UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant ROBERT W. CUTSHAW 

United States Army, Appellant 

ARMY 20130873 

Headquarters, Third Army, United States Army Central 

Edye Moran and Kirsten V. Brunson, Military Judges 

Lieutenant Colonel Martin N. White, Acting Staff Judge Advocate (pretrial) 

Colonel Brendan M. Donahoe, Staff Judge Advocate (post-trial) 

For Appellant: Colonel Kevin Boyle, JA; Amy E. Nieman, JA; Captain Patrick J. 

Scudieri, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain 

Timothy C. Donahue, JA (on brief). 

28 March 2016 

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

SUMMARY DISPOSITION 

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

Per Curiam: 

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

pursuant to his pleas, of two specifications of violating a lawful general 

regulation and three specifications of maltreatment of subordinates in violation 

of Articles 92 and 93, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 893 

(2012) [hereinafter UCMJ]. The military judge sentenced appellant to a badconduct discharge and reduction to the grade of E-1. The convening authority 

approved the findings and sentence as adjudged.*

 

*

 Pursuant to agreement between the parties in the stipulation of fact (Prosecution 

Exhibit 1), the military judge granted seven days confinement credit for violations of 

Article 13, UCMJ. The confinement credit was rendered moot because appellant was 

not sentenced to confinement. 
CUTSHAW—ARMY 20130873 

 2 

This case is before us for review under Article 66, UCMJ. Appellant raises 

five assignments of error to this court, one of which warrants discussion but no 

relief. 

LAW AND DISCUSSION 

The convening authority took action 354 days after the sentence was adjudged, 

and the record of trial did not arrive at this court until 428 days had elapsed. The 

record in this case consists of two volumes and the trial transcript is 205 pages. The 

government concedes it is attributable for at least 365 days of this total period. In a 

memorandum dated five weeks after action was taken, the staff judge advocate 

explained the delay was due to the removal from duties of an assigned court reporter 

and the limited availability of the convening authority. There was no explanation in 

the record, however, for the seventy-four days between action and the delivery of the 

record of trial to this court. 

While we find no justifiable reason for the presumptively unreasonable delay, 

appellant is not entitled to relief in this case. Appellant concedes he suffered no 

prejudice and we, likewise, find no prejudice as a result of the delay. Absent any 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 unjustified delay. 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 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). 

After reviewing the facts and circumstances of this case, we find the sentence 

as approved by the convening authority to be appropriate. Consequently, despite the 

government’s failure to meet its obligation to provide timely post-trial processing of 

the record, relief is not warranted here. 

CONCLUSION 

Upon consideration of the entire record, we find the findings of guilty and the 

sentence as approved by the convening authority correct in law and fact. 

Accordingly, the findings of guilty and the sentence are AFFIRMED. 

FOR THE COURT: 

 JOHN P. TAITT 

Acting Clerk of Court 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: