## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. First Lieutenant MA TTHEW J. MARSHALL United States Army, Appellant

ARMY 20130395

Headquarters, III Co rps and Fort Hood James L. Varley, Military Judge Colonel Stuart W. Risch, Sta ff Judge Advocate (pretrial) Colonel Ian G. Corey, Staff Ju dge Advocate (post-trial)

For Appellant: Colo nel Kevin Boyle, JA; Major Yo landa McCray Jones, JA (on brief).

For Appellee: Colonel Mark H. Sydenh am, JA; Major Daniel D. Derner, JA; Captain Samuel E. Landes, JA (on brief).

9 February 2016

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

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Judge BURTON:

A military judge sitting as a general court-martial convicted appellant, in accordance with his pleas, of one specification of will fully disobeying a superior commissioned officer, one specification of assault consumma ted by a battery, one specification of conduct unbe coming an officer and a gen tlemen, one spec ification of adultery, and one specificatio n of communicating a threat in violation of Article 90, 128, 133,and 134, Uniform Code of Milit ary Justice, 10 U.S.C. §§ 890, 928, 933, 934 (2006) [hereinafter UCMJ]. Contrary to his pleas, the mi litary judge also convicted appellant of an additional specification of assault consummated by a battery in violation of Ar ticle 128, UCMJ, 10 U.S.C. §928. The court sentenced appellant to be dismissed from the service and to be conf ined for eight months. The convening authority approved the adjudged sentence.MARSHALL—ARMY 20130395

2 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 appropriate and grant thirty days conf inement credit. *

LAW AND DISCUSSION

The convening authority took action 574 days after the sentence was adjudged; the government is re sponsible for 5 26 of these days. Th e record in this

case consists of four volume s, and the trial tr anscript is 402 pa ges. Although we find no 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 dilatory post-trial proces sing. 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 senten ce ‘should be approv ed,’ based on all

the facts and circumstances reflected in the record, in cluding the une xplained 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 (A rmy Ct. Crim. App. 2000).

It took 312 days to transcri be the record of trial and to serve it on appellant’s defense counsel, and 31 days for the military j udge to authenticat e the record of

trial. The conven ing authority took action 247 da ys after the m ilitary judge authenticated the record of trial. The go vernment provided no explanation for the delay in transcription, or following the au thentication of the record, for the delay in convening authority action. Though the sentence in this case is appropriate for appellant’s misconduct, the unexplained delay between announcement of sentence and action is simply too lon g, and could “adversely affect the public’s perception of the fairness and integrity of mili tary justice syst em . . . .” 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 di smissal and confinemen t for seven months. All rights, privileges, and pr operty, of which appellant ha s been depriv ed by virtue

* The appellant raised issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). We will addr ess the issue raised concerning post-trial processing time; the remainder are without merit.MARSHALL—ARMY 20130395

3 of this decision se tting aside portions of the se ntence, are ordered restored. See UCMJ arts. 58b(c) , and 75(a).

Senior Judge MULLIGAN and Judge HERRING concur.

FOR THE COURT:

JOHN P. TAITT Deputy Clerk of Court JOHN P. TAITT Deputy Clerk of Court FOR THE COURT: