## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, JOHNSON, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Specialist ROBERT A. CLARK United States Army, Appellant

ARMY 20110179

Headquarters, III Co rps and Fort Hood Susan K. Arnold, Military Judge Colonel Mark H. Sydenham , Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA; Captain Steve T. Nam, JA (on brief).

13 September 2012

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of wrongful disposi tion of military property, two specifications of wrongful use of a cont rolled substan ce, wrongful po ssession of a controlled substance, wrongful distribution of a controlled substance, an d larceny of military property, in viol ation of Articles 108, 112a, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 908, 912a, 921 20 06 [hereinafter UCMJ]. The military judge sentenced appellant to a ba d-conduct discharge, confinement for three years, total forfeiture of all pay and allowances, and reduction to the grade of Private E-1. The convening authority approved the sentence as adjudged.

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

considered the record of tria l, appellant’s assignment of error, and the government’s answer. Though we do not find any actual prejudice to the appellant, we agree withCLARK—ARMY 20110179

2 appellant that the unexplained and excessive post-trial delay in the processing of this

case warrants relief.

Here, appellant pled guilty to all char ges and specification s resulting in a record of trial transcript 188 pages in length. Time betw een sentence and action in this case was 261 days. Ne ither the convening authority nor the staff judge advocate offered any explanation for th e post-trial delay in this ca se. Even if we permit the government’s calculation, attributing only 233 days of unexpla ined delay to the convening authority, the length of delay without explanati on, let alone justification, warrants relief under the partic ular circumstances of this ca se. Article 66(c), UCMJ.

See United States v. Moreno , 63 M.J. 129, 142-43 (C.A .A.F. 2006) (creating a 120- day presumption of unreasonable delay); 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); United States v. Ney , 68 M.J. 613, 616–17 (Army Ct. Crim. App. 2010). Reviewing th e entire record of trial, and in light of the gov ernment’s failure to provide reason s for the exce ssive post-trial delay, along with the particular

circumstances of this case, we find a reduc tion of one month in the sentence to confinement appropriate.

Therefore, on consideration of the entire record and the a ssigned error, the findings of guilty are affirme d. However, in light of the reasons abov e, we find that, in relation to appellant’s sentence to three years’ confinement, only thirty-five months should be approved. Therefore, the court approves only so much of the sentence as provides for a bad-conduct discharge, co nfinement for thirty-five months, total forfeiture of all pay and allowanc es, and reduction to the grade of Private E-1. All rights, pr ivileges, and property, of which appellant has been deprived by virtue of that portion of his se ntence set aside by this decision are

ordered restored. See UCMJ arts. 58b(c) a nd 75(a).

FOR THE COURT:

JOANNE P. TETREAU

D of Court JOANNE P. TETREAULT ELDRIDGE Deputy Clerk of Court FOR THE COURT: