## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges
UNITED STATES, Appellee

v. Specialist NICHOL AS A. OSBORNE United States Army, Appellant

ARMY 20160285

Headquarters, United States Army Central Christopher T. Fredri kson, Military Judge Colonel Kevin K. Robitaill e, Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Michael E. Korte, JA (on brief).

25 May 2017

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specificat ion of attempted sexual assault of a child in violation of Article 80, Unif orm Code of Military Justice, 10 U.S.C. § 880 (2012) [hereinafter UCMJ]. The convening auth ority approved the adju dged sentence of a dishonorable discharge, confinement for tw elve months, and reduc tion to the grade of E-1.

This case is before us for review under Article 66, UCMJ. Appellate defense counsel assigns one error to this court, and appellant personally raises matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A . 1982). After due consideration, we find the assigned error warrants discussion and relief; the matters raised under Grostefon are without merit.OSBORNE—ARMY 20160285

2 LAW AND DISCUSSION

The convening authority took action 245 days after the sentence was adjudged. The record in this case consists of 2 volumes, and the trial transcript is 130 pages. It took sixty-seven days after the conven ing authority’s action for this court to receive the record of trial and docket appell ant’s case. The government provided no explanation in its post-trial submis sions for this delay.

There is a presumption of unreasonable delay where the convening authority’s action is not taken wi thin 120 days of the completion of trial, or where a record of trial is not doc keted by the service Court of Crimin al Appeals within thirty days of the convening authority’s action. United States v. Moreno , 63 M.J. 129, 142 (C.A.A.F. 2006). Post-trial delay in the administrativ e handling and forwarding of the record of trial and related documents to an appellate co urt is the “least defensible” type of post -trial delay and “worthy of the least patience.” United States v. Dunbar , 31 M.J. 70, 73 (C.M.A. 1990).

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 dilatory post-trial proc essing. UCMJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2002 ) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what findings and senten ce ‘should be approv ed,’ based on all the facts and circumstances reflected in the record, in cluding the une xplained and unreasonable post-trial delay.”). See United States v. Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). Under the circumstances, we find relief from this court is appropriate and provide su ch in our decret al paragraph.

CONCLUSION

Upon consideration of the entire record, th e findings of guil ty are AFFIRMED. Given the dilatory post-trial processing, ho wever, we affirm onl y so much of the sentence as provides for a dishonorable di scharge, eleven mont hs confinement, and reduction to the grade of E-1. All rights, privil eges, 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), 75(a).

FOR THE COURT:

JOHN P. TAITT Chief Deputy Clerk of Court JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: