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

                           UNITED STATES, Appellee
                                        v.
                         Sergeant WILLIAM L. RUBINO
                          United States Army, Appellant

                                  ARMY 20100675

                     Headquarters, III Corps and Fort Hood
                        James L. Varley, Military Judge
  Colonel Mark H. Sydenham, Staff Judge Advocate (pretrial & recommendation)
           Colonel Stuart W. Risch, Staff Judge Advocate (addendum)


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

                                     22 June 2012
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of false official statement, aggravated sexual assault of a
child, and abusive sexual contact with a child, in violation of Articles 107 and 120,
Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920 (2006 & Supp. IV 2010)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for fifty-one months, and reduction to the grade of 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
appellant that the unexplained and excessive post-trial delay in the process of this
case warrants relief.
RUBINO—ARMY 20100675

       Here, appellant waived his right to an Article 32, UCMJ, investigation and
pled guilty to all charges and specifications resulting in a record of trial transcript
eighty-six pages in length. Time between sentence and action in this case was 289
days. Neither convening authority nor staff judge advocate offered any explanation
for the post-trial delay, either initially or in response to appellant’s complaint of
excessive post-trial delay contained in his Rule for Courts-Martial 1105 submission.
Even if we permit the government’s calculation, attributing only 218 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 (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);
Moreno, 63 M.J. at 143; 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 excessive post trial delay, along with the particular circumstances of this case,
we find a reduction of two months 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 our reasons above, we find
that, in relation to appellant’s sentence to fifty-one months confinement, only forty-
nine months should be approved. Therefore, the court approves only so much of the
sentence as provides for a bad-conduct discharge, confinement for forty-nine
months, and reduction to the grade of 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:




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




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