## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, and BORGERDING Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 STEVEN R. THOMPSON United States Army, Appellant

ARMY 20111069

Headquarters, III Co rps and Fort Hood James L. Varley, Military Judge Colonel Stuart W. Risch, Staff Judge Advocate

For Appellant: Colonel Ke vin Boyle, JA; Ma jor Amy E. Nieman, JA; Captain

Robert N. Michaels , JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Captain Daniel M. Goldberg, JA; Captain Michael J. Frank, JA (on brief).

30 July 2014

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

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LIND, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specifi cation of absence without leave terminated by apprehension, one specif ication of willful disobedien ce of a superior commissioned officer, three specifications of rape by force, two specifications of wrongful sexual contact, and one specification of forc ible sodomy in violat ion of Articles 86, 90, 120, and 125, Uniform Code of Military Justic e [hereinafter UCMJ], 10 U.S.C. §§ 886, 890, 920, 92 5 (2006 and Supp. I 2008). The milita ry judge sentenced appellant to a dishonorable discharge, conf inement for 114 months , forfeiture of all pay and allowances, and redu ction to the grade of E- 1. The convening authority approved the adjudged senten ce and credited appellant with 149 days against the

sentence to confinement.

This case is before the court for review under Article 66, UC MJ. Appellant assigns one error – dila tory post trial pro cessing. The governmen t concedes that theTHOMPSON — ARMY 20111069

2 processing in this ca se was slow and asks this court to grant appellan t relief under Article 66(c), UCMJ, by reduci ng appellant’s sentence by on e month of confinement. We accept the government’s concession and will grant relie f in our decretal paragraph. 1

In reviewing issues of excessive post-tri al delay, we first lo ok to the le ngth of the delay. United States v. Moreno , 63 M.J. 129, 135- 36 (C.A.A.F. 2006). In this case, there was a 377-day delay from sentence (29 November 2011) to action (10 December 2012) for the 410-p age record of trial, whic h is facially unreasonable and triggers our analysis of the remaining Moreno factors. Id. at 142-43 (recognizing “a presump tion of unreasonable delay . . . . where the action of the convening authority is not take n within 120 days of the completion of trial”). We also note that it took the government 36 days from action until this court received the record, which is 6 days past the st andard set by our superior court. Id. at 142 (applying “a similar presumpt ion of unreasonable delay for [cases] . . . where the

record of trial is no t docketed by the service Court of Criminal Appeals within thirty days of the convening au thority’s action”).

In the light most favora ble to the government, excluding defense delay of 120 days, there was at least a 257-day delay between sentence a nd action. Turning

to the reasons for this dela y, the record cont ains and the govern ment provides no explanation for the delay. 2 Id. at 136-38.

Reviewing the third factor, appellant belatedly asserted his right to timely post-trial review in his Rule for Courts-Martial 1105 matters subm itted eight days prior to action. Id. at 138.

Finally, appellant ha s not demonstrated that he was prejudiced by the posttrial delay nor that “in balancing the other three factors, the dela y [was] so egregious that tolerating it would adve rsely affect the public’s perc eption of the fairness and integrity of the military justice system.” United States v. Canchola

, 64 M.J. 245, 247 (C.A.A.F. 2007) (p er curiam) (quoting United Stat es v. Toohey

, 63 M.J. 353, 362 (C.A.A.F. 2006)); see also Moreno , 63 M.J. at 138-41. Thus, we find there was no due process violation in this case.

1 We have also considered those matters pe rsonally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and find they are without

merit.

2 The record contains a chronology, not an ex planation, for delay.THOMPSON — ARMY 20111069

3 Though we find no prejudice as a result of the excessi ve delay, the court must still review the appropriatene ss of the sentence in light of the une xplained 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 an d sentence ‘should be approved,’ base d on all the facts

and circumstances reflected in the r ecord, including th e unexplained and unreasonable post-trial delay.”). See generally Toohey , 63 M.J. at 36 2-63. Upon

review of the entire record to include the unexplained lengthy dilatory post-trial processing of appellant’s ca se and the government’s request that we grant appellant relief, we find it appropria te to set aside one month of appellant’s confinement.

CONCLUSION

The findings of guilty are AFFIRMED. After consid ering the entire record, the court affirms only so much of the sentence as provides for a dishonorable discharge, confinement for 113 months, forfeiture of all pay and allowances, and reduction to the grade of E-1. All rights, privileges, and pr operty, of which appellant has been deprived by virtue of th at portion of the sentence set aside by this decision, are orde red restored. See UCMJ art. 75(a).

Judge KRAUSS and Judge BORGERDING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: