               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                           ________________________

                                No. ACM 39097
                           ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                         Bryan U. TOLBERT
              Senior Airman (E-4), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 5 January 2018
                           ________________________

Military Judge: Brendon K. Tukey.
Approved sentence: Bad-conduct discharge, confinement for 5 months,
and reduction to E-2. Sentence adjudged 17 February 2016 by GCM con-
vened at Davis-Monthan Air Force Base, Arizona.
For Appellant: Major Allen S. Abrams, USAF.
For Appellee: Lieutenant Colonel G. Matt Osborn, USAF; Major Mary
Ellen Payne, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce,
Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge DENNIS joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as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

MINK, Judge:
    A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and in accordance with a pretrial agreement (PTA),
of abusive sexual contact in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920. The military judge sentenced Appellant to a
bad-conduct discharge, five months of confinement, reduction to E-1, and for-
feiture of all pay and allowances. The convening authority granted Appellant
relief for a post-trial processing delay from the completion of the trial to action
                   United States v. Tolbert, No. ACM 39097


by only approving the bad-conduct discharge, five months of confinement, and
reduction to E-2. 1
    The sole issue asserted by Appellant on appeal is whether he is entitled to
sentence appropriateness relief as the result of an 11-day violation of the 120-
day post-trial processing standard for convening authority action after comple-
tion of the trial. 2 Finding no relief is warranted, we affirm the findings and
sentence as approved by the convening authority.

                                I. BACKGROUND
    In March 2015, while deployed to Ali Al Salem Air Base, Kuwait, Appellant
approached the bed where one of his roommates, Senior Airman (SrA) ND, was
sleeping during the night and touched and stroked SrA ND’s penis through his
athletic shorts until SrA ND awoke and punched Appellant in the face. Appel-
lant then fled the room.
    Appellant was arraigned on 10 November 2015. His trial convened and was
completed on 17 February 2016. The staff judge advocate’s recommendation
(SJAR) was completed and served on Appellant on 17 June 2016, 121 days after
completion of Appellant’s trial. On 22 June 2016, Appellant submitted clem-
ency matters in which he requested sentence relief in light of the post-trial
processing delay exceeding the 120-day standard from completion of the trial
to convening authority action established in United States v. Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006). The addendum to the SJAR was signed on 24 June
2016 and the staff judge advocate (SJA) recommended the convening authority
grant Appellant some relief as a result of the post-trial processing delay. The
SJA advised the convening authority that the reason for the delay in pro-
cessing Appellant’s record of trial was the court reporter’s workload as well as
the fact that she had to attend Reserve duty and a training course. On 27 June
2016, 131 days after completion of Appellant’s trial, the convening authority
took action and, in accordance with the SJA’s recommendation, approved only
the bad-conduct discharge, five months confinement, and reduction to E-2.

                                 II. DISCUSSION
   The 131 days that elapsed between the completion of Appellant’s trial
and the convening authority’s action exceeded the Moreno standard by 11


1The PTA between Appellant and the convening authority provided the latter would
approve no confinement in excess of 12 months, but included no other limitations on
the sentence that could be approved. Accordingly, the PTA had no impact on the con-
vening authority’s ability to approve the adjudged sentence.
2This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).

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                   United States v. Tolbert, No. ACM 39097


days. See Moreno, 63 M.J. at 142. Nevertheless, we do not find that sen-
tence relief is warranted.
   “[C]onvicted servicemembers have a due process right to timely review
and appeal of courts-martial convictions.” Id. at 135. Accordingly, we re-
view de novo whether Appellant has been denied his due process right to
a speedy post-trial review and appeal. Id. In Moreno, the United States
Court of Appeals for the Armed Forces established a presumption of un-
reasonable post-trial delay that requires a due process review when the
convening authority does not take action within 120 days of trial. Id. at
142.
    If there is a Moreno-based presumption of unreasonable delay or an
otherwise facially-unreasonable delay, we examine the claim under the
four factors set 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 asser-
tion of the right to timely review and appeal; and (4) prejudice.” Moreno,
63 M.J. at 135. Moreno identified three types of prejudice arising from
post-trial processing delay: (1) oppressive incarceration; (2) anxiety and
concern; and (3) impairment of ability to present a defense at a rehearing.
Id. at 138–39.
    “We analyze each factor and make a determination as to whether that
factor favors the Government or [Appellant].” Id. at 136. Then, we balance
our analysis of the factors to determine whether a due process violation
occurred. Id.; see also Barker, 407 U.S. at 533 (“[C]ourts must still engage
in a difficult and sensitive balancing process.”). “No single factor is re-
quired for finding a due process violation and the absence of a given factor
will not prevent such a finding.” Id. However, where an appellant has not
shown prejudice from the delay, there is no due process violation unless
the delay is so egregious as to “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).
    Under Moreno, the period of 131 days between sentence and action by
the convening authority in this case is presumptively unreasonable, ex-
ceeding the standard by 11 days and triggering a full due process review.
63 M.J. at 142. This delay occurred due to the court reporter’s workload
and temporary duty schedule and despite Appellant’s multiple requests
for speedy post-trial processing. Appellant claims he suffered prejudice by
the delay because he had completed his term of confinement by the time
the convening authority took action and was deprived of the ability to re-
quest clemency in the form of a sentence of lesser confinement. Contrary
to Appellant’s assertion of prejudice, there is no evidence that Appellant
suffered any of the three types of prejudice identified in Moreno and we
find none. We are not persuaded that the 11-day delay and the reasons
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                     United States v. Tolbert, No. ACM 39097


therefor are sufficiently egregious to bring discredit upon the fairness or
integrity of the military justice system. Accordingly, we find no due pro-
cess violation.

    Although we find no due process violation in Appellant’s case, we none-
theless consider whether Article 66(c), UCMJ, 10 U.S.C. § 866(c), relief
pursuant to United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002), is
appropriate. We are guided by factors enumerated in United States v. Gay,
74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), with no single factor being dispositive. 3 Having considered these
factors and the particular circumstances of Appellant’s case, including the
sentence relief granted by the convening authority, we decline to exercise
our Article 66(c) authority and grant Appellant even further relief from
otherwise appropriate sentence.


                                  III. CONCLUSION
    The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                   FOR THE COURT


                   KATHLEEN M. POTTER
                   Acting Clerk of the Court




3 These factors include: (1) How long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay and whether
there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is nonetheless evidence of harm (either to the
appellant or institutionally) caused by the delay; (4) whether the delay has lessened
the disciplinary effect of any particular aspect of the sentence and whether relief is
consistent with the dual goals of justice and good order and discipline; (5) whether
there is any evidence of institutional neglect concerning timely post-trial processing,
either across the service or at a particular installation; and (6) whether, given the pas-
sage of time, this court can provide meaningful relief in this particular situation. Gay,
74 M.J. at 744.

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