it related to
KA’s report. This was a logical, reasonable basis and not an abuse of discretion.
    While the date KA and JM started “dating” is unclear, at both the pre-trial
hearing and the post-trial hearing, KA and JM consistently stated that they
were not in a sexual relationship when KA reported Appellant’s crimes. JM’s
unsworn, post-trial statement that their relationship was “sexual in nature”
by “roughly November of 2013” does not alter this sequence of events. Even
assuming the accuracy of this statement, KA and JM were still not in a sexual
relationship when KA reported in September 2013. Therefore, the basis for the
military judge’s decision remains sound, and it was not an abuse of discretion
to exclude evidence of a sexual relationship between KA and JM under the
facts of this case.
B. Factual Sufficiency
    Appellant also challenges the factual sufficiency of his convictions. We re-
view issues of factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. §
866(c); United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007). The test for
factual sufficiency is “whether, after weighing the evidence in the record of trial
and making allowances for not having personally observed the witnesses, [this
court is] convinced of the [appellant]’s guilt beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). Our assessment of factual
sufficiency is limited to the evidence presented at trial. United States v. Dykes,
38 M.J. 270, 272 (C.M.A. 1993).
   KA testified about the facts and circumstances of each offense. In addition,
the Government presented testimony from the civilian police officers who re-



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                  United States v. Anderson, No. ACM 39023


sponded to the 2009 and 2012 incidents. KA’s son testified about what he wit-
nessed during portions of the 2012 Florida incident. The Government intro-
duced photographs of KA taken after the 2012 Florida incident. The Govern-
ment also introduced testimony regarding statements made by Appellant and
incriminating text messages from Appellant to KA.
    Appellant took the stand and, notably, corroborated much of KA’s testi-
mony. Appellant admitted that he put his hands on KA during each of the
physical assaults. According to Appellant, he did this to “restrain” her. Appel-
lant also admitted that on a night in September of 2013, around 0100, KA was
sleeping in her bed when Appellant took off all his clothes and got into bed with
her. According to Appellant, he only wanted to engage in conversation and did
not make any sexual overtures.
    We have weighed the evidence in the record of trial and made allowances
for not having personally observed the witnesses. We are convinced of Appel-
lant’s guilt beyond a reasonable doubt.
C. Presentation of Additional Matters during a Post-Trial Article 39(a)
Hearing and Post-Authentication Request for a New Trial
    After the military judge authenticated the record of trial, Appellant sub-
mitted a request to the convening authority for a post-trial Article 39(a) hear-
ing. In granting Appellant’s request, the convening authority stated:
       Pursuant to R.C.M. 1102(b)(2), I direct a post-trial Article 39(a)
       session be held in the case of U.S. v. Major Clarence Anderson
       III to address the circumstances regarding a $10,000 payment
       made to [JM], a witness who testified during a pre-trial motions
       hearing, by . . . the mother of the victim in the case.
    The post-trial Article 39(a) session was held to address this specific matter.
However, after addressing the matter in the convening authority’s order, the
Defense requested permission to again question KA and JM about their sexual
relationship. The Defense initially attempted to connect this to the payments,
but eventually changed course and argued that the military judge had author-
ity to address the sexual relationship under Rules for Courts-Martial (R.C.M.)
1102 and 1210 and Article 39(a), UCMJ. The Defense also asked the military
judge to order a new trial. The military judge determined that, since the hear-
ing occurred after authentication, he was limited to examining only the mat-
ters the convening authority had directed the hearing to address. Appellant
alleges this conclusion was error.
   Although we review a military judge’s denial of a post-trial Article 39(a)
hearing for an abuse of discretion, United States v. Meghdadi, 60 M.J. 438, 441
(C.A.A.F. 2005), we review the interpretation of R.C.M. provisions de novo,
United States v. Leahr, 73 M.J. 364, 369 (C.A.A.F. 2014).

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                  United States v. Anderson, No. ACM 39023


   R.C.M. 1102 permits a military judge or convening authority to direct a
post-trial Article 39(a) session:
       An Article 39(a) session under this rule may be called, upon mo-
       tion of either party or sua sponte by the military judge, for the
       purpose of inquiring into, and, when appropriate, resolving any
       matter that arises after trial and that substantially affects the
       legal sufficiency of any findings of guilty or the sentence. The
       military judge may also call an Article 39(a) session, upon mo-
       tion of either party or sua sponte, to reconsider any trial ruling
       that substantially affects the legal sufficiency of any findings of
       guilty or the sentence. The military judge may, sua sponte, at
       any time prior to authentication of the record of trial, enter a
       finding of not guilty of one or more offenses charged, or may en-
       ter a finding of not guilty of a part of a specification as long as a
       lesser offense charged is alleged in the remaining portion of the
       specification. Prior to entering such a finding or findings, the
       military judge shall give each party an opportunity to be heard
       on the matter in a post-trial Article 39(a) session.
R.C.M. 1102(b)(2).
    R.C.M. 1102(d) clarifies that “[t]he military judge may direct a post-trial
session any time before the record is authenticated. The convening authority
may direct a post-trial session any time before the convening authority takes
initial action on the case . . . .”
    According to the plain reading of this rule, authentication terminates the
military judge’s authority to take action under R.C.M. 1102. However, our su-
perior court, the United States Court of Appeals for the Armed Forces (CAAF),
has “removed any substantive distinction between a military judge’s authority
to consider post-trial issues under R.C.M. 1102(b)(2) and R.C.M. 1210(f).”
United States v. Meghdadi, 60 M.J. 438, 441 (C.A.A.F. 2005). Thus, we also
analyze whether the military judge had the authority to grant a request for a
new trial under R.C.M. 1210 at this stage.
    A servicemember convicted of a crime may petition for a new trial any time
within two years of the convening authority’s approval of the findings and sen-
tence. R.C.M. 1210(a). While R.C.M. 1210 does not explicitly give a military
judge the authority to order a new trial, the CAAF has stated that a military
judge has the authority to grant a new trial because “Article 39(a), UCMJ, au-
thorized military judges ‘to take such action after trial and before authenticat-
ing the record as may be required in the interest of justice.’” United States v.
Webb, 66 M.J. 89, 92 (C.A.A.F. 2008) (quoting United States v. Scaff, 29 M.J.
60, 66 (C.M.A. 1989)). In Webb, the military judge granted a new trial “under


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                   United States v. Anderson, No. ACM 39023


her Article 39(a), UCMJ, authority to resolve matters that arise after trial that
‘substantially affect the legal sufficiency of any findings of guilty.’” Id. at 91
(quoting R.C.M. 1102(b)(2)). The CAAF held that this was not error because
“[p]rior to authentication, a military judge has authority under Article 39(a),
UCMJ, ‘to convene a post-trial session to consider newly discovered evidence
and to take whatever remedial action is appropriate.’” Id. at 92 (quoting Scaff,
29 M.J. at 66).
    Appellant argues that the military judge had authority to grant Appellant’s
request for a new trial. We disagree. While a military judge has the authority
to grant a new trial, this authority ends when the military judge authenticates
the record of trial. Our superior court noted several times in Webb that a mili-
tary judge’s authority to grant a new trial relied on a predicate fact—that it
occurred before authentication. Webb, 66 M.J. at 90–92; see also Meghdadi, 60
M.J. at 440-42 (finding that it was error for a military judge to deny a pre-
authentication request for an Article 39 session to present evidence in support
of a request for a new trial); Scaff, 29 M.J. at 66 (“Article 39(a) of the Uniform
Code [authorizes] the military judge to take such action after trial and before
authenticating the record as may be required in the interest of justice.” (em-
phasis added)); United States v. Griffith, 27 M.J. 42, 47 (C.M.A. 1988) ([W]e
are convinced that if, before authenticating the record of trial, a military judge
becomes aware of an error which has prejudiced the rights of the accused . . . he
may take remedial action on behalf of the accused without awaiting an order
therefor by an appellate court.” (emphasis added)).
    Appellant’s argument that the military judge had the authority to grant a
post-authentication request for a new trial contradicts the CAAF’s holdings on
the matter. As the military judge noted, after authentication the convening
authority is the authority from whom an appellant may seek this remedy. 6 The
military judge did not err in determining he lacked the authority to grant Ap-
pellant’s request for a new trial. Moreover, the military judge was not obligated
to allow Appellant to present additional evidence in support of a request the
military judge did not have the authority to grant.



6 In addition to requesting a second post-trial Article 39(a) from the convening author-
ity, Appellant also petitioned The Judge Advocate General of the Air Force for a new
trial based on the matters Appellant sought to address at the post-trial hearing. That
request was forwarded to this court. See Rule for Courts-Martial 1210(e). Appellant
submitted pleadings and documentary evidence in support of the petition, and we
heard oral arguments on this issue. We ultimately denied the petition for a new trial,
United States v. Anderson, Misc. Dkt. No. 2016-17 (31 May 2017) (unpub. op.), but we
are nonetheless convinced that Appellant has been afforded a “forum in which to make
his case.” See United States v. Meghdadi, 60 M.J. 438, 445 (C.A.A.F. 2005).


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                  United States v. Anderson, No. ACM 39023


D. Request for a Second Post-trial Article 39(a) Hearing
   After the military judge determined that he did not have the authority to
grant Appellant’s post-authentication request to present additional matters at
the first Article 39(a) hearing, Appellant asked the convening authority to or-
der a second post-trial Article 39(a) hearing.
    Prior to taking action, the convening authority may order an Article 39(a)
session to resolve “any matter that arises after trial and that substantially af-
fects the legal sufficiency of any findings of guilty or the sentence.” R.C.M.
1102(b)(2); see also United States v. Ruiz, 49 M.J. 340, 348 (C.A.A.F. 1998). The
decision to grant or deny a request for a post-trial Article 39(a) session is within
the “sound discretion” of the convening authority. Meghdadi, 60 M.J. at 441
(quoting Ruiz, 49 M.J. at 348). However, the reopening of trial proceedings is
“generally disfavored” and should normally be “granted only if a manifest in-
justice would result.” Id. “We review a convening authority’s decision not to
grant a post-trial hearing for an abuse of discretion.” United States v. Lofton,
69 M.J. 386, 391 (C.A.A.F. 2011).
    Appellant sought to introduce evidence at a second post-trial Article 39(a)
hearing that JM had stated his relationship with KA was “sexual in nature”
by “roughly November” 2013. In the request to the convening authority, Appel-
lant argued that this testimony was “in stark contrast” to JM’s testimony at
the Mil. R. Evid. 412 hearing, and “would likely alter the ruling on the [Mil. R.
Evid.] 412 motion . . . thereby affecting the landscape of the trial.” We disagree.
    The convening authority did not abuse his discretion in denying the request
for a second post-trial Article 39(a) hearing. As noted above, the military
judge’s ruling was based on the fact that there was no sexual relationship be-
tween KA and JM at the time KA reported Appellant’s crimes. JM’s post-trial,
unsworn memorandum does not alter this sequence of events. Therefore, it was
soundly within the convening authority’s discretion to deny Appellant’s re-
quest.
E. Timely Appellate Review
    The convening authority took action 323 days after the completion of Ap-
pellant’s court-martial. Routine administrative matters, such as the authenti-
cation of Appellant’s record of trial, contributed to this delay. However, much
of the delay related to Appellant’s substantial clemency requests, his requests
for post-trial sessions, and the completion of a post-trial session requested by
Appellant.
    Appellant first asserted his right to timely post-trial processing 112 days
after the conclusion of his court-martial. He reasserted this right on two other




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                  United States v. Anderson, No. ACM 39023


occasions during the post-trial processing of his case. Again on appeal, Appel-
lant argues that this post-trial delay requires any sentence imposed at a po-
tential rehearing be limited to a dismissal.
   Convicted servicemembers have a due process right to timely review and
appeal of court-martial convictions. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006). We review these issues de novo. Id.
    A presumption of unreasonable post-trial delay, requiring a due process
review, exists when the convening authority does not take action within 120
days of the completion of trial. Id. at 142. When there is a presumption of un-
reasonable delay, we examine the claim under the four factors set forth in
Barker v. Wingo, 407 U.S. 514, 530 (1972): “(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.” Moreno, 63 M.J. at 135. We analyze each factor
to determine whether a due process violation occurred. Id. “No single factor is
required for finding a due process violation and the absence of a given factor
will not prevent such a finding.” Moreno, 63 M.J. at 136. However, where an
appellant has not shown prejudice from the delay, there is no due process vio-
lation unless the delay is so egregious as to “adversely affect the public’s per-
ception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
   The time between the completion of Appellant’s trial and the convening
authority’s action (323 days) is presumptively unreasonable and triggers a full
due process review.
    Appellant asserts that he suffered prejudice because he has been oppres-
sively incarcerated. Oppressive incarceration is “directly related to the success
or failure of an appellant’s substantive appeal. If the substantive grounds for
the appeal are not meritorious, an appellant is in no worse position due to the
delay, even though it may have been excessive.” Moreno, 63 M.J. at 139. As we
have found Appellant’s appeals not meritorious, he has not suffered prejudice.
    When there is no showing of prejudice, “we will find a due process violation
only when . . . the delay is so egregious that tolerating it would adversely affect
the public’s perception of the fairness and integrity of the military justice sys-
tem.” United States v. Toohey, 63 M.J. at 362. Balancing the other three Barker
factors, we do not find that the delay in this case would adversely affect the
public’s perception of the fairness and integrity of the military justice system.
Therefore, we find no due process violation.
    Although we find no due process violation, we nonetheless consider
whether Article 66(c), UCMJ, relief pursuant to United States v. Tardif, 57
M.J. 219, 224 C.A.A.F. 2002), is appropriate. In doing so, we are guided by
factors stated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.


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                    United States v. Anderson, No. ACM 39023


2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), 7 with no single factor being disposi-
tive. We conclude that the exercise of our extraordinary Article 66(c) authority
is not appropriate in this case.

                                  III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved
findings and sentence are AFFIRMED.


                   FOR THE COURT



                   KURT J. BRUBAKER
                   Clerk of the Court




7 These factors include: (1) How long the delay exceeded the Moreno standards; (2)
what reasons, if any, for the delay, and whether there is evidence of bad faith or gross
indifference to the overall post-trial processing of this case; (3) whether there is some
evidence of harm (either to the appellant or institutionally) caused by the delay; (4)
whether the delay has lessened the disciplinary effect of the sentence, and whether
relief is consistent with the dual goals of justice and good order and discipline; (5)
whether there is any evidence of institutional neglect concerning timely post-trial pro-
cessing, either across the service or at a particular installation; and (6) given the pas-
sage of time, whether this court can provide meaningful relief. United States v. Gay,
74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).


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