BENSON – ARMY 20071217

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

JOHNSON, COOK, and BAIME 

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E2 GREGORY L. BENSON**

**United States Army, Appellant**

ARMY 20071217

Headquarters, 19th Sustainment Command (Expeditionary)

Donna M. Wright, Military Judge

Lieutenant Colonel Imogene M. Jamison, Staff Judge Advocate

For Appellant:  Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Vorhees, JA; Captain Melissa E. Goforth Koenig, JA (on brief).

For Appellee:  Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Francis C. Kiley, JA; Major Adam S. Kazin, JA; Captain Nicole L. Fish, JA (on brief).

23 July 2009

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SUMMARY DISPOSITION

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Per Curiam:

A general court-martial composed of a military judge sitting alone convicted appellant, pursuant to his pleas, of willfully disobeying a superior commissioned officer (two specifications), violating a lawful general order (two specifications), and larceny (four specifications), in violation of Articles 90, 92, and 121, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 890, 892, and 921, respectively.  The court sentenced appellant to a bad-conduct discharge, twenty-two months confinement, and reduction to Private E1.  The convening authority reduced the sentence to confinement to sixteen months and approved the remainder of the adjudged sentence.  The case is before us for review pursuant to Article 66, UCMJ.

Appellant raises two issues relating to errors in the post-trial processing of his case.  First, appellant alleges, and the government acknowledges, that the staff judge advocate’s post-trial recommendation (SJAR) prepared under Rule for Courts-Martial [hereinafter R.C.M.] 1106 is missing from the record of trial (ROT).  The ROT will be returned for a new SJAR and action in light of the SJAR’s absence from the ROT and the requirements of R.C.M. 1103(b)(3)(G).   

Second, appellant alleges excessive post-trial delay in violation of *United States v. Moreno*, 63 M.J. 129 (C.A.A.F. 2006).  Under Article 66, UCMJ, we must determine what findings and sentence should be approved based on all the facts and circumstances reflected in the record, to include unexplained and unreasonable post-trial delay.  *United States v. Bodkins*, 60 M.J. 322, 324 (C.A.A.F. 2004); *United States v. Garman*, 59 M.J. 677, 679 (Army Ct. Crim. App. 2003).  Unexplained delays in excess of 120 days from adjournment to action by the convening authority are presumptively unreasonable.  *Moreno*, 63 M.J. at 143.  A presumption of delay also exists when the ROT is not docketed by a service Court of Criminal Appeals within thirty days of the convening authority’s action.  *Id*.  

 In this case, appellant has not demonstrated prejudice due to the delay between trial and action; however, when preparing the new SJAR, the SJA should consider and explain the 156-day delay between action and receipt of the ROT at the Army Court of Criminal Appeals.  We also note numerous errors in the promulgating order which should be addressed.

The convening authority’s initial action, dated 14 April 2008, is set aside.  The record of trial is returned to The Judge Advocate General for a new SJAR and a new action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

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