UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class JOSEPH B. CAMPBELL 

United States Army, Appellant 

ARMY 20140305 

Headquarters, 1st Cavalry Division 

Rebecca K. Connally, Military Judge 

Colonel R. Tideman Penland, Jr., Staff Judge Advocate (pretrial) 

Lieutenant Colonel Alison C. Martin, Staff Judge Advocate (post-trial) 

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

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

For Appellee: Lieutenant Colonel A.G. Courie, III, JA; Major Melissa Dasgupta 

Smith, JA; Captain Christopher A. Clausen, JA (on brief). 

23 January 2017 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

FEBBO, Judge: 

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

pursuant to his pleas, of one specification each of conspiracy to commit larceny of 

military property, larceny of military property, housebreaking, and concealing stolen 

property, in violation of Articles 81, 121, 130, and 134 Uniform Code of Military 

Justice, 10 U.S.C. §§ 881, 921, 930, 934 (2012) [hereinafter UCMJ]. The military 

judge sentenced appellant to a bad-conduct discharge and confinement for five 

months. In accordance with the pretrial agreement, the convening authority 

approved only three months of confinement but otherwise approved the sentence as 

adjudged. 

This case is before the court for review under Article 66, UCMJ. Appellant 

raises two allegations of error to this court. In the first assignment of error 
CAMPBELL—ARMY 20140305 

2

appellant asserts the military judge abused her discretion by accepting appellant’s 

guilty plea to the conspiracy, larceny, and housebreaking charges. In the second 

assignment of error, appellant asserts that the government was dilatory in post-trial 

processing. Both assigned errors warrant discussion, and both merit at least partial 

relief. 

BACKGROUND 

As part of the pretrial agreement, the parties stipulated to the relevant facts in 

the case. Appellant was assigned to the 3d Cavalry Regiment, 1st Cavalry Division, 

at Fort Hood, Texas. Appellant’s primary occupational specialty (MOS) was 91C, 

Utilities Equipment Repair. The charged offenses arose from appellant and two 

other soldiers from his unit entering motor pools and motor pool bays on Fort Hood 

and stealing multiple items of military property. 

On 4 October 2013, appellant and the two other soldiers “decided to break 

into unit motorpools1 at night to take batteries to sell to a scrap and metal recycling 

center in exchange for cash.” The three soldiers had previously stolen military 

property to sell. That evening, the three soldiers “traveled to a secluded motorpool” 

on Fort Hood. At the motor pool, the soldiers “entered through a fence” and “took 

approximately 20 large vehicle batteries.” They also took tools and an air 

compressor. The next day, the three soldiers sold the batteries to a scrap and 

recycling center for cash and “split the money amongst themselves.” 

The three soldiers agreed to do the “same thing” the following weekend. On 

11 October 2013, the three soldiers traveled to another motor pool on Fort Hood. 

After hiding their vehicles behind military vehicles, they “cut the lock off the gate 

and entered the motorpool in order to find batteries to steal.” They entered the 

“motorpool bay” and took approximately thirty batteries. They selected the larger 

batteries “because they were worth more money.” The three soldiers also took two 

sets of jumper cables for military vehicles and three toolboxes. The soldiers 

stripped the jumper cables down to “clean copper to sell to the scrap yard.” Again 

the next day, the three soldiers sold the batteries to a scrap and recycling center for 

cash and split the money amongst themselves. 

Afterward, the three soldiers disagreed on how they would split the money 

received from stolen property in the future. Appellant and one of the other soldiers 

decided to exclude the third soldier “the next time they stole property.” On 12 

 

1

 The charges and stipulation of fact reference “motorpool” and “motorpool bay.” 

The court prefers the spelling “motor pool” and “motor pool bay” but has kept the 

original spelling for consistency when discussing and quoting the language in the 

charges, specifications, and stipulation of fact. 
CAMPBELL—ARMY 20140305 

3

October 2013, appellant and one of the soldiers, went to “their own unit motorpool 

to steal batteries to sell.” After again hiding their trucks, appellant and the other 

soldier cut the lock off the fence and “entered the motorpool bay.” Together, they 

stole “approximately fifty (50) large vehicle batteries.” The two soldiers took the 

batteries to a scrap and recycling center to sell. 

 

As part of the stipulation of fact, appellant stipulated to the elements of the 

charged offenses contained in the specifications. The military judge advised 

appellant of the elements of conspiracy, larceny, housebreaking, and concealing 

stolen property offenses. Prior to accepting appellant’s guilty plea, the military 

judge conducted a plea inquiry with the appellant. 

 

LAW AND DISCUSSION 

We review a military judge’s decision to accept a plea of guilty “for an abuse 

of discretion and questions of law arising from the guilty plea de novo.” United 

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008); see also United States v. 

Murphy, 74 M.J. 302, 305 (C.A.A.F. 2015); United States v. Phillips, 74 M.J. 20, 21-

22 (C.A.A.F. 2015) (“Appellant bears the burden of establishing that the military 

judge abused [her] discretion.”). “[T]he abuse of discretion standard of review 

recognizes that a judge has a range of choices and will not be reversed so long as the 

decision remains within that range.” United States v. Gore, 60 M.J. 178, 187 

(C.A.A.F. 2004) (citing United States v. Wallace, 296 U.S. App. D.C. 93, 964 F.2d 

1214, 1217 n.3 (D.C. Cir. 1992)). A guilty plea will be set aside on appeal only if 

an appellant can show a substantial basis in law or fact to question the plea. Gore, 

60 M.J. at 187 (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). 

The court applies this “substantial basis” test by determining whether the record 

raises a substantial question about the factual basis of appellant’s guilty plea or the 

law underpinning the plea. Gore, 60 M.J. at 187; United States v. Barton, 60 M.J. 

62, 65 (C.A.A.F. 2004) (“a guilty plea is less likely to have developed facts.”); see 

also UCMJ art. 45(a); Rule for Courts-Martial [hereinafter R.C.M.] 910(e). 

 

 A providence inquiry into a guilty plea must establish that the accused 

believes and admits he is guilty of the offense and the factual circumstances 

admitted by the accused objectively support the guilty plea. United States v. 

Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996); United States v. Davenport, 9 M.J. 

364, 367 (C.M.A. 1980); UCMJ art. 45(a); R.C.M. 910(e). The record of trial must 

reflect not only that the elements of each offense have been explained to the 

accused, but also "make clear the basis for a determination by the military trial 

judge . . . whether the acts or the omissions of the accused constitute the offense . . . 

to which he is pleading guilty." United States v. Care, 18 U.S.C.M.A. 535, 541, 40 

C.M.R. 247, 253 (1969). The stipulation of fact can provide an additional factual 

basis upon which to satisfy this requirement. Id. “If an accused sets up matter 

inconsistent with the plea at any time during the proceeding, the military judge must 
CAMPBELL—ARMY 20140305 

4

either resolve the apparent inconsistency or reject the plea.” United States v. Hines, 

73 M.J. 119, 124 (C.A.A.F. 2014) (quoting United States v. Goodman, 70 M.J. 396, 

399 (C.A.A.F. 2011)) (internal quotation marks omitted); see also UCMJ art. 45(a). 

“A military judge abuses his discretion if he neglects or chooses not to resolve an 

inconsistency or reject the inconsistent or irregular pleading.” United States v. 

Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (quoting United States v. Hayes, 70 M.J. 

454, 457-58 (C.A.A.F. 2012)). The military judge need only reject the plea when 

the accused “persists in his statements” that cause the inconsistency. United States 

v. Thompson, 21 U.S.C.M.A. 526, 527, 45 C.M.R. 300, 301 (1972). Where the 

possibility of a defense exists, a military judge should secure satisfactory 

disclaimers by the accused of this defense. Prater, 32 M.J. at 436 (citing United 

States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976)). 

 

“In determining on appeal whether there is a substantial inconsistency, this 

[c]ourt considers the ‘full context’ of the plea inquiry, including [a]ppellant’s 

stipulation of fact.” Goodman, 70 M.J. at 399 (quoting United States v. Smauley, 42 

M.J. 449, 452 (C.A.A.F. 1995)). “This court must find a ‘substantial conflict 

between the plea and the accused’s statements or other evidence’ in order to set 

aside a guilty plea. The ‘mere possibility’ of a conflict is not sufficient.” Hines, 73 

M.J. at 124 (quoting United States v. Watson, 71 M.J. 54, 58 (C.A.A.F. 2012)); 

United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006). 

A. The Conspiracy Charge 

On appeal, appellant contends that the military judge did not elicit sufficient 

facts to support that the conspiracy “was to commit not only a larceny but a larceny 

of military property greater than $500.” As a result, “[W]ithout these two statutory 

sentencing enhancers, the maximum punishment would have been six months and a 

bad-conduct discharge as opposed to ten years and a dishonorable discharge.” 

 The military judge went over the stipulation of fact with the appellant. The 

military judge also advised appellant of the elements of conspiracy to commit 

larceny which included larceny of military property of a value over $500. However, 

the military judge never explicitly elicited from appellant whether the criminal 

agreement at inception included an agreement to steal more than $500 of military 

property. Appellant described to the military judge that after the initial agreement 

on 4 October 2013, he remained party to the conspiracy and never attempted to 

withdraw from the conspiracy or abandon the plan to steal military property from 

motor pools. 

 

The stipulation of fact established that prior to entering into the agreement on 

4 October 2013 appellant and the other two soldiers had previously “stolen military 

property to sell.” As a result, they would have generally known and understood the 

value of the additional military property they planned to steal. Based on his duty 
CAMPBELL—ARMY 20140305 

5

location and assigned unit, appellant understood the items stored within a motor 

pool bay were military property which belonged to the government. 

 On 4 October 2013, as part of the conspiracy, appellant and the other two 

soldiers drove their vehicles to the motor pools to haul away the items they sold to 

scrap and metal recycling centers. Appellant and the other soldiers entered a motor 

pool and stole twenty large batteries, tools, and an air compressor. Appellant and the 

other soldiers hauled these items of military property to the scrap and metal 

recycling centers and sold the items knowing they were military property. After 4 

October 2013, appellant criminal conspiracy continued after the initial agreement 

and they agreed do the “same thing” the following weekend as described earlier. 

Overall, during the course of their conspiracy, appellant and his counterparts 

cut gate locks, entered motor pools and motor pool bays, and stole approximately 

100 “large” batteries, tools, three tool boxes, air compressors, and two sets of 

jumper cables. Appellant and the other soldiers stripped the cables “down to clean 

copper” to sell the cables to scrap and metal recycling centers. Appellant and the 

other soldiers sold the batteries alone for approximately $6,000, an amount far in 

excess of $500 and 1200% above the legal threshold for increased punishment. 

Appellant’s statements during the providence inquiry for larceny, 

supplemented by the stipulation of fact, established that he understood the value of 

the items that they conspired to steal was over $500 and were in fact military 

property. During the providence inquiry for the larceny charge, which was the object 

of the conspiracy, the military judge explicitly elicited from appellant that he knew 

the property stolen was more than $500 in value and was military property. 

The conspiracy specification alleged all the elements of the offense charged, 

appellant pleaded guilty to the specification, the providence inquiry established that 

the appellant believed he was guilty, and the factual circumstances revealed by the 

appellant objectively support the guilty plea. Having examined the “full context” of 

the plea inquiry, to include appellant’s responses during the entire colloquy to the 

larceny charge, and the stipulation of fact, and appellant’s sentencing case, we find 

no substantial basis to question his plea of guilty. Therefore, the appellant's plea to 

the Specification of Charge I was provident. 

 

As the appellant has shown no substantial basis in law or fact to question his 

pleas of guilty, we conclude that the military judge did not abuse her discretion in 

accepting appellant’s pleas. See Inabinette, 66 M.J. at 322. 

B. The Larceny Charge 

Appellant contends that the military judge abused her discretion in finding 

appellant provident to the larceny charge. Appellant states that the stipulation of 
CAMPBELL—ARMY 20140305 

6

fact was separated into three separate larcenies while appellant pleaded guilty to one 

larceny “event” consisting of all the stolen items (batteries, tool boxes, air 

compressors and jumper cables). Appellant contends that it was error for him to 

plead guilty to stealing specific items of military property during one transaction 

while he stipulated to different items during different times. 

It is correct the stipulation of fact was broken into three paragraphs that 

addressed the factual bases for three separate larcenies (on or about 4 October 2013, 

11 October 2013, and 12 October 2013). It is also correct that the single charge 

covered all the items of U.S. Army property stolen between on or about 4 October 

2013 to 17 October 2013. Normally, this court is confronted with the opposite 

criticism about the government’s charging decision. If the government had charged 

all three larcenies separately, it may have prompted a claim of unreasonable 

multiplication of charges.2

 

Instead, we now address whether the charges were duplicitous. “One 

specification should not allege more than one offense.” R.C.M. 307(c)(3) discussion 

(G)(iv). However, if two acts or a series of acts constitutes one offense, they may be 

alleged conjunctively. Id. The remedy for a duplicitous specification is to file a 

motion to sever the specifications into two or more specifications. R.C.M. 

906(b)(5). Prior to entering his guilty plea, appellant never raised to the trial court 

any objections to the larceny charge as drafted or objections to the wording of the 

stipulation of fact. “An unconditional guilty plea generally waives all pre-trial and 

trial defects that are not jurisdictional nor a deprivation of due process of law.” 

United States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009) (quoting United 

States v. Rehorn, 9 U.S.C.M.A. 487, 488-89, 26 C.M.R. 267, 268-69 (1958). We do 

not find any error or prejudice in how the government drafted the larceny charge. 

 

2 See, e.g., the explanatory text of Article 121 in the Manual of Courts-Martial 

provides guidance on what the government should consider when charging a 

“multiple article larceny”: 

When a larceny of several articles is committed at substantially the 

same time and place, it is a single larceny even though the articles 

belong to different persons. Thus, if a thief steals a suitcase 

containing the property of several persons or goes into a room and 

takes property belonging to various persons, there is but one 

larceny, which should alleged in but one specification. 

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], Part 

IV, para. 46(c)(i) (ii) 
CAMPBELL—ARMY 20140305 

7

Not severing the specification into three larcenies was not prejudicial to appellant.3 

Regardless, reviewing the full context of the plea inquiry, to include appellant’s 

responses during the entire colloquy to the larceny charge, the stipulation of fact, 

and appellant’s sentencing case, we find no substantial basis to question his plea of 

guilty. The military judge did not find any inconsistencies between the charged and 

admitted conduct and his guilty plea inquiry, and neither do we. 

We find the appellant’s plea inquiry adequately established he was guilty of 

the larceny charge. Both in the stipulation of fact and the plea inquiry, appellant 

established he stole U.S. Army property on three different dates. Appellant’s 

providence inquiry established he was guilty of stealing batteries, tool boxes, air 

compressors, and jumper cables that were the property of the U.S. Army. Appellant 

informed the military judge he worked in the motor pool, maintained vehicles, and 

knew the items were military property that belonged to the U.S. government. In fact, 

appellant used the tools, batteries, and jumper cables at the motor pool to maintain 

the vehicles. 

The specification alleged all the elements of the offense charged, the 

appellant pleaded guilty to the specification of larceny of military property of a 

value more than $500, the providence inquiry established that the appellant believed 

he was guilty, and the factual circumstances revealed by the appellant objectively 

support the guilty plea. Therefore, the appellant's plea to the Specification of Charge 

II was provident. 

 

As the appellant has shown no substantial basis in law or fact to question his 

pleas of guilty, we conclude that the military judge did not abuse her discretion in 

accepting appellant’s plea to the larceny charge. See Inabinette, 66 M.J. at 322. 

C. The Housebreaking Charge 

Appellant contends that the military judge abused her discretion in accepting 

appellant’s plea to the Article 130, UCMJ, housebreaking charge because he never 

stated he unlawfully entered a structure. In appellant’s case, the housebreaking 

charge included an unlawful entry into both a “motorpool” and “motorpool bay” 

with the intent to commit a larceny. Article 130, UCMJ, provides: “Any person 

subject to this chapter who unlawfully enters the building or structure of another 

with intent to commit a criminal offense therein is guilty of housebreaking . . . .” 

MCM, Part IV, para. 56c(4), discusses the offense of housebreaking: 

'Building' includes a room, shop, store, office, or apartment in a 

 

3

 The same analysis would apply to an argument that the housebreaking charge was 

duplicitous and should have been severed into three separate specifications. 
CAMPBELL—ARMY 20140305 

8

building. 'Structure' refers only to those structures which are in the 

nature of a building or dwelling. Examples of these structures are a 

stateroom, hold, or other compartment of a vessel, an inhabitable 

trailer, an in-closed truck or freight car, a tent, and a houseboat. . . . 

 Our superior court recently decided the question of whether a motor pool can 

be the subject of an Article 130, UCMJ, housebreaking charge. United States v. 

Wilson, 76 M.J. ___ (C.A.A.F. 2017). The CAAF concluded a fenced motor pool is 

not a structure for housebreaking purposes. Id. at *2. The Court of Appeals for the 

Armed Forces (CAAF) did aver that a motor pool bay can constitute a structure for 

housebreaking purposes: “Neither are [fenced motor pools] ‘permanent structures,’ 

as the fences can be easily moved or removed, unlike a motor pool bay.” Id. at *6. 

We will modify appellant’s housebreaking charge accordingly by excepting the 

words “a motor pool and” in our decretal paragraph. We hold the military judge did 

elicit the factual predicate to rightly conclude that a “motor pool bay” in appellant’s 

case is a building structure for housebreaking purposes. We include definition and 

discussion of “motor pool” to delineate the term from “motor pool bay,” which we 

also discuss in-depth. 

A motor pool4

 is a customary military term used to describe an area, normally 

fenced, where military vehicles and equipment are stored, accounted for, and 

maintained.5 A motor pool can include buildings and structures contained within the 

perimeter or gated area of the motor pool. A “bay” is a customary military term that 

the Army uses to describe open areas contained within buildings that are used for 

 

4

 Dep’t of the Army, Pam. 750-3, Soldier’s Guide to Field Maintenance Operations, 

para. 5-9 (18 Sept. 2013) (discusses motor pool safety, standard operating 

procedures (SOPs), security, and maintenance. For example, under para. 5-9, while 

in garrison, “vehicles and generators are generally stored in unit motor pools” and 

access to a motor pool is limited.); Army Reg. 405-70, Utilization of Real Property 

(12 May 2006) (“inside parking areas” is garage space that is used for parking of 

motor vehicles including motor pools and “light industrial areas” are areas are 

normally not “directly associated with office space and attendant storage 

requirements including....motor pool service areas.”). 

 

5

 Our superior court gives deference to the service courts’ interpretation of 

regulations issued by their own departments. United States v. Shavrnoch, 49 M.J. 

334, 338 n.2 (C.A.A.F. 1998) (“giving significant deference to the Courts of 

Criminal Appeals in the interpretation of the regulations issues by their own 

departments.”); United States v. Manuel, 43 M.J. 282, 297; (C.A.A.F. 1995); United 

States v. Moultak, 24 M.J. 316, 318 (C.M.A. 1987); United States v. Johanns, 20 

M.J. 155 (C.M.A). cert. denied. 474 U.S. 850 (1985). 
CAMPBELL—ARMY 20140305 

9

habitation, storage, or to perform work functions.6 Generally, a motor pool bay7 is a 

building within the motor pool area where vehicles and equipment are also stored 

and protected from outside exposure and maintenance and repairs are performed on 

military vehicles. As distinguished from fenced outside motor pool areas, motor 

pool bays are completely enclosed by walls, roofs, and usually floors and the 

enclosed motor pool bay area is climate controlled with heating and air 

conditioning.8

The charge of housebreaking and stipulation of fact were unambiguously clear 

in describing appellant’s entry into both the motor pool and motor pool bay with 

intent to commit larceny. During the providence inquiry, the military judge clearly 

made a distinction between unlawful entry into the motor pool and motor pool bay. 

The military judge, in explaining the elements, was clear that housebreaking 

required an unlawful entry into a building or structure. She defined a building as a 

room, store, or office and structures as including enclosures similar to buildings and 

 

6 See Army Reg. 420-1, Army Facilities Management, Rapid Action Revision (RAR) 

Issue Date 24 August 2012 (An “open-bay facility” is a large room housing thirty to 

sixty people. Table 3-7, “open bay” living areas are authorized for E-1 through E-4 

attending AIT/ASI and the “open bay comprises all the [space] within the peripheral 

walls.”; National Guard Pam. 415-2, Army National Guard Facilities Allowances, 

dated 25 January 2015 (“General Purpose Work Bays (GPWB) are those in which 

mechanics repair, replace, or adjust the operational mechanisms of vehicles and 

equipment.” All work bays at a facility will be the same size (32 feet x 64 feet) to 

facilitate design and construction); Army Regulation 140-483, Army Reserve Land 

and Facilities Management (24 July 2007) (“Work bays are authorized based on the 

number of automotive (wheeled and tracked) and engineer equipment mechanics.”). 

7

 The customary military term for “bay” is consistent with the civilian meaning 

of “bay” as a building with an enclosed area. Merriam-Webster defines “bay” as 

“(1) a principal compartment of the walls, roof, or other part of a building or of 

the whole building; (2) a main division of a structure; (3) any of various 

compartments or sections used for a special purpose (as in an airplane, 

spacecraft, or service station).” Merriam-Webster’s Collegiate Dictionary 104 

(11th ed. 2014). 

8

 When occupied as active working spaces “maintenance bays” will be heated or 

cooled to sixty degrees Fahrenheit. Dep’t of the Army Pam. 415-28, Guide to Army 

Real Property Category Codes (10 July 2013) (“For facilities measurements of 

maintenance type facilities, a ‘single bay’ is 32 feet x 32 feet and a ‘double bay’ is 

64 feet x 32 feet.”). This guidance further supports that maintenance bays are 

enclosed buildings. 
CAMPBELL—ARMY 20140305 

10

dwellings. Appellant stated he understood the elements of housebreaking required 

unlawful entry into a building or structure. Appellant in the stipulation of fact and 

providence inquiry admitted that he entered three motor pools that were all fenced 

areas. For two of the motor pools, appellant and the other soldiers had to cut locks 

off the gates in order to enter. On two occasions, once inside the fenced motor pool 

areas, appellant admitted to separately entering the motor pool bay buildings through 

unlocked doors. 

Appellant worked in the motor pool and maintained vehicles; he clearly 

understood the distinction between a “motor pool” and “motor pool bay” when 

agreeing to the language of the stipulation of fact and during his providence 

inquiry.9

 In his providence inquiry, appellant stated one of the motor pools and 

motor pool bays was his place of duty during the day, where his unit conducted 

formations, and his unit kept their property. Appellant elaborated on his familiarity 

with motor pool bays when he described in his unsworn statement that on his second 

deployment to Iraq he spent most of his time “in the shop working the bay fixing air 

conditioners.” The unlawful entry to commit larceny in his unit’s motor pool and

motor pool bay was also included in the stipulation of fact. 

The housebreaking specification alleged all the elements of the offense 

charged, the appellant pleaded guilty to the specification, the providence inquiry 

established that the appellant believed he was guilty of unlawfully entering a 

building (“motor pool bay”) to commit a larceny, and the factual circumstances 

 

9

 We do not and did not consider allied documents outside the record of trial to 

determine the factual or legal sufficiency of an appellant’s plea of guilty. United 

States v. Cade, 75 M.J. 923 (Army Ct. Crim. App. 2016) (record of trial does not 

normally include allied documents). However, our interpretation here is consistent 

with the pretrial investigation contained in the allied documents. Appellant made a 

sworn statement to CID and distinguished between motor pools and motor pool bays. 

In the sworn statement, appellant stated on 11 October 2013, he and the other 

soldiers cut the locks to the back gate of a “motor pool.” The back door of the 

motor pool building was unlocked. Appellant and the other soldiers entered the 

building, looked through the “bays,” and stole batteries. On or about 12 October 

2013, appellant and another soldiers cut the lock to another motor pool gate. They 

entered an unlocked door to a building and searched a trailer in the “bay” for tools 

and equipment to steal. Appellant’s unadmitted sworn statement to CID in the allied 

documents, is an example of how a contested trial could have developed additional 

facts about appellant’s unlawful entry into the motor pool and motor pool bay. 

United States v. Barton, 60 M.J. 62, 65 (C.A.A.F. 2004) (“a guilty plea is less likely 

to have developed facts”). 
CAMPBELL—ARMY 20140305 

11

revealed by the appellant objectively support the guilty plea. Therefore, the 

appellant's plea was provident to “motorpool bays.” 

 

In light of Wilson, we except the words “a motorpool and” in the 

Specification of Charge III in our decretal paragraph. 

D. Dilatory Post-Trial Processing

The convening authority took action 347 days after the sentence was 

adjudged, all of which are attributable to the government. The record in this case 

consists of two volumes, and the trial transcript is 130 pages. The overall post-trial 

processing from sentence to receipt by this court was particularly slow. For 

example, it took twenty-nine days to complete the staff judge advocate’s Post-Trial 

Recommendation (SJAR), seventy-six days to serve appellant the record of trial, and 

twenty-five days to complete the SJAR Addendum.10 The time from action until the 

record was received by this court was 43 days. This amounts to 227 days beyond the 

point where we presume unreasonable delay in post-trial processing at action and 

thirteen days more than is expected for receipt of the record by this court. United 

States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The government concedes 

there is no reasonable explanation for the delay in either transcribing the record or 

in serving the authenticated record on appellant. 

Appellant’s sentence to three months confinement was completed before he 

had an opportunity to submit his matters pursuant to R.C.M. 1105/1106 [hereinafter 

Post-Trial Matters]. However, given his short sentence, appellant would also have 

likely been released from confinement prior to action if the government complied 

with the Moreno post-trial processing standards. Although we find no due process 

violation in the post-trial processing of appellant’s case, we will review the 

appropriateness of the sentence in light of unjustified dilatory post-trial processing. 

UCMJ art. 66(c). See generally United States v. Toohey, 63 M.J. 353, 362-63 

(C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.2002) 

 

10 Appellant’s defense counsel took nineteen days to complete review of the record 

of trial. The military judge took twenty-one days to complete the review of the 

record of trial. Contrary to the government’s position on appeal, we do not find the 

nineteen days should be deducted from the government’s post-trial processing time. 

A reasonable length of time for review of the record of trial by defense counsel 

would normally be built in as part of the Moreno-presumed reasonable processing 

time of 120 days. If the amount of time defense counsel took to review the record 

was unreasonable, then the government would not have to wait to complete post-trial 

processing once the record of trial was authenticated by the military judge. Either 

way, the nineteen days was not deducted from the overall 390 day post-trial 

processing from sentence to receipt of the record by this court. 

 
CAMPBELL—ARMY 20140305 

12

(“[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.”); United States v. Ney, 68 M.J. 613, 616–17 (Army Ct. Crim. App. 

2010); United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). 

The record of trial is only 130 pages and the case involves charges and 

matters of no great complication. The government’s lack of explanation for its 

excessive delay in processing, in combination with the excessive time it took to 

deliver the record to this court, when considered in light of the record as a whole, 

convinces us that relief is warranted. The government concurs that appellant is 

entitled to some relief. The unexplained delay between announcement of sentence 

and action is simply too long. Thus, we find relief is appropriate under the facts of 

this case and grant appellant thirty days confinement credit.11

CONCLUSION 

In light of Wilson, we AFFIRM the Specification of Charge III and Charge III 

as follows: 

In that [appellant] did, at or near Fort Hood, Texas, 

between on or about 4 October 2013 and on or about 17 

October 2013, unlawfully enter a motor pool bay, the 

property of the U.S. Army, with intent to commit a 

criminal offense, to wit: larceny, therein. 

We AFFIRM the remaining findings of guilty. 

 

11 The co-accused in this case similarly received thirty days confinement credit for 

the unexplained and unreasonable post-trial delay in their cases. United States v. 

Krause, 2015 CCA LEXIS 189, ARMY 20140388 (Army Ct. Crim. App. 9 Apr. 

2015) (sum. disp.) (thirty days confinement credit for 204 days post-trial delay from 

sentence to action to process a 124-page record of trial); United States v. 

Bettencourt, 2016 CCA LEXIS 28. ARMY 20140284 (Army Ct. Crim. App. 21 Jan 

2016) (sum. disp.) (thirty days confinement credit for 293 days post-trial delay from 

sentence to action to process a ninety-seven page record of trial) (sum. disp). Private 

First Class (PFC) Bettencourt and Private (PV2) Krause were tried by general courtmartial. Private First Class Bettencourt was convicted and his approved sentence 

included a bad-conduct discharge, twenty-six (26) months confinement, total 

forfeiture of all pay and allowances and reduction to the grade of E-1. Private 

Krause was convicted and his approved sentence included a bad-conduct discharge, 

confinement for eight months, and reduction to the grade of E-1. 
CAMPBELL—ARMY 20140305 

13

 We are able to reassess the sentence on the basis of the errors noted and do 

so after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated by our superior 

court in United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. 

Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). After considering the entire 

record and given the dilatory post-trial processing, however, we AFFIRM only so 

much of the sentence as provides for a bad-conduct discharge and confinement for 

two months. All rights, privileges, and property, of which appellant has been 

deprived by virtue of that portion of the findings and sentence set aside by this 

decision, are ordered restored. See UCMJ arts. 58a(b), 58b(c) and 75(a). 

Senior Judge MULLIGAN concurs. 

Judge WOLFE concurring in part and dissenting in part. 

I approach the issue of post-trial delay differently from my colleagues, and 

therefore reach a different result. This case, perhaps uniquely, exemplifies our 

differing approaches. I address here only cases of post-trial delay that do not 

amount to a violation of the due process rights of appellant. 

Under Article 66(c), UCMJ, as I understand it, this court may only approve a 

sentence that “should be approved.” A sentence may be correct in law and fact but 

still be inappropriate. As our review is not omnidirectional, it essentially means that 

we reduce sentences that in our judgement are too high. In other words, when we 

conduct a sentence appropriateness review we are, in effect, only reviewing to see if 

a sentence is too severe.12

If the sentence is just outright too severe, our duty is to lower the sentence 

such that it “should be approved.” In such a case, no allegation of error is required 

to trigger a remedy. Although such relief is empirically rare, it is a review we 

conduct in each and every case regardless of whether there is an issue of post-trial 

delay. 

In the case where there is unreasonable post-trial delay, we then face a second 

question: Did the unreasonable delay turn what was an appropriate sentence for 

appellant’s crimes into an inappropriate sentence? Or, in this case, is three months 

of confinement too severe a punishment given appellant’s offenses, the sentencing 

evidence, and the unreasonable delay by the convening authority? 

 

12 Taking into account that the trial court saw and heard the witnesses. UCMJ, art. 

66(c). 
CAMPBELL—ARMY 20140305 

14

The majority, by contrast, appears to treat post-trial delay akin to Article 13, 

UCMJ, credit. An unreasonable delay of a certain amount equates to some degree of 

sentence reduction. This approach has the advantage of initially appearing 

consistent. However, to me this case illustrates why the majority’s approach is an 

inconsistent application of Article 66(c), UCMJ. 

In a related case, this court approved a sentence for PFC Bettencourt that is 

over twelve times longer than the sentence we approve today. Perhaps this 

difference can be explained by differences in the record. Or, the discrepancy could 

reflect that judges on this court must exercise judgment and will naturally not 

always arrive at the same decision. If, on the other hand, we arrive at these 

differences in approved sentences because we have been treating relief for post-trial 

sentencing as akin to Article 13, UCMJ, credit; then I think this misstates our role 

under Article 66, UCMJ. If a two-month sentence (or thereabouts) should be 

approved here, then absent some difference in the record it should have been the 

approved sentence for PFC Betancourt. Or, alternatively, if twenty-five months was 

an appropriate sentence for PFC Betancourt even considering the post-trial delay in 

his case, than we should approve appellant’s three month sentence. As PFC 

Bettencourt’s case is not before us, I compare the cases only to illustrate the 

differences in approach and reach no actual conclusion on any case other than the 

one at bar. 

Accordingly, I take the following approach in this case. I review the 

appropriateness of appellant’s sentence holistically. I do not find appellant’s 

sentence of three months confinement to be inappropriate, given his offenses, the 

evidence introduced at trial, and even considering that there was unreasonable posttrial delay in this case. While the unreasonable post-trial delay in this case reflects 

poorly on those who caused it by action or indifference, it did not make appellant’s 

sentence of three months confinement and a bad-conduct discharge inappropriate. I 

would affirm the sentence as approved by the convening authority. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: