                                CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, HERRING, and BURTON
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Private E1 JESSIE G. ALLEN
                           United States Army, Appellant

                                   ARMY 20150026

          Headquarters, 1st Cavalry Division (Rear)(Provision) (convened)
              Headquarters, 1st Cavalry Division (trial and post-trial)
                 Kenneth W. Shahan, Military Judge (arraignment)
                    Rebecca K. Connally, Military Judge (trial)
        Lieutenant Colonel Michael D. Jones, Staff Judge Advocate (pretrial)
             Colonel Alison C. Martin, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. Depaul, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major John K. Choike, JA; Captain Ahsan M. Nasar, JA (on brief).


                                      9 March 2016
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of sexual assault, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012 & Supp. I)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge and confinement for forty-two months. In accordance with the pretrial
agreement, the convening authority approved twelve months confinement and
otherwise approved the findings and sentence as adjudged.

      This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion and relief.
ALLEN—ARMY 20150026

                                   BACKGROUND

        Appellant’s court-martial concluded on 13 January 2015. Through counsel,
appellant requested speedy post-trial processing of his court-martial on 27 January
2015 (day fourteen). Defense counsel received the seventy-seven page record of trial
for review on 29 January 2015 and completed review on 30 January 2015 (day
seventeen). The military judge authenticated the record of trial on 11 February 2015
(day twenty-nine). More than a month later, the staff judge advocate signed her
recommendation (SJAR), a straight forward one-page document, on 16 March 2015
(day sixty-two). Appellant, who was still confined locally in the Bell County Jail on
a government hold to testify in another court-martial, received the authenticated
record of trial and SJAR twenty-nine days later by certified mail on 14 April 2015
(day ninety-one). The government did not serve appellant’s defense counsel with
either the SJAR or the record of trial concurrently with appellant. Eventually, fifty-
seven days later on 10 June 2015, the government electronically served appellant’s
defense counsel with the SJAR and record of trial. The government received matters
pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105 (Post-Trial Matters)
on behalf of the appellant on 22 June 2015 (day 160). The staff judge advocate
signed the addendum on 1 July 2015 (day 169) and the convening authority took
action the same day. This court received the record of trial on 26 August 2015,
fifty-six days later (day 223).

      On appeal, the government concedes that it “cannot provide reasonable
explanations for the delay in this court receiving the record of trial.”

                               LAW AND DISCUSSION

        In United States v. Moreno, our superior court established timeliness
standards for various stages of the post-trial and appellate process. 63 M.J. 129,
142-43 (C.A.A.F. 2006). The Moreno standard applicable in this case is that
a convening authority should take action within 120 days after the trial is completed.
Id. at 142. Additionally, the record of trial should be docketed with this court
within thirty days of the convening authority’s action. 1 Id. Failure to satisfy any of
these standards creates a “presumption of unreasonable delay,” prompting this court
to apply and balance the four factors set out in Barker v. Wingo, 407 U.S. 514, 530
(1972), in order to determine whether appellant’s due process rights were violated
by the delays. See Moreno, 63 M.J. at 136.

       Under the facts of this case, taking over 223 days to process appellant’s case
from trial completion to docketing at this court is presumptively unreasonable and
violates both the standard for timeliness from trial to initial action and initial action

1
 One other standard—timeliness of appellate review before this court—is not
relevant in appellant’s case. Moreno, 63 M.J. at 142-43.
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ALLEN—ARMY 20150026

to docketing at this court. Id. at 142. In the face of this lengthy delay, our next step
is to apply and balance the four factors set out in Barker, in order to determine
whether appellant’s due process rights were violated. Moreno, 63 M.J. at 136.

        The post-trial processing time in appellant’s case, a seventy-seven page record
of trial, is 169 days from sentence to action. The haphazard processing of this case
highlights a lack of rigor in the command’s post-trial process. The usual government
crutch—lack of court-reporters and delay in transcription—is not applicable here;
the record of trial was transcribed within eleven working days and authenticated by
the military judge on day twenty-nine. The prominence of several extended,
unexplained delays in the process causes the court to ask the question “Is anyone
monitoring the post-trial process?”

       Although the government argues sixty-one days of the delay is attributable to
appellant and his defense counsel for time spent reviewing the record of trial and
submission of Post-Trial Matters, we disagree. Defense counsel completed errata of
this record of trial in one day. The military judge authenticated the record of trial by
day twenty-nine. While the delay of thirty-three days by the staff judge advocate to
sign a simple one charge and single specification SJAR is troubling, the lack of
service of the SJAR on the defense counsel for eighty-six days borders 2 on inept.
Even assuming that the government was tracking the service date of 14 April 2015 of
the SJAR and record of trial on appellant, absent a request for additional time,
appellant’s Post-Trial Matters were due ten days later: 24 April 2015. It is still
forty-seven days past 24 April 2015 before the government rectifies service of the
SJAR and record of trial on appellant’s counsel. Appellant’s counsel promptly
submitted Post-Trial Matters within twelve days. The convening authority took
action nine days later on 1 July 2015. The court notes, that of the 169 days it took to
process this court-martial from sentence to action, 140 days passed after the military
judge authenticated the record.

       Another inexplicable delay is the fifty-six days that elapsed between action
and receipt by this court. The delay from trial to initial action is already beyond
where this court presumes unreasonable delay in post-trial processing between
sentence and action and a further twenty-six days beyond what is expected for
receipt of this record of trial by this court. See Moreno, 63 M.J. at 142 (recognizing
a presumption of unreasonable delay in cases where action is not taken within
120 days of the completion of trial and where the record of trial is not docketed at
this court within thirty days of action). This facially unreasonable delay in two
instances triggers our review of the remaining Moreno factors: reasons for the delay;
timely assertion of the right to speedy post-trial review; and prejudice. Id. at 135-
36.

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ALLEN—ARMY 20150026


       There is no explanation by the chief of military justice outlining any reasons
for the delay in processing this case. Rather, the chief of military justice submits a
chronology that documents when events happened, but no legitimate reason as to 3
why there is a delay in their occurrence. United States v. Arriaga, 70 M.J. 51, 57
(C.A.A.F. 2011). Given no specific explanation provided by the government for the
delay in this court receiving the case, this unexplained delay weighs in favor of
appellant.

       The third Moreno factor weighs in favor of the appellant who asserted his
right to speedy post-trial processing fourteen days after trial. Turning to the fourth
Moreno factor, appellant fails to demonstrate prejudice. Although we find no due
process violation after consideration of the Moreno factors, we review the
appropriateness of the sentence in light of the unjustified dilatory post-trial
processing. UCMJ art. 66(c). See Moreno, 63 M.J. at 138-42; United States v.
Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002). After consideration of the entire record, we conclude appellant’s
case warrants relief in the form of a thirty-day reduction in confinement under
Article 66(c), UCMJ, for the unreasonable and unexplained post-trial delay. See
Tardif, 57 M.J. at 224.

                                   CONCLUSION

       The findings of guilty are AFFIRMED. After considering the entire record,
we AFFIRM only so much of the sentence as provides for a bad-conduct discharge,
and confinement for eleven months. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the sentence set aside by this
decision are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).


                                        FOR THE COURT:




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




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