MOONEY – ARMY 20050670

CORRECTED COPY

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

GALLUP, HAM, and JOHNSON

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Sergeant First Class FRANKLIN H. MOONEY**

**United States Army, Appellant**

ARMY 20050670

101st Airborne Division (Air Assault) and Fort Campbell 

Richard J. Anderson, Military Judge 

Colonel Richard M. Whitaker, Staff Judge Advocate (trial)

Lieutenant Colonel Stephen J. Price, Staff Judge Advocate (post-trial) 

For Appellant:  Major Scott T. Ayers, JA; Captain Julie Caruso Haines, JA, USAR (on brief).

For Appellee:  Colonel John W. Miller, JA; Major Elizabeth G. Marotta, JA; Captain Michael C. Friess, JA; Captain Michael G. Pond, JA (on brief).

29 August 2008

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SUMMARY DISPOSITION

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Per Curiam:

A panel composed of officer and enlisted members sitting as a general court-martial convicted appellant, contrary to his pleas, of indecent acts with a child (five specifications) and indecent acts with another (four specifications), in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934 [hereinafter UCMJ].  The panel sentenced appellant to a bad conduct discharge, confinement for four years, forfeiture of all pay and allowances, reduction to Private E1, and a reprimand.  The convening authority approved the sentence and credited appellant with five days confinement toward the sentence to confinement.  

This case is before the court for review under Article 66, UCMJ.  We have considered the record of trial, appellant’s assignments of error, including those matters personally raised by appellant pursuant to *United States v. Grostefon*, 12 M.J. 431 (C.M.A. 1982), and the government’s reply thereto.  Appellant asserts, *inter alia*, that under *United States v. Collazo*, 53 M.J. 721 (Army Ct. Crim. App. 2000), and Article 66(c), UCMJ, he is entitled to relief for the unreasonable delay in the post-trial processing of his case.  Appellant also argues that Specifications 10 and 11 of Charge II are factually and legally insufficient. We agree and will grant relief in our decretal paragraph.  We find appellant’s other assertion of error, that the Staff Judge Advocate erred by failing to comment in his addendum on the defense counsel’s allegation of dilatory post-trial processing under *Collazo*, to be without merit.  *See United States v. Hutchison*, 56 M.J. 756 (Army Ct. Crim. App. 2002).

In this case, the military judge authenticated the 720-page record of trial on 9 July 2005, thirty-six days after appellant’s trial.  It then took the staff judge advocate (SJA) 196 days to prepare his recommendation (SJAR), which was finally completed on 18 January 2006.  Appellant raised the issue of dilatory post-trial processing in his Rule for Courts-Martial 1105 submission dated 23 February 2006.  Sixty-four days later, on 28 April 2006, the convening authority took action.  The addendum to the SJAR did not mention appellant’s allegation of dilatory post-trial processing nor did the convening authority’s action.  As the government conceded, the government was responsible for 306 of the 329 days it took to process the record of trial and obtain the convening authority’s action.  There is no explanation for the government’s delay; the absence of any explanation is particularly troublesome in view of the 196 days it took to prepare the SJAR.  Considering the totality of the circumstances and the record as a whole, we find the post-trial processing of this case to be dilatory and grant appellant relief.  *Collazo*, 53 M.J. at 727.

Contrary to the government’s argument, there is insufficient evidence to support Specifications 10 and 11 of Charge II (indecent acts with another), and therefore, we set aside both specifications.

The remaining findings of guilty are affirmed.  Reassessing the sentence on the basis of the errors noted, the entire record, and the principles of *United States v. Sales*, 22 M.J. 305 (C.M.A. 1986) and *United States v. Moffeit*, 63 M.J. 40 (C.A.A.F. 2006), the court affirms only so much of the sentence as provides for a bad conduct discharge, confinement for forty-six months, forfeiture of all pay and allowances, reduction to Private E1, and a reprimand.  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:

MALCOLM H. SQUIRES, JR.

Clerk of Court

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