          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                Senior Airman KYLE P. MOODY
                                     United States Air Force

                                              ACM S32300

                                              2 March 2016

         Sentence adjudged 7 January 2015 by SPCM convened at Joint Base
         Charleston, South Carolina. Military Judge: Matthew S. Ward (sitting
         alone).

         Approved Sentence: Bad-conduct discharge, confinement for 10 months,
         forfeiture of $1,031.00 pay per month for 10 months, and reduction to E-1.

         Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primoli.

         Appellate Counsel for the United States:                Lieutenant Colonel Roberto
         Ramirez and Gerald R. Bruce, Esquire.

                                                  Before

                              MITCHELL, DUBRISKE, and BROWN
                                   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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



MITCHELL, Senior Judge:

        A special court-martial composed of a military judge sitting alone found Appellant
guilty, contrary to his pleas, of use, distribution, and possession of cocaine and
possession of heroin in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. The military
judge sentenced Appellant to a bad-conduct discharge, confinement for 10 months,
forfeiture of $1,492.00 pay per month for 10 months, and reduction to E-1. Pursuant to
the limits of a special court-martial, the convening authority approved forfeiture of only
$1,031.00 pay per month for 10 months but otherwise approved the sentence as adjudged.
       On appeal, Appellant asserts a single assignment of error requesting relief for the
non-prejudicial delay of 37 days between the convening authority’s action and docketing
with this court. We decline to provide relief.

                                       Background

       While off base, Appellant was stopped by local law enforcement for a traffic
violation near an area known for drug activity. The police officer recovered two small
baggies which Appellant had tried to hide in his mouth during the traffic stop. One
baggie was found to contain less than a gram of heroin and the other contained less than a
gram of cocaine.

        Additionally, another Airman was previously court-martialed for his use of
cocaine after his random urinalysis tested positive for the substance. This other Airman
testified that Appellant provided him with cocaine and the two of them used it together.

                                     Post-trial Delay

        Appellant asserts that this court should grant him meaningful relief in light of the
37 days that elapsed between the convening authority’s action and docketing with this
court. Under United States v. Moreno, courts apply a presumption of unreasonable delay
“where the record of trial is not docketed by the service Court of Criminal Appeals within
thirty days of the convening authority’s action.” United States v. Moreno, 63 M.J. 129,
142 (C.A.A.F. 2006). Appellant does not assert any prejudice, and we find none. When
there is no showing of prejudice under the fourth Barker 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 the initial
processing of this case to not be so egregious as to adversely affect the public’s
perception of the fairness and integrity of the military justice system. We are also
convinced that any error is harmless beyond a reasonable doubt.

        Although Appellant does not assert any prejudice, he argues that the court should
nonetheless grant relief under United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F.
2002). This court set out a non-exhaustive list of factors we consider when evaluating the
appropriateness of Tardif relief in United States v. Bischoff, 74 M.J. 664, 672 (A.F. Ct.
Crim. App. 2015). See also United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.
2015) (articulating factors specifically tailored to answer the question of whether Tardiff
relief is appropriate). The factors include the length and reasons for the delay, the length
and complexity of the record, the offenses involved, and evidence of bad faith or gross
negligence in the post-trial process.


                                             2                                   ACM S32300
        Appellant has not asserted any additional factors that merit consideration in this
case. The length of the delay only exceeded the standard by 7 days. There was no
evidence of bad faith or gross negligence. However, the Government offers no reason for
the delay, and the record consisted of two volumes with 188 pages of transcript. We also
consider the offenses which include the distribution of cocaine to another Airman and
their use of the substance together. Appellant argues that unless we grant relief we are
impermissibly setting a standard that is greater than 30 days. Appellant misapprehends
the precedent established by Moreno, Tardif, Bischoff, and Gay. While our superior court
established the bright-line standard in Moreno, it did not set forth a system of automatic
credit when that standard is violated. Cf. United States v. Allen, 17 M.J. 126 (C.M.A.
1984) (requiring credit for time spent in pre-trial confinement). After applying the facts
in this case to the established case law, we conclude that sentence relief 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




                                             3                                   ACM S32300
