UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, HERRING, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private (E-2) LAWRENCE L. WHALEY, II
United States Army, Appellant
ARMY 20140767
Headquarters, 82d Airborne Division (Rear) (Provisional)
Christopher J. Fredrikson, Military Judge
Lieutenant Colonel Susan K. McConnell, Acting Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Scott A. Martin (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Tara E. O’Brien, JA (on brief).
26 April 2016
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of one specification of absence without leave, two
specifications of failure to report, six specifications of selling military property, and
one specification of larceny of military property, in violation of Articles 86, 108,
and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 908, 921 (2012)
[hereinafter UCMJ]. The judge sentenced appellant to a bad-conduct discharge,
confinement for thirteen months, and reduction to the grade of E-1. The convening
authority approved the sentence as adjudged. The military judge credited appellant
with 146 days toward his confinement.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one allegation of error which merits discussion and relief. Appellant asks this
court to provide appropriate relief to remedy the dilatory post-trial processing of his
case. We agree that relief is appropriate in this case and reduce the approved
sentence to confinement by thirty days in our decretal paragraph.
WHALEY—ARMY 20140767
LAW AND DISCUSSION
The convening authority took action 348 days after the conclusion of
appellant’s court-martial. Of that delay, twenty-six days are attributable to the
defense, and 322 days are attributable to the government. The initial ten days after
the government serves the authenticated record of trial are not attributable to the
defense. See Rule for Courts-Martial 1105. The record in this case consists of two
volumes, and the trial transcript is 212 pages. Although we find no due process
violation in the post-trial processing of appellant’s case, we must still review the
appropriateness of the sentence in light of the unjustified dilatory post-trial
processing. 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.”). See generally United States v. Toohey, 63 M.J. 353, 362-63
(C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 617 (Army Ct. Crim. App.
2010); United States v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).
The appellant requested speedy post-trial processing on three occasions. The
government took 246 days to transcribe the record of trial and to serve the record of
trial on appellant’s defense counsel, and another forty-two days for the military
judge to authenticate the record of trial in this case. The delay between
announcement of sentence and action is simply too long, and could “adversely affect
the public’s perception of the fairness and integrity of military justice system . . . .”
Ney, 68 M.J. at 617. Thus, we find relief is appropriate under the facts of this case.
CONCLUSION
Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, however, we affirm only so
much of the sentence as provides for a bad-conduct discharge, confinement for
twelve months, 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. 58a(b),
58b(c), and 75(a).
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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