UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          HAIGHT, CELTNIEKS, and WOLFE
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                        v.
                    Private First Class JOSEPH A. KROUPA
                         United States Army, Appellant

                                  ARMY 20140430

                        Headquarters, 1st Cavalry Division
                       Rebecca K. Connally, Military Judge
   Lieutenant Colonel James D. Levine II, Acting Staff Judge Advocate (pretrial)
      Lieutenant Colonel Alison C. Martin, Staff Judge Advocate (post-trial)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief).

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


                                   29 January 2016
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of desertion terminated by apprehension, in violation of
Article 85, Uniform Code of Military Justice, 10 U.S.C. § 885 [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, eight months of
confinement, and reduction to the grade of E-1. In accordance with a pretrial
agreement, the convening authority approved only five months of confinement and
the remainder of the adjudged sentence and credited appellant with four days against
the sentence to confinement.

      This case is before us pursuant to Article 66, UCMJ. Appellate defense
counsel assigns two errors, one of which merits discussion and relief. Appellant
KROUPA—ARMY 20140430

personally raises issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), none of which merits relief. *

       Appellant complains he suffered undue post-trial delay. This brief, one
specification, guilty-plea court-martial was held on 27 May 2014. Despite two
requests by appellant for timely post-trial processing, the seventy-six page record of
trial was not authenticated until 18 November 2014, and the convening authority did
not take action until 29 January 2015. Then, most troubling, this court did not
receive the record of trial for docketing until 15 April 2015, two and a half months
after action.

       The government concedes it cannot provide a reasonable explanation for the
delay from action until the mailing of the record of trial to this court and agrees
“that appellant is entitled to relief.” Therefore, we find appellant’s request for
“meaningful relief by setting aside [some] confinement against his sentence of
confinement so that he may ultimately receive a small portion of lost pay and
allowances” to be appropriate. See United States v. Collazo, 53 M.J. 721 (Army Ct.
Crim. App. 2000); see also United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006) (government failure to docket record of trial with respective service Court of
Criminal Appeals within thirty days of convening authority’s action creates
presumption of unreasonable delay).

      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, confinement for four months, and reduction to the grade of E-1. All

*
  Matters submitted as part of appellant’s clemency request, pursuant to Rule for
Courts-Martial [hereinafter R.C.M.] 1105, included, inter alia, a memorandum
signed by appellant’s defense counsel. This memorandum contains a statement that
could be interpreted as raising the legal error of sentence disparity in closely related
cases. Although the Staff Judge Advocate (SJA), in her addendum to the SJA’s
post-trial recommendation to the convening authority, did comment on the alleged
legal error of dilatory post-trial processing, she failed to respond to the allegation of
sentence disparity.

       To the extent appellant’s R.C.M. 1105 submission raised allegations of legal
error, the SJA should have responded to them. See R.C.M. 1106(d)(4). However,
pursuant to United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988), we are “free to
affirm when a defense allegation of legal error would not foreseeably have led to a
favorable recommendation by the [SJA] or to corrective action by the convening
authority.” We have thoroughly reviewed the issues raised in the clemency matters
and, based on the record before us, we find this particular legal error raised by
appellant lacks merit and would not have resulted in a favorable recommendation by
the SJA or corrective action by the convening authority.


                                            2
KROUPA—ARMY 20140430

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).


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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