## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private (E-2) LAWRENCE L. WHALEY, II United States Army, Appellant

ARMY 20140767

Headquarters, 82d Airborne Division (Rear) (Provisional) Christopher J. Fredrikson, Military Judge
Lieutenant Colonel Susan K. McConnel l, Acting Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Scott A. Martin (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain Tara E. O’Brien, JA (on brief).

26 April 2016

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, in accordance with his pleas, of one speci fication of absence without leave, two specifications of failure to re port, six specificatio ns of selling mili tary property, and one specification of larceny of military property, in violation of Articles 86, 108, and 121, Uniform Code of Military Justice, 10 U. S.C. §§ 886, 9 08, 921 (2012) [hereinafter UCMJ]. The judge sentence d appellant to a bad- conduct discharge, confinement for thirteen months, and reducti on to the grade of E-1. The convening authority approved the sentence as adjudg ed. The military judge credited appellant with 146 days toward his confinement.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises one allegati on of error which merits discussion and relief. Appellant asks this court to provide appropriate re lief to remedy the dilatory post-trial processing of his case. We agree that relief is appropri ate in this case an d reduce the approved sentence to confinement by thirty days in our decretal paragraph.WHALEY—ARMY 20140767

2 LAW AND DISCUSSION

The convening authority took action 348 days after the conclusion of appellant’s court-martial. Of that delay, twenty-six days are attributable to the defense, and 322 days are attributable to the governmen t. The initial ten days after the government serves the au thenticated record of trial are not attributable to the
defense. See Rule for Courts-Martial 1105. The record in this case consists of two volumes, and the trial transc ript is 212 pages. Alth ough we find no due process violation in the post-t rial processing of ap pellant’s case, we mu st still review the appropriateness of the sentence in light of the unjustified 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] requi red to determine what findings and sentence ‘should be approved,’ based on all the facts and
circumstances reflected in the record, includi ng the unexplained and unreasonable post-trial delay.”). See generally United States v. Toohey , 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney , 68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v. Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

The appellant requested sp eedy post-trial proc essing on three oc casions. The government took 246 days to transcribe the record of trial and to serve the record of trial on appellant’s defense counsel, and another forty-two days for the military judge to authenticate the record of trial in this case. The delay between
announcement of senten ce and action is simply too long, and could “adversely affect the public’s perception of the fairness and in tegrity of military just ice system . . . .” Ney , 68 M.J. at 617. Thus, we find relief is appropri ate under the facts of this case.

CONCLUSION

Upon consideration of th e entire record, the fi ndings of guilty are
AFFIRMED. Given the dilatory post-trial processing, however, we affirm only so much of the sentence as provides for a bad-conduct discharge, confinement for twelve months, and re duction to the grade of E-1. All ri ghts, privileges, and property, of which ap pellant has been depr ived by virtue of that portion of the sentence set aside by this de cision, are ordere d restored. See UCMJ arts. 58a(b), 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: