UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

YOB, KRAUSS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 CHRISTOPHER T. BURKS 

United States Army, Appellant 

ARMY 20111177 

Headquarters, III Corps and Fort Hood 

James Varley and Jeffrey Hart, Military Judges 

Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate (pretrial and 

addendum) 

Colonel Stuart W. Risch, Staff Judge Advocate (recommendation) 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Richard E. Gorini, JA; Captain J. Fred Ingram, JA (on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA 

(on brief). 

28 January 2013 

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SUMMARY DISPOSITION 

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KRAUSS, Judge: 

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

pursuant to his pleas, of one specification of absence without leave, one 

specification of wrongful use of marijuana and one specification of wrongful use of 

cocaine, in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 

U.S.C. §§ 886, 912a (2006) [hereinafter UCMJ]. The military judge sentenced 

appellant to a bad-conduct discharge, confinement for ten months, forfeiture of 

$978.00 per month for ten months, and reduction to the grade of E-1. In accordance 

with the terms of a pretrial agreement, the convening authority approved eight 

months confinement and the remainder of the adjudged sentence. 

This case is before the court for review under Article 66, UCMJ. Appellant 

asserts excessive post-trial delay warrants relief and personally raises matters 
BURKS—ARMY 20111177 

2

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have 

considered the record of trial, appellant’s assignment of error, the government’s 

answer, and the matters raised pursuant to Grostefon. Though we do not find any 

actual prejudice to appellant, we agree with appellant that the unexplained and 

excessive post-trial delay in the process of this case warrants relief. 

Here, the government brought appellant to trial, at a special court-martial, 

eight and a half months after his return from an unauthorized absence of more than 

thirty-five months. He pled guilty to three of the four specifications alleged. The 

government did not try to prove the fourth specification referred. The trial 

transcript is eighty-two pages. Time between sentence and action in this case was 

232 days. Neither the convening authority nor the Staff Judge Advocate included 

any explanation for the time required to complete the post-trial processing in this 

case and nothing in the record establishes any delay on the part of appellant. The 

length of this processing time without explanation, let alone justification, warrants 

relief under the particular circumstances of this case. UCMJ art. 66(c); 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 processing time, along with the particular 

circumstances of this case, we find a reduction of one month in the sentence 

appropriate. 

Therefore, on consideration of the entire record, the assigned error, and 

matters raised pursuant to United States v. Grostefon, 12 M.J. at 431, we find the 

findings of guilty correct in law and fact, and they are affirmed. However, in light 

of our reasons above, we find that, in relation to appellant’s approved sentence to 

eight months confinement, only seven months should be approved. Therefore, the 

court approves only so much of the sentence as provides for a bad-conduct 

discharge, confinement for seven months, forfeiture of $978.00 per month for ten 

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: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR.                          

Clerk of Court

FOR THE COURT: