UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           HERRING, PENLAND, and WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Specialist ALVIN S. BANKS
                          United States Army, Appellant

                                   ARMY 20130948

                       Headquarters, 7th Infantry Division
                  Craig S. Denney, Military Judge (arraignment)
                       David L. Conn, Military Judge (trial)
       Lieutenant Colonel Michael S. Devine, Staff Judge Advocate (pretrial)
            Colonel Robert F. Resnick, Staff Judge Advocate (post-trial)

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Ryan T. Yoder, JA (on brief); Lieutenant Colonel Jonathan F. Potter, JA;
Captain Ryan T. Yoder, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
John Gardella, JA (on brief).


                                    16 August 2016

                              -----------------------------------
                                OPINION OF THE COURT
                              -----------------------------------

WOLFE, Judge:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of violating a general order and one
specification of abusive sexual contact, in violation of Articles 92 and 120, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 920 (2012). The
court-martial sentenced appellant to be discharged from the Army with a bad-
conduct discharge, to be confined for thirty days, to forfeit all pay and allowances,
and to be reduced to the grade of E-1. The convening authority approved the
sentence as adjudged.

      This case is before us pursuant to Article 66(b), UCMJ. Appellant assigns
one error that requires discussion and relief. We have considered the matters
BANKS—ARMY 20130948

personally submitted by appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) and determine they do not merit relief.

                                    BACKGROUND

       Appellant’s convictions stem from a single incident in July 2012 at Forward
Operating Base Lagman, Afghanistan. On 29 July 2012, Sergeant (SGT) NK awoke
to appellant in her living quarters and pulling down her pajama bottoms. After
awaking, appellant said to SGT NK, “Let me taste it just one time.” After a brief
verbal altercation appellant left. For this conduct, appellant was convicted of
abusive sexual contact for touching SGT NK’s hip while trying to pull down her
pajama bottoms, and for disobeying a general order that prohibited soldiers of the
opposite sex from entering each other’s living space without permission and under
certain conditions. 1

                                      DISCUSSION

        On appeal, appellant’s sole assignment of error concerns the dilatory post-
trial processing of the case. Appellant alleges the government allowed 440 days to
elapse between sentencing and action and requests relief under United States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006). The government arrives at a different
calculation and asserts the government is responsible for only 281 days of delay.
The discrepancy between the two parties’ calculations is caused by differing
opinions on how to calculate the time taken by the defense counsel to submit matters
to the convening authority under Rule for Courts-Martial [R.C.M.] 1105. As we
repeatedly see cases in which these issues are disputed, we resolve them today.

                                  A. Calculation of time

      The sentence in this case was adjudged on 6 November 2013. On 8 August
2014, appellant received his copy of the staff judge advocate recommendation
(SJAR) and the authenticated record of trial. The government sent the defense
counsel several emails requesting submission of the R.C.M. 1105 matters and
requesting an update. On 1 October 2014, defense counsel responded that
submission of the matters “may take another 2 weeks.” Matters were submitted on 8
January 2015; 153 days after receipt of the SJAR and record of trial. 2

1
    Appellant was acquitted of the offense of attempted sexual assault.
2
    Although not relevant in deciding this issue, we note that between sentencing and

                                                                          (continued . . . )


                                            2
BANKS—ARMY 20130948

       Article 60(b)(1), UCMJ, provides that an accused’s submissions to the
convening authority “shall be made within 10 days after the accused has been given
an authenticated record of trial and, if applicable, the recommendation of the staff
judge advocate.” If an accused shows that additional time is required to submit
matters, for “good cause” the government may “may extend the applicable period . .
. for not more than an additional 20 days.” Article 60(b)(2)(emphasis added).

        Accordingly there are three periods of time we must determine how to count
for purposes of determining whether there is a presumptive violation of Moreno: the
initial ten-day period; the optional twenty-day extension; and any period of time
taken by the defense beyond the initial thirty days.

       First, with regards to the initial ten days that an accused has to submit R.C.M.
1105 matters, we do not believe any deduction is appropriate. That is, it is
irrelevant for Moreno purposes whether the accused makes his 1105 submissions in
two days or ten days. The accused has, as a matter of right under Article 60, ten
days. As the ten-day period applies in all cases, we do not think our superior court
intended to exclude it for purposes of applying their decision in Moreno. See e.g.,
United States v. Toro, ARMY 20130441, 2015 CCA LEXIS 450, at *10 (Army Ct.
Crim. App. 23 Oct. 2015); United States v. Kindle, 2015 CCA LEXIS 43, *14 (Army
Ct. Crim. App. 10 Feb. 2015); United States v. Davenport, 2013 CCA LEXIS 361,
*28 n. 13 (Army Ct. Crim. App. 18 Apr. 2013)(reversed on other grounds).

       However, we come to the opposite conclusion when addressing the twenty-day
extension. An extension may be granted only upon a showing by the accused that
additional time is needed. Accordingly, when an accused requests an extension and
the extension is granted, the period of the extension should not be included when
calculating government compliance with Moreno.

( . . . continued)
receiving a copy of the record of trial the defense counsel left active duty. In the
written acknowledgement of appellant’s post-trial rights, the defense counsel stated
he would continue to be responsible for appellant’s post-trial matters. Additionally,
during an Article 39(a) session held to discuss appellant’s post-trial rights, defense
counsel acknowledged he would shortly be going on terminal leave, but described
his responsibility to appellant as “a lingering responsibility.”

In a memorandum submitted on behalf of his client as part of the R.C.M. 1105
submission, counsel noted that his civilian employment requirements had delayed his
submissions. (In that same memorandum, defense counsel raised unacceptable post-
trial delay as an allegation of legal error). Appellant asserts on appeal that the
government should be responsible for this time as it was the government’s
responsibility to sua sponte provide substitute counsel. This strikes us as an unwise
invitation for government interference with an accused’s right to representation.
                                           3
BANKS—ARMY 20130948


       As to the third period of time, Article 60 establishes a mandatory (“shall”)
filing deadline of ten days for an accused to submit R.C.M. 1105 matters. As
discussed above, the government may extend that period for “not more than” twenty
days. That is, not only is there no authority for the government to grant an
extension beyond twenty days; the plain meaning of Article 60(b)(2) prohibits it.
Accordingly, we cannot relieve the government of their obligation to comply with
Moreno when there was no authority to extend the amount of time for the defense to
submit matters under R.C.M. 1105.

       Prior to our superior court’s decision in Moreno, we said, “Defense counsel
bear responsibility for timely submissions and we will not hold their undue delay
against the government.” United States v. Garman, 59 M.J. 677, 680-81 (Army Ct.
Crim. App. 18 Dec. 2003). Notwithstanding the foregoing, the government must
remain vigilant over the entire post-trial processing phase of the case. As numerous
cases have demonstrated, the admonishment to the government to stay vigilant was
insufficient, resulting in the CAAF’s decision in Moreno. 3 To the extent that our
pre-Moreno cases say we will not hold defense counsel’s undue delay against the
government, they are no longer reliable.

       The corollary of this reasoning is that when an accused fails to file R.C.M.
1105 matters in a timely manner the government is not required to wait for an
untimely submission. Article 60 specifically provides for the convening authority
taking action “after the time for submitting such matters expires.” Article 60(c)(2).
This makes sense as the government cannot simultaneously be responsible for
compliance with Moreno and yet be unable to advance the case until they receive a
tardy counsel’s submission. Defense counsel are necessarily independent from the
chain of command. See Army Reg. 27-10, Legal Services: Military Justice
[hereinafter AR 27-10] para. 6-3 a. (Chief of the Trial Defense Service exercises
supervision and control over defense counsel).




3
 United States v. Oestmann, 61 M.J. 103 (C.A.A.F. 2005); United States v. Jones,
61 M.J. 80 (C.A.A.F. 2005); Rodriguez-Rivera v. United States and The Judge
Advocate General of the Navy, 61 M.J. 19 (C.A.A.F. 2005); United States v. Toohey,
60 M.J. 100 (C.A.A.F. 2003); Diaz v. The Judge Advocate General of the Navy, 59
M.J. 34 (C.A.A.F. 2003); United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).



                                          4
BANKS—ARMY 20130948

      The rules for courts-martial are even clearer. “Failure to submit matters
within the time prescribed by this rule shall be deemed [forfeiture] of the right to
submit matters.” R.C.M. 1105(d)(1). 4

      We note that we have seldom rigorously applied forfeiture in the past. So, in
United States v. Borden, 74 M.J. 754 (Army. Ct. Crim. App. 2015) we granted
appellant’s request for a new action notwithstanding that we found the convening
authority had acted after appellant had missed the deadline for filing his R.C.M.
1105 matters.

       Our prior cases also demonstrate a reluctance to consider whether defense
counsel were ineffective for failing to submit timely R.C.M. 1105 matters. In
United States v. Palmer, we ordered a new action and specifically declined to
address the issue of whether counsel was ineffective for missing the R.C.M. 1105
submission deadline. United States v. Palmer, ARMY 20050769, 2007 CCA LEXIS
592, at *2-3 (Army Ct. Crim. App. 7 Aug. 2007).

       However, we determine it is worth reconsidering how we address these issues
for several reasons:

       First, when counsel miss a mandatory filing deadline–and that is what is
meant by “shall be made within 10 days”–we should address head-on the issue that
this presents: Was counsel ineffective? See Strickland v. Washington, 466 U.S. 668
(1984). To the extent that the current practice has avoided this issue by routinely
delaying convening authority action to accommodate tardy submissions, it rests on
shaky reasoning. Though providing for an ultra vires extension of the time for the
defense to submit matters may moot a claim of ineffective assistance of counsel
(IAC) by extinguishing the prejudice prong in a Strickland analysis, such a practice
elevates the interests of counsel (by avoiding an IAC claim) over the interests of

4
  R.C.M. 1105 (d)(1) uses the term “waiver.” We use the word “forfeiture” instead
of “waiver” here for two reasons. First, Article 60(b)(4) describes “waiver” of post-
trial matters as a written submission (i.e. an express written waiver). It is confusing
to use the term “waiver” to mean both the failure to act (as used in R.C.M. 1105(d))
and an intentional express written waiver (as used in Article 60(b)(4)). Second, the
word “forfeiture” is consistent with the analytical construct set forth by our superior
court, in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (“Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right. The distinction
between the terms is important. If an appellant has forfeited a right by failing to
raise it at trial, we review for plain error. When, on the other hand, an appellant
intentionally waives a known right at trial, it is extinguished and may not be raised
on appeal.”) (internal citations and quotations omitted).

                                           5
BANKS—ARMY 20130948

justice (with regards to both appellant and society). For example, in this case
neither party argues that appellant’s 1105 matters reflect a five-month effort or that
appellant was well-served by the untimely submissions. In fact, appellant’s counsel
admitted in his R.C.M. 1105 submission that the 153-day delay did not benefit
appellant and instead “were entirely for the accommodation of Defense Counsel.”
The government, in effect, argues that appellant should be held responsible for his
counsel’s dilatory effort. But it is the government, not appellant, who is responsible
for post-trial processing and it is the convening authority, not appellant, that
determines when action is taken on the case.

       Second, recent amendments to Article 60 have dramatically altered the
convening authority’s ability to grant clemency. Almost all cases referred to this
court are referred pursuant to Article 66(b)(1). That is, cases in which the approved
sentence extends to death, a dismissal or punitive discharge, or a term of
confinement of more than one year. With this class of cases, unless the case
involves charges that predate the amendments to Article 60, 5 the convening authority
is prohibited from modifying the findings or ordering a rehearing, 6 and may take
action only on that part of the sentence that does not include a discharge or
confinement of more than six months. When one considers the automatic reduction
and forfeiture provisions of Articles 58a and 58b, the convening authority’s ability
to give meaningful relief as part of his action may be minimal in many cases. 7 Delay
that may have been tolerable when it at least served to inform the convening
authority’s broad clemency powers becomes less tolerable when that authority is
substantially diminished.

5
 If all of the offenses occurred on or after 24 June 2014, the new subsections (b)–(f)
of R.C.M. 1107, which limit the convening authority’s clemency power, apply,
otherwise the prior version of R.C.M. 1107 applies to all offenses in the case. . . .”
Executive Order 13696, 80 Fed. Reg. 35,810 (22 June 2015). In this case the
offenses were committed on 29 July 2012. 
6
 A convening authority may order a rehearing “if he disapproves the findings and
sentence.” Article 60(f)(3). It follows that if the convening authority cannot
disapprove the findings or sentence he cannot order a rehearing.
7
  More broadly, the entire post-trial process was designed to collect and filter
information so as to inform the convening authority’s decision at initial action. For
example, the staff judge advocate is required to respond to the assertion of legal
error in R.C.M. 1105 matters in the addendum. R.C.M. 1106(d)(4). This
requirement remains, even in cases where the convening authority lacks the ability
to correct the error. The long-term effects of the changes to the convening
authority’s Article 60 responsibilities continue to be determined.


                                          6
BANKS—ARMY 20130948

       Third, our superior court has recognized “the need for prompt disposition of
disciplinary matters” and “that the unique nature of review under Article 66(c),
UCMJ, ‘calls for, if anything, even greater diligence and timeliness than is found in
the civilian system.’” Moreno, 63 M.J. at 142 (citing Diaz v. The Judge Advocate
General of the Navy, 59 M.J. 34, 39 (C.A.A.F. 2003)). In Moreno, our superior
court found that “[d]elays have been tolerated at all levels in the military justice
system so much so that in many instances they are now considered the norm.” Id. at
143. Such considerations call for greater adherence to mandatory deadlines, not
less.

       Finally, in a case where the time for the defense to submit R.C.M. 1105
matters has expired, the convening authority is free to take action on the court-
martial. 8 That is, whether to take action on the court-martial is entirely a
discretionary decision by the government. Article 66(c)(2) (The convening authority
may take action only after receipt of matters or after the time to submit matters has
expired).

       Accordingly, we hold that in calculating compliance with Moreno’s 120-day
threshold, when considering submissions under R.C.M. 1105 the only time that may
be excluded from the calculation is when the accused has requested (and been
granted) a twenty day extension in accordance with Article 60(b). As after the
authorized time has expired the convening authority is authorized to take action, any
additional time taken by the defense will continue to accrue towards the Moreno
120-day presumption of unreasonableness. 9 This holding is also consistent with the
prescribed calculation of “cumulative elapsed days” in preparing Dep’t of the Army
Form 5112. See Army Reg. 27-10, para. 5-41(b) (allowing deductions only for
extensions of time granted pursuant to RCM 1105(c)(1), 1106(f)(5), 1110(f)(1) and

8
  Of course, if the defense submits untimely matters, but they are submitted before
the convening authority takes action, the convening authority should still consider
the matters. The intent here is not to encourage gamesmanship, but rather to hold
both government and the defense to the time periods prescribed by Congress in
Article 60 and our superior court’s decision in Moreno. See also United States.
Travis, 66 M.J. 301, 304 (C.A.A.F. 2008) (“An SJA need not rush into action . . . .
We urge a commonsense approach to guarantee a convicted servicemember gets full
and fair clemency consideration and that convening authorities have everything they
need to prudently exercise their unique clemency function at action.”).
9
 We reiterate our superior court’s reasoning in Moreno: “These presumptions of
unreasonable delay will be viewed as satisfying the first Barker [v. Wingo, 407 U.S.
514, 530 (1972)] factor and they will apply whether or not the appellant was
sentenced to or serving confinement. It is important to note that the presumptions
serve to trigger the four-part Barker analysis –not resolve it.” Moreno, 63 M.J. at
142 (citing Barker).
                                          7
BANKS—ARMY 20130948

where action is specifically deferred pending the accused’s testimony in another
case). The regulation prohibits including deductions for any other reason. Id.

      Applying this holding to appellant’s case we adopt appellant’s calculations of
440 days having elapsed between sentencing and action.

                                      B. Analysis

      In Moreno, our superior court adopted the four part analysis set out forth in
Barker v. Wingo, 407 U.S. 514, 530 (1972): (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. United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005).
Having calculated the length of delay as 440 days, we must now turn to the
remaining factors.

                               1. Reasons for the delay

       The chief of justice addressed in a memorandum the second factor: the
reasons for delay. He explained that the 7th Infantry Division was activated in
October 2012 and that court-martial volume, staff shortages, and scheduled leave
and holidays contributed to the delay in processing appellant’s case. In Moreno, our
superior court stated that it is the government’s responsibility to “provide adequate
staffing” of the appellate divisions. Moreno, 63 M.J. at 137. We believe the same
logic applies to the staffing of military justice sections. United States v. Arriaga, 70
M.J. 51, 57 (C.A.A.F. 2011) (“personnel and administrative issues . . . are not
legitimate reasons justifying otherwise unreasonable post-trial delay.”). 10 Even if
we were to assume that staff shortages would justify an extended delay, the record
contains no evidence of the government’s steps to acquire additional persons.
Certainly staff shortages cannot justify an excessive delay if no action was taken to
remedy the problem.

       The standing up of a new division is an operational requirement that may (at
least initially) be considered in determining whether a delay was reasonable.
However, as time passes what may have been initially excusable transmutes into a
routine staffing issue. On balance, we find the chief of justice’s explanation
unpersuasive. This case was not long or complex. The convening authority’s
action, for example, was not delayed in order to have appellant testify in a related
case or similar concerns.


10
  This court’s holding in United States v. Bauerbach that “exceptionally heavy
military justice post-trial workload” would excuse post-trial delay must yield to our
superior court’s determination of the issue. 55 M.J. 501, 507 (Army. Ct. Crim. App.
2001).
                                           8
BANKS—ARMY 20130948


       By contrast, the military judge’s explanation that he was delayed in
authenticating the record because he had recently received records totaling 9,000
pages was reasonable. Military judges are not fungible, and the detailing of
additional military judges would not have reduced this judge’s requirement to
personally authenticate this record.

       On balance we find no reasonable explanation for the delay in processing this
case, which favors appellant.

                2. Appellant’s assertion of the right to timely action

      As to the third consideration, appellant did not make a timely request for the
speedy post-trial processing of his case. This factor obviously weighs in favor of
the government.

                                     3. Prejudice

       The only prejudice cited by appellant is that the delay is so egregious that
“under the totality of the circumstances it affects the public’s perception of fairness
and integrity of the military justice system.” While we agree with appellant’s
characterization of the delay as “egregious” we disagree that appellant has suffered
any prejudice. For example, as appellant was sentenced to only thirty days of
confinement, he was not subject to “oppressive incarceration pending appeal.”
Moreno at 138 (citing Rherark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 1980)).

       On balance, we do not find the delay in this case constituted a due process
violation.

        However, we must still consider whether the sentence is appropriate under our
Article 66(c) duties. Here, we find ourselves at a familiar crossroads. The sentence
as adjudged is not inappropriate given appellant’s offenses. But, our duty is to
review the sentence “as approved” which includes an assessment of the unreasonable
post-trial delay. Thus, we are forced to choose between either reducing an earned
sentence or appearing to turn a blind eye to excessive delay. We provide appellant
relief in our decretal paragraph.




                                           9
BANKS—ARMY 20130948


                                  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. 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).

      Judge HERRING and Judge PENLAND concur.

                                      FOR THE
                                      FOR THE COURT:
                                              COURT:




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




                                         10
