## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class SHANE R. BLEVINS United States Army, Appellant

ARMY 20160165

Headquarters, 1st Cavalry Di vision (Rear)(Provisional) Douglas Watkins, Military Judge
Lieutenant Colonel Oren H. McKnel ly, Staff Judge Advocate (pretrial) Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Melissa Covo lesky, JA; Captain Ryan T. Yoder, JA; Captain Payum Doro odian, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Cormac M. Smith, JA (on brief).

26 April 2017

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of desertion, absence wi thout leave (AWOL), wrongfully possessing marijuana, and two instances of wrongfully using marijuana, in violation of Articles 85, 86, and 112a Uniform Code of Military Justic e, 10 U.S.C. §§ 885, 886, 912a (2012) [her einafter UCMJ], and thereafter sentenced appell ant to a badconduct discharge and confinement for elev en months. The co nvening authority, pursuant to a pretrial agreem ent, approved the sentence except for that portion of
confinement in excess of seven months.

Appellant comes before us pursuant to Article 66, UCMJ, and raises two issues. First, he raises a discrepa ncy between the plead ings and the proof surrounding his AWOL convic tion. Second, he seeks relie f for dilatory post-trial processing. We grant relief as to the first issue, but no relief as to the second.BLEVINS—ARMY 20160165

2 DISCUSSION

1. AWOL

Appellant’s absence from his unit be gan on 30 Septembe r 2013 and ended when he was apprehende d by civilian author ities pursuant to a deserter warrant on 22 June 2015. However, the Specification of The Charge alleged that appellant’s absence was terminated twenty-six days late r, “on or about 16 July 2015,” the date
when he was returned to military control. See Manual for Cour ts-Martial, United

States (2012 ed.), pt. ¶ 10.c.(10)(e) (“When an absentee is in the hands of civilian
authorities for other reasons and these auth orities make the abse ntee available for return, the absence is terminated.”); United States v. Mullins, ARMY 20090821, 2010 CCA LEXIS 30, *4 (Arm y Ct. Crim. App. 25 Mar. 2010) (mem. op.).

Appellant raises on appeal this discre pancy of twenty-six days between the charged specification and date his absence was terminated, as de veloped during his providence inquiry and in the stipulation of fact. Gi ven the length of appellant’s absence, however, the discrepancy does no t alter the nature of the offense or the maximum punishment. “When th e Government pleads an o ffense ‘on or about’ it is ‘not required to prove the ex act date, if a date reasonab ly near is established.”
United States v. Barner , 56 M.J. 131, 137 (C .A.A.F. 2001 ) (quoting United States v.

Hunt , 37 M.J. 344, 347 (C.M.A. 1993); See United States v. Allen , 50 M.J. 84, 86 (C.A.A.F. 1999).

However, we need not deci de whether 16 July 2015 is “on or about” 22 June 2015, as the government dutifu lly concedes the i ssue and requests that we provide appellant relief. We acce pt the government’s concessi on and accordi ngly provide appellant with his requested relief in our decretal paragraph.

2. Dilatory post-t rial processing

Appellant asks that we pr ovide sentencing relief beca use it took 214 days for the convening authority to ta ke action on appellant’s ca se. Appellant alleges no prejudice but asks us to nonetheless gr ant relief. Specifically , appellant states that we should “grant relie f to make clear that unreasonable delays in the m ilitary justice system will not be tolerated.”

We look at our role more narrowly th an does appellant. In cases of post-trial delay not amounting to a due process violation, we must still determine whether under Article 66(c), UC MJ the sentence “should be approv ed.” Here, we find no due process violation occurred as a result of the post-trial delay, recogn izing that a sentence may be correct in la w and fact but still be inappropriate. As our review is not omnidirectional, it essentially means that we reduce sent ences that in ourBLEVINS—ARMY 20160165

3 judgment are too high. In ot her words, when we conduct a sentence appropriateness review we are, in effect, only reviewing to see if a sentence is too severe.

If the sentence is just outright too seve re, our duty is to lower the sentence such that it “should be appr oved.” In the case where th ere is unreasonable post-trial delay, we face a second ques tion: did the unreasonable de lay turn what may have been an appropriate sentence for appellant's crimes into an inappropriate sentence? Or, in this case, is a sentence that includ es seven months of co nfinement too severe a punishment given appellant's offenses , the sentencing evidence, and the unreasonable delay by th e convening authority?

We answer this last question in the ne gative. The approved sentence remains lenient for appellant’s offenses, even when we consider the unreasonable post-trial delay. The post-trial delay in approving appellant’s court-ma rtial did not make appellant’s sentence inappropriate.

CONCLUSION

We AFFIRM only so much of the finding of guilty as to the Specification of The Charge as provides:

In that [appellant], U.S. Army, did, on or about 30 September 2013, without author ity, absent himself from his unit, to wit: Crazyhor se Troop, 1st Squadron, 3d Armored Cavalry Regiment, III Corps, located at Fort Hood, Texas, and did remain so absent until he was apprehended on or ab out 22 June 2015.

The remaining findings of guilty are AFFIRMED.

We are able to reassess th e sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed by our superior
court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales , 22 M.J. 305 (C.M.A. 1986). We are conf ident that based on the entire record and appell ant’s course of co nduct, the military judge would have imposed a sentence of at least that which was adjudged, and accordingly we
AFFIRM the sentence.BLEVINS—ARMY 20160165

4 We find this reassess ed sentence is not only purged of any error but is also appropriate. All rights, privileges, a nd property, of which appellant has been deprived by virtue of that portion of the fi ndings set aside by our decision, are
ordered restored.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: