## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

________________________

No. ACM 39260

________________________

UNITED STATES Appellee

v.

Rebekah D

. RUSH
Senior Airman (E

- 4) , U.S. Air Force, Appellant

________________________ Appeal from the United S tates Air Force Trial Judiciary

Decided 15 January 2019

________________________ Military Judge: L. Martin Powell

. Approved sentence: Bad

- conduct discharge, confinement for 20 months,
and reduction to E

- 1

. Sentence adjudged 24 January 2017 by GCM convened at Keesler Air Force Base, Mississippi

. For Appellant: Major Todd M. Swensen, USAF

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Clayton H. O’Connor, USAF; Major Meredith L. Steer, USAF; Captain Sean J. Sullivan, USAF; Mary Ellen Payne, Esquire

. Before HUYGEN

, MINK , and KIEFER

, Appellate Military Judges

. Judge KIEFER delivered the opinion of the c ourt, in which Senior Judge
HUYGEN and Judge MINK joined.

________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Proce dure 18.4

.

________________________

KIEFER

, Judge:

Appellant , pursuant to her pleas and a pretrial agreement (PTA), was convicted by a military judge of one specification of willful dereliction of duty and four specifications of forgery in violation of Articles 92 and 123

, Uniform CodeUnited States v. Rush , No. ACM 39260

2 of Military Justice (UCMJ), 10 U.S.C. §§ 892, 923

. 1 T he military judge sentenced Appellant to a reduction to the grade of E

- 1, 20 months of confinement,
and a bad

- conduct discharge

. The convening authority approved the sentence as adjudged.

On appeal, Appellant asserts t hree assignments of error: ( 1) whether Appellant is entitled to sentence relief due to the conditions of her post

- trial confinement; ( 2) whether Appellant is entitled to relief because the Staff Judge
Advocate’s Recommendation (SJAR) failed to address alleged legal errors; and ( 3) wheth er the approved sentence is unduly harsh as compared to sentences in similar cases. We specified two additional issues: ( 1) whether trial defense counsel incorrectly stated in the clemency submission the effect of a particular
term in the PTA and ( 2) wheth er Appellant is entitled to new post

- trial processing in light of United States v. Addison , 75 M.J. 405 (C.A.A.F. 2016) (mem

. ), either beca u se t he addendum to the SJAR did not correct an error in trial defense counsel’s clemency submission regarding the particular term in
the PTA or because the SJAR mis adv i se d the convening a uthority concerning
the PTA

. W e find that there was no meeting of the minds concerning the term in the PTA and thus set aside the findings and the sentence. Accordingly, we need not a ddress the remaining assignments of error . Finally, we address the issue of timely appellate review

.

I. B ACKGROUND
In early 2015, Appellant was serving as a dental technician at Keesler Air Force Base, Mississippi. During this time , she provided dental assessment and
treatment to a civilian at his home without the supervision of a licensed dentist
in violation of Air Force and state medical standards. Through her access to the civilian’s home, Appellant obtained some of his checks, and o n various occasio ns in November 2015, she forged multiple checks totaling $38,000 . Appellant delivered some of the forged checks , totaling $18,000, for payment to a bank in Mississippi with the intent to defraud both the bank and the civilian
owner of the checks

. One term of A ppellant’s PTA ( hereinafter referred to as the “consider”

term ) stated that the c onvening authority would “ [ c ] onsider dis approving, commuting, mitigating, or suspending the entire sentence, or any portion thereof, as a matter of clemency when taking Action, to the extent the Rules for Courts

Martial permit.”

1 Appellant pleaded not guilty to one specification of fleeing from apprehension, two specifications of larceny, and one specification of wrongful use with intent to defraudanother’s military identification card, all of which the Government withdrew and dismissed in accordance with the PTA.United States v. Rush , No. ACM 39260

3 Du r ing the PTA inquiry , the military judge indicated that he had not seen the “consider” term before and asked the parties to explain their respective interpretation s of it . Trial cou nsel interpreted the “consider” term to mean
that

, if the adjudged sentence included confinement for more than six months or a punitive discharge, the c onvening authority would be limited by Article 60, UCMJ , 10 U.S.C. § 860

, and Rule for Courts

- Martial (R.C.M.) 1 1 07 to granting the specific relief included in the quantum portion of the PTA with respect to confinement and a discharge. 2 Trial d efen s e counsel interpreted the term to
mean that the c onvening authority could grant full relief on all components of the adjudged sentence, to include disapprov al of the entire sentence

. After summarizing the parties’ views of the “consider” term, the military judge informed Appellant :Your counsel’s reading of the rule may be that the convening authority has unlimited authority to reduce the punishment to any
level he wants. I’m not sure that that’s an accurate reading of
the rule. It may be , but appellate courts may decide, no, the convening authority doesn’t have that kind of unlimited authorityas your counsel said. So I want to make sure that you understand that, first of all, this subjection [ sic ] of the PTA says, “to
the extent that Rules for Courts

- Martial permit.” So there’s a

ve ry real possibility that the convening authority would be limited. Say, for example, if the adjudged punishment exceeded sixmonths of confinement or included a punitive discharge, the convening authority, in accordance with RCM 1107, may not be able

to mi tigate, suspend, commute or disapprove that sentence.

(Emphasis added).

After a brief recess

, trial counsel indicated uncertainty a s to whether there was a meeting of th e mind s between the parties on the meaning of the “consider” term of the PTA : “ I’m still trying to hash out whether there’s actually a meeting of the minds as it comes to this term. To say, ‘ This is what I expect,

2 The National Defense Authorization Act for Fiscal Year 2014 modified Article 60,
U CMJ, and limited the convening authority’s ability to grant clemency. Pub. L. No.
113

– 66, § 1702 (b) , 127 Stat. 95 6

– 5 7 (2013). The pertinent text of the modified Article 60, UCMJ, providing for convening authority discretion to act on an adjudged sentence

r eads, “[T]he convening authority . . . may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.” Id. This limit

on authority is subject to two exceptions, one of which is where the convening authority and accused have entered into a PTA. Id. Thus, p ursuant to specific terms in a PTA, the convening authority may act on an adjudged sentence of confinement for more than six months, dismissal, dishonorable discharge, or bad conduct discharge. Id.United States v. Rush , No. ACM 39260

4 but maybe I’m wrong, ’ I don’t know at this point that the accused understands the benefit of the bargain. ”

T rial counsel went on to restate his interpretation of the “consider” term
, and the military judge summarize d as follows :The government’s position and my interpretation is that the language that says that, if there’s a pretrial agreement, [the c onvening authori ty ] can take action in accordance in accordance [sic] with that, means that he could reduce the sentence to whatever it says specifically in your Appendix A. If it says the maximum is three days of confinement, he can reduce it all the way down to that, bu t that he might not be able to take any other action limited by Article 60 of the UCMJ and Rule for Courts

Martial 1107.

(Emphasis added).
While still discussing the “consider” term , the military judge had the following exchange with Appellant :

MJ [Military Judge] :

. . . [T] he fact of the matter is that a fair interpretation of this could mean that if the sentence exceeds six months of confinement or if you get a punitive discharge, the convening authority may not be permitted , under the Rules for
Courts

- Martial and the UCMJ, to take any of the actions that are set forth in paragraph 2(e).

Do you understand that?

ACC [Appellant] : Yes, sir.

MJ: Okay. And is that your understanding? Is your understanding of this agreement that the convening authori ty will consider doing anything that he is allowed to do under the law?

ACC: Yes, sir. I understand that.

(Emphasis added).

The military judge ended the discussion with the following : So it seems to me that there’s an agreement. Maybe there’s a different interpretation of what the extent is that [the c onvening authority ] can act upon [the sentence] in accordance with RCM 1107 and Article 60. Maybe there’s a different interpretation,
but ultimately the agreement seems to be that whatever he cando he will do as far as considering mitigating, suspending, suspending [ sic ] , commuting or disapproving the sentence.United States v. Rush , No. ACM 39260

5At the conclusion of the plea inquiry, the military judge accepted Appella nt’s guilty pleas and found her guilty of one specification of willful dereliction of duty and four specifications of forgery.

II. D ISCUSSION

A. The “Consider” Term and Meeting of the Minds

Courts have long acknowledged that entering a plea of guilty is a serious and consequential decision. The Supreme Court of the United States has noted
that “[ a ] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment
and dete rmine punishment. ” Boykin v. Alabama , 395 U.S. 238, 242 (1969) (citation omitted)

. “Because of the consequences resulting from guilty pleas, the Supreme Court has recognized the constitutional necessity of ensuring that such pleas are entered into voluntarily and knowingly, ‘with sufficient awareness of the relevant circumstances and likely consequences.’” United States v.
Perron , 58 M.J. 78, 81 (C.A.A.F. 2003) (quoting Brady v. United States , 397 U.S. 742, 748 (1970))

. “ These concerns are no less i mportant in our military system of justice, where pleading guilty constitutes a conviction and a waiver
of the accused’s trial rights. ” Id. ( citing United States v. Forester

, 48 M.J. 1, 2

– 3 (C.A.A.F. 1998) ) ; United States v. Care

, 40 C.M.R. 247 , 250

– 51 ( C.M.A. 1969) )

. “ T he military justice system imposes even stricter standards on military judges with regards to guilty pleas than those imposed on federal civilian judges.” Perron , 58 M.J. at 81

– 82 (citing United States v. Outhier , 45 M.J. 326,
331 (C.A.A.F. 1996) ) (noting Article 45(a), UCMJ, requires military judges to reject guilty pleas if they cannot resolve inconsistencies and apparent defenses during the providence inquiry)

. The interpretation of a PTA is a question of law, which we revi ew de novo.
United States v. Smead , 68 M.J. 44, 59 (C.A.A.F. 2009); United States v.
Acevedo , 50 M.J. 169, 172 (C.A.A.F. 1999). A PTA in the military justice system establishes a constitutional contract between the accused and the convening authority. See United States v. Lundy , 63 M.J. 299, 301 (C.A.A.F. 2006) . Basic contract principles require a meeting of the minds between the parties as to the material terms of the agreement. Thus, t he military judge ’ s inquiry into
the voluntariness of an accused ’ s guilty plea includes an examination of the provisions of any PTA to ensure that there is a meeting of the minds between the parties to the agreement. See R.C.M. 705(c)(1)(A)

, 910(f). “ We have long emphasized the critical role that a military judge and co unsel must play to ensure that the record reflects a clear, shared understanding of the terms of any pretrial agreement between an accused and the convening authority. ”
United States v. Williams , 60 M.J. 360, 3 62 (C.A.A.F. 2004) (citation omitted) ;United States v. Rush , No. ACM 39260

6 see also United States v. Smith , 56 M.J. 271, 272

– 73 (C.A.A.F. 2002) ; Care , 40 C.M.R. at 250

– 51

.
I n this case, the military judge elicited the parties ’ respective understanding s of the “consider” term . The Government indicated that the c onvening authority would be limited by Article 60 , UCMJ, and R.C.M. 1107, and that

, ifthe adjudged sentence included confinement for more than six months or a punitive discharge, the c onvening authority could not disapprove , suspend

, or mitigate confin e ment or a punitive d i scharge beyond the specif ic terms in the quantum portion of the PTA. The Defe n se stated that the “consider” term
would allow the c onvening authority to act on all aspects of the adjudged sentence
, inc l ud i ng disapproval of the entire sen t e n ce. The military judge seemed to share the Government’s position; however, he did not rule on the “consider” term or clearly state its meaning in this case. Instead, he used ambiguous and qualifying language

, which rang ed from support for the Government’s interpretation to statements that Appellant’s view might be correct and the convening authority might be able to grant the full relief Appellant hoped for

, up to and in cluding disapproval of the entire sentence.

Trial counsel noted the confusion surrounding the “consider” term and the
fact that there did not appear to be a meeting of the minds between the parties

. T he military judge added to th is uncertainty by stating multiple times, “maybe there is a different interpretation” of the “consider” term. The military judge ultimately ended the discussion with a finding that the convening authority would do whatever the law allowed without resolving w hat that meant in Appellant’s case.

In United States v. Robinson , 78 M.J. 578 (A.F. Ct. Crim. App. 2018) , decided by this court in August of this year , we found that a PTA term nearly identical to the one at issue in Appellant’s case was a legal nullity because itessentially required the convening authority to follow the law as he was already required to do. H ere, the military judge’s attempt to establish a meeting of the minds that the convening authority would do whatever the law allowed
did not resolve the parties’ conflicting interpretations of the “consider” term.
Thus

, we find that there was no meeting of the minds with regard t o the meaning of the “consider” term of the PTA

.
B. The “Consider” Term and M ateriality

Because there was no meeting of the minds, we must next determine
whether the “consider” term was material. “In an appeal that involves a misunderstanding or nonperformance by the Government, the critical issue is whether the misunderstanding or nonperformance relates to ‘the material terms of the agreement.’” Smith

, 56 M.J. at 273 (quoting R

. C

. M

. 910(h)(3)). AUnited States v. Rush , No. ACM 39260

7 PTA term is material when it “rests in any significant degree on a promi se or agreement of the prosecutor, so that it can be said to be part of the inducement
or consideration . . . . ” Santobello v. New York

, 404 U.S. 257, 262 (1971)

. “There is no requirement

. . . that the term at issue constitute the ‘only’ reason for a pretrial agreement.” Smith , 56 M.J. at 279.
In evaluating the circumstances of this case and whether the “consider”

term was to any significant degree part of the inducement for Appellant to e nter into the PTA , we first not e that Appellant relied on an interpretation of the
term that would have conveyed a significant benefit to her, namely

, the convening authority’s ability to disapprove any or all of the adjudged sentence. The magnitude of thi s possible relief demonstrates its importance to Appellant

. Further, Appellant maintained the same understanding of the “consider” term from trial, through clemency, and on appeal

. During the plea inquiry with the military judge, she asserted that the convening authority could disapprove
her entire sentence. This interpretation was confirmed in the written post

- trial rights advisement, an appellate exhibit accepted by the trial court , which

stat ed

, “ [ t ] he Convening Authority may approve the sentence adjudged, approve a lesser sentence, or disapprove the sentence entirely .” (Emphasis added)

. In clemency, Appellant, through her counsel, told the convening authority he
had the discretion to disapprove her confinement

, and she requested that specific relief. In her affidavit to th is court on appeal , Appellant stat ed that

, when she signed the PTA and at trial

, she believed the convening authority would
have full discretion to act on her sen tence. While there are instances where we may give less weight to a self

- serving affidavit on appeal, especially if it contradicts information provided at trial or in clemency, Appellant’s interpretation of the “consider” term has been consistent throughou t the case

. It also appears the “ consider ” term was the product of some forethought by the parties. T he mil i tar y judge noted that in his experience this was a new PTA

term
, suggesting it was not simply “boilerplate” language carried over from

an other agreement but was instead specifically included in this agreement. 3

Finally, m ilitary case law has noted that materiality may be demonstrated by the post

- trial relief requested and the basis for that relief. I n Smith

, the

court held that a term in the PTA impacting forfeitures was material, in part,
because the accused cited concern for his family and the need to pr o vide for them financially, and then requested relief from forfeitures , which w as specifically addressed in his PTA. 56 M.J. at 27 9

. The circumstances in this case are
similar

. In clemency, Appellant indicated concern for her family and noted issues with her disabled husband ’s ability to car e for their children if s he was

3 While we cannot say the “consider” term i s unique to Appellant’s case

, Robinson is the only other instance of the court conside ring th is term. See 78 M.J. at 581.United States v. Rush , No. ACM 39260

8 confi n ed for a long period of time , and she focused her post

- trial efforts on reducing the adjudged confinement based on the “consider” term in the PTA . As
in Smith , Appellant’s focus on clemency relief consistent with her interpretation of the “consider” term further demonstrates the importance of th is term in her decision to proceed with the PTA as well as her understanding that thisterm gave the convening authority very broad discretion to act on her sentence. 4
Having found there was no meeting of the minds between the parties on the meaning of the “consi d er” term or its impact on the c onvening authority ’s discretion in clemency , w e further find that the term was material . I t rested on a promise of the convening authority to take certain action with respect to the sentence, and it was part of the inducement for Appellant to enter into the
PTA.

C. The “Consider” Term and Remedy

It is incumbent on the military judge to ensure the accused understands the PTA, the parties a gree to its terms, the agreement satisfies the requirements of R.C.M. 705, and the accused has freely and voluntarily entered into
the PTA and waived her constitutional rights. Perron, 58 M.J. at 82; see also
Article 45(a), UCMJ, 10 U.S.C. § 845(a) ; R.C.M. 705

, 910(f), 910 (h)(2)

– (3). If there is no agreement as to a material term in the PTA, “remedial action, in the form of specific performance, withdrawal of the plea, or alternative relief, is required.” Perron , 58 M.J. at 8 2 (citation s omitted)

.
1. Specific Performance

In evaluating remedial actions,

[i] f the military judge determines that the accused does not understand the material terms of the agreement, or that the parties disagree as to such terms, the military judge shall conform,
with the consent of the Government, the agreement to the accused ’ s understanding or permit the accused to withdraw the plea.

R.C.M. 910(h)(3) ; see also United States v. Olson , 25 M.J. 293, 296 (C

. M

. A

. 1987)

. Here

, t he military judge did not conform the agreement to Appellant’s understanding. He failed to specifically rule on the meaning of t he “ conside r”

term
, and he appeared to favo r the Government’s interpretation . Similarly, in

4 Appellant ’ s case is also similar to Smith

, 56 M.J. at 276, in that the Gover n ment failed to recognize that Appellant ’ s e xpiration of t erm of s ervice nullif ied the PTA term
waiv ing forfeiture of pay for the benefit of Appellant’s dependents

.United States v. Rush , No. ACM 39260

9 clemency, the staff judge advocate advised the convening authority that he could not take action consistent with Appellant’s interpretation of the PTA.

We have also considered whether we can at this point order specific performance in the form of new post

- trial processing and requir e the c onvening authority to fulfill the “consider” term as interpreted by Appellant

. In Robinson

,

we found the “consider” term was a legal nullity and could not be interpreted
in a manner that expand s the convening authority’s discretion beyond the limitati o ns set forth in Article 60, UCMJ

. 78 M.J. 578, 581 (A.F. Ct. Crim. App. 2018). We noted, “the convening authority’s agreement to ‘consider disapproving, commuting, mitigating, or suspending the entire sentence or any portion thereof, as a matter of clemency when taking Ac tion’ was in essence an empty promise.” Id. at 583

. Thus, we cannot order the c onvening authority to do something that this court has determined he is not authorized to do. In other words, we cannot order specific performance.

2. Withdrawal from the PTA

As with other decisions regarding guilty pleas and PTAs, the decision to withdraw or proceed must be knowing and voluntary. In Robinson , the court
found t hat “[ t ] he military judge neither inquired further into Appellant’s or either counsel’s understanding of [the ‘ consider ’ term] nor clarified the ways in which the convening authority would be limited by the restrictions set forth in Article 60, UCMJ, 10 U.S.C. § 8 60.” Id. at 580

. Consequently, the court found the pleas improvident and set aside the findings and sentence. Id. at 579.

Unlike in Robinson

, the military judge in Appellant’s case conducted a lengthy discussion of the “consider” term

. T he fact that there was additional
discussion , however, does not guarantee a knowing and voluntary decision to proceed with the PTA. We acknowledge that the military judge discussed withdraw al from the PTA with Appellant , but the problem here wa s that the t otality of the inquiry left significant confusion as to the meaning of the “consider”

term . While the military judge indicated his preferred interpretation, he didnot definitively rule on the provision and repeatedly used ambiguous and qualifying language to describe both Appellant’s and the Government’s interpretations.

In the Government’s brief, it cite s three cases for the proposition that a plea is not improvident simply because of uncertaint y on an issue of law

— United
States v. Poole , 26 M.J. 272, 274 (C.M.A. 1988); United States v. Hunt , 10 M.J. 222, 223 (C.M.A. 1981); and U nited S tates v. Hedlund , 7 M.J. 27 1 , 273 (C

. M

. A

. 1979) . All of these cases, however, are distinguishable from Appellant’s case. First, the military judge s in those case s made definitive rulings on issues of
law. No such ruling was provided in this case, and Appellant was left to evaluate the merits of her position in a confus ing and unclear environment. Second,
Poole

, Hunt , and Hedlund did not involve conflicting positions of the parties onUnited States v. Rush , No. ACM 39260

10 a PTA term
, where the requirement for clarity is paramount. 5 In fact, the true import of Poole

, Hunt , and Hedlund to Appellant’s case is their recognition that

“ all the circumstances of the case pres ented by the record must be considered
to determine whether the misapprehension of [an issue] affected the guilty plea, or whether that factor was insubstantial in [ appellant’s ] decision to plead. ” Hunt , 10 M.J. at 223

– 224 (citation omitted) ; see Poole

, 26 M.J. at 272 (citations omitted); Hedlund , 7 M.J. at 273.

Here, t he military judge did not make a definitive ruling as to the meaning of the “consider” term and repeatedly used qualifying language to describe the provision

, ultimately leading t rial c ounsel to question whether there was a meeting of the minds between the partie s

. In response, the military judge indicat ed the Government ’s interpretation was probably correc t but still suggested Appellant’s position had merit and might provide the relief Appellant expected . Although the discussion in this case was more extensive than that
undertaken in Robinson , the sum total of the inquiry left open the meaning of
a material term in the PTA and injected ambiguities that undermine d the voluntariness of Appellant’s decision to continue with the guilty plea and PTA

. There is a difference between an accused who is faced with a specific unfavorable ruling from a military judge and harbors some hope that she may prevail on appeal a nd an accused who agrees to proceed with a PTA where she has
been informed by the military judge that her interpretation may be correct. This is not to say an accused can simply create interpretations of PTA terms from thin air, advance th o se same unsupported understandings through post

trial processing, and later successfully claim an improvident plea. An accused
who elects to go forward with a PTA after receiving a clear ruling that is inconsistent with her interpretation of a material ter m proceeds at her own peril. On this record, however, Appellant did not receive a clear ruling

, and the inquiry on the “consider” term

, as a whole

, created an environment where Appellant could have reasonably determined she would receive the benefit of her bargain.

W e find that the totality of the circumstances in this case resulted in numerous uncertainties that undermined the knowing and voluntary nature ofAppellant’s decision to proceed with the PTA, despite the fact that she acknowledged a possib le outcome consistent with the Government’s interpretation of
the “consider” term. The military judge’s failure to definitively rule on the meaning of the term combined with the ambiguities of the discussion left open

5 Poole

, Hunt , and Hedlund all deal with situations where the military judge and the parties misunderstood the maximum sentence based on the offenses and pleas. Poole

, 26 M.J. at 273

– 74; Hunt

, 10 M.J. at 223; Hedlund , 7 M.J. at 273.United States v. Rush , No. ACM 39260

11 the possibility that the convening authority had the discretion to grant Appellant full clemency, when the convening authority did not . Thus, although themilitary judge offered Appellant the chance to withdraw from the PTA, Appellant’s decision to proceed was not knowing and voluntary.

3. Alternative Relief

I f the bargained

- for benefit of a PTA term is outside the authority of the Government to provide, appellate courts may consider whether some “ appropriate alternative relief ” may satisfy the benefit of the bargain. 6 See United
States v. Mitchell , 50 M.J. 79, 83 ( C.A.A.F. 1999) (per curiam)

. We note that gen e rally we cannot order alternative relief in the absence of the agreement of both parties. “[I] mposing alternative relief on an unwilling appellant to rectify a mutual misunderstanding of a material term in a pretrial agreement violates the appellant ’ s Fifth Amendment right to due process. ” Perron , 58 M.J. at 86. “When an appellate court substitutes its own remedies in place of negotiated plea terms, it steps into the accused ’ s shoes and is in effect renegotiating the accused ’ s plea agreement and waiving his rights. This, an appellate court cannot do without the accused’s consent.” Id . at 85.
Here, the Government has not offered any alternative relief tha t it believes is appropriate. T he only r e li e f Appellant has requested is the setting asi d e o f
the findin g s and sentence. “If the court concludes . . . that other relief

. . . is insufficient, the court may set aside the findings, as well as the sentence, and authorize a rehearing based on appellant ’ s improvident pleas.” Mitchell , 50
M.J. at 83

. We do so here.

D. Timely Appellate Review

Under United States v. Moreno , courts apply a presumption of unreasonable delay when the time from docketing to issuance of the decision exceeds 18 months. 63 M.J. 129, 142 (C.A.A.F. 2006). This presumption triggers analysis applying the four factors set out in Barker v. Wingo , 407 U.S. 514, 530 (1972): (1) the length of the delay, (2) the reasons for the delay, (3) the a ppellant’s assertion of the right to timely review, and (4) prejudice to the appellant

. Moreno , 63 M.J. at 135 (citations omitted).

A nalyzing these facto rs, we note t his case was docketed with the court on
2 June 2017

, and the opinion was not issued within 18 month s . Despite this facially unreasonable delay, we find no due process violation. The length of

6 Pursuant to the “consider” term, Appellant believed she bargained for the convening authority to consider relief from her adjudged sentence up to and including disapproval of her entire sentence. As noted in section II.C.1, we adopt the holding in R obinson

, and find that the “consider” term was a legal nullity, and Appellant’s expected benefit
was not available in this case.United States v. Rush , No. ACM 39260

12 delay is approximately one month and is not excessive. Appellant did not demand speedy appellate review and instead requested five enlargements of time to submit her assignments of error

. Further delay was precipitated by unique
circumstances that required th e court to specify issues and necessitated additional briefing by both parties. Finally, with respect to prejudice, Appellant has not asserted any of the factors noted in Moreno , including oppressive incarceration, anxiety and concern, or impact on her ability to present a defense. 7 63
M.J. at 138

- 39. We also do not find any prejudice to Appellant based on the

one

- month delay b eyond the presumptive ly reasonable 18

- month period

.Even when appellate delay does not rise to the level of a due process violation, this court may exerc ise its broad authority under Article 66(c), UCMJ, to grant sentence relief in the absence of a showing of material prejudice. United States v. Tardif

, 57 M.J. 219, 224 (C.A.A.F. 2002). In United States v. Toohey

, 63 M.J. 353, 362 (C.A.A.F. 2006), our supe rior court held that a service courtmay grant relief even when the delay was not “most extraordinary.” “The essential inquiry remains appropriateness in light of all circumstances.” Id

. This court set out a non

- exhaustive list of factors we consider when evaluating the appropriateness of Tardif relief in United States v. Gay , 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d , 75 M.J. 264 (C.A.A.F. 2016). Those factors include how long the delay exceeded appellate review standards, the reasons
noted by the G overnment for the delay, whether the G overnment acted with bad faith or gross indifference, evidence of institutional neglect, harm to the appellant or the institution, the goals of justice and good order and discipline, and, finally, whether the c ourt can provide any meaningful relief given the passage of time. Id . No single factor is dispositive, and we may consider other factors as appropriate. Id

. Here, the delay consists of approximately one month beyond the presumptively reasonable 18 months for appellate review , and the reason for the delay is not based on bad faith or gross indifference by the Government . I nstead , the delay , particularly after the filing of the assignments of error, was a function
of this court’s effort to ensure all relevant matters were thoroughly addressed.

Considering the totality of the circumstances, we find that the appellate delay in this case was not egregious or excessive. We are mindful of the need for timely post

- trial processing; however, we must bal ance this with the needto fully evaluate all issues before the court, including those that may arise during appellate review

. See Moreno , 62 M.J. at 137

– 38 (providing a more flexible

7 We note that one of Appellant’s as signments of error dealt with conditions of post

trial confinement, but , as indicated in Appellant’s filings , these circumstances were resolved within a few weeks of the start of her confinement and more than a year prior to the end of the presumptive ly re asonable period for appellate review.United States v. Rush , No. ACM 39260

13 review of the time period of a court of criminal appeal’s decision becau se it involves the exercise of judicial decision

- making authority).

III. C ONCLUSION
The findings and the sentence are SET ASIDE . A rehearing is authorized. Article 66, UCMJ, 10 U.S.C. § 866.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court