UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                          Private E2 ARNULFO E. VELA
                          United States Army, Appellant

                                   ARMY 20130114

                       Headquarters, 1st Cavalry Division
                        Randall L. Fluke, Military Judge
      Lieutenant Colonel James D. Levine II, Staff Judge Advocate (advice)
     Colonel R. Tideman Penland, Jr., Staff Judge Advocate (recommendation)


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry,
Jr., JA; Major Robert N. Michaels, JA; Captain Patrick A. Crocker, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Major Steven J. Collins, JA; Captain
Benjamin W. Hogan, JA (on brief).


                                19 December 2014

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                             SUMMARY DISPOSITION
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CAMPANELLA, Judge:

      A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of desertion and one specification of
wrongful use of a controlled substance in violation of Articles 85 and 112a,
Uniform Code of Military Justice, 10 U.S.C. §§ 88 5, 912a (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for four months, and reduction to the grade of E-1. The military
judge credited appellant with two days of confinement credit against the
sentence to confinement. Pursuant to a pretrial agreement, convening authority
approved only so much of the sentence as provided for a bad conduct discharge,
confinement for ninety days, and reduction to E-1. The convening authority also
approved the confinement credit of two days.
 VELA—ARMY 20130114

        This case is before for review us pursuant to Article 66, UCMJ.
Appellant raises one assignment of error asking this court to provide appropriate
relief to remedy the dilatory post-trial processing of his case. We agree that
relief is appropriate. We also find that matters raised personally by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) are without
merit.

                           LAW AND DISCUSSION

       The convening authority took action 352 days after the sentence was
adjudged. The record in this case consists of one volume and the trial transcript
is 108 pages. Although we find no due process violation in the post -trial
processing of appellant’s case, we must still review the appropriateness of the
sentence in light of the unjustified dilatory post -trial processing. 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 u nreasonable post-trial
delay.”). See generally United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F.
2006); United States v. Ney, 68 M.J. 613, 617 (Army Ct. Crim. App. 2010);
United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

       It took 228 days to transcribe the record in this case. Appellant submitted
a speedy post-trial processing request the day after his court-martial, presumably
to best afford himself of the possibility of convening authority clemency.
Appellant raised the issue once again in his Rule for Courts-Martial 1105-1106
matters 316 days after his court-martial concluded. The staff judge advocate
acknowledged but did not explain the delay to the convening authority. T he
convening authority took action 37 days later, and it took an additional month
for the record to reach this court. While the government has since explained the
reasons for delay, documented reasons for delay should be made part of the
record and available for review, at all relevant times, including convening
authority action. See United States v. Moreno, 63 M.J. 129, 143 (C.A.A.F.
2006) (“We expect convening authorities, reviewing authorities and the Courts
of Criminal Appeals to document reasons for delay and to exercise the
institutional vigilance that was absent in Moreno's case.”); see also United
States v. Canchalo, 64 M.J. 245 (C.A.A.F. 2007); United States v. Arias, 72 M.J.
501 (Army Ct. Crim. App. 2013); United States v. Bauerbach, 55 M.J. 501
(Army Ct. Crim. App. 2001).

      We find that the reasons offered by the government are unreasonable
under the totality of circumstances.




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 VELA—ARMY 20130114

                                CONCLUSION

       Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, however, we affirm only
so much of the sentence as extends to a bad-conduct discharge, confinement for
sixty days, and reduction to the grade of E-1. All rights, privileges, and
property, of which appellant has been deprived by virtue of this decision setting
aside portions of the findings and sentence are ordered restored.


Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR THE COURT:




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




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