UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           MULLIGAN, FEBBO, and WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                     Private First Class SHANE R. BLEVINS
                          United States Army, Appellant

                                  ARMY 20160165

              Headquarters, 1st Cavalry Division (Rear)(Provisional)
                         Douglas Watkins, Military Judge
       Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial)
       Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Melissa Covolesky, JA; Captain Ryan T. Yoder,
JA; Captain Payum Doroodian, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA (on brief).


                                     26 April 2017

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of desertion, absence without leave (AWOL), wrongfully
possessing marijuana, and two instances of wrongfully using marijuana, in violation
of Articles 85, 86, and 112a Uniform Code of Military Justice, 10 U.S.C. §§ 885,
886, 912a (2012) [hereinafter UCMJ], and thereafter sentenced appellant to a bad-
conduct discharge and confinement for eleven months. The convening authority,
pursuant to a pretrial agreement, approved the sentence except for that portion of
confinement in excess of seven months.

       Appellant comes before us pursuant to Article 66, UCMJ, and raises two
issues. First, he raises a discrepancy between the pleadings and the proof
surrounding his AWOL conviction. Second, he seeks relief for dilatory post-trial
processing. We grant relief as to the first issue, but no relief as to the second.
BLEVINS—ARMY 20160165

                                   DISCUSSION

                                      1. AWOL

       Appellant’s absence from his unit began on 30 September 2013 and ended
when he was apprehended by civilian authorities pursuant to a deserter warrant on
22 June 2015. However, the Specification of The Charge alleged that appellant’s
absence was terminated twenty-six days later, “on or about 16 July 2015,” the date
when he was returned to military control. See Manual for Courts-Martial, United
States (2012 ed.), pt. ¶ 10.c.(10)(e) (“When an absentee is in the hands of civilian
authorities for other reasons and these authorities make the absentee available for
return, the absence is terminated.”); United States v. Mullins, ARMY 20090821,
2010 CCA LEXIS 30, *4 (Army Ct. Crim. App. 25 Mar. 2010) (mem. op.).

       Appellant raises on appeal this discrepancy of twenty-six days between the
charged specification and date his absence was terminated, as developed during his
providence inquiry and in the stipulation of fact. Given the length of appellant’s
absence, however, the discrepancy does not alter the nature of the offense or the
maximum punishment. “When the Government pleads an offense ‘on or about’ it is
‘not required to prove the exact date, if a date reasonably near is established.”
United States v. Barner, 56 M.J. 131, 137 (C.A.A.F. 2001) (quoting United States v.
Hunt, 37 M.J. 344, 347 (C.M.A. 1993); See United States v. Allen, 50 M.J. 84, 86
(C.A.A.F. 1999).

      However, we need not decide whether 16 July 2015 is “on or about” 22 June
2015, as the government dutifully concedes the issue and requests that we provide
appellant relief. We accept the government’s concession and accordingly provide
appellant with his requested relief in our decretal paragraph.

                          2. Dilatory post-trial processing

      Appellant asks that we provide sentencing relief because it took 214 days for
the convening authority to take action on appellant’s case. Appellant alleges no
prejudice but asks us to nonetheless grant relief. Specifically, appellant states that
we should “grant relief to make clear that unreasonable delays in the military justice
system will not be tolerated.”

      We look at our role more narrowly than does appellant. In cases of post-trial
delay not amounting to a due process violation, we must still determine whether
under Article 66(c), UCMJ the sentence “should be approved.” Here, we find no due
process violation occurred as a result of the post-trial delay, recognizing that a
sentence may be correct in law and fact but still be inappropriate. As our review is
not omnidirectional, it essentially means that we reduce sentences that in our


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BLEVINS—ARMY 20160165

judgment are too high. In other words, when we conduct a sentence appropriateness
review we are, in effect, only reviewing to see if a sentence is too severe.

       If the sentence is just outright too severe, our duty is to lower the sentence
such that it “should be approved.” In the case where there is unreasonable post-trial
delay, we face a second question: did the unreasonable delay turn what may have
been an appropriate sentence for appellant's crimes into an inappropriate sentence?
Or, in this case, is a sentence that includes seven months of confinement too severe a
punishment given appellant's offenses, the sentencing evidence, and the
unreasonable delay by the convening authority?

       We answer this last question in the negative. The approved sentence remains
lenient for appellant’s offenses, even when we consider the unreasonable post-trial
delay. The post-trial delay in approving appellant’s court-martial did not make
appellant’s sentence inappropriate.

                                   CONCLUSION

     We AFFIRM only so much of the finding of guilty as to the Specification of
The Charge as provides:

             In that [appellant], U.S. Army, did, on or about 30
             September 2013, without authority, absent himself from
             his unit, to wit: Crazyhorse Troop, 1st Squadron, 3d
             Armored Cavalry Regiment, III Corps, located at Fort
             Hood, Texas, and did remain so absent until he was
             apprehended on or about 22 June 2015.

      The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on
the entire record and appellant’s course of conduct, the military judge would have
imposed a sentence of at least that which was adjudged, and accordingly we
AFFIRM the sentence.




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BLEVINS—ARMY 20160165


      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

                                          FOR THE COURT:




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




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