                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

                     Michael E. BODKINS, Private (E-2)
                            U.S. Army, Appellant

                                      No. 04-0252
                             Crim. App. No. 20010107

       United States Court of Appeals for the Armed Forces

                             Argued October 12, 2004

                            Decided November 4, 2004



                                         Counsel


For Appellant: Captain Amy S. Fitzgibbons (argued); Colonel
    Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, Major
    Allyson G. Lambert and Captain Terri J. Erisman (on brief).


For Appellee: Captain Magdalena A. Przytulska (argued); Colonel
    Steven T. Salata, Lieutenant Colonel Margaret B. Baines and
    Major Theresa A. Gallagher (on brief).




Military Judge:        Donna L. Wilkins


        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bodkins, No. 04-0252/AR


    PER CURIAM:

    At a special court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of two periods of unauthorized absence, in violation of Article

86, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. § 886.   He was sentenced to a bad-conduct discharge,

confinement for two months, forfeiture of $695 pay per month for

two months, and reduction to E-1.      The convening authority

approved the sentence as adjudged, and the Army Court of

Criminal Appeals affirmed in a published opinion.      59 M.J. 634

(A. Ct. Crim. App. 2003).

     On Appellant’s petition, we granted review of the following

issue:

          WHETHER THE ARMY COURT OF CRIMINAL APPEALS
          ABDICATED ITS ARTICLE 66(C) RESPONSIBILITY
          WHEN IT FOUND THAT THE POST-TRIAL PROCESSING
          OF APPELLANT’S CASE WAS UNREASONABLE,
          UNEXPLAINED, AND DILATORY, BUT REFUSED TO
          CONSIDER THIS ERROR IN ANALYZING THE
          APPROPRIATENESS OF APPELLANT’S SENTENCE
          BECAUSE IT RULED THAT THE ERROR WAS WAIVED.


                            I. BACKGROUND


     As noted by the Court of Criminal Appeals, Appellant pled

guilty and was sentenced in a court-martial that resulted in a

short, seventy-four page record.       59 M.J. at 634-35.   The court-

martial proceedings did not produce any legal or factual issues.



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United States v. Bodkins, No. 04-0252/AR


Id. at 635.    No issues of significance were raised by the staff

judge advocate or the defense for consideration by the convening

authority.    Id.   Despite the apparently routine nature of the

trial proceedings, the post-trial proceedings were marked by

substantial delay.    A total of 412 days elapsed from the date

the court-martial adjudged the sentence to the date of the

convening authority’s action on the sentence.

     In the course of determining whether the findings and

sentence should be approved under Article 66(c), UCMJ, 10 U.S.C.

§ 866(c), the lower court considered whether relief was

warranted as a result of post-trial delay.    See 59 M.J. 635-36

(citing United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002);

United States v. Collazo, 53 M.J. 721 (A. Ct. Crim. App. 2000)).

The court stated:

             Despite unreasonable, unexplained, and
             dilatory post-trial processing, we conclude
             that relief is waived. Trial defense
             counsel did not request speedy post-trial
             processing. Neither trial nor appellate
             defense counsel sought any reduction in
             appellant’s sentence as a result of the slow
             post-trial processing. Trial defense
             counsel must make a timely request for
             speedy post-trial processing, if that is
             what appellant desires.

Id. at 634 (footnotes omitted).    The court also noted that

Appellant did not request expeditious post-trial processing, and

suggested possible reasons for not making such a request:




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United States v. Bodkins, No. 04-0252/AR


          A possible tactical reason for appellant and
          his counsel not to ask for expeditious post-
          trial processing, thereby hastening the
          execution of appellant’s discharge, is the
          continuing availability of military
          benefits. . . . Although appellant was not
          entitled to pay and allowances while on
          excess leave, he and his family, if any,
          were entitled to other important benefits.
          He and his family presumably retained their
          military identification cards and were
          entitled to medical, commissary, and post-
          exchange benefits to the same degree as
          other active duty soldiers and family
          members, up to the point of appellant’s
          discharge. . . . Furthermore, appellant may
          have had other compelling personal reasons
          for not wanting expeditious execution of his
          discharge; this court will not speculate
          about these reasons, if any.


Id. at 637 (citations and footnote omitted).



                         II. DISCUSSION

     The requirement to take post-trial action on the results of

a court-martial is vested in a military commander, the convening

authority, who performs this function with the assistance of his

or her staff judge advocate.   Article 60, UCMJ, 10 U.S.C. § 860.

The responsibility of the convening authority to complete post-

trial processing in a timely fashion is not dependent upon a

request to do so from the accused.

     A Court of Criminal Appeals must review the record in each

case referred to it and “may affirm only such findings of guilty

and the sentence or such part or amount of the sentence as it


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United States v. Bodkins, No. 04-0252/AR


finds correct in law and fact and determines, on the basis of

the entire record, should be approved.”    Article 66(c), UCMJ, 10

U.S.C. § 866(c).   In performing its affirmative obligation to

consider sentence appropriateness, the court must take into

account “all the facts and circumstances reflected in the

record, including [any] unexplained and unreasonable post-trial

delay.”   Tardif, 57 M.J. at 224.

     In the present case, the court below described the post-

trial processing of this case as “unreasonable, unexplained, and

dilatory.”   59 M.J. at 634.   Under these circumstances, the

court erred in asserting that the defense was required to ask

for timely processing, and that failure to do so waived any

right to relief.

     Under Tardif, the Courts of Criminal Appeals have broad

discretion to grant or deny relief for unreasonable or

unexplained delay, and a finding of specific prejudice is not

required.    57 M.J. at 224.   The court has discretion to take

into account the impact -- or lack thereof -- of any delay on

the accused.   See id. at 225 (noting the authority of the Courts

of Criminal Appeals “to tailor an appropriate remedy, if any is

warranted, to the circumstances of the case”).    In so doing, the

court may consider the absence of a defense request for action

as one factor among other considerations in assessing the impact

of delay in a particular case, but it may not elevate that


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factor into the conclusive basis for denying relief by using the

mere absence of a request to find waiver.    Cf. United States v.

Toohey, 60 M.J. 100, 102-03 (C.A.A.F. 2004) (discussing factors

that may be considered by the Courts of Criminal Appeals in

exercising their unique powers under Article 66).    See also

Article 61(a), 10 U.S.C. § 861(a) (review of the findings and

sentence by the Court of Criminal Appeals may be waived only if

an express waiver is filed with the convening authority by the

accused after trial).

        The court also may rely upon continuing eligibility for

limited military benefits as a factor in assessing the impact of

post-trial delay, but it must do so in a manner that focuses on

the circumstances of the particular case.    Because post-trial

processing entails continuing eligibility for benefits in all

cases, it is not appropriate to rely on the availability of

benefits as a basis for denying relief in a particular case

without relating it to the circumstances of the accused in that

case.    In that regard, we note that the court below speculated

as to the possible interest of the accused and his family in

continued benefits, 59 M.J. at 637, but the record indicates

that the accused did not have any dependents.

        Under these circumstances, we cannot be confident that the

court below took into account “all the facts and circumstances

reflected in the record,” Tardif, 57 M.J. at 224, in determining


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whether relief is warranted for the unreasonable, unexplained,

and dilatory post-trial processing in this case.     Accordingly,

a remand for further consideration is appropriate.



                        III.   CONCLUSION

     The decision of the Court of Criminal Appeals is affirmed

as to findings and set aside as to sentence.   The record is

returned to the Judge Advocate General of the Army for remand to

the Court of Criminal Appeals for further consideration of

whether the sentence should be approved in view of the court’s

determination on initial review that the post-trial processing

of this case was unreasonable, unexplained, and dilatory.

Thereafter, Article 67 will apply.




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