UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, PENLAND, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JAVARIOUS K. WHITE
United States Army, Appellant
ARMY 20131013
Headquarters, III Corps and Fort Hood
Rebecca K. Connally, Military Judge
Colonel Richard W. Rousseau, 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 Nicholas J. Larson, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Robyn M. Chatwood, JA (on brief).
23 May 2016
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SUMMARY DISPOSITION
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Per Curiam:
A special court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of three specifications of assault consummated by
battery and one specification of aggravated assault, all in violation of Article 128,
Uniform Code of Military Justice, 10 U.S.C. § 928 [hereinafter UCMJ]. The court-
martial sentenced appellant to a bad-conduct discharge, confinement for one year,
forfeiture of $1010.00 pay per month for six months, and reduction to the grade of
E-1. The convening authority approved the sentence as adjudged.
This case was referred to us for review pursuant to Article 66(b), UCMJ.
Appellant raises one assignment of error, which merits both 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 in our decretal paragraph.
WHITE—ARMY 20131013
LAW AND DISCUSSION
The convening authority took action eleven and a half months after the
conclusion of appellant’s court-martial. Broken into its constituent parts, some of
this delay was reasonable, some was less than ideal, but one aspect is particularly
concerning. The military judge authenticated the record on 18 June 2014. On 20
October 2014, the staff judge advocate signed the recommendation (SJAR). That is,
it took over four months—and longer than the time allotted for the entire post-trial
processing of the case—to sign a routine legal memorandum. The SJAR, including
the heading and signature bock, was less than one page in length.
It should be made clear that this was not a case in which appellant was
indifferent to the timeliness of the post-trial processing. Three weeks after
authentication by the military judge, appellant’s defense counsel sent a memorandum
to the staff judge advocate (the second such request) specifically requesting
expedited processing. Nevertheless, no explanation was given for the delay.
Appellant’s submission under Rule for Courts-Martial 1105 offered the final
opportunity for the government to explain the excessive post-trial delay. In his
submission, appellant again complained of the unnecessary delay and the violation
of the time limits established by United States v. Moreno, 63 M.J. 129 (C.A.A.F.
2006). In response, the staff judge advocate stated only that he “disagree[d]” that
there was any legal error and advised the convening authority that no corrective
action was required.
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).
Accordingly, we find ourselves at a familiar crossroads. The sentence as
adjudged is entirely appropriate for appellant’s offenses. But, the failure to perform
routine administrative paperwork, while not amounting to a due process violation,
calls into question whether the sentence, as approved, after all the delay is
appropriate. Thus, we must choose between reducing an entirely appropriate
sentence or appearing to turn a blind eye to excessive delay. Preparing SJARs is—to
quote then Chief Judge Pede—the “blocking and tackling” of military justice
practice. United States v. Mack, ARMY 20120247, 2013 CCA LEXIS 1016, at *5
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WHITE—ARMY 20131013
(Army Ct. Crim. App. 9 Dec. 2013) (summ. disp.) (Pede, C.J., concurring).
Accordingly, we choose, in this case, to provide relief.
While reducing a sentence because of post-trial delay is an appropriate
exercise of Article 66(c), UCMJ, authority, our need to do so frequently reflects
poorly on “those principally responsible for the administration of justice.” Mack,
2013 CCA LEXIS 1016, at *5 (Pede, C.J., concurring).
CONCLUSION
Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, we affirm only so much of the
sentence as provides for a bad-conduct discharge and confinement for nine months.
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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