UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, HERRING, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class JOSE M. MELENDEZ 

United States Army, Appellant 

ARMY 20140314 

Headquarters, 1st Cavalry Division 

Rebecca Connally, Military Judge 

Colonel R. Tideman Penland, Jr., Staff Judge Advocate (pretrial) 

Lieutenant Colonel Michael D. Jones, Acting Staff Judge Advocate (post-trial) 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R. 

Inkenbradt, JA; Captain Amanda R. McNeil, JA (on brief). 

For Appellee: Major A.G. Courie, III, JA; Major Steven J. Collins, JA; Captain Tara 

E. O’Brien, JA (on brief). 

30 October 2014 

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SUMMARY DISPOSITION 

--------------------------------- 

Per Curiam: 

A military judge sitting as a special court-martial convicted appellant, 

consistent with his pleas, of two specifications of attempting to sell military 

property of a value more than $500, one specification of conspiracy to commit 

larceny of military property of a value more than $500, one specification of larceny 

military property of a value more than $500, and one specification of unlawful entry, 

in violation of Articles 80, 81, 121, and 134 Uniform Code of Military Justice, 10 

U.S.C. §§ 880, 881, 912, 934 (2012) [hereinafter UCMJ]. In accordance with the 

pretrial agreement, the convening authority approved the findings and the adjudged 

sentence of a bad-conduct discharge and confinement for three months. 

This case is before us pursuant to Article 66, UCMJ. Appellant raises one 

assignment of error, which merits discussion and relief. 
MELENDEZ—ARMY 20140314 

2 

BACKGROUND 

Appellant’s court-martial concluded on 23 April 2014. Defense counsel 

received the record of trial for review on 26 August 2014 and completed review the 

next day. The military judge authenticated the record of trial on 23 October 2014 

after returning the record of trial to the court reporter to correct numerous errors. 

The staff judge advocate signed his recommendation (SJAR) on 29 October 2014 and 

served it in conjunction with the authenticated record of trial on appellant’s defense 

counsel on 6 December 2014. The government received post-trial matters on behalf 

of the appellant nine days later. The staff judge advocate signed the addendum on 

22 December 2014 and the convening authority took action the same day. This court 

received the record of trial on 20 February 2015. 

LAW AND DISCUSSION 

In United States v. Moreno, our superior court established timeliness 

standards for various stages of the post-trial and appellate process. 63 M.J. 129, 

142-43 (C.A.A.F. 2006). The Moreno standard applicable in this case is that 

a convening authority should take action within 120 days after the trial is completed. 

Id. at 142. Additionally, the record of trial should be docketed with this court 

within thirty days of the convening authority’s action. Id. Failure to satisfy any of 

these standards creates a “presumption of unreasonable delay,” prompting this court 

to apply and balance the four factors set out in Barker v. Wingo, 407 U.S. 514, 530 

(1972), in order to determine whether appellant’s due process rights were violated 

by the delays. See Moreno, 63 M.J. at 136. 

Taking over 300 days to process appellant’s case from trial completion to 

docketing at this court is presumptively unreasonable and violates both the standard 

for timeliness from trial to initial action and initial action to docketing at this court. 

Id. at 142. In the face of this lengthy delay, our next step is to apply and balance the 

four factors set out in Barker, in order to determine whether appellant’s due process 

rights were violated. Id. at 136. 

The post-trial processing time in appellant’s case is 243 days from sentence to 

action. The government served defense counsel with the eighty-seven page record of 

trial for review 125 days after the conclusion of appellant’s trial. The lack of any 

delay on the part of the defense rests the dilatory post-trial processing at the feet of 

the government. See Rule for Courts-Martial 1106(f)(5) and United States v.

Garman, 59 M.J. 677 (Army Ct. Crim. App. 2003). Another 61 days passed from 

action to receipt by this court. The delay from trial to initial action is more than 

double both the time where this court presumes unreasonable delay in post-trial 

 

 One other standard—timeliness of appellate review before this court—is not 

relevant in appellant’s case. Moreno, 63 M.J. at 142-43. 
MELENDEZ—ARMY 20140314 

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processing between sentence and action and what is expected for receipt of this 

record of trial by this court. See Moreno, 63 M.J. at 142 (recognizing a presumption 

of unreasonable delay in cases where action is not taken within 120 days of the 

completion of trial and where the record of trial is not docketed at this court within 

30 days of action). This facially unreasonable delay triggers our review of the 

remaining Moreno factors: reasons for the delay; timely assertion of the right to 

speedy post-trial review; and prejudice. Id. at 135-36. 

The explanation by the senior installation court reporter outlines several 

reasons for the delay to include: heavy caseload, transcription back-ups, the military 

judge’s corrections to the record, and operational deployments. 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). Operational deployments under certain circumstances 

can justify a delay. United States v. Bauerbach, 55 M.J. 501, 507 (Army Ct. Crim. 

App. 2001). There is no specific explanation provided by the government for the 

delay in this court receiving the case. The reasons for the delay weigh in favor of 

appellant. 

The third Moreno factor weighs in favor of the appellant; he asserted his right 

to speedy post-trial processing multiple times. Turning to the fourth Moreno factor, 

appellant fails to demonstrate prejudice. Although we find no due process violation 

after consideration of the Moreno factors, we review the appropriateness of the 

sentence in light of the dilatory post-trial processing. UCMJ art. 66(c). See 

Moreno, 63 M.J. at 138-42; United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 

2006); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). After 

consideration of the entire record, we conclude appellant’s case warrants relief in 

the form of a thirty day reduction in confinement under Article 66(c), UCMJ, for the 

unreasonable post-trial delay. See Tardif, 57 M.J. at 224. 

CONCLUSION 

The findings of guilty are AFFIRMED. After considering the entire record, 

we AFFIRM only so much of the sentence as provides for a bad-conduct discharge 

and confinement for two months. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the sentence set aside by this 

decision are ordered restored. See UCMJ arts. 58b(c) and 75(a). 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: