**** CORRECTED COPY ****

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class DONALD R.B. SIMMONS

United States Air Force

ACM 38788

7 July 2016

Sentence adjudged 19 September 2014 by GCM convened at Kadena Air 

Base, Okinawa, Japan. Military Judge: Gregory O. Friedland.

Approved Sentence: Dishonorable discharge, confinement for 30 months, 

and reduction to E-1.

Appellate Counsel for Appellant: Major Michael A. Schrama.

Appellate Counsel for the United States: Lieutenant Colonel Roberto 

Ramírez, Major Meredith L. Steer, and Gerald R. Bruce, Esquire.

Before

ALLRED, TELLER, and BROWN

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

TELLER, Senior Judge:

Appellant was convicted by a panel of officer members, contrary to his pleas, of 

sexual assault of a child and providing alcohol to a minor in violation of Articles 120b and 

134, UCMJ, 10 U.S.C. §§ 920b, 934. The court sentenced him to a dishonorable discharge, 

confinement for 30 months, and reduction to the grade of E-1. The sentence was approved, 

as adjudged, on 26 February 2015.

1

 

1 The reduction in grade and mandatory forfeitures were deferred then waived for six months for the benefit of 

Appellant’s wife and dependent child.
2 ACM 38788

Appellant argues that: (1) the military judge erroneously denied his motion to 

suppress statements made to investigators; (2) the military judge erred in granting the 

Government’s challenge for cause against a member on the basis of implied bias; (3) the 

military judge’s instructions imposed an unconstitutional burden shift upon him; (4) the 

providing alcohol to a minor offense fails to state all the necessary elements of the charged 

offense, thereby failing to put him on notice of the crime alleged; (5) the evidence was 

factually insufficient to sustain his conviction on that charge; (6) the 40-day violation of 

the 120-day post-trial processing standard for convening authority action warrants relief; 

and (7) the 4-day violation of the 30-day post-trial processing standard for forwarding the 

record of trial for appellate review warrants relief. Finding no error that materially 

prejudices a substantial right of Appellant, we affirm the findings and sentence.

Background

Appellant, then a 22-year-old Airman First Class, engaged in sexual intercourse 

with a 14-year-old child he met online. Both Appellant and the victim had created accounts 

on a social media application that identified nearby members who might like to meet. The 

victim’s account indicated she was 19 years old. After exchanging messages via the 

application, Appellant arranged to pick up the victim and a friend and take them to his onbase house. Shortly after they met in person, the victim told Appellant she was only 17. 

Although they engaged in sexual contact that night, they did not have sexual intercourse 

until later that week. A few days after, the victim texted Appellant that she was only 15. 

This provoked a disagreement between the two, but after a few weeks they resumed 

contact. Appellant again agreed to pick up the victim and a friend and take them to his 

house. That evening, he also agreed to go by a shop on base and buy alcohol and cigarettes 

for the victim and her friend, who were both too young to purchase the items themselves. 

Later that night, Appellant engaged in sexual intercourse with the victim. The next 

morning, the victim’s father noticed a mark on the victim’s neck and confronted her. An 

investigation by the Air Force Office of Special Investigations (AFOSI) ensued, and 

Appellant provided a statement acknowledging that he believed the victim was 15 years 

old when they last had sexual intercourse. Additional facts relevant to Appellant’s 

assignment of errors are detailed below.

Admissibility of Statement to AFOSI

Appellant argues that the military judge erroneously denied his trial motion to 

suppress the statement he made to AFOSI, contending that the agents failed to properly 

advise him of his rights under Article 31, UCMJ, 10 U.S.C. § 831.

We review a military judge’s ruling on a motion to 

suppress . . . for an abuse of discretion. The abuse of discretion 

standard is a strict one, calling for more than a mere difference 

of opinion. When there is a motion to suppress a statement on 

the ground that rights’ warnings were not given, we review the 
3 ACM 38788

military judge’s findings of fact on a clearly-erroneous 

standard, and we review conclusions of law de novo.

United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014) (quotation marks and citations 

omitted).

At trial, Appellant sought to have all of his statements to AFOSI suppressed. AFOSI 

agents first confronted Appellant in his home after obtaining authorization to arrest 

Appellant and to search his home and vehicle. AFOSI detained Appellant in his living 

room while they conducted the search. During that time, they asked him where they could 

find the clothes he had worn the night before. At no time, while they had Appellant 

detained in the home, did agents advise him of his rights. Agents seized, among other 

things, clothing, bedding, condom wrappers, and beer bottles from the home. AFOSI later 

escorted Appellant to their office, where an agent advised Appellant he was investigating 

“the alleged offense of rape, Article 120—of which [he was] suspected.” Appellant agreed 

to speak with the agents, who asked about his interactions with the victim and whether 

Appellant provided alcohol for the minors. The military judge held that the question asked 

during the search of Appellant’s home, as well as all questions asked about Charge II, were 

not preceded by an adequate warning and suppressed those statements. The military judge 

denied Appellant’s motion with regard to the remainder of his statement to AFOSI. 

For the remainder of Appellant’s statements to AFOSI, the military judge applied 

the three-part test from United States v Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000), to 

determine whether Appellant was adequately advised of the nature of the accusation 

against him. In his written ruling, the military judge articulated the standard from Simpson,

ruling that notice to the suspect is sufficient if the accused is “informed of the general 

nature of the allegation, to include the area of suspicion that focuses the person toward the 

circumstances surrounding the event.” Id. at 264. He also restated that portion of Simpson

addressing the applicability of surrounding circumstances in determining whether an 

advisement is sufficient, specifically, that “if, from what is said and done, the accused 

knows the general nature of the charge,” then the warning was sufficient. Id. (quoting 

United States v. Davis, 24 C.M.R. 6, 8 (C.M.A. 1957)). 

In this case, Appellant was advised of his rights after being present for the search of 

his home and seizure of the bedding, condom wrappers, and beer bottles. These items in 

particular would be associated with Appellant’s home as the site of the offense, and indicate 

that the conduct of interest was sufficiently close in time to the search to make such items 

relevant. The later advice that agents were investigating “rape” would also clearly focus 

Appellant on any behavior that might constitute sexual relations without valid consent. We 

find that it was not an abuse of discretion, in light of the circumstances of the search and 

interrogation, for the military judge to rule that Appellant was adequately advised of the 

nature of the allegation against him.
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Challenge for Cause

Appellant also argues that the military judge erred in granting the challenge for 

cause against Lieutenant Colonel (Lt Col) JD on the basis of implied bias. Prior to trial, 

Lt Col JD manifested an unwillingness to serve as ordered by the convening authority. 

Lt Col JD did eventually report to serve, but only after delaying the proceedings. His 

refusal to report was briefed to the military judge during a conference pursuant to Rule for 

Courts-Martial (R.C.M.) 802, which the military judge summarized on the record. 

During individual voir dire, the military judge addressed the matter with Lt Col JD:

[Military Judge]: All right, Colonel [D], I’m not going to ask 

you any questions about your tardiness and in arriving to court 

this morning.

However, it was noted this morning that all other 

members arrived within a reasonable time limit set for arriving 

to court. In your absence, I released the other members for 

lunch. Consequently, we could not start the trial on time.

However, it was reported to me that when you were 

called to arrive for court this morning, you expressed a desire 

to not attend, and would not attend until directed to do so by 

someone in authority at the [Operations] Group level.

I also note you were selected to be a potential member 

of the court-martial by Lieutenant General [A], the General 

Court Martial Convening Order Authority. You were not 

selected by the case paralegal Senior Airman [C]. You were 

notselected by the 18th Wing Staff Judge Advocate. You were 

not selected by the 5th Air Force Staff Judge advocate. In fact, 

you were detailed to the court by a Commander, in this case, 

the Commander of 5th Air Force. 

Nevertheless, all the personnel—all the previous 

individuals, especially Senior Airman [C] were attempting to 

assist you in complying with the order of Lieutenant General 

[A].

I say this, I’m not going to ask any questions because I 

just need to note this information for the record so that when 

this record of trial is reviewed by any reviewing authorities 

they’ll understand the—the difficulty in getting started on time 

this morning.
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Trial counsel, do you have any questions for this 

member?

[Trial Counsel]: No, sir. 

[Military Judge]: Defense counsel, do you have any questions 

for this member? 

[Area Defense Counsel]: No, Your Honor.

The Government subsequently challenged Lt Col JD on the basis of implied bias, 

and the Defense opposed the challenge. The military judge granted the challenge for cause. 

He summarized what he apparently considered the relevant facts prior to his ruling:

Okay. Regarding Colonel [D], the discussion[] we had 

during the [R.C.M. 802 conference] beforehand was not put on 

the record, and so I’m going to put it on the record now; that 

during the [conference] it was relayed to me that when called 

to come to court, Colonel [D] was trying just about every 

possible way to not show up for this court, going so far as what 

was reported to me that caused an emotional response from the 

case paralegal, Senior Airman [C].

Indicated that he wasn’t going to show up to this court 

unless somebody from the [Operations] Group told him he had 

to show up, when he has convening orders that ha[ve]

Lieutenant General [A]’s signature block. It is signed by 

Colonel [S], the Staff Judge Advocate, with the signature block 

“For the Commander,” and so it’s an order from the 

commander.

And so the—what was reported to me as a blatant 

defiance to show up for a court by Lieutenant Colonel [D], and 

the court wasn’t going to ask him any questions because I 

suspected him of an offense, and I wasn’t going to read him 

[h]is rights because that’s not what this court is about, it’s not 

about Lieutenant Colonel [D]’s failure to show up on time for 

a court for which he was detailed to by the general courtmartial convening authority. And Lieutenant Colonel [D] did 

not attempt to interject at all after the court’s admonishment to 

say, no, that information is incorrect; no you have incorrect 

information.
6 ACM 38788

I am going to sustain the challenge for cause by trial 

counsel against Lieutenant Colonel [D] and he will be excused.

We review “issues of implied bias . . . under a standard less deferential than abuse 

of discretion, but more deferential than de novo.” United States v. Woods, 74 M.J. 238, 

243 (C.A.A.F. 2015) (quoting United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 

2002)). A court member should be excused for cause when it appears they “[s]hould not 

sit as a member in the interest of having the court-martial free from substantial doubt as to 

legality, fairness, and impartiality.” R.C.M. 912(f)(1)(N). The military judge does not 

apply the liberal grant mandate when ruling on a Government challenge for cause. United 

States v. Rodriguez-Rivera, 63 M.J. 372, 382–83 (C.A.A.F. 2006). We “afford a military 

judge less deference if an analysis of the implied bias challenge on the record is not 

provided.” United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015).

In this case, although the military judge discussed his analysis on the record, he was 

not explicit in connecting the facts of the case to the legal test for implied bias. His ruling 

on the record reiterates Lt Col JD’s lack of cooperation with legal office personnel and his 

apparent disregard for the orders of the convening authority. Such conduct alone, however, 

is not a per se basis for challenge. Such conduct must logically generate a “substantial 

doubt as to legality, fairness, and impartiality.” It is a valid basis for challenge that a 

member is biased against the Government, such as by holding the Government to a higher 

standard of proof. See Rodriguez-Rivera, 63 M.J. at 383.

While we may have cause to grant less deference to the military judge on the record 

before us, we would find no error in the military judge’s decision even under a de novo 

standard of review. Although the military judge’s explanation did not relate the facts to 

the legal standard, it is clear from his description that Lt Col JD’s resistance to report for 

court duty had pitted—at least in Lt Col JD’s mind—the convening authority’s staff against 

Lt Col JD’s immediate command. We do not suggest in any way that Lt Col JD’s 

immediate command actually held or encouraged such a view. Rather, we focus only on 

the facts that show that Lt Col JD asserted that only his immediate chain of command had 

the authority to require his attendance, and that he was compelled despite that contention 

to serve. Under an objective standard, being compelled against his desires and assertion of 

independence to perform court-member duty by personnel in the legal office on behalf of 

the convening authority raises a substantial doubt whether Lt Col JD would remain 

impartial towards the Government. After reviewing the entire circumstances related to Lt 

Col JD’s excusal by the military judge, we find the military judge did not err. A reasonable 

member of the public could find Lt Col JD’s continued participation would call into 

question the fairness of the trial.2

 

2 Even assuming error, we find that granting the challenge for cause did not materially prejudice Appellant. See United 

States v. Dockery, ACM 38624, unpub. op. at 14–15 (A.F. Ct. Crim. App. 2 December 2015). We note that, although 

Appellant made two implied-bias challenges for cause that were denied, he elected not to use his peremptory challenge 
7 ACM 38788

Instructions on Mistake of Fact as to Age

Next, Appellant asserts that the military judge’s instructions on mistake of fact as 

to age, in the context of the specific wording of the Specification of Charge I, imposed an 

unconstitutional burden shift upon him. “Whether a panel was properly instructed is a 

question of law reviewed de novo.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F.

2008). “If instructional error is found, because there are constitutional dimensions at play, 

[the error] ‘must be tested for prejudice under the standard of harmless beyond a reasonable 

doubt.’” United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006) (quoting United 

States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005)).

Appellant posits a two-part argument. First, Appellant argues that the Specification 

of Charge I, by asserting that Appellant engaged in “penetration of [the victim’s] vulva 

with [Appellant’s] penis, with the intent to gratify the sexual desire of any person,” alleged 

a specific intent offense. Second, Appellant asserts that the military judge, therefore, erred 

by giving the standard mistake of fact as to age instruction applicable to the statutory 

elements rather than the specification alleged. Essentially, Appellant asserts that once the

Government chose to allege a specific intent crime, it could no longer avail itself of the 

statutory language allocating the burden of proving the affirmative defense of mistake of 

fact as to age. He argues that the specific intent alleged makes his belief of the victim’s 

age an element of the offense, which he cannot constitutionally be required to disprove.3

We are not convinced that the specification as alleged established an element of the 

offense that included Appellant’s belief as to the victim’s age. As a preliminary matter, 

there is no Constitutional prohibition against establishing a public welfare offense that does 

not require a particular criminal state of mind. See United States v. Gifford, 75 M.J. 140, 

143 (C.A.A.F. 2016). When Congress explicitly does so, as it has in Article 120b, UCMJ,

with regard to knowledge of the victim’s age, “courts are then obligated to recognize this 

congressional intent and conform their rulings accordingly.” Id. Even if the specific intent 

alleged in the specification constituted an element of the offense as charged, the state of 

mind alleged in that element would not necessarily apply to all other elements. “Clear 

analysis requires that the question of the kind of culpability required to establish the 

commission of an offense be faced separately with respect to each material element of the 

crime.” United States v. Thomas, 65 M.J. 132, 133 (C.A.A.F. 2007) (quoting United States 

v. Bailey, 444 U.S. 394, 406, (1980)). The Government did not allege the victim’s age in 

the specific intent clause of the specification. To sustain Appellant’s argument, we would 

 

to remove any members from the panel. Appellant apparently concluded—and we agree—that all of the members of 

the panel were qualified to serve and would constitute a fair and impartial panel. We have no evidence a different 

panel would have produced a better result for Appellant. Appellant has a constitutional and regulatory right to a fair 

and impartial panel, and there is no evidence that he was deprived of it in this case.

3 Appellant does not specifically assert on appeal that he was entitled to an instruction that the Government was 

required to prove this intent beyond a reasonable doubt. We note that the military judge did not give such an 

instruction. We find that even if we concluded that the military judge’s failure to give such an instruction constituted 

error, any such error would have been harmless beyond a reasonable doubt given the evidence in this case.
8 ACM 38788

have to apply the specific intent aspect of the putative additional element to the statutory 

elements of the offense. Congress has explicitly indicated that knowledge of age is not 

required to prove the statutory element related to the victim’s age. Even if we presume 

that the additional language established an element of the offense, such additional elements 

cannot conflict with the express intent of Congress. See United States v. Jones, 68 M.J. 

465, 471 (C.A.A.F. 2010) (“Determinations as to what constitutes a federal crime, and the 

delineation of the elements of such criminal offenses—including those found in the UCMJ 

—are entrusted to Congress.”). Accordingly, we find that Appellant’s knowledge of the 

victim’s age was not a part of any element of the offense as alleged, and, therefore, the 

military judge’s instructions did not shift the burden to disprove an element of the offense 

to Appellant.

Notice and the Article 134, UCMJ, Charge

Appellant also contends that Charge II fails to state all the necessary elements of the 

charged offense, thereby failing to put him on notice of the alleged offense. Whether a 

charge and specification state an offense is a question of law that we review de novo. 

United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012). Specifications that are first 

challenged after trial are viewed with greater tolerance than those challenged at trial. 

United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986). “[W]here defects in a 

specification are raised for the first time on appeal, dismissal of the affected charges or 

specifications will depend on whether there is plain error.” United States v. Humphries, 

71 M.J. 209, 213 (C.A.A.F. 2012). “Appellant has the burden of demonstrating that: (1) 

there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced 

a substantial right of the accused.” United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 

2011).

The military is a notice pleading jurisdiction. “[C]harge[s] and specification[s] will 

be found sufficient if they, ‘first, contain[] the elements of the offense charged and fairly 

inform[] a defendant of the charge against which he must defend, and, second, enable[] 

him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’” 

United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (quoting Hamling v. United 

States, 418 U.S. 87, 117 (1974)).

Our superior court examined the elements of an Article 134, UCMJ, offense in 

Fosler:

To establish a violation of Article 134, [UCMJ], the 

government must prove beyond a reasonable doubt both that 

the accused engaged in certain conduct and that the conduct 

satisfied at least one of three listed criteria. The latter element 

is commonly referred to as the “terminal element” of Article 

134 and the government must prove that at least one of the 

article’s three clauses has been met: that the accused’s conduct 
9 ACM 38788

was (1) “to the prejudice of good order and discipline,” (2) “of 

a nature to bring discredit upon the armed forces,” or (3) a 

“crime [or] offense[] not capital.” 

Fosler, 70 M.J. at 226. The specification at issue here alleged both that Appellant’s 

conduct was prejudicial to good order and discipline and that it was service discrediting.

Despite the language in the specification, Appellant’s argument on appeal appears 

to be premised on the theory that the Government was attempting to allege a violation of 

clause 3 of Article 134, UCMJ. Appellant asserts that it is inappropriate to incorporate 

foreign law, and that violating the prohibition on underage drinking under Japanese law 

constitutes a civil infraction. Based on those two assertions, Appellant argues the 

specification must fail.

We find that Appellant’s analysis under clause 3 is misplaced. The core holding of 

Fosler is that a specification alleging a violation of Article 134, UCMJ, must allege the 

terminal element so that an accused knows “which clause or clauses he must defend 

against.” Id. at 230. In this case, the Government explicitly alleged the terminal element 

for an offense under clause 1, clause 2, or both—explicitly placing Appellant on notice that 

it was those theories of liability against which he was required to defend.

Appellant argues in the alternative that the specification would fail under a clause 1 

or clause 2 analysis because it fails to allege wrongfulness or unlawfulness in the 

specification. We disagree. The specification alleges Appellant provided alcoholic 

beverages to “minors who had not attained the legal drinking age of 20.” The specification 

sufficiently alleges the criminality of the conduct by specifically identifying the minors in 

receipt of the alcohol as not yet attaining the legal drinking age. See United States v. 

Vaughan, 58 M.J. 29, 33–36 (C.A.A.F. 2003) (concluding that an Article 134, UCMJ, 

charge of “leaving [an infant] in [the appellant’s] house without supervision or care for an 

unreasonable period of time, without regard for the mental or physical health, safety, or 

welfare of [the infant]” contained sufficient words of criminality); United States v. Thoms, 

Dkt. No. 1370 (C.G. Ct. Crim. App. 15 April 2014) (unpub. op.) (affirming an Article 134, 

UCMJ, specification of publishing a nude picture of a servicewoman without her 

permission despite the absence of words of criminality in the specification). We find that 

the language in this specification includes sufficient words of criminality and was sufficient 

to put the Appellant on notice of the wrongful conduct alleged.

Factual Sufficiency

Appellant also argues that the evidence was factually insufficient to sustain a 

conviction on Charge II. We review issues of factual sufficiency de novo. United States 

v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for factual sufficiency ‘is 

whether, after weighing the evidence in the record of trial and making allowances for not 

having personally observed the witnesses,’ [we ourselves are] ‘convinced of the 
10 ACM 38788

[appellant]’s guilt beyond a reasonable doubt.’” United States v. Reed, 54 M.J. 37, 41 

(C.A.A.F. 2000) (quoting United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). 

Applying these standards to the record in this case, we find the evidence legally and 

factually sufficient to support the findings of guilt.

The offense alleged has two elements: (1) that on or about 19 January 2013, at or 

near Kadena Air Base, Okinawa, Japan, Appellant purchased alcohol for and provided 

alcohol to the two specified minors who had not attained the legal drinking age of 20; and 

(2) that, under the circumstances, the conduct of the accused was “to the prejudice of good 

order and discipline in the armed forces and was of a nature to bring discredit upon the 

armed forces.” There was no material dispute at trial about the location or date of the 

alleged conduct or whether the minors were under the age of 20.

Having applied the standards set out above, we are convinced that one of the minors 

asked Appellant to buy alcohol for them, that Appellant agreed, and that he in fact did so. 

Moreover, we are convinced that Appellant’s actions, in light of all of the circumstances 

including the minors’ status as dependents of military personnel, were both prejudicial to 

good order and discipline and service discrediting. Accordingly, we find the evidence 

legally sufficient to support his conviction of Charge II and its specification.

Post-trial Delay

Appellant next argues that the time elapsed between the conclusion of trial and 

action, as well as the time between action and docketing with this court, constituted 

unreasonable post-trial delay meriting relief under United States v. Tardif, 57 M.J. 219 

(C.A.A.F. 2002). Under United States v. Moreno, courts “apply a presumption of 

unreasonable delay . . . where the action of the convening authority is not taken within 120 

days of the completion of trial.” 63 M.J. 129, 142 (C.A.A.F. 2002). We also apply a 

presumption of unreasonable delay “where the record of trial is not docketed by the service 

Court of Criminal Appeals within thirty days of the convening authority’s action.” Id.

Appellant does not assert any prejudice, but instead argues that the court should 

nonetheless grant relief under Tardif.

This court set out a non-exhaustive list of factors we consider when evaluating the 

appropriateness of Tardif relief in United States v. Bischoff, 74 M.J. 664 (A.F. Ct. Crim. 

App. 2015); see also United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015) 

(articulating factors specifically tailored to answer the question whether Tardif relief is 

appropriate). The factors include “the length and reasons for the delay, the length and 

complexity of the record, the offenses involved, and the evidence of bad faith or gross 

negligence in the post-trial process.” Bischoff, 74 M.J. at 672. Appellant has not asserted 

any additional factors that merit consideration in this case.

The time required to process this case through convening authority action exceeded 

the 120-day standard by 40 days. The Government obtained an affidavit establishing that 
11 ACM 38788

the reasons for the delay were predominantly related to difficulty serving Appellant’s copy 

of the record of trial in the military confinement facility. The Government, reasonably 

anticipating the upcoming holidays might impact mail service, secured commercial express 

mail service. That delivery, apparently mislabeled, did not arrive on time and required 

some time to track down. Furthermore, actual service did not occur prior to action, 

requiring a substantial portion of the process to be re-accomplished. While the delay could 

have been avoided, we find no gross negligence or bad faith. The record, although not 

unusually voluminous, was also not unusually brief, and the sexual assault offense is a 

serious offense. On the whole, we find the delay, although presumptively unreasonable, to 

be reasonable in this case and conclude no Tardif relief is warranted.

The time required to forward the case for docketing with this court exceeded the 30-

day standard by 4 days. The Government did not provide a detailed explanation for this 

delay, but there is also no evidence of bad faith or gross negligence. In light of the 

seriousness of the offenses, and the comparative brevity of the delay, we conclude no 

Tardif relief is warranted for this delay as well.

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred.4 Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

sentence are AFFIRMED.

Judge Teller authored this decision prior to his retirement.

 

4 The court-martial order (CMO) erroneously states that Appellant was charged with and convicted of a violation of 

Article 120, UCMJ, 10 U.S.C. § 920, under Charge I. In fact, he was charged with and convicted of a violation of 

Article 120b, UCMJ, 10 U.S.C. § 920b. The report of result of trial provided to the convening authority prior to action 

was correct. We order promulgation of a corrected CMO.

FOR THE COURT

LAQUITTA J. SMITH

Appellate Paralegal Specialist