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

                           UNITED STATES, Appellee
                                        v.
                Staff Sergeant CHRISTIAN M. LOPEZMORALES
                          United States Army, Appellant

                                    ARMY 20130502

                            Headquarters, Eighth Army
                          Wendy P. Daknis, Military Judge
                    Colonel Marian Amrein, Staff Judge Advocate


For Appellant: Major Amy E. Nieman, JA; Captain Brian J. Sullivan, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).


                                    21 October 2014

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                                SUMMARY DISPOSITION
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Per curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of violating a lawful general regulation,
one specification of dereliction of duty, one specification of failure to obey a lawful
order, four specifications of making a false official statement, and one specification
of adultery in violation of Articles 92, 107, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 892, 907, 934 (2012) [hereinafter UCMJ], respectively. The
military judge sentenced appellant to a dishonorable discharge, confinement for
eight months, and reduction to the grade of E-1. The convening authority approved
the sentence as adjudged. 1 The appellant received 62 days of confinement credit
against the sentence to confinement.

      This case is before us for review under Article 66, UCMJ. Two of appellant’s
personal submissions made pursuant to United States v. Grostefon, 12 M.J. 431

1
 Prior to action, the convening authority deferred appellant’s automatic forfeiture of
$1,516.00 per month until action.
LOPEZMORALES—ARMY 20130502

(C.M.A 1982) warrant discussion and one warrants relief. The remaining Grostefon
submissions do not warrant relief.

                     Failure to Comment on Alleged Legal Error

        In his Grostefon matters, appellant argues the staff judge advocate (SJA)
provided inadequate advice to the convening authority in the addendum to the staff
judge advocate’s recommendation (SJAR), thereby depriving appellant of a viable
clemency opportunity. Specifically, the appellant’s clemency submissions to the
convening authority pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105
included an allegation of legal error due to unreasonable government delay in post-
trial processing under United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). The
SJAR addendum failed to address appellant’s claim. 2 Appellant asserts the SJA’s
failure to comment on the allegation of legal error in the SJAR addendum
constituted error. We agree. See United States v. Arias, 72 M.J. 501 (Army Ct.
Crim. App. 2013). The SJA should have commented on this claim of legal error in
the SJAR addendum. R.C.M. 1106(d)(4).

       Under the circumstances of this case, however, no relief is warranted on the
basis of a legal error in the SJAR addendum. It is not foreseeable that a properly
prepared SJAR addendum would have resulted in a favorable recommendation by the
SJA or any corrective action by the convening authority. See United States v. Hill,
27 M.J. 293, 297 (C.M.A. 1988). The appellant was not prejudiced by the post-trial
delay: considering the convening authority deferred appellant’s automatic forfeiture
of pay until action, the appellant actually benefited monetarily from the delayed
processing of his case. See Arias, 72 M.J. at 506. Further, we do not agree that a
remand to the convening authority is suitable. Appellant has already served his term
of confinement with the aforementioned deferment of pay. Even if relief was
warranted for clemency purposes, it is not plausible the convening authority would
opt to provide meaningful relief for dilatory post-trial processing by changing the
adjudged punitive discharge and reduction in rank. Nonetheless, we address the
issue of timely post-trial processing to ensure the efficient administration of military
justice and to protect the rights of accused soldiers.

                            Dilatory Post-Trial Processing

       In his supplemental Grostefon matters, appellant requests relief to remedy the
dilatory post-trial processing of his case. We agree. The convening authority took
action 253 days after the sentence was adjudged, excluding 20 days of approved
defense delay. The record in this case consists of three volumes, and the trial
transcript is 151 pages. Although we find no due process violation in the post-trial

2
  The SJA’s addendum incorrectly states, “The defense does not assert that there was
legal error.”


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LOPEZMORALES—ARMY 20130502

processing of appellant’s case, we must still review the appropriateness of the
sentence in light of the unjustified dilatory post-trial processing. UCMJ art. 66(c);
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article
66(c), UCMJ, service courts are] required to determine what findings and sentence
‘should be approved,’ based on all the facts and circumstances reflected in the
record, including the unexplained and unreasonable post-trial delay.”); see generally
United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney,
68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J.
721, 727 (Army Ct. Crim. App. 2000).

       It took 176 days to transcribe the record in this case. In a memorandum dated
the day after action, the government attributes the delay to a lack of personnel and a
large area of responsibility. Despite this explanation, we find relief in this case is
appropriate because the delay between announcement of sentence and action could
“adversely affect the public’s perception of the fairness and integrity of military
justice system . . . .” Ney, 68 M.J. at 617. We provide relief in our decretal
paragraph.

                                   CONCLUSION

       Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, however, we affirm only so
much of the sentence as extends to a dishonorable discharge, confinement for seven
months, and reduction to the grade of E-1. All rights, privileges, and property, of
which appellant has been deprived by virtue of this decision setting aside portions of
the sentence are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H.
                                        MALCOLM     H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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