UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                            TOZZI, CAMPANELLA, and CELTNIEKS
                                   Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                    Private First Class KYLE M. GOVINDASAMY
                            United States Army, Appellant

                                       ARMY 20121038

                      Headquarters, III Corps and Fort Hood
                        Gregory B. Batdorff, Military Judge
              Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
          Colonel Ian C. Corey, Staff Judge Advocate (recommendation)
      Lieutenant Colonel Travis L. Rogers, Acting Staff Judge Advocate (addendum)


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; Captain
John Gardella, JA (on brief).


                                     16 December 2015

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of disobeying a superior commissioned
officer, two specifications of violating a general order, one specification of wrongful
use of marijuana, one specification of wrongful possession of marijuana, and one
specification of assault consummated by battery, in violation of Articles 90, 92,
112a, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 892, 912a, and
928 (2006 & Supp. IV 2010) [hereinafter UCMJ].

       Subsequent to appellant’s guilty pleas, an officer panel sitting as a general
court-martial convicted appellant, contrary to his pleas, of one specification of
disrespect toward a superior commissioned officer, two specifications of wrongful
GOVINDASAMY —ARMY 20121038

sexual contact, one specification of assault consummated by a battery, one
specification of possession of Spice 1 with intent to distribute in violation of Articles
89, 120, 128, and 134, UCMJ. 2 The panel sentenced appellant to two years
confinement and a dishonorable discharge. The military judge granted appellant 50
days pretrial confinement credit. The convening authority approved the sentence as
adjudged and credited appellant with 50 days confinement credit. This case is
before us for review pursuant to Article 66, UCMJ. Appellant raises three
assignments of error, one of which requires discussion and relief. We also find that
one matter raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982) warrants discussion and relief.

                                   BACKGROUND

                             Disrespect of a Superior Officer

       While stationed at Fort Hood, appellant was counseled for misconduct by his
commander. The counseling took place inside the commander’s office. Appellant
received a copy of the written counseling statement from his commander before
being dismissed. After leaving the commander’s office, appellant headed down the
hallway towards the door to exit the orderly room. Outside the presence of his
commander, appellant ripped up the copy of the counseling statement he had just
received from his commander. Appellant’s actions were not accompanied by words
or other gestures. Appellant’s platoon sergeant was standing nearby and witnessed
appellant tearing up the counseling statement.

       Appellant was found guilty of a violation of Article 89, UCMJ. The
specification alleged:

             In that [appellant], U.S. Army, did at Fort Hood, Texas,
             between on or about 23 September 2012 and 27 September
             2012, behave with disrespect toward CPT [MS], his
             superior commissioned officer, then known to him [by
             appellant] to be his superior commissioned officer, by
             ripping up a counseling statement in the presence of SFC
             WL, shortly after it was given to him by CPT [S]

1
 Spice is a designer drug sprayed onto a herbal material that mimics the effects of
cannabis. Synthetic cannabis is often termed “Spice.”
2
 The panel acquitted appellant of one specification of attempted rape, two
specifications of aggravated sexual contact, one specification of indecent exposure,
and one specification of assault with intent to commit rape in violation of Articles
80, 120, and 134, UCMJ.



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             reiterating the restrictions on him after being off-post in
             violation of those restrictions.

                            Dilatory Post-trial Processing

      Appellant’s sentence was adjudged on 16 November 2012. The convening
authority did not take action until nearly 682 days later, on 29 September 2014.
Twenty-one days are attributable to the defense. The total processing time from
conviction to action, minus defense delay, was 661 days.

                             LAW AND DISCUSSION

                          Disrespect of a Superior Officer

       Article 66(c), UCMJ, establishes our statutory duty to review a record of trial
for legal and factual sufficiency. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). Under Article 66(c), we may affirm only those findings of guilty
that we find correct in law and fact and determine, based on the entire record, should
be affirmed. The test for legal sufficiency of the evidence is whether, viewing the
evidence in a light most favorable to the government, a fact-finder could rationally
have found all the essential elements of an offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
United States v. Blocker, 32 M.J. 281, 284 (C.M.A.1991). The test for factual
sufficiency is whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, this Court is convinced
of the appellant's guilt beyond a reasonable doubt. United States v. Washington, 57
M.J. 394, 399 (C.A.A.F. 2002); United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987).

      The elements of disrespect toward a superior commissioned officer, Article
89, UCMJ, are as follows:

             (1) That the accused did or omitted certain acts or used
             certain language to or concerning a certain
             commissioned officer;

             (2) That such behavior or language was directed toward
             that officer;

             (3) That the officer toward whom the acts, omissions, or
             words were directed was the superior commissioned
             officer of the accused;




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GOVINDASAMY —ARMY 20121038


             (4) That the accused then knew that the commissioned
             officer toward whom the acts, omissions, or words were
             directed was the accused's superior commissioned
             officer; and

             (5) That, under the circumstances, the behavior or
             language was disrespectful to that commissioned officer.

Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶13.b.

       The Court of Appeals for the Armed Forces (CAAF) has generally held all
circumstances of a case can be considered in determining whether disrespectful
behavior in violation of Article 89, UCMJ, has occurred. See United States v. Goins,
15 U.S.C.M.A. 175, 177, 35 C.M.R. 147, 149 (1964). In United States v. Whitaker,
5 C.M.R. 539 (A.F.B.R. 1952), for example, the court held that language is not
actionable, even where it is clearly offensive, if it is addressed to the world at large,
rather than to the person alleged. In Whitaker, the accused was charged with saying
"to hell with it,” signaling his refusal to complete the paperwork necessary to begin
a move to a new duty station. The Board stated they were not convinced the words
showed "the accused was disrespectful toward [the named individual]." Id. at 556.
Our court recently held similarly in a case where an accused reacted to a command
from his platoon leader by throwing his Kevlar helmet into the Tigris river. United
States v. Collier, No. 20120554, 2014 CCA LEXIS 207, *7 (Army Ct. Crim. App.
Mar. 31, 2014)(mem. op.). The court held that the evidence did not establish the act
was “directed at” the platoon leader. Id.

       In this case, the government asserts appellant's act of tearing up his
counseling statement in the presence of SFC WL shortly after it was given to him
constitutes disrespect. The evidence offered at trial to support the charge of
disrespect was the testimony of SFC WL, the soldier who witnessed appellant’s
behavior. SFC WL indicated that while he could not attest affirmatively as to
whether the commander did or did not see appellant tear up the paper, the building
layout was such that the commander would not have seen appellant if the commander
was inside his office. SFC WL was not asked, nor did he offer why he believed
appellant’s ripping of the counseling statement was directed at the commander.
SFC WL did not testify appellant’s act of tearing the paper was accompanied by
words or other gestures which might have indicated appellant’s actions were directed
towards his commander. The company commander offered no testimony regarding
appellant ripping the counseling statement.

     We find the act of ripping the counseling statement in and of itself, not
accompanied by other extant circumstances indicating the action was directed at his
commander, does not constitute disrespect. Appellant was under no obligation to

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retain the counseling statement. Appellant may have shredded the counseling
statement for any number of reasons. We find no evidence in the record indicating
the commander was the victim or target of appellant's action. We, therefore, find the
evidence factually insufficient to establish beyond a reasonable doubt that appellant
was disrespectful toward a superior commissioned officer in violation of Article 89,
UCMJ.

                           Dilatory Post-trial Processing

       Appellant requests relief for dilatory post-trial processing, where the
convening authority took action 682 days after the court-martial concluded. Of that
period, 21 days are attributable to defense delay. Appellant requests relief pursuant
to this court’s statutory authority. See UCMJ art. 66(c); United States v. Collazo, 53
M.J. 721 (Army Ct. Crim. App. 2000) (recognizing the statutory authority of Courts
of Criminal Appeals to grant relief for dilatory post-trial processing).

       Given appellant’s successful challenge regarding the charge of disrespect to a
superior commissioned officer, we must determine if the post-trial delay violated
appellant’s due process rights to timely post-trial processing. See United States v.
Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004) (“An appeal that needlessly takes ten
years to adjudicate is undoubtedly of little use to a defendant who has been wrongly
incarcerated on a ten-year sentence.”) (quoting United States v. Smith, 94 F.3d 204,
207 (6th Cir. 1996)). While appellant does not ground his post-trial processing
claim as a due process violation, we are nonetheless compelled to determine whether
appellant has suffered a due process violation.

        Our superior court established a “presumption of unreasonable delay that will
serve to trigger the full [Barker v. Wingo, 407 U.S. 514 (1972)] analysis where the
action of the convening authority is not taken within 120 days of the completion of
trial.” United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Our superior
court counseled this court to exercise “institutional vigilance” in this area of law.
63 M.J. at 143. It is also our statutory authority under Article 66(c) to review the
“entire record.” See United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002)
(“Our Court has consistently recognized the broad power of the Courts of Criminal
Appeals to protect an accused.”) (citation omitted).

        In determining whether post-trial delay results in a due process violation, we
apply the four-factor test announced in Barker, 407 U.S. at 530. See also Moreno,
63 M.J. at 135. These factors include (1) length of the delay, (2) reasons for the
delay, (3) assertion of the right to a timely review and appeal, and (4) prejudice.
Moreno, 63 M.J. at 135. “Once this due process analysis is triggered by a facially
unreasonable delay, the four factors are balanced, with no single factor being
required to find that post-trial delay constitutes a due process violation.” Moreno,
Id. at 136. These factors ultimately weigh in favor of appellant.

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       First, the 661 day delay is facially unreasonable under any standard. See Id.
at 142 (establishing a presumption of unreasonable delay when the convening
authority takes action more than 120 days after the trial ends); Diaz v. Judge
Advocate General of the Navy, 59 M.J. 34, 39 (C.A.A.F. 2003) (“The nature of this
[court’s] review calls for, if anything, even greater diligence and timeliness than is
found in the civilian system.”). This 1168-page record, while lengthy, was not
particularly complicated or remarkable. This factor weighs in favor of appellant.

       Second, the government’s explanations for the delay involve court reporter
shortages, a high workload, and a deployment of the III Corps headquarters. Our
superior court has held “that personnel and administrative issues . . . are not
legitimate reasons justifying otherwise unreasonable post-trial delay.” United States
v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011) (“To allow caseloads to become a factor
in determining whether appellate delay is excessive would allow administrative
factors to trump the Article 66 and due process rights of appellants.”) (citing
Moreno, 63 M.J. at 137) (additional citations and quotations omitted). The reasons
for delay weigh in favor of appellant.

       Third, appellant asserted his right to speedy post-trial processing 158 days
after completion of the trial, before transcription was complete and before the
military judge authenticated the record of trial. This factor weighs in favor of
appellant. See Barker, 407 U.S. at 531 (“The more serious the deprivation, the more
likely a defendant is to complain.”).

      Fourth, we apply three factors when analyzing prejudice in the context of a
due process violation for post-trial delay:

             (1) prevention of oppressive incarceration pending appeal;

             (2) minimization of anxiety and concern of those
                 convicted awaiting the outcome of their appeals; and

             (3) limitation of the possibility that a convicted person’s
                 grounds for appeal, and his or her defenses in case of
                 reversal and retrial, might be impaired.

Moreno, 63 M.J. 138-39 (citing Rheuark v. Shaw, 629 F.2d 297, 303 n.8 (5th Cir.
1980)) (additional citations omitted).

       The first sub-factor is “directly related to the success or failure” of
appellant’s substantive appeal. Id. at 139. “If the substantive grounds for the appeal
are not meritorious, an appellant is in no worse position due to the delay, even
though it may have been excessive.” Id. (citing Cody v. Henderson, 936 F.2d 715,

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720 (2d Cir. 1991)). Appellant’s remedy for the disrespect charge is for this court to
set aside appellant’s conviction for that charge and specification and to reassess
appellant’s sentence. “[I]f an appeal is not frivolous, a person convicted of a crime
may be receiving punishment the effects of which can never be completely reversed
or living under the opprobrium of guilt when he or she has not been properly proven
guilty and may indeed be innocent under the law.” Id. (quoting Rheuark, 628 F.2d at
304). This sub-factor weighs in favor of appellant.

      The second sub-factor requires an appellant show “particularized anxiety or
concern that is distinguishable from the normal anxiety experienced by prisoners
awaiting an appellate decision.” Id. at 140-41. Appellant has not established
anxiety, and as such, this factor weighs in favor of the government.

       In order to prevail on the third factor, an appellant must be able to
specifically identify how he would be prejudiced at rehearing due to delay, if one
were authorized. Mere speculation is not enough. Id. (citation omitted). Because a
rehearing is not authorized, this factor is not relevant and weighs in favor of the
government.

       In balancing the Barker factors, we have an appellant who had a meritorious
appeal – but one which does not warrant a rehearing. It does, however, authorize a
reassessment of appellant’s punishment. As such, we conclude that the post-trial
delay was not harmless beyond a reasonable doubt. See United States v. Allison, 63
M.J. 365, 370 (C.A.A.F. 2006) (“If we conclude that an appellant has been denied
the due process right to speedy post-trial review and appeal, ‘we grant relief unless
this court is convinced beyond a reasonable doubt that the constitutional error is
harmless.’”) (quoting Toohey, 63 M.J. at 363).

        We find that the reasons offered by the government are unreasonable under
 the totality of circumstances and relief is appropriate under the facts of this case.

                                   CONCLUSION

      The finding of guilty to the Specification of Additional Charge II is set aside
and that specification is DISMISSED.

      The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the error noted and do so after conducting a thorough
analysis of the totality of circumstances presented by appellant’s case and in
accordance with the principles articulated by our superior court in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986). In evaluating the Winckelmann factors, we first find no
dramatic change in the penalty landscape that might cause us pause in reassessing
appellant’s sentence. Second, although appellant was sentenced by members, here,

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this factor carries less weight because the majority of the remaining offenses “do not
address service custom, service-discrediting conduct or conduct unbecoming.”
Winckelmann, 73 M.J. at 16. Third, the nature of the remaining offenses still
captures the gravamen of the original offenses and the circumstances surrounding
appellant’s conduct. Finally, based on our experience, we are familiar with the
remaining offenses so that we may reliably determine what sentence would
have been imposed at trial. We are confident that based on the entire record and
appellant’s course of conduct, a panel would have imposed a sentence of at least a
dishonorable discharge and confinement for 23 months. Given the dilatory post-trial
processing and the error noted herein, we affirm only so much of the sentence as
extends dishonorable discharge and confinement for 21 months. All rights,
privileges, and property, of which appellant has been deprived by virtue of this
decision setting aside portions of the findings and sentence are ordered restored.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR THE COURT:
                                       FOR THE COURT:



                                       JOHN P. TAITT
                                        JOHN Clerk
                                       Deputy P. TAITT
                                                   of Court
                                        Deputy Clerk of Court




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