UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

HAIGHT, MULLIGAN, and ALMANZA1

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class CASEY N. O’BRIEN 

United States Army, Appellant 

ARMY 20130095 

Headquarters, III Corps and Fort Hood 

Patricia Lewis, Military Judge 

Colonel Stuart W. Risch, Staff Judge Advocate (pretrial) 

Colonel Ian G. Corey, Staff Judge Advocate (post-trial) 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R. 

Inkenbrandt, JA; Captain Heather L. Tregle, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major 

John K. Choike, JA; Major Matthew T. Grady, JA (on brief). 

30 September 2015 

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SUMMARY DISPOSITION 

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ALMANZA, Judge: 

A military judge sitting as a general court-martial convicted appellant, 

consistent with his pleas, of one specification of false official statement, one 

specification of assault consummated by a battery, and one specification of unlawful 

entry, in violation of Articles 107, 128, and 134, Uniform Code of Military Justice, 

10 U.S.C. §§ 907, 928, and 934 [hereinafter UCMJ].2

 The military judge sentenced 

 

1 Judge ALMANZA took final action in this case while on active duty. 

2

 In addition, appellant was charged with four specifications alleging violations of 

Article 120, UCMJ (rape, aggravated sexual assault, and indecent acts), two 

(continued . . .) 
O’BRIEN—ARMY 20130095 

2 

appellant to a bad-conduct discharge, hard labor without confinement for three 

months, forfeiture of $500 pay per month for three months, and reduction to the 

grade of E-1. The convening authority approved only so much of the adjudged 

sentence as provided for a bad-conduct discharge, forfeiture of $500 per month for 

three months, and reduction to the grade of E-1. 

This case is before us pursuant to Article 66, UCMJ. Appellant raises one 

assignment of error, which merits discussion and relief. 

BACKGROUND 

 Appellant’s trial concluded on 31 January 2013. The military judge 

authenticated the 624-page record of trial on 6 January 2014,3 and it was served on 

appellant on 13 June 2014. The staff judge advocate (SJA) signed his post-trial 

recommendation on 13 July 2014, and it was served on appellant on 25 July 2014. 

Appellant submitted his post-trial matters pursuant to Rule for Courts-Martial 

[hereinafter R.C.M.] 1105 on 11 September 2014. The convening authority took 

action on 24 September 2014. This case was docketed with this court on 6 October 

2014. 

 A total of 601 days elapsed between the date sentence was adjudged and the 

date the convening authority took action. Subtracting 32 days of defense delay in 

submitting R.C.M. 1105 matters, 569 days elapsed between the date sentence was 

adjudged and the date the convening authority took action. 

 

 In his R.C.M. 1105 matters, appellant asserted legal error in that post-trial 

processing of his case exceeded 120 days, in violation of United States v. Moreno, 

63 M.J. 129 (C.A.A.F. 2006). Although appellant asserted prejudice resulting from 

post-trial delay, he does not assert prejudice in his brief before this court. Appellant 

 

(. . . continued) 

specifications alleging violations of Article 128, UCMJ (assault consummated by 

battery), one specification alleging a violation of Article 130, UCMJ (housebreaking 

with intent to commit assault), and three specifications alleging violations of Article 

134, UCMJ (assault with intent to commit rape, communicating indecent language, 

and a general disorder). The military judge dismissed some of these specifications 

before pleas and dismissed the remainder of these specifications after entering 

findings. 

3

 The military judge dated the authentication, “6 Jan 2013,” but on that same page 

acknowledged that she received the record of trial for review on 19 December 2013. 

Accordingly, we find that the date of “6 Jan 2013” on the military judge’s 

authentication was a mere scrivener’s error and that she authenticated the record of 

trial on 6 January 2014. 
O’BRIEN—ARMY 20130095 

3 

argues that the convening authority’s disapproval of the hard labor without 

confinement portion of his adjudged sentence was not a remedy for the post-trial 

delay, and asks this court to set aside either the approved forfeitures or the badconduct discharge. 

 In its brief, the government notes several factors contributing to the delay in 

this matter but nevertheless “acknowledges that dilatory post-trial processing 

occurred in appellant’s case.” The government argues, however, that appellant 

already received relief for this delay when the convening authority did not approve 

the portion of appellant’s adjudged sentence that provided for three months of hard 

labor without confinement. The government also argues that should this court grant 

further relief, such relief should be limited to setting aside the adjudged forfeitures.

LAW AND DISCUSSION 

Appellant’s assigned error states: 

THE UNEXPLAINED DILATORY POST-TRIAL 

PROCESSING OF APPELLANT’S CASE WARRANTS 

RELIEF WHERE IT TOOK 569 DAYS FROM TRIAL TO 

ACTION. 

We review de novo appellant’s claim that he has been denied his due process 

right to speedy post-trial review. Moreno, 63 M.J. at 135. Our superior court has 

adopted the four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530 

(1972) to determine whether a due process violation has occurred: (1) the length of 

the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to 

timely review and appeal; and (4) prejudice. Id.

We presume unreasonable delay when more than 120 days elapse between 

completion of an appellant’s trial and action by the convening authority. Id. at 142. 

Appellant asserts no prejudice and we find none. However, we may 

nonetheless find a due process violation if “in balancing the other three factors, the 

delay is so egregious that tolerating it would adversely affect the public’s perception 

of the fairness and integrity of the military justice system.” United States v. Toohey, 

63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the lengthy delay, the 

government’s concession that “dilatory post-trial processing occurred in appellant’s 

case,” and appellant’s raising of the issue of post-trial delay to the convening 

authority, we find that the post-trial delay in this case is sufficiently egregious to 

find a due-process violation under Toohey. Id. 
O’BRIEN—ARMY 20130095 

4 

We find the convening authority’s disapproval of the adjudged hard labor 

without confinement was not intended as a remedy for the post-trial processing delay 

in this case. In his post-trial recommendation, the SJA recommended that the 

convening authority only approve the sentence of a bad-conduct discharge, the 

forfeitures, and reduction to the grade of E-1. After receiving appellant’s R.C.M. 

1105 matters, which in relevant part alleged legal error resulting from the delay in 

post-trial processing, the SJA in the addendum to his recommendation disagreed 

with appellant’s assertion of legal error and stated no corrective action was needed. 

In that addendum, the SJA also recommended that the convening authority grant 

clemency by only approving so much of appellant’s sentence as provided for a badconduct discharge, forfeiture of $500 per month for three months, and reduction to 

the grade of E-1. These facts lead us to conclude that the convening authority’s 

decision not to approve the adjudged three months of hard labor without confinement 

was an act of clemency, not an act intended to provide relief for the delayed posttrial processing of appellant’s case. 

As outlined above, despite his approved sentence being less severe than that 

adjudged at trial, appellant has not yet received any relief for the undue post-trial 

delay in his case. We will provide him that relief by approving only so much of the 

sentence as provides for a bad-conduct discharge and reduction to the grade of 

E-1. 

We must also review the appropriateness of appellant’s sentence in light of 

the lengthy post-trial processing in this case. See 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 sentence ‘should be approved,’ 

based on all the facts and circumstances reflected in the record, including the 

unexplained and unreasonable post-trial delay.”). Upon review of the entire record, 

to include, inter alia, the lengthy post-trial delay, the government’s concession, and 

the absence of prejudice, we find appellant’s now reduced sentence is appropriate. 

CONCLUSION 

The findings of guilty are AFFIRMED. After considering the entire record, 

the court AFFIRMS only so much of the approved sentence as provides for a badconduct discharge and reduction to the grade of E-1. All rights, privileges, and 

property, of which appellant has been deprived by virtue of that portion of the 

sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 

75(a). 
O’BRIEN—ARMY 20130095 

5 

 Senior Judge HAIGHT and Senior Judge MULLIGAN concur. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: