UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, TELLITOCCI, and HAIGHT
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                       Specialist QUANDRIAN J. ELDER
                         United States Army, Appellant

                                  ARMY 20111130

                      Headquarters, III Corps and Fort Hood
                        Patricia H. Lewis, Military Judge
    Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate (pretrial)
            Colonel Stuart W. Risch, Staff Judge Advocate (post-trial)


For Appellant: Captain A. Jason Nef, JA; Captain Brian D. Andes, JA (on brief).

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


                                     24 July 2014
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A special court-martial composed of a panel of officers and enlisted members
convicted appellant, contrary to his pleas, of two specifications of assault
consummated by battery in violation of Article 128, Uniform Code of Military
Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for one year, forfeiture
of $978.00 pay per month for 12 months, and reduction to the grade of E-1.

      This case is before us pursuant to Article 66, UCMJ. Appellant raises one
assignment of error, which merits discussion and relief. 1

1
 Appellant also personally raises several issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merits discussion or relief.
ELDER—ARMY 20111130

                                   BACKGROUND

       Appellant’s trial concluded on 12 December 2011. The record of trial was
transcribed and provided to defense counsel for review on 17 October 2012.
Defense counsel completed his review on 23 October 2012. Two weeks later, the
record was presented to the military judge who authenticated the record on 2
December 2012, approximately one month after receipt and almost a year after the
completion of appellant’s trial. The staff judge advocate (SJA) signed his post-trial
recommendation (SJAR) over a month later on 9 January 2013 and served it on
appellant and defense counsel on 11 January 2013.

      On 19 February 2013, one of appellant’s defense counsel, Major (MAJ) MW,
submitted supplemental clemency matters to the original matters 2 submitted by
appellant’s other defense counsel, Captain CS, in May 2012. In his supplemental
matters, MAJ MW alleged appellant had been prejudiced by the dilatory post-trial
processing of his case. In his addendum to the SJAR, the SJA identified the issue as
one that may represent an allegation of legal error, but disagreed that legal error had
occurred and recommended the convening authority take no corrective action. The
convening authority took action on appellant’s case on 4 March 2013, approving the
adjudged sentence.

                              LAW AND DISCUSSION

      In his assigned error, appellant alleges:

             THE DILATORY POST-TRIAL PROCESSING OF
             [APPELLANT'S] CASE WARRANTS RELIEF BECAUSE
             IT TOOK 419 DAYS FROM COMPLETION OF TRIAL
             TO ACTION IN A CASE WHERE THE RECORD OF
             TRIAL WAS 425 PAGES IN LENGTH.

      Taking 419 days to process appellant’s case from trial completion to action is
presumptively unreasonable. 3 United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.

2
 Original clemency matters were submitted in May 2012, eight months before the
SJA completed the SJAR. See Rule for Courts-Martial [hereinafter R.C.M.]
1105(c)(1). However, defense counsel reserved the right to submit additional
matters following the SJAR. See R.C.M. 1105(d)(2).
3
 Twenty-nine days were subtracted from the 448 days (12 December 2011 – 4 March
2013) to move this case from completion of trial to action due to defense delay in
submitting the supplemental R.C.M. 1105/1106 matters.




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ELDER—ARMY 20111130

2006). In the face of this lengthy delay, our next step is to apply and balance the
four factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972), to determine
whether appellant’s due process rights were violated. See Moreno, 63 M.J. at 136.

       As for the first factor, the length of the delay, 419 days, far exceeds the 120-
day presumption of unreasonableness. Id. at 142. As for the second factor, reasons
for the delay, we reviewed the affidavits prepared by the chief of military justice and
the senior court reporter which were included in the record as government appellate
exhibits. Id. at 136. Since the biggest portion of the 419-day delay was caused by
the 310 days it took to transcribe a 425-page record of trial, we specifically
examined the explanation for this delay and found it unpersuasive. 4 See United
States v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011) (“[P]ersonnel and administrative
issues . . . are not legitimate reasons justifying otherwise unreasonable post-trial
delay.”).

       Although we find the first two factors favor appellant, the last two Barker
factors do not favor appellant. See Moreno, 63 M.J. at 138. Specifically, although
appellant did assert his right to a speedy trial as part of his supplemental R.C.M.
1105/1106 submission, he waited over 400 days after his trial ended to do so.

       Finally, we find appellant has not established prejudice as a result of this
delay. Id. at 138-41. In his supplemental clemency submission, appellant alleged
prejudice because the delay in post-trial processing “detrimentally affected his
ability to seek full clemency” from the convening authority, to include his ability to
ask “for a reduction in his period of confinement, for example.” 5 We are not
persuaded by this speculative argument. In fact, the only sentence relief appellant
requested in his initial clemency matters was “disapprov[al] . . . of the forfeiture of
pay and bad-conduct discharge,” and not a reduction in confinement. Furthermore,



4
  The senior installation court reporter explained that the “court reporter section” at
Fort Hood was faced with a shortage of court reporters due to a variety of
circumstances, including deployments, leave, medical problems, and additional
duties that were assigned to court reporters. The chief of military justice detailed
the processing after transcription was complete, including difficulty discerning the
correct forwarding address for appellant.
5
 The convening authority did not take action in appellant’s case until nearly one
year and three months had elapsed since appellant was sentenced to confinement for
one year. Defense counsel, in his supplemental clemency matters, asserted that
appellant was released after serving nine months of confinement.




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ELDER—ARMY 20111130

we find no prejudice after specifically reviewing each of the three sub-factors 6 found
in Moreno, nor do we find the post-trial processing was “so egregious that tolerating
it would adversely affect the public’s perception of the fairness and integrity of the
military justice system.” Id.; United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.
2006).

       Pursuant to our authority under Article 66(c), UCMJ, however, we have the
authority to grant appropriate relief in cases where we have not found actual
prejudice to the appellant, but “unreasonable and unexplained post-trial delays” are
present. United States v. Tardif, 57 M.J. 219, 220 (C.A.A.F. 2002); see 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).

       In finding the 419-day delay associated with this case to be unreasonable, we
recognize the government has specifically attempted to offer an explanation for the
most egregious portion of the delay, the 310 days it took to transcribe a 425-page
record of trial. However, we ultimately find the fourteen-month delay still warrants
relief and will grant such in our decretal paragraph.

                                   CONCLUSION
 
       The findings of guilty are AFFIRMED. After considering the entire record,
the court AFFIRMS only so much of the sentence as provides for a bad-conduct
discharge, confinement for 11 months, forfeiture of $978.00 pay per month for 11
months, and reduction to the grade of E-1. 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. 58b(c) and 75(a).




                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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



6
 (1) Oppressive incarceration pending appeal; (2) Particularized anxiety and
concern; and (3) Impairment of ability to present a defense at rehearing.




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ELDER—ARMY 20111130




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