UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CELTNIEKS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist NICHOLAS A. OSBORNE 

United States Army, Appellant 

ARMY 20160285 

Headquarters, United States Army Central 

Christopher T. Fredrikson, Military Judge 

Colonel Kevin K. Robitaille, Staff Judge Advocate 

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; 

Captain Patrick J. Scudieri, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Michael E. Korte, JA (on brief). 

25 May 2017 

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SUMMARY DISPOSITION 

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Per Curiam: 

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

pursuant to his pleas, of one specification of attempted sexual assault of a child in 

violation of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880 (2012) 

[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a 

dishonorable discharge, confinement for twelve months, and reduction 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 convening authority’s action for this 

court to receive the record of trial and docket appellant’s case. The government 

provided no explanation in its post-trial submissions for this delay. 

There is a presumption of unreasonable delay where the convening authority’s 

action is not taken within 120 days of the completion of trial, or where a record of 

trial is not docketed by the service Court of Criminal 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 administrative handling and forwarding of 

the record of trial and related documents to an appellate court 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 appropriateness of the sentence in light of 

the dilatory post-trial processing. 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 sentence ‘should be approved,’ based on all 

the facts and circumstances reflected in the record, including the unexplained 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 such in our decretal paragraph. 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty are AFFIRMED. 

Given the dilatory post-trial processing, however, we affirm only so much of the 

sentence as provides for a dishonorable discharge, eleven months confinement, 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), 75(a). 

FOR THE COURT: 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: