             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                                 Staff Sergeant PATRICK J. GRIEGO
                                         United States Air Force

                                                  ACM 38600

                                              5 November 2015

            Sentence adjudged 14 February 2014 by GCM convened at Joint Base San
            Antonio–Randolph, Texas. Military Judge: Wendy L. Sherman.

            Approved Sentence: Bad-conduct discharge, confinement for 9 months,
            and reduction to E-1.

            Appellate Counsel for Appellant:                   Major Jennifer J. Raab and
            Captain Lauren A. Shure.

            Appellate Counsel for the United States: Major Mary Ellen Payne;
            Captain Richard J. Schrider; and Gerald R. Bruce

                                                      Before

                                   ALLRED, HECKER, and SANTORO
                                       Appellate Military Judges

                                        OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                 under AFCCA Rule of Practice and Procedure 18.4.



HECKER, Senior Judge:

       A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of assaulting his girlfriend and her two-year old son and violating a
no-contact order, in violation of Articles 128 and 92, UCMJ, 10 U.S.C. §§ 928, 892.1


1
 Appellant was acquitted of communicating a threat to his girlfriend, in violation of Article 134, UCMJ, 10 U.S.C. §
934.
The adjudged and approved sentence was a bad-conduct discharge, confinement for 9
months, and reduction to E-1.

        Before us, Appellant asserts two post-trial processing errors: (1) there is no
evidence his clemency submission was considered by the convening authority who took
the second action in his case, and (2) the 180-day period between the completion of his
trial and convening authority action merits relief.

                                                 Background

       Appellant’s trial concluded on 14 February 2014. Pursuant to Article 57, UCMJ,
10 U.S.C. § 857, the adjudged reduction in rank would take effect 14 days later, on 28
February 2014. Beginning that day, Appellant would also automatically forfeit his pay
and allowances. Article 58b, UCMJ, 10 U.S.C. § 858b.

       On 26 February 2014, trial defense counsel asked the convening authority to defer
the adjudged reduction in rank and the automatic forfeitures until action, and also to
waive the automatic forfeitures for a further six months following action. The convening
authority responded to that request through a memorandum signed on 3 March 2014. He
deferred the adjudged reduction and automatic forfeitures from 28 February 2014 until
action. He also agreed he would waive automatic forfeitures upon taking action, but
stated the six-month waiver would commence on 28 February 2014 instead of upon
action (as requested by the defense).

        On 1 May 2014, action in the case was taken by a subordinate to the convening
authority who had temporarily assumed command during his absence. She approved the
sentence after reviewing Appellant’s clemency submission, but her action was flawed in
that it failed to properly account for the previously-approved deferral of the reduction in
rank and automatic forfeitures.2 The action did, however, contain language waiving the
automatic forfeitures for six months with a start date of 28 February 2014, consistent with
the original convening authority’s prior approval.

       The error in the action was not caught until several months later when military pay
technicians sought to recoup from Appellant the pay and forfeitures that had been paid to
him based on the approved deferral. According to an unrebutted affidavit signed by the
legal office’s chief of military justice, finance personnel would not accept the original
convening authority’s memorandum and instead required a corrected court-martial order
that explicitly incorporated the deferral and waiver.



2
  See Air Force Instruction (AFI) 51-201, Administration of Military Justice, ¶ 9.29.1.3 (6 June 2013) (“The terms
of approved deferrals must . . . be reported in the action the convening authority ultimately takes on the case.”)


                                                        2                                            ACM 38600
        Meanwhile, the case was docketed with this court on 21 May 2014. According to
his affidavit, the chief of military justice consulted with personnel in the Air Force Legal
Operations Agency’s Military Justice Division (JAJM) on 11 August 2014, and was
advised that the convening authority should withdraw the initial action and issue a new
action that included the missing language.

        The new action was issued on 13 August 2014, along with a new court-martial
order. By this time the original convening authority had resumed his duties and it was he
who issued the new action and order. Both state in pertinent part: “In the case of
[Appellant], having been returned by higher headquarters, the action taken on 1 May
2014 is hereby withdrawn and General Court-Martial Order No. 10, this headquarters,
dated 1 May 2014, is hereby rescinded and the following is substituted for the original
action: . . . .” The action then approved the adjudged sentence and contained language
regarding the deferral.3 This action indicated the reduction and automatic forfeitures
were deferred from 28 February until 1 May 2014 (the day of the original action). 4 As he
had done in his original memorandum, the convening authority also waived the automatic
forfeitures for six months, commencing on 28 February 2014.5

        There is no evidence in the post-trial processing that the convening authority who
signed the second action had access to or reviewed Appellant’s clemency submission
prior to taking action on the case in August 2014, or that he consulted with the convening
authority who took action on the case on 1 May 2014. The chief of military justice’s
affidavit states that both the SJAR and its addendum were made available to the
convening authority when she initially took action in May 2014. However, his affidavit
is silent on whether the same documents (to include Appellant’s clemency request) were
provided to the second convening authority in August 2014 before he took what became
the final action in this case.

        Based on this, Appellant argues he is entitled to new post-trial processing. The
Government argues that, because the convening authority who took the initial action
reviewed the SJAR, addendum, and clemency request, the convening authority who took
final action need not have reviewed the same.




3
  On 28 August 2014, this court granted a Government request to file the order and action.
4
  The action cited the wrong section of the UCMJ when annotating the prior approval of the deferment. Deferral of
adjudged reductions in grade and mandatory forfeitures are authorized by Articles 57(a)(2) and 58b(a)(1), UCMJ, 10
U.S.C. §§ 857(a)(2), 858b(a)(1).
5
   This action created an overlap where the automatic forfeitures were both deferred and waived between
28 February and 1 May 2014. It also ended Appellant’s deferral at the date of the withdrawn action instead of
continuing it to the date of the final action.


                                                        3                                            ACM 38600
                                           Post-Trial Processing

       Whether proper completion of post-trial processing occurred is a question of law
which this court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct.
Crim. App. 2004) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). If an
action is found to be “illegal, erroneous, incomplete, or ambiguous” during the review of
the record of trial under Article 66, UMCJ, the convening authority can modify the action
“[w]hen so directed by a higher reviewing authority or the Judge Advocate General.”
Rule for Courts-Martial (R.C.M.) 1107(f)(2); see also R.C.M. 1107(g) (stating the
convening authority “may be instructed by an authority acting under Article 64, 66, 67, or
69 to withdraw the original action and substitute a corrected action” when it is
“incomplete, ambiguous, or contains clerical error”).

        The original action in this case was incomplete in that it did not include language
reflecting the previously-approved deferral. Typically, in this circumstance, this court
would direct the convening authority to correct this error by withdrawing the erroneous
action and substituting a corrected action that contained the deferral language, and also
order the promulgation of a new promulgating order containing the revised action
language.     R.C.M. 1107(f)(2), (g), 1114(b)(2); Air Force Instruction 51-201,
Administration of Military Justice, ¶ 10.10.2 (6 June 2013). Here, these changes were
made at the direction of JAJM prior to our review of the matter. The final action and
promulgating order correct the previous error. Although JAJM’s authority to direct such
a change in a case already pending at this court is not clear, Appellant does not allege any
prejudice from the timing of the correction, and we find no prejudice to Appellant under
these circumstances. We therefore decline to remand the case for a third action which
would ultimately be identical to the second one other than its issuance date.

       Appellant contends, however, that the convening authority who signed the second
action in the case was required to review Appellant’s clemency submission before doing
so. We disagree. Here, the second action was issued as a substitute for the original
action, solely to correct a clerical error contained in it. Such a correction does not
constitute a new action decision in the case. Therefore, even when the substitute action is
signed by a convening authority who is a successor in command, no new post-trial
recommendation is required and there is no requirement that the successor convening
authority review the clemency submission prior to substituting a corrected action. 6 This


6
  In contrast, if the original action is remanded due to an ambiguity about the intent of the original convening
authority and that convening authority has been replaced by a successor, then there must be some evidence that the
successor convening authority communicated with the original convening authority and that the corrected action
reflects the original convening authority’s intent. United States v. Lower, 10 M.J. 263, 265 (C.M.A. 1981).
Alternatively, in that circumstance, the successor convening authority may issue a new action after receiving a new
staff judge advocate’s recommendation and after the accused has a new opportunity to submit clemency matters.
United States v. Gosser, 64 M.J. 93, 96–97 (C.A.A.F. 2006) (per curiam); United States v. Mendoza, 67 M.J. 53, 54
(C.A.A.F. 2008).


                                                        4                                             ACM 38600
is especially true where the correction simply required the insertion of deferral language
already documented in a prior memorandum signed by the convening authority.

                                     Post-Trial Delay

        Appellant’s court-martial concluded on 14 February 2014, and the initial action
was taken 76 days later on 1 May 2014. The corrected action was issued on
13 August 2014, 180 days after the court-martial concluded. Appellant argues that under
United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), this violated his due process
right to speedy appellate review. We disagree.

       We review de novo whether an appellant has been denied the due process right to
speedy post-trial review and whether any constitutional error is harmless beyond a
reasonable doubt. United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). The
overall delay of more than 120 days between adjournment and action is presumptively
unreasonable and triggers an analysis of the four factors elucidated in Barker v. Wingo,
407 U.S. 514 (1972), adopted in Moreno, 63 M.J. at 135. Those factors are “(1) the
length of the delay; (2) the reasons for the delay; (3) whether the appellant made a
demand for a speedy trial; and (4) prejudice to the appellant.” United States v. Mizgala,
61 M.J. 122, 129 (C.A.A.F. 2005) (citing Barker, 407 U.S. at 530).

        The first factor weighs in favor of Appellant; the length of the delay between
adjournment and the corrected action is presumptively unreasonable and therefore
satisfies the first Barker factor. See Moreno, 63 M.J. at 142. The second factor weighs
against Appellant. The original action was taken within the Moreno standard.
Approximately 75 days later, the Government became aware Appellant was being
subjected to an improper debt collection and took prompt steps to remedy this situation
through a corrected action issued approximately 30 days later. Third, although the
Government carries the burden of primary responsibility for speedy post-trial processing,
United States v. Bodkins, 60 M.J. 322, 323–24 (C.A.A.F. 2004), Appellant did not assert
his right to speedy post-trial processing until now on appeal, never asserting this right
during the time of this initial delay. Finally, on the fourth factor, Appellant fails to
articulate any prejudice in this case.

        When there is no showing of prejudice under the fourth factor, “we will find a due
process violation only when, 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 totality of the circumstances and the entire
record, when we balance the other three factors, we find the post-trial delay in this case is
not so egregious as to adversely affect the public’s perception of fairness and integrity of
the military justice system. We are convinced the error is harmless beyond a reasonable
doubt.


                                              5                                    ACM 38600
        However, this does not end our analysis. Having conceded that he cannot
articulate any prejudice, Appellant focuses us on a theory of relief which does not have
that requirement. Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts to
grant sentence relief for excessive post-trial delay without the showing of actual prejudice
required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Tardif, 57 M.J.
224 (C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13, 24–25 (C.A.A.F.
2006). In United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), we
identified a list of factors to consider in evaluating whether Article 66(c), UCMJ, relief
should be granted for post-trial delay. Those factors include how long the delay
exceeded appellate review standards, the reasons for the delay, whether the government
acted with bad faith or gross indifference, evidence of institutional neglect, harm to the
appellant or to the institution, whether relief is consistent with the goals of both justice
and good order and discipline, and whether this court can provide any meaningful relief.
Id. No single factor is dispositive and we may consider other factors as appropriate. Id.

      After considering the relevant factors in this case, we determine that no relief is
warranted. We find there was no bad faith or gross negligence in the post-trial
processing. We find no evidence of harm to the integrity of the military justice system.
We have the authority to tailor an appropriate remedy without giving Appellant a
windfall. See Tardif, 57 M.J. at 225. We have expressly considered whether we should
reduce some or all of Appellant’s sentence. Based on our review of the entire record, we
conclude that sentence relief under Article 66, UCMJ, is not warranted.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



              FOR THE COURT



              LEAH M. CALAHAN
              Clerk of the Court




                                             6                                    ACM 38600
