## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JAVARIOUS K. WHITE United States Army, Appellant

ARMY 20131013

Headquarters, III Co rps and Fort Hood

Rebecca K. Connally, Military Judge Colonel Richard W. Rousseau, St aff Judge Advocat e (pretrial) Colonel Ian G. Corey, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Ch arles D. Lozano, JA; Major Aaron R. Inkenbrandt, JA; Captain Nichol as J. Larson, JA (on brief).

For Appellee: Colonel Mark H. Sydenham , JA; Major John K. Choike, JA; Captain Robyn M. Chatwood , JA (on brief).

23 May 2016

--------------------------------- SUMMARY DISPOSITION

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

Per Curiam:

A special court-martial composed of officer and enlisted members convicted appellant, contrary to his pl eas, of three specifications of assault consummated by battery and one specifi cation of aggravated assault, al l in violation of Article 128,

Uniform Code of Milit ary Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. The courtmartial sentenced appellant to a bad-cond uct discharge, confinement for one year, forfeiture of $1010.00 pay pe r month for six mont hs, and reduction to the grade of E-1. The convening authority approv ed the sentence as adjudged.

This case was referred to us for review pursuant to Article 66(b), UCMJ. Appellant raises one assignmen t of error, which merits bo th discussion and relief. Appellant asks this court to provide appropriate relief to remedy the dilatory posttrial processing of hi s case. We agree that relief is appropriat e in this case and reduce the approved sentence in our decretal paragraph.WHITE—ARMY 20131013

2 LAW AND DISCUSSION

The convening authority took action eleven and a half months after the conclusion of appellant’s cour t-martial. Broken into its constituent part s, some of this delay was reasonable, some was less th an ideal, but one aspe ct is particularly concerning. The milit ary judge authenticated the r ecord on 18 June 2014. On 20 October 2014, the staff judge advocate signed the reco mmendation (SJAR). That is,

it took over four months— and longer than the time allotted for the entire post-trial processing of the case— to sign a routine legal memorandum. The SJAR, including the heading and sign ature bock, was less than one page in length.

It should be made clear that this was not a case in which appellant was

indifferent to the timelin ess of the post-trial proc essing. Three weeks after authentication by the military judge, ap pellant’s defense coun sel sent a memorandum to the staff judge advocate (the second such request) speci fically requesting expedited processing . Nevertheless, no explanation was gi ven for the delay.

Appellant’s submission under Rule for Courts-Martial 1105 offered the final opportunity for the government to explain the excessive post-trial dela y. In his submission, appellant again complained of the unnecessary delay and the violation

of the time limits established by United States v. Moreno , 63 M.J. 129 (C.A.A.F. 2006)

. In response, the staff judge advocate stated only th at he “disagree[d]” that there was any legal error a nd advised the convening authority that no corrective action was required.

Although we find no due process violation in the post-trial processing of appellant’s case, we must still review the ap propriateness of the sentence in light of the unjustified dilatory post-trial processing. UC MJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A .F. 2002) (Pursuan t to Article 66(c) , UCMJ, service courts are “required to determine what find ings and sentence ‘s hould be approved,’

based on all the facts and circumstances reflected in the record, including the unexplained and un reasonable post-trial delay.”). See generally United States v. Toohey , 63 M.J. 353, 362-6 3 (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).

Accordingly, we find ourselv es at a familiar crossr oads. The sentence as adjudged is entirely appropriate fo r appellant’s offenses. But, the failure to perform routine administrative pape rwork, while not amounting to a due process violation, calls into question whether the sentence, as approved , after all the delay is appropriate. Thus, we mu st choose between reducing an entirely appropriate sentence or appearing to turn a blind eye to excessive delay. Preparing SJARs is—to quote then Chief Judge Pe de—the “blocking and tack ling” of military justice practice. United States v. Mack, ARMY 20120247, 2013 CCA LEXIS 1016, at *5WHITE—ARMY 20131013

3 (Army Ct. Crim. App. 9 Dec. 2013) (summ. disp.) (Pede, C. J., concurring). Accordingly, we choo se, in this case, to provide relief.

While reducing a sentence because of post-trial delay is an appropriate exercise of Article 66(c), UCMJ, authorit y, our need to do so frequently reflects poorly on “those principall y responsible for the administration of justice.” Mack

, 2013 CCA LEXIS 1016, at *5 (Pede, C. J., concurring).

CONCLUSION

Upon consideration of th e entire record, the fi ndings of guilty are

AFFIRMED. Given the d ilatory post-trial proc essing, we affirm on ly so much of the sentence as provides for a bad-conduct discharge and conf inement for nine months. All rights, privileges, and pr operty, of which appellant ha s been depriv ed by virtue of that portion of the sent ence set aside by this deci sion, are ordere d restored. See UCMJ arts. 58a(b), 5 8b(c), and 75(a).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: