UNITED STATES, Appellee 

v. 

Gilbert T. ALLENDE, Mess Management Specialist Second Class 

U.S. Navy, Appellant 

No. 06-0908 

Crim. App. No. 200001872 

United States Court of Appeals for the Armed Forces

Argued January 16, 2008 

Decided March 12, 2008 

EFFRON, C.J., delivered the opinion of the Court, in which 

BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Lieutenant Kathleen L. Kadlec, JAGC, USN 

(argued); Lieutenant Richard H. McWilliams, JAGC, USN (on 

brief). 

For Appellee: Captain Geoffrey S. Shows, USMC (argued); 

Lieutenant Commander Paul D. Bunge, JAGC, USN, Lieutenant 

Timothy H. Delgado, JACG, USN, Major Kevin C. Harris, USMC, and 

Major Brian K. Keller, USMC (on brief). 

Military Judge: Stephen Jamrozy 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Allende, No. 06-0908/NA 

2

Chief Judge EFFRON delivered the opinion of the Court. 

A general court-martial composed of officer and enlisted 

members, convicted Appellant, contrary to his pleas, of 

violating a lawful order, larceny (four specifications), and 

obtaining services by false pretenses, in violation of Articles 

92, 121, and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 892, 921, 934 (2000). The sentence adjudged by the 

court-martial and approved by the convening authority included a 

bad-conduct discharge, confinement for one year, forfeiture of 

all pay and allowances, and reduction to the lowest enlisted 

grade. The United States Navy-Marine Corps Court of Criminal 

Appeals affirmed the findings. In light of the post-trial 

delay, the court reduced the sentence as a matter of sentence 

appropriateness, approving only that portion providing for a 

bad-conduct discharge, confinement for nine months, and 

reduction to the lowest enlisted grade. United States v. 

Allende, No. 200001872, 2006 CCA LEXIS 167, 2006 WL 4572995 (NM. Ct. Crim. App. July 11, 2006) (unpublished). 

On Appellant’s petition, we granted review of the following 

issues: 

I. WHETHER THE LOWER COURT PROPERLY 

EVALUATED PREJUDICE AFTER IT FOUND THAT 

THE TRIAL COUNSEL ERRONEOUSLY 

AUTHENTICATED THE RECORD. 

II. WHETHER THE LOWER COURT ERRED IN 

FINDING NO DUE PROCESS VIOLATION WHERE 
United States v. Allende, No. 06-0908/NA 

3

2,484 DAYS ELAPSED BETWEEN THE 

ADJOURNMENT OF APPELLANT’S TRIAL AND 

COMPLETION OF ARTICLE 66, UCMJ, REVIEW, 

INCLUDING 734 DAYS IN PANEL. 

For the reasons set forth below, we affirm. 

I. AUTHENTICATION OF THE RECORD 

A. BACKGROUND 

The present appeal involves procedures for authentication 

of the record set forth in the UCMJ and the Manual for CourtsMartial. Article 54(a) requires each general court-martial to 

keep a record of the proceedings. Article 54(a), UCMJ, 10 

U.S.C. § 854(a) (2000). Under the direction of the military 

judge, the trial counsel makes arrangements for preparation of 

the record. Article 38(a), UCMJ, 10 U.S.C. § 838(a) (2000); 

Rule for Courts-Martial (R.C.M.) 1103(b)(1). The trial counsel 

examines the record and makes any necessary corrections. R.C.M. 

1103(i)(1)(A). During this process, the trial counsel permits 

the defense counsel to examine the record “[e]xcept when 

unreasonable delay will result.” R.C.M. 1103(i)(1)(B). 

A “complete record of the proceedings,” including a 

verbatim written transcript, must be prepared for each general 

court-martial in which the sentence includes a punishment of the 

type at issue in the present appeal. Article 54(c)(1)(A), UCMJ; 

R.C.M. 1103(b)(2)(B). Substantial omissions from the record 
United States v. Allende, No. 06-0908/NA 

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create a presumption of prejudice that may be rebutted by the 

government. United States v. Stouffer, 53 M.J. 26, 27 (C.A.A.F. 

2000); Manual for Courts-Martial, United States, Analysis of the 

Rules for Courts-Martial app. 21 at A21-81 (2005 ed.). 

The military judge authenticates the record of each general 

court-martial. Article 54(a), UCMJ; R.C.M. 1104(a)(1). Trial 

counsel may authenticate the record if the military judge cannot 

do so “by reason of his death, disability, or absence.” Article 

54(a), UCMJ. In circumstances not pertinent to the present 

case, there are other options for substitute authentication. 

Article 54(a), UCMJ; R.C.M. 1104(a)(2)(B). The person who 

authenticates the record of trial in the absence of the military 

judge “should attach to the record of trial an explanation for 

the substitute authentication.” R.C.M. 1104(a)(2)(B) 

Discussion. Any deficiency with respect to explaining the need 

for substitute authentication is tested for prejudice under a 

harmless error standard of review. United States v. Ayers, 54 

M.J. 85, 92 (C.A.A.F. 2000). 

B. THE RECORD OF TRIAL 

1. Appellant’s court-martial

During Appellant’s trial, the recording equipment 

malfunctioned at a number of points. The record of trial 

omitted portions of three sessions under Article 39(a), UCMJ, 10 

U.S.C. § 839(a) (2000). The first concerned the sufficiency of 
United States v. Allende, No. 06-0908/NA 

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the evidence on the charge of obtaining services by false 

pretenses, and the trial schedule; the second involved the 

question of whether a machete is a dangerous weapon, and the 

third involved a discussion of instructions on findings. The 

record also did not contain Appellant’s written motion for an 

expert consultant and the Government’s response to Appellant’s 

motion. 

Trial counsel certified that she had “made all necessary 

corrections to this record of trial” and authenticated the 

record “because of [the] absence of the military judge.” 

Defense counsel received a copy of the record prior to 

authentication, and did not submit any corrections. Defense 

counsel did not submit a request for correction, Article 38(c), 

UCMJ, nor did Appellant present any legal issues concerning the 

record’s accuracy in his clemency petition. 

2. Review by the Court of Criminal Appeals

Appellant raised two assignments of error regarding the 

record of trial at the Navy-Marine Corps Court of Criminal 

Appeals: whether the record of trial contained substantial 

omissions creating a rebuttable presumption of prejudice, and 

whether trial counsel erroneously authenticated the record of 

trial without properly explaining the military judge’s absence. 

 
United States v. Allende, No. 06-0908/NA 

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a. Omissions from the record 

The Court of Criminal Appeals concluded that, despite the 

omissions, there was enough information on the record to 

conclude that three of the four omissions were insubstantial 

because the record contained sufficient information on each of 

the matters at issue. The court found the omitted discussion of 

the proposed instructions involved a substantial omission, 

thereby raising the presumption of prejudice. The court noted 

that Appellant did not claim that the record omitted any 

objections to instructions, that the record omitted a request 

for instructions, or that the military judge erred in the 

instructions actually given. The court then reviewed the 

instructions contained in the record and concluded that there 

was no instructional error. Under these circumstances, the 

court concluded that the presumption of prejudice was rebutted 

by the record of trial and that the record was substantially 

verbatim. 

b. Substitute authentication 

The Court of Criminal Appeals noted that the only reason 

set forth in the record for substitute authentication was trial 

counsel’s statement that she had authenticated the record 

“because of [the] absence of the military judge.” The court 

concluded that because this statement did not provide sufficient 

information to determine whether substitute authentication was 
United States v. Allende, No. 06-0908/NA 

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appropriate, the authentication was erroneous. The court 

further determined that the error was harmless because: (1) the 

record was substantially verbatim; (2) Appellant’s counsel 

received an opportunity to comment on any corrections prior to 

authentication; (3) Appellant did not raise any legal issues 

concerning the record’s accuracy prior to the convening 

authority’s action; and (4) Appellant did not allege on appeal 

that the record was inaccurate. 

C. DISCUSSION 

In his petition to this Court, Appellant requested review 

of numerous issues, including the propriety of the lower court’s 

ruling that the record was substantially verbatim and that 

Appellant was not prejudiced by the erroneous authentication of 

the record. We found good cause to grant review only on the 

issue of authentication, as well as a separate issue involving 

appellate delay. United States v. Allende, 65 M.J. 345 

(C.A.A.F. 2007). The subsequent filings of the parties do not 

require us to revisit our decision to deny review of the 

question as to whether the record was substantially verbatim; 

nor do the filings require us to question the decision by the 

court below that the substitute authentication was in error. In 

that posture, the question before us on Issue I is whether the 

lower court, having decided that the record is substantially 

verbatim, erred in its analysis of prejudice with respect to the 
United States v. Allende, No. 06-0908/NA 

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substitute authentication. The lower court’s ruling on 

prejudice is a question of law that we review de novo. See

United States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001). 

The issue in the present case involves authentication by 

trial counsel, one of the officials designated by Article 54(a), 

UCMJ, as eligible to authenticate the record in a substitute 

capacity. The error found by the lower court involved the 

adequacy of the explanation for use of a substitute authority. 

We do not have before us a question of authentication by a 

person outside the ambit of persons authorized to act as 

substitutes under Article 54(a), UCMJ, and R.C.M. 1104. As 

such, the burden is on Appellant to demonstrate prejudice. 

Appellant has not demonstrated that the error regarding the 

explanation for using a substitute produced an inaccurate 

record, or otherwise prejudiced his right to submit a brief 

under Article 38, UCMJ, to obtain post-trial clemency under 

Article 60, UCMJ, to present an issue to the Court of Criminal 

Appeals under Article 66, UCMJ, or to raise an issue of law 

before our Court. In short, he has not demonstrated material 

prejudice to his substantial rights under Article 59(a), UCMJ, 

10 U.S.C. § 859(a) (2000). 
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II. APPELLATE DELAY 

 In the second granted issue, Appellant asserts that he was 

denied his due process right to speedy review and appeal. See

United States v. Moreno, 63 M.J. 129, 135-41 (C.A.A.F. 2006) 

(applying the factors identified in Barker v. Wingo, 407 U.S. 

514 (1972), to assess: (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). The 

present case involves a seven-year delay between adjournment of 

Appellant’s court-martial and resolution of his Article 66, 

UCMJ, appellate review. In light of the lengthy delay, and the 

focus of the parties on prejudice, we shall assume error and 

proceed directly to the question of whether any error was 

harmless beyond a reasonable doubt. See United States v. 

Allison, 63 M.J. 365, 370-71 (C.A.A.F. 2006). 

Appellant has not suffered ongoing prejudice in the form of 

oppressive incarceration, undue anxiety, or the impairment of 

the ability to prevail in a retrial. Moreover, because we do 

not find the substantive grounds of Appellant’s appeal as to the 

first granted issue meritorious, Appellant has not suffered 

detriment to his legal position in the appeal as a result of the 

delay. See Moreno, 63 M.J. at 139. 

Appellant asserts prejudice on the grounds that his ability 

to obtain employment has been impaired because he has not been 
United States v. Allende, No. 06-0908/NA 

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able to show employers a Department of Defense Form 214 (DD214), the certificate of release from active duty. The 

appellate delay has delayed completion of appellate review, 

thereby precluding issuance of a DD-214. According to 

Appellant, a number of potential civilian employers were 

unwilling to consider him because he could not provide them with 

a DD-214. 

Appellant’s affidavit asserts that four employers declined 

to consider him for employment in the period of August-October 

2000, approximately a year after his trial was completed, and 

that two employers declined to consider him for employment for 

that reason in 2007. Appellant has not provided documentation 

from potential employers regarding their employment practices, 

nor has he otherwise demonstrated a valid reason for failing to 

do so. Compare United States v. Jones, 61 M.J. 80, 84-85 

(C.A.A.F. 2005) (relying upon affidavits from a prospective 

employer to confirm that the lack of a DD-214 caused the 

employer to deny his application for employment.) In that 

context, we conclude that the assumed error was harmless beyond 

a reasonable doubt and note that Appellant has failed to present 

any substantiated evidence to the contrary. 
United States v. Allende, No. 06-0908/NA 

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III. DECISION 

 For the forgoing reasons, the decision of the United States 

Navy-Marine Corps Court of Criminal Appeals is affirmed.