UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                             YOB, JOHNSON, and BURTON
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist ROBERT A. CLARK
                          United States Army, Appellant

                                  ARMY 20110179

                      Headquarters, III Corps and Fort Hood
                         Susan K. Arnold, Military Judge
                 Colonel Mark H. Sydenham, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA;
Captain Steve T. Nam, JA (on brief).

                                 13 September 2012
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of wrongful disposition of military property, two
specifications of wrongful use of a controlled substance, wrongful possession of a
controlled substance, wrongful distribution of a controlled substance, and larceny of
military property, in violation of Articles 108, 112a, and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 908, 912a, 921 2006 [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for three
years, total forfeiture of all pay and allowances, and reduction to the grade of
Private E-1. The convening authority approved the sentence as adjudged.

      This case is before the court for review under Article 66, UCMJ. We have
considered the record of trial, appellant’s assignment of error, and the government’s
answer. Though we do not find any actual prejudice to the appellant, we agree with
CLARK—ARMY 20110179

appellant that the unexplained and excessive post-trial delay in the processing of this
case warrants relief.

       Here, appellant pled guilty to all charges and specifications resulting in a
record of trial transcript 188 pages in length. Time between sentence and action in
this case was 261 days. Neither the convening authority nor the staff judge advocate
offered any explanation for the post-trial delay in this case. Even if we permit the
government’s calculation, attributing only 233 days of unexplained delay to the
convening authority, the length of delay without explanation, let alone justification,
warrants relief under the particular circumstances of this case. Article 66(c), UCMJ.
See United States v. Moreno, 63 M.J. 129, 142-43 (C.A.A.F. 2006) (creating a 120-
day presumption of unreasonable delay); see generally United States v. Toohey, 63
M.J. 353, 362–63 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002); United States v. Ney, 68 M.J. 613, 616–17 (Army Ct. Crim. App.
2010). Reviewing the entire record of trial, and in light of the government’s failure
to provide reasons for the excessive post-trial delay, along with the particular
circumstances of this case, we find a reduction of one month in the sentence to
confinement appropriate.

       Therefore, on consideration of the entire record and the assigned error, the
findings of guilty are affirmed. However, in light of the reasons above, we find that,
in relation to appellant’s sentence to three years’ confinement, only thirty-five
months should be approved. Therefore, the court approves only so much of the
sentence as provides for a bad-conduct discharge, confinement for thirty-five
months, total forfeiture of all pay and allowances, and reduction to the grade of
Private E-1. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of his sentence set aside by this decision are
ordered restored. See UCMJ arts. 58b(c) and 75(a).


                                        FOR THE COURT:
                                        FOR THE COURT: 



                                        JOANNE P. TETREAULT ELDRIDGE
                                        Deputy
                                        JOANNE Clerk P.
                                                     of Court
                                                        TETREAU
                                        D of Court




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