UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          HAIGHT, PENLAND, and ALMANZA
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                      Private First Class RYAN D. OSBORN
                          United States Army, Appellant

                                  ARMY 20130949

                           United States Army Central
                        David H. Robertson, Military Judge
                Colonel Brendan M. Donahoe, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Heather L. Tregle, JA (on brief); Lieutenant Colonel
Jonathan F. Potter, JA; Captain Heather L. Tregle, JA (on reply brief).

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


                                   31 August 2015

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

PENLAND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of willfully disobeying a noncommissioned officer, wrongfully
soliciting another to commit an assault consummated by battery, and wrongfully
communicating a threat, in violation of Articles 91 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 891, 934 (2012) [hereinafter UCMJ].

        On 5 November 2013, appellant was tried at Camp Arifjan, Kuwait, and
sentenced to a bad-conduct discharge and confinement for nine months. Four days
later, the convening authority deferred the automatic forfeitures required by Article
58b, UCMJ. This deferral ended on 7 November 2014, when the convening authority
approved the adjudged sentence.
OSBORN — ARMY 20130949

       We review this case under Article 66, UCMJ. Appellant raises one
assignment of error, dilatory post-trial processing, which merits discussion and
relief. We have also considered those matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); they lack merit.

        Over one year elapsed between announcement of sentence on 5 November
2013 and the convening authority’s initial action 7 November 2014. The record of
trial (ROT) documenting this judge-alone guilty plea is brief, consisting of two
volumes and 157 pages of trial transcript. 1

       After the military judge authenticated the ROT, it was mailed from Germany
(apparently the location of the military judge’s chambers at that time) to Shaw Air
Force Base, South Carolina; postal transit took 47 days. After the ROT arrived
stateside, three and a half months elapsed before the staff judge advocate signed the
recommendation (SJAR) required by Rule for Courts-Martial [hereinafter R.C.M.]
1106; the government has offered no explanation for this period.

        After the SJAR was signed, another 84 days elapsed before the government
served it and the ROT on appellant. Aside from six days of postal transit, the
government has offered no explanation for this period.

       On 29 May 2014, trial defense counsel asserted appellant’s right to speedy
post-trial processing in a memorandum to the staff judge advocate. Once provided
the ROT and SJAR, appellant took approximately three months to submit matters
under R.C.M. 1105. Beyond the approved twenty-day delay to submit those matters,
we can discern no reason for this passage of time. The clemency matters consist of
four pages.

      After the convening authority’s initial action, forty days passed before the
case was docketed with this court. The government’s explanation for this delay is
not persuasive.

       We review de novo appellant’s claim that he has been denied his due process
right to speedy post-trial review. United States v. Moreno, 63 M.J. 129, 135
(C.A.A.F. 2006). Our superior court has adopted the four-factor balancing test from
Barker v. Wingo, 407 U.S. 514, 530 (1972) to determine whether a due process
violation has occurred: (1) the length of the delay; (2) the reasons for the delay; (3)
the appellant's assertion of the right to timely review and appeal; and (4) prejudice.
Id.

     We presume unreasonable delay when more than 120 days elapse between
completion of an appellant’s trial and action by the convening authority. Id. at 142.



    We do commend the quick transcription time – only eleven days.


                                           2
OSBORN — ARMY 20130949

A similar presumption is applied where the record of trial is not received by the
service court of criminal appeals within 30 days of convening authority action. Id.

       Appellant asserts no prejudice and we find none. However, we may
nonetheless find a due process violation if “in balancing the other three factors, the
delay is so egregious that tolerating it would adversely affect the public’s perception
of the fairness and integrity of the military justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the lengthy delay and the
government’s explanation or lack of explanation, we hold that the post-trial delay in
this case is sufficiently egregious to find a due-process violation under Toohey,
despite appellant’s less than timely submission of clemency matters. Id. at 362. As
a remedy, we shall reassess the sentence, affirming only so much of the sentence as
provides for a bad-conduct discharge and confinement for eight months.

       We must also review the appropriateness of appellant’s sentence in light of
the lengthy post-trial processing. See 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
unreasonable post-trial delay.”). Upon review of the entire record, to include, inter
alia, the lengthy post-trial delay, the government’s unconvincing explanation, the
untimely clemency matters and the absence of prejudice, we find appellant’s
reassessed sentence is appropriate.

                                   CONCLUSION

      The findings of guilty are AFFIRMED.

       Reassessing the sentence in accordance with Tardif, we affirm only so much
of the sentence as provides for a bad-conduct discharge and confinement for eight
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.

      Senior Judge HAIGHT and Judge ALMANZA concur.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:




                                         MALCOLMH.
                                        MALCOLM      H.SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                         Clerkof
                                        Clerk  ofCourt
                                                  Court




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