I •




                                                ~ ·




      UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                Before
                                    YOB, KRAUSS , and BURTON
                                      Appe llate Military Judges

                                  UNITED STATES, Appellee
                                                 v.
                                 Specialist EMILY W. BUSCH
                                 United States Army, Appellant

                                        ARMY 20 100977

                             Headquarters, III Corps and Fort Hood
                               Jacqueline Emanuel, Mi litary Judge
                    Colonel Phillip N. Foster, Staff Judge Advocate (pretrial)
                    Colonel Stuart W. Risch, Staff Judge Advocate (post-trial)


      For Appellant: Lieutenant Colonel Imo gene M. Jamison, JA; Major Jacob D.
      Bashore, JA; Captain Kristin McGrory, JA (on brief) .

      For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
      Daniel D. Maurer, JA (on brief).


                                         27 March 2013


                                     SUMMARY D ISPOSITION


      Per Curiam:

            A military judge si tting as a special court-martial, convicted appellant,
      pursuant to her plea, of aggravated assault by a means like ly to inflict grievous
      bodily harm in violation of Article 128, Uniform Code of Military Justice, 10 U .S.C.
      § 928 (2006) [here inafter UCMJ]. The mi litary judge sentenced appellant to a bad-
      conduct di sc harge, confinement for ten months, and reduction to the grade of E- 1.
      The convening authority approved the adjudged sentence.

             This case is before the court for review under Artic le 66, UCMJ. Appellant
      alleges that the post-trial processing of her case was unreasonable and prejudicial.
      We have considered the entire record , including those matters personall y raised by
      appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
      Though we do not find any actual prejudice to the appellant, we agree with appellant
      that the excessive post-trial delay in the processing of this case warrants relief.
                                      ..   ...

BUSCH- ARMY 20100977

       The parties dispute both the nature and length of the post-trial delay.
Appellant contends that the government took 317 days to process her 158 page
record of trial. Appellant also notes that she complained about the delay when she
submitted her Rule for Courts-Martial (R.C.M.) 1105 matters to the convening
authority. The government, on the other hand, calculates 262 days between
sentencing and action by the convening authority. Further, the government has
submitted two affidavits from the staff judge advocate and the senior court reporter
to explain the post-trial delay. In sum, these affidavits state that appellant's post-
trial delay was primarily due to personnel sho rtages and high caseload. Taking into
consideration all delay attributable to the defense, the time from sentence to action
attributable to the government is certainly more than 250 days.

        Claims of unreasonable post-trial delay are reviewed de novo. United States
v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 20 12) (citing United States v. Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006)). Though we find no prejudice as a result of the excessive
delay, the court must sti ll review the appropriateness of the sentence in light of
unjustified dilatory post-trial processing. UCMJ art. 66(c). See generally United
States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United Stales v. Moreno, 63
M.J. 129, 143 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
2002); United States v. Ney, 68 M.J. 613, 616-17 (Army Ct. Crim. App. 2010). We
appreciate the government offering an explanation for the delay by way of affidavits;
however under the circumstances of this case, where no such explanation was
offered at the time of action, where appellant complained of such delay in her post-
trial submission, where appe llant enjoyed no benefit such as deferral or waiver of
automatic forfeitures, and where the government attestations do not justify taking
more than 250 days to process a 158 page record of a special court-martial
ultimately involving one charge and one specification of no great complication,
relief is warranted. See Moreno, 63 M.J. at 137; Tardif, 57 M.J. at 224.

       The findings of gu ilty are AFFIRMED. After considering the entire record ,
the court affirms only so much of the sentence as provides for a bad-conduct
discharge, confinement for nine 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 her sentence set aside by the decision, are ordered restored. See
UCMJ arts. 58b(c) and 75(a).

                                        FOR THE COURT:




                                        KENNETH
                                        COL, JA
                        •               Acting Clerk of Court



                                            2
