          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                          UNITED STATES

                                                    v.

                         Lieutenant Colonel RUSSELL J. GORECKI
                                   United States Air Force

                                              ACM 38654

                                            8 October 2015

         Sentence adjudged 15 April 2014 by GCM convened at Osan
         Air Base, Republic of Korea. Military Judge: Gregory O. Friedland (sitting
         alone).

         Approved Sentence: Dismissal, confinement for 30 days, forfeiture of
         $4000.00 pay per month for 1 month, and a reprimand.

         Appellate Counsel for the Appellant: Captain Michael A. Schrama.

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

                                                 Before

                            ALLRED, TELLER, and ZIMMERMAN
                                 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         This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



ALLRED, Chief Judge:

      Appellant was tried at a general court-martial before a military judge alone. In
accordance with his pleas, he was found guilty of violating a general order, wrongful
appropriation, assault consummated by a battery, conduct unbecoming an officer and a
gentleman, and unlawful entry, in violation of Articles 92, 121, 128, 133, and 134,
UCMJ, 10 U.S.C. §§ 892, 921, 928, 933, 934. The adjudged and approved sentence
consisted of a reprimand, forfeiture of $4,000 pay per month for 1 month, 30 days of
confinement, and a dismissal.1

       Before us, Appellant argues (1) that his sentence is inappropriately severe and (2)
that violation of a post-trial processing standard warrants relief. We disagree and affirm
the findings and sentence.

                                                  Background

       While serving as a squadron commander, Appellant on one occasion violated
overseas curfew orders, unlawfully entered the apartment of a junior officer and took a
blanket belonging to her. On another occasion, he committed assault consummated by a
battery upon the same junior officer. He also engaged in a pattern of inappropriate and
unprofessional behavior toward that junior officer and several other of his subordinate
officers. Additional facts pertinent to the charges and specifications are discussed below.

                                              Sentence Severity

      Appellant argues that his sentence, which includes dismissal from the service, is
unduly severe. We disagree.

       This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ.
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offenses, the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009) (citing United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982)). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exercises of
clemency. United States v. Nerad, 69 M.J. 138, 146–47 (C.A.A.F. 2010).

       In the present case, Appellant served as commander of an Air Mobility Squadron
in the Republic of Korea. In spring 2013, he discovered that one of his subordinates,
Captain (Capt) BES,2 was gay. He thereafter imposed upon her a relationship in which

1
  In ruling upon a post-arraignment defense motion alleging unreasonable multiplication of charges, the military
judge dismissed Specification 2 of Charge I (dereliction of duty). This information was not reflected in the court-
martial order, as it should have been. See Manual for Courts-Martial, United States, app. 17 at A17-1 (2012 ed.).
We hereby order a corrected court-martial order. Air Force Instruction 51-201, Administration of Military Justice, ¶
10.10 (6 June 2013).
2
  It appears from the record that, during the course of Appellant’s misconduct involving her, Captain (Capt) BES
was promoted from the rank of First Lieutenant to Captain. For consistency, we refer to her throughout this opinion
as Capt BES.



                                                         2                                             ACM 38654
he revealed his own hetero- and homosexual interests, pressed her to communicate and
socialize with him, and urged her to spend nights with him while his wife was away.
From April through July 2013, Appellant sent Capt BES scores of email and Facebook
messages. These communications became increasingly intimate and inappropriate.
Among other things, Appellant told Capt BES, “You are hot! Absolutely so very hot.”
He provided graphic descriptions of his masturbation activity and sex life with his wife.
He described his romances and sexual behavior with others. He pushed Capt BES to
share details of her own sexual experiences. Appellant also gave Capt BES a hard drive
with a pornographic music video and a CD of Japanese anime pornography depicting,
inter alia, teenage girls being raped by old men.

       The attention Appellant paid Capt BES caused her to feel uncomfortable and
“objectified.” She responded to his emails and messages only sporadically and with
increasing reluctance.3 She confided her concerns to fellow Air Force members, she
sought to avoid Appellant’s phone calls, and she tried to encounter him at work and
elsewhere only in the presence of third persons. Capt BES was generally able to evade
physical contact with Appellant. Once, however, she rebuffed him when he began to
give her a back massage. And one evening, when they were outdoors, Appellant sat
down, pulled Capt BES onto his lap, pressed his nose into her underarm, and made a
crude comment regarding body odors.

       Capt BES’s troubles with Appellant came to a head on the night of 6 July 2013. In
violation of military curfew and without permission from Capt BES, Appellant entered
her off-base apartment after she had gone to bed. Living alone, and frightened to find her
commander in her home, she fled and spent much of the night hiding and trying to sleep
outside. In leaving her apartment sometime later, Appellant took without her permission
a fleece blanket belonging to Capt BES.

       While Capt BES was the primary victim, Appellant’s misbehavior also involved
others. First Lieutenant (Lt) PJJ was assigned to Appellant’s squadron in early June
2013. Within a few weeks of his arrival and after a night of drinking, Appellant came to
Lt PJJ’s dorm room with Capt BES—ostensibly to check on the condition of the room.
While there, Appellant began to massage the foot of Lt PJJ, and desisted only after Lt PJJ
told him repeatedly he did not want it. Appellant asked Lt PJJ three times whether he
was gay, and each time Lt PJJ denied that he was. Appellant then began to cry. He told
Lt PJJ how difficult it was to be gay, and he described performing fellatio on his
roommate at the United States Air Force Academy. This behavior by his commander
was very disturbing to Lt PJJ.4


3
  Appellant typically signed these emails and messages with his nickname “Russ” while Capt BES continued to call
him “Sir” and refer to herself by her rank.
4
  Lt PJJ testified regarding that night, “I was thinking, ‘How the hell did I get myself into this situation? You can’t
make this s**t up.’”



                                                          3                                               ACM 38654
       On about 22 June 2013, Appellant was socializing with two of his other
subordinates—Capt JMM and Staff Sergeant (SSgt) HLS—at the apartment of
Capt JMM. Appellant discussed sexually explicit topics, to include oral sex with men,
and he pressed Capt JMM and SSgt HLS to tell him whether they had had homosexual
experiences.

       On about 29 June 2013, Appellant was traveling in a taxi cab with Capt BES,
Lt PJJ, Capt JMM, and another subordinate officer—Capt IOA. Appellant told these
officers he wanted to play a game called “truth time.” In crude and graphic terms, he
then asked whether the officers ever masturbated, or engaged in anal sex or anilingus. He
asked Capt IOA about the size of his penis. Appellant described his own masturbation
and his first experience with a prostitute, and he reported that he had tasted his own
semen. It appears the junior officers were not happy with this behavior by their squadron
commander.5

       On numerous occasions, and even after he had himself violated curfew to
unlawfully enter the apartment of Capt BES, Appellant lectured his subordinates on the
importance of obeying military curfew.          By all accounts—including his own
admissions—Appellant’s misconduct had a deeply negative impact upon his individual
victims and upon his effectiveness as a commander. Having considered the arguments of
counsel, a clemency recommendation made by the trial judge, and the entire record in this
case, we find the approved sentence appropriate.6


5
  Lt PJJ testified, “I was kind of shocked. I was quiet. I didn’t really know what to think, but when we got out of
the taxi, Capt [JMM] and I said that the situation was pretty f’ed up.”
6
  The military judge in this case provided the convening authority a detailed clemency recommendation, as follows:

                 In consideration of the accused’s 261 months of service to the nation, balanced
                 against his 3 and a half months of misconduct, coupled with his officer
                 performance reports and the 41 character statements in his sentencing evidence,
                 I recommend the convening authority consider entering into a post-trial
                 agreement with Lieutenant Colonel Gorecki with the following suggested terms:

                          The convening authority agrees to mitigate the dismissal adjudged by
                          this court to forfeitures of $2,000 pay per month for 24 months, and
                          confinement for 24 months, with the confinement suspended for 24
                          months subject to the following conditions.

                 In consideration of the agreement by the convening authority, Lieutenant
                 Colonel Gorecki agrees to the following eight conditions:

                          He will not consume alcoholic beverages during the suspended portion
                          of the mitigated punishment;
                          He will be assigned to a 21R Joint Designation Authorization Listing
                          (JDAL) billet for 24 months;
                          He will have no contact or communications with Captain [BES],
                          Captain [JMM], Captain [IOA], Lieutenant [PJJ], and Staff Sergeant
                          [HLS] during the suspended portion of the mitigated punishment;



                                                        4                                             ACM 38654
                                      Post-Trial Processing Delay

       Thirty-four days elapsed between the convening authority’s action and the
docketing of this case before this court.7 Under United States v. Moreno, 63 M.J. 129,
142 (C.A.A.F. 2006), the record should have been docketed with this court within 30
days of the convening authority’s action.

       We review de novo an appellant’s claim that he has been denied his due process
right to a speedy post-trial review and appeal. Moreno, 63 M.J. at 135. Because the
34-day period in this case is facially unreasonable, see id. at 142, 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 assertion of the right
to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135. If we are able
to conclude directly that any error was harmless beyond a reasonable doubt, we do not
need to engage in a separate analysis of each factor. See United States v. Allison,
63 M.J. 365, 370 (C.A.A.F. 2006).

        Appellant does not argue that he has been personally prejudiced by the delay.
While we agree that Moreno violations are unacceptable, we find beyond a reasonable
doubt that Appellant was not harmed by the four-day delay and is thus not entitled to
relief under Moreno.

        A finding of harmless error does not end the inquiry, as we may grant sentence
relief under Article 66(c), UCMJ, for excessive post-trial delay without the showing of
actual prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also United States v. Harvey, 64 M.J. 13,
24–25 (C.A.A.F. 2006). In United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.

                         He will suspend his Facebook account during the suspended portion of
                         the mitigated punishment;
                         He must take an Air Force fitness assessment test, twice a year, at least
                         6 months apart, and score more than 90 points on each test during the
                         suspended portion of the mitigated punishment;
                         He will seek mental health counseling with the Air Force mental health
                         professionals, and will attend monthly meetings during the suspended
                         portion of the mitigated punishment;
                         He will apply for retirement on 29 June 2015; and,
                         He will not contest an officer grade determination initiated upon him
                         upon his application for retirement in accordance with AFI 36-3203.

                  If the accused violates the provisions of the post-trial agreement and the
                  suspended confinement is vacated, I recommend the convening authority waive
                  automatic forfeitures for the benefit of the accused’s dependents for a period of
                  21 months.
7
  The convening authority took action on 18 July 2014, and the present case was docketed with us on 21 August
2014. Appellant calculates the elapsed time to have been 33 days. We concur, however, with the Government’s
calculation of 34 days.



                                                        5                                            ACM 38654
2015), we identified a list of factors to consider in evaluating whether Article 66(c),
UCMJ, relief should be granted for post-trial delay. Those factors include how long the
delay exceeded appellate review standards, the reasons for the delay, whether the
government acted with bad faith or gross indifference, evidence of institutional neglect,
harm to the appellant or to the institution, whether relief is consistent with the goals of
both justice and good order and discipline, and whether this court can provide meaningful
relief. Id. No single factor is dispositive and we may consider other factors as
appropriate. Id.

        We have examined the entirety of the post-trial process. Aside from the four-day
delay in docketing the record with this court, the remainder of the post-trial activities
occurred within established time standards, and we detect nothing that would suggest this
is a case in which the public’s perception of the fairness and integrity of the system could
reasonably he questioned. We, therefore, decline to grant Tardif relief.

                                        Conclusion

        The findings and the sentence are correct in law and fact, and no error prejudicial
to the substantial rights of Appellant occurred. Articles 59(a), UCMJ, and Article 66(c),
UCMJ. Accordingly, the findings and the sentence are AFFIRMED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




                                             6                                    ACM 38654
