UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                               YOB, LIND, and KRAUSS
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                         Private E2 ANTHONY M. RUSSO
                          United States Army, Appellant

                                   ARMY 20120430

                             Headquarters, Fort Bliss
                        David H. Robertson, Military Judge
              Colonel Francis P. King, Staff Judge Advocate (pretrial)
          Colonel Edward K. Lawson IV, Staff Judge Advocate (post -trial)


For Appellant: Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA (on brief).


                                  19 November 2013

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                               SUMMARY DISPOSITION
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YOB, Senior Judge:

       On 3 May 2012, a military judge sitting as a special court-martial convicted
appellant, pursuant to his plea, of a single specification of absence without leave
terminated by apprehension in violation of Article 86, Uniform Code of Military
Justice, 10 U.S.C. § 886 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge and confinement for five months. On
28 February 2013, the convening authority approved the adjudged sentence.

        This case is before the court for review un der Article 66, UCMJ. We have
considered appellant’s assignment of error seeking relief due to the dilatory post-
trial processing of his case, the government’s answer , and the record of trial.
Although we do not find actual prejudice to the appellant as a result of the dilatory
post-trial processing, we agree with appellant that the unexplained and excessive
post-trial delay attributable to the government warrants relief.
RUSSO — ARMY 20120430

       Appellant’s entire case consisted of his guilty plea to a single charge and its
one specification, which resulted in a record of trial transcript a mere 84 pages in
length. Appellant previously raised the issue of excessive post -trial processing
delay as part of his clemency matters submitted to the convening authority in
accordance with Rules for Courts-Martial 1105 and 1106. The staff judge advocate,
in the addendum to his recommendation, advised against any relief for this excessive
delay, and the convening authority provided no relief in his action.

        The government concedes that the time between the announcement of the
sentence and the convening authority action was over 300 days. The government
offers no explanation or insight into reasons for this delay. A delay of this
magnitude for a case that should have been relatively simple to transcribe and
process, without any explanation or justification from the convening authority or
staff judge advocate, warrants relief even in the absence of prejudice under the
particular circumstances of this case. 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 sen tence ‘should be approved,’ based
on all the facts and circumstances reflected in t he record, including the unexplained
and unreasonable post-trial delay.”). See generally United States v. Moreno, 63 M.J.
129, 142-43 (C.A.A.F. 2006) (recognizing a presumption of unreasonable delay after
120 days of post-trial delay in processing a case); United States v. Toohey, 63 M.J.
353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 616-17 (Army Ct.
Crim. App. 2010).

       Therefore, on consideration of the entire record and the assigned error , the
finding of guilty is affirmed. However, in light of the reasons described above, the
court affirms only so much of the sentence as provides for a bad -conduct discharge
and confinement for three months. All rights, privileges, and property, of which
appellant has been deprived by virtue of that por tion of his sentence set aside by this
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

Judge LIND and Judge KRAUSS concur.


                                        FOR THE COURT:




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




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