UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

BURTON, HAGLER, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant First Class COREY D. PORTER 

United States Army, Appellant 

ARMY 20160253 

Headquarters, Fort Drum 

S. Charles Neill, Military Judge 

Lieutenant Colonel John J. Merriam, Staff Judge Advocate 

For Appellant: Major Brendan R. Cronin, JA; Lieutenant Colonel John N. Maher, 

JA (on brief); Major Todd W. Simpson, JA; Lieutenant Colonel John N. Maher, JA 

(on reply brief). 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Virginia H. Tinsley, 

JA; Captain Natanyah Ganz, JA (on brief). 

30 January 2019 

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SUMMARY DISPOSITION 

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FLEMING, Judge: 

In this case, we hold appellant was not prejudiced by any unreasonable posttrial delay. 

A panel with enlisted representation sitting as a general court-martial 

convicted appellant, contrary to his pleas, of two specifications of assault 

consummated by a battery and one specification of obstructing justice in violation of 

Articles 128 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 928, 

934 (2012). The panel sentenced appellant to a bad-conduct discharge, twelve 

months of confinement, forfeiture of all pay and allowances, and reduction to the 

grade of E-1. At action, the convening authority approved the adjudged sentence, 

credited appellant with thirty-nine days of confinement credit, and terminated a 

previously approved deferral of both appellant’s reduction in rank and forfeitures in 

the amount of $3,850 per month. Appellant’s case is now before us under Article 66, 

UMCJ. Appellant asserts eight errors; one merits discussion, none merit relief. 
PORTER—ARMY 20160253 

2 

BACKGROUND 

Appellant was convicted of assaulting his ex-wife, COP, by placing his hands 

around her neck and unlawfully grabbing her face. After finalizing their divorce 

earlier in the day, appellant and COP spent the evening at the same house. While 

there, an argument and physical altercation ensued between them resulting in COP 

calling civilian law enforcement and appellant’s arrest. During appellant’s 

subsequent thirty-nine days of civilian pretrial confinement, he made numerous 

telephone calls to a variety of people, including COP. These telephone calls formed 

the basis for appellant’s conviction of obstruction of justice for offering COP 

financial support if she would request dismissal of pending civilian charges. 

Ultimately, a civilian trial did not occur. A court-martial did. 

Appellant now asserts unreasonable post-trial delay occurred in his case. This 

allegation necessitates outlining the following pertinent dates. Appellant’s courtmartial adjourned on 13 April 2016. On 27 April 2016, the convening authority 

approved appellant’s request to defer his rank reduction and automatic and adjudged 

forfeitures in the amount of $3,850 per month. On 6 October 2016, 21 October 

2016, and 29 December 2016, appellant demanded speedy post-trial processing. On 

25 December 2016, appellant was released from confinement. Appellant’s trial 

defense counsel received the record of trial (ROT) for review on 13 February 2017, 

the military judge authenticated the ROT on 15 March 2017, and appellant received 

the ROT on 4 April 2017. The convening authority took action on appellant’s case 

on 18 May 2017. 

The government acknowledged, in the Addendum to the Staff Judge

Advocate’s Recommendation [Addendum], dated 18 May 2017, receipt of 

appellant’s three requests for speedy post-trial processing. The government’s only 

stated reason for the delay was, “failure of the responsible court-reporter to 

accurately transcribe the record in a timely manner.” In a post-trial memorandum 

for record, the government calculated that post-trial processing took 401 days (13 

days attributable to defense and 388 days attributable to the government). The 

government stated an “extraordinary delay” (304 days) occurred in completing the 

verbatim transcription. 

In reviewing this alleged “extraordinary delay” in processing an 888-page 

transcript, an approximate four-and-a-half month span exists from adjournment until 

an investigation into the delay determined “the senior court reporter was derelict in 

her duties as a court reporter” and “[s]he was relieved of her position.” After her 

relief, the government asserts the following resource constraints: (1) having only 

“two court-reporters assigned of four authorized;” and (2) “the acting senior-court 

reporter (civilian) inherited the transcription of [appellant’s] record and was charged 

with completing this task in addition to transcribing her other records, any additional 

records that the previous senior court reporter had touched, and conducting quality 
PORTER—ARMY 20160253 

3 

assurance checks on the junior court-reporter’s records.” Approximately five-and-ahalf months elapsed between the senior court reporter’s relief and the provision of 

the ROT to defense counsel for review. 

 

LAW AND ANALYSIS 

Dilatory Post-Trial Processing 

 Appellant alleges the approximate 388 days it took the government to 

complete post-trial processing of his case warrants relief either as a due process 

violation or under Article 66(c), UCMJ. As to a due process violation, we apply a 

four-factor balancing test to determine whether such presumptively unreasonable 

delay is, in fact, unreasonable in a given case. United States v. Moreno, 63 M.J. 

129, 135 (C.A.A.F. 2006) (citing Barker v. Wingo, 407 U.S. 514, 530, (1972)). The 

factors are: “(1) the length of the delay; (2) the reasons for the delay; (3) appellant’s 

assertion of the right to timely review and appeal; and (4) prejudice.” Id. (further 

citations omitted). There are three relevant factors to determine prejudice: (1) 

preventing oppressive incarceration; (2) minimizing appellant’s anxiety and concern 

while awaiting appeal outcome; and (3) limiting the possibility of impairing 

appellant’s grounds for appeal. Id. at 138-39. 

 In this case, the length of the delay is substantial—268 days longer than the 

120-day presumption of unreasonable delay. Second, the government had an 

opportunity to provide good reasons for this delay. It did not. Notwithstanding the 

investigation and removal of an apparently rogue senior court reporter and assertions 

of decreased court reporting staff, it took the government 304 days (approximately 

190 days of which occurred after the senior court reporter’s relief) to prepare an 

888-page transcript. Further, this delay occurred in the face of appellant’s three 

demands for speedy post-trial processing and his release from confinement. We 

write to express our concern with all these factors. 

 While the first three prongs of Moreno favor appellant, we are unpersuaded 

any prejudice exists, at bar, to warrant relief. Appellant proffers two grounds to find 

prejudice: (1) he did not receive “any meaningful opportunity to request that the 

convening authority disapprove portions of his confinement,” 1 and (2) his failure to 

receive a Department of Defense Form 214 placed him in financial strain. 

 

1

 The date of appellant’s offenses predate the amendments to Article 60, UCMJ that 

limited the convening authority’s power to disapprove or commute certain sentences. 

Compare UCMJ art. 60 (2012 & Supp. I 2014) with National Defense Authorization 

Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1702, 127 Stat. 672, 955-56 (2013). 
PORTER—ARMY 20160253 

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We pause now to note appellant’s first two demands for speedy trial (6 

October 2016 and 21 October 2016) are mere blanket assertions of delay devoid of 

any explanation as to the prejudice to appellant or request for specific relief. Only 

appellant’s third demand for speedy trial (four days after his release from 

confinement) asserted appellant was prejudiced because the convening authority 

lacked a “meaningful opportunity” to disapprove appellant’s sentenced confinement. 

While appellant submitted and received a deferral of both automatic and adjudged 

forfeitures and reduction in rank from the convening authority, it appears appellant 

did not avail himself of a “meaningful opportunity” to request that the convening 

authority also defer his confinement. Although the convening authority possessed 

the authority to disapprove appellant’s confinement, absent any documentation or 

affidavit to the contrary, it is mere speculation such action would have occurred. 

Any assertion of financial strain because of post-trial delay is gravely 

undermined because the deferral of automatic and adjudged forfeitures and rank 

reduction resulted in appellant’s receipt of $3,850 per month for several months. 

Appellant financially benefited from the delay because the convening authority 

deferred forfeitures and rank reduction until action. See United States v. Arias, 72 

M.J. 501, 504, 506-07 (Army Ct. Crim. App. 2013) (finding no prejudice when 

“every day of post-trial processing prior to action resulted in additional money paid 

to appellant”). 

 Under these circumstances, we find no prejudice exists as to any due process 

violation and decline to exercise our Article 66, UCMJ, authority to approve a lesser 

sentence. After a thorough review of the record and consideration of the post-trial 

delay, we find the sentence approved by the convening authority is appropriate. 

CONCLUSION 

 The findings of guilty and the sentence are AFFIRMED. 

 Senior Judge BURTON and Judge HAGLER concur. 

 FOR THE COURT: 

JOHN P. TAITT 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: