UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                             YOB, KRAUSS, and BURTON
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                     Private E2 CHRISTOPHER T. BURKS
                         United States Army, Appellant

                                  ARMY 20111177

                      Headquarters, III Corps and Fort Hood
                  James Varley and Jeffrey Hart, Military Judges
  Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate (pretrial and
                                    addendum)
         Colonel Stuart W. Risch, Staff Judge Advocate (recommendation)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain J. Fred Ingram, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA
(on brief).


                                   28 January 2013
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

KRAUSS, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave, one
specification of wrongful use of marijuana and one specification of wrongful use of
cocaine, in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10
U.S.C. §§ 886, 912a (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for ten months, forfeiture of
$978.00 per month for ten months, and reduction to the grade of E-1. In accordance
with the terms of a pretrial agreement, the convening authority approved eight
months confinement and the remainder of the adjudged sentence.

       This case is before the court for review under Article 66, UCMJ. Appellant
asserts excessive post-trial delay warrants relief and personally raises matters
BURKS — ARMY 20111177

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have
considered the record of trial, appellant’s assignment of error, the government’s
answer, and the matters raised pursuant to Grostefon. Though we do not find any
actual prejudice to appellant, we agree with appellant that the unexplained and
excessive post-trial delay in the process of this case warrants relief.

       Here, the government brought appellant to trial, at a special court-martial,
eight and a half months after his return from an unauthorized absence of more than
thirty-five months. He pled guilty to three of the four specifications alleged. The
government did not try to prove the fourth specification referred. The trial
transcript is eighty-two pages. Time between sentence and action in this case was
232 days. Neither the convening authority nor the Staff Judge Advocate included
any explanation for the time required to complete the post-trial processing in this
case and nothing in the record establishes any delay on the part of appellant. The
length of this processing time without explanation, let alone justification, warrants
relief under the particular circumstances of this case. UCMJ art. 66(c); see United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (creating a 120-day presumption of
unreasonable delay); see generally United States v. Toohey, 63 M.J. 353, 362–63
(C.A.A.F. 2006); Moreno, 63 M.J. at 143; United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002); United States v. Ney, 68 M.J. 613, 616–17 (Army Ct. Crim. App.
2010). Reviewing the entire record of trial, and in light of the government’s failure
to provide reasons for excessive post-trial processing time, along with the particular
circumstances of this case, we find a reduction of one month in the sentence
appropriate.

       Therefore, on consideration of the entire record, the assigned error, and
matters raised pursuant to United States v. Grostefon, 12 M.J. at 431, we find the
findings of guilty correct in law and fact, and they are affirmed. However, in light
of our reasons above, we find that, in relation to appellant’s approved sentence to
eight months confinement, only seven months should be approved. Therefore, the
court approves only so much of the sentence as provides for a bad-conduct
discharge, confinement for seven months, forfeiture of $978.00 per month for ten
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 his sentence set aside
by this decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).


                                        FOR  THE COURT:
                                        FOR THE COURT: 




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


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