               U NITED S TATES A IR F ORCE
              C OURT OF C RIMINAL A PPEALS
                           ________________________

                                No. ACM 39126
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                           Joshua P. WEEDEN
                Senior Airman (E-4), U.S. Air Force, Appellant
                           ________________________

           Appeal from the United States Air Force Trial Judiciary
                            Decided 22 August 2017
                           ________________________

Military Judge: Joseph S. Imburgia.
Approved sentence: Bad-conduct discharge, confinement for 8 months, and re-
duction to E-1. Sentence adjudged 23 February 2016 by GCM convened at Da-
vis-Monthan Air Force Base, Arizona.
For Appellant: Captain Patrick A. Clary, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and C. BROWN, Appellate Military Judges.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as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

PER CURIAM:
    After sentence was announced, 164 days elapsed before the convening au-
thority took final action in this case. The staff judge advocate (SJA), in consid-
eration of this post-trial processing delay, recommended that the convening
authority grant Appellant some relief. Specifically, the SJA recommended the
convening authority approve only 9 of the 10 months of confinement adjudged.
In his clemency request, Appellant, noting that he had demanded speedy post-
trial processing, concurred with the SJA’s recommendation of a reduction of
                     United States v. Weeden, No. ACM 39126


the sentence to confinement as a remedy for the unreasonable delay in post-
trial processing. Citing his desire to be present at the upcoming birth of his
daughter, Appellant requested a further reduction of his sentence to confine-
ment to 8 months. The convening authority, who had previously entered a pre-
trial agreement to approve no more than 13 months of confinement in exchange
for Appellant’s plea of guilty to eight specifications chronicling extensive
wrongful drug use, distribution, and introduction, approved 8 months of con-
finement consistent with Appellant’s clemency request.
    Although Appellant has not raised the issue of post-trial delay on appeal,
the period of time between the announcement of his sentence and final action
by the convening authority exceeded 120 days and is presumptively unreason-
able. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). Consequently,
we are required to conduct a due process review of this post trial delay. Id.
Accordingly, we considered the four factors set forth in Barker v. Wingo, 407
U.S. 514, 530 (1972) and whether 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). Appellant
claims no legally cognizable prejudice from the delay and we find none. Fur-
ther, contrary to any adverse impact, we find the relief recommended by the
SJA and granted by convening authority tend to enhance the public’s percep-
tion of the fairness and integrity of the military justice system. Therefore, we
find no due process violation.
    Although we find no due process violation in Appellant’s case, we nonethe-
less consider whether Article 66(c), UCMJ, 10 U.S.C. § 866(c), relief pursuant
to Tardif is appropriate. 57 M.J. at 224. In doing so 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 disposi-
tive.* Considering the entirety of the post-trial processing in light of those fac-
tors, we conclude no extraordinary exercise of our Article 66(c) authority is
warranted here.


* 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.




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                    United States v. Weeden, No. ACM 39126


    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights 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



                  KURT J. BRUBAKER
                  Clerk of the Court




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).


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