UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            HERRING, BURTON, and WOLFE
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                       Staff Sergeant JEFFREY L. MCBRIDE
                           United States Army, Appellant

                                   ARMY 20130875

              Headquarters, Joint Readiness Training Center and Fort Polk
               Randall L. Fluke and Wade N. Faulkner, Military Judges
                  Colonel Samuel A. Schubert, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA; (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Captain
John Gardella, JA (on brief).


                                  30 November 2015
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial, convicted appellant,
contrary to his pleas, of failure to obey a lawful order, damage to property of the
United States other than military property, two specifications of aggravated sexual
contact with a child, three specifications of abusive sexual contact with a child, five
specifications of aggravated sexual abuse of a child, and two specifications of
assault consummated by a battery in violation of Articles 92, 109, 120, and 128,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 909, 920, 928 (2006, 2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, confinement for sixteen years, and a reduction to the grade of E-1. The
convening authority approved the sentence as adjudged.

      This case is before us pursuant to Article 66, UCMJ. Appellant raises three
assignments of error, one of which merits discussion and relief. The matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), are without merit.
MCBRIDE—ARMY 20130875

                                  BACKGROUND

       Appellant’s court-martial concluded on 9 October 2013. Defense counsel
received the record of trial for review on 12 February 2014 and completed his review
on 18 February 2014. The military judge authenticated the record of trial on 6
March 2014. 1 The staff judge advocate signed his recommendation (SJAR) on 18
March 2014 and served it in conjunction with the authenticated record of trial on
appellant’s defense counsel on 26 March 2014. Appellant received the authenticated
record of trial and SJAR on 11 April 2014. The government received post-trial
matters on behalf of the appellant on 16 May 2014. The staff judge advocate signed
the addendum on 11 June 2014 and the convening authority took action the same
day. This court received the record of trial on 30 July 2014.

                              LAW AND DISCUSSION

       In United States v. Moreno, our superior court established timeliness
standards for various stages of the post-trial and appellate process. 63 M.J. 129,
142-43 (C.A.A.F. 2006). The Moreno standard applicable in this case is that
the record of trial should be docketed with this court within thirty days of the
convening authority’s action. 2 Id. Failure to satisfy this standard creates a
“presumption of unreasonable delay,” prompting this court to apply and balance the
four factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972), in order to
determine whether appellant’s due process rights were violated by the delays. See
Moreno, 63 M.J. at 136.

       Taking forty-nine days to docket appellant’s case at this court is
presumptively unreasonable as it violates the Moreno standard of thirty days. Id. at
142. In the face of this lengthy delay, our next step is to apply and balance the four
factors set out in Barker, in order to determine whether appellant’s due process
rights were violated. Id. at 135-36.

       The lack of any delay on the part of the defense for docketing appellant’s case
with this court rests the dilatory post-trial processing at the feet of the government.
See Rule for Courts-Martial 1106(f)(5) and United States v. Garman, 59 M.J. 677
(Army Ct. Crim. App. 2003). This facially unreasonable delay triggers our review of


1
  The first Military Judge completed authenticated the Record of Trial on 19
February 2014; however the second Military Judge did not authenticate the record of
trial until 6 March 2014.

2
 Two other standards—initial action by the convening authority after the court-
martial and timeliness of appellate review before this court—are not relevant in
appellant’s case. Moreno, 63 M.J. at 142-43.


                                           2
MCBRIDE—ARMY 20130875

the remaining Moreno factors: reasons for the delay; timely assertion of the right to
speedy post-trial review; and prejudice. Moreno, 63 M.J. at 135-36.

       There is no specific explanation provided by the government for the delay in
this court receiving the case. The lack of justification for the delay weighs in favor
of appellant. The third Moreno factor weighs in favor of the government as the
appellant did not assert his right to speedy post-trial processing until this appeal.
Turning to the fourth Moreno factor, appellant fails to demonstrate prejudice.
Although we find no due process violation after consideration of the Moreno factors,
we review the appropriateness of the sentence in light of the dilatory post-trial
processing. UCMJ art. 66(c). See Moreno, 63 M.J. at 138-42; United States v.
Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002). After consideration of the entire record, we conclude appellant’s
case warrants relief in the form of a thirty day reduction in confinement under
Article 66(c), UCMJ, for the unreasonable post-trial delay. See Tardif, 57 M.J. at
224.

                                   CONCLUSION

       The findings of guilty are AFFIRMED. After considering the entire record,
we AFFIRM only so much of the sentence as provides for a dishonorable discharge,
confinement for fifteen years and 11 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
                                     FOR   THE
                                         THE   COURT:
                                             COURT:



                                     JOHN P. TAITT
                                       JOHN
                                     Deputy   P. TAITT
                                            Clerk of Court
                                       Deputy Clerk of Court




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