          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                  Senior Airman LEEROY PENA
                                      United States Air Force

                                              ACM S32215

                                              4 March 2015

         Sentence adjudged 19 December 2013 by SPCM convened at Ramstein
         Air Base, Germany. Military Judge: Dawn R. Eflein.

         Approved Sentence: Bad-conduct discharge and reduction to E-1.

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

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

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



WEBER, Judge:

       A special court-martial convicted the appellant, pursuant to his pleas, of two
specifications of false official statements and one specification of graft, in violation of
Articles 107 and 134, UCMJ, 10 U.S.C. §§ 907, 934. A panel of officer members
sentenced the appellant to a bad-conduct discharge, forfeiture of $200 pay per month for
5 months, and reduction to E-1. The convening authority disapproved the forfeitures but
otherwise approved the sentence as adjudged.
       The appellant’s sole assignment of error requests relief under United States v.
Tardif, 57 M.J. 219 (C.A.A.F. 2002), because the Government violated the 30-day
standard to forward the record of trial to this court. We affirm the findings and sentence.

                                        Background

        The appellant worked in the vehicle registration section at Ramstein Air Base. His
duties required him to process paperwork from base personnel to register vehicles.
Regulations required drivers to pass a safety and mechanical inspection before
registration would be issued. The appellant falsified registration forms numerous times
for his own profit. He would learn of people whose cars were not able to pass an
inspection and who were unable or unwilling to pay for the necessary repairs. A fellow
culprit helped pass some of this information to him. The appellant would approach those
people and advise them he knew someone who would either inexpensively complete the
repairs or just approve the inspection for a small fee. In actuality, the appellant would
falsify the documents himself to make it appear the cars had passed their inspections.
When the appellant’s misconduct was discovered, he falsely told an investigator that his
actions merely involved referring people to an unnamed off-base inspector who would
pass vehicles through inspection for a fee. He also lied by saying he never accepted
money from anyone in exchange for passing vehicles for inspection.

                                Post-Trial Processing Delay

        In United States v. Moreno, our superior court established guidelines that trigger a
presumption of unreasonable delay, including where the record of trial is not docketed
with the service court within 30 days of the convening authority’s action. 63 M.J. 129,
142 (C.A.A.F. 2006). In addition to any due process concerns caused by unreasonable
post-trial delay, Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers the service appellate
courts to grant sentence relief for excessive post-trial delay without a showing of actual
prejudice. Tardif, 57 M.J. at 224.

       The appellant’s court-martial concluded on 19 December 2013. The convening
authority took action on 7 February 2014, easily within the 120-day standard established
by Moreno for this stage. Moreno, 63 M.J. at 142. The appellant’s case was docketed
with this court on 13 March 2014, 34 days after action. The appellant does not allege that
he suffered any prejudice as a result of this delay in docketing the record of trial with this
court, and we find none. Rather, the appellant asserts Tardif relief is warranted due to
unreasonable post-trial delay. As “modest relief” to address this delay, he asks us to set
aside his bad-conduct discharge.

       We are cognizant of our broad authority to grant relief for post-trial delay even in
the absence of a showing of prejudice, but we decline to exercise that authority in this
case. Utilizing the factors outlined by our Navy and Marine Corps colleagues in


                                              2                                  ACM S32215
United States v. Brown, 62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), we find
granting sentencing relief is not appropriate. In particular, especially given the overall
timeliness of post-trial processing at the installation level, we see no evidence that the
short delay in this one stage of the case demonstrates evidence of bad faith or gross
negligence.*

                                                   Conclusion

       The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
the sentence are

                                                 AFFIRMED.


                  FOR THE COURT


                 LEAH M. CALAHAN
                 Deputy Clerk of the Court




*
 The appellant’s brief asks for relief in part “to send a clear message to the 17th Training Wing.” The 17th Training
Wing did not process this case. We have seen similar cut-and-paste errors in more than one brief from the Appellate
Defense Division in recent months. We advise counsel to lend more attention to their briefs.


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