United States v. King

DECISION CANELLOS, Judge: Before a special court-martial with members, the accused was convicted, contrary to his pleas, of possession and transfer of lysergic acid diethylamide (LSD). The approved sentence extends to a bad conduct discharge, confinement at hard labor for five months, forfeiture of $382.00 per [536] month for five months and reduction to airman basic. On appeal, the accused makes two claims of error: (1) that the evidence was insufficient to support his conviction; and (2) that he was denied a speedy review of his case. We do not address the first claim but we do find, on the facts, that the accused was denied his right to a speedy review. A perusal of the chronology of significant events1 reveals that between the last day of trial and the date the record of trial was received by the Office of The Judge Advocate General,2 405 days elapsed. Although we are displeased with the general lack of expeditious processing of this case after trial, we are particularly concerned about the nearly seven month delay between the action of the supervisory authority and the receipt of the record of trial by The Judge Advocate General for referral to this Court under Article 65(b), U.C.M.J. The only explanation offered by the Government3 is that after the supervisory authority’s action, the administrative system established to assure timely dispatch of records of trial broke down — apparently as a result of a changeover of administrative personnel. This attempt to explain is woefully inadequate. We find that the delay was both unreasonable and unsatisfactorily explained. United States v. Tucker, 9 U.S.C.M.A. 587, 26 C.M.R. 367 (1958). In the absence of specific prejudice, delay in appellate review is not a ground, in and of itself, for relief. United States v. Banks, 7 M.J. 92 (C.M.A.1979); United States v. Green, 4 M.J. 203 (C.M.A.1978); United States v. Milan, 16 M.J. 730 (A.F.C.M.R.1983); United States v. Sutton, 5 M.J. 709 (A.F.C.M.R.1978). Here, the accused claims that he did suffer such prejudice4 because the delay in finalizing his case prevented him from effectively applying for desirable employment which he was technically qualified to pursue. This claim is unrebutted by the Government. Traditionally, a finding of prejudice required a showing of: (1) an error in the trial proceedings necessitating a rehearing, and (2) the likelihood that the accused would be prejudiced by the delay in presenting his case on rehearing. United States v. Johnson, 3 M.J. 143 (C.M.A.1977); United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484 (1973); United States v. Timmons, 22 U.S.C.M.A. 226, 46 C.M.R. 226 (1973). However, a new chapter has recently been written by the Court of Military Appeals; it recognizes personal prejudice to the accused, as opposed to prejudice to the legal rights of the accused, as sufficient to cause dismissal of the charges for an unreasonable and unexplained post-trial delay. United States v. Clevidence, 14 M.J. 17 (C.M.A.1982); United States v. Sutton, 15 M.J. 235 (C.M.A.1983). The accused’s claim of prejudice in this case is reminiscent of that made by the accused in Clevidence (hindered in finding adequate employment). There, the unexplained delay was encountered between the date of trial and the action by the special court-martial convening authority. The present claim of prejudice is also reminiscent of that made in Sutton (prejudiced in obtaining civilian employment). In that case, the delay occurred between the action of the special court-martial convening authority and that of the supervisory authority. The Court of Military Appeals has discussed the stage at which a delay is occasioned in the appellate review process [537] and found the particular time to be “immaterial.” United States v. Sutton, supra. We believe that a similar test for prejudice should apply and a similar result obtain in cases of inordinate and unexplained delays between the action of the supervisory authority and forwarding the record of trial for review by this Court. Cf. United States v. Rose, 16 M.J. 568 (A.C.M.R.1983). Unlike the U.S. Army Court of Military Review, we find the signals from the Court of Military Appeals abundantly clear: unexplained delays in appellate processing, at any stage, will not be tolerated, and, in appropriate cases, where some prejudice is shown, such delay will cause a dismissal of the charges. In both Clevidence and Sutton, the Court of Military Appeals indicated their hesitance to dismiss charges for serious offenses. However in United States v. Gentry, 14 M.J. 209 (C.M.A.1982), the Court dismissed two charges of use of marihuana by the accused, a Naval officer, who was not confined, was continued on active duty, but was “shunned by his commander” and was “ordered ... to maintain a low profile,” and who rejected job offers during the delay in processing his case. Further, the Court of Military Appeals has rejected the Government argument that claims of prejudice of the type enumerated herein are difficult if not impossible to rebut. See generally United States v. Shely, 16 M.J. 431 (C.M.A.1983). A fair reading of these cases indicates that neither assertions of serious criminality nor inability of the Government to rebut a generalized claim of prejudice will rescue an otherwise speedy review violation. We are mindful of the words of the Court of Military Appeals that a “[Cjourt should be vigilant in finding prejudice” whenever lengthy post-trial delay is involved. United States v. Johnson, 10 M.J. 213, 218 (C.M.A.1981). Having reviewed the facts of this case we find: that the delay in post-trial processing of the case was unreasonable and not satisfactorily explained; that the accused suffered some degree of prejudice; and, therefore, dismissal of the charges is mandated. United States v. Clevidence, supra; United States v. Sutton, supra; United States v. Rowsey, 14 M.J. 151 (C.M.A.1982). We reiterate the stern warnings of both the Court of Military Appeals and this Court that unreasonable delays in the post-trial processing of court-martial cases will not be condoned in any fashion. United States v. Tucker, supra; United States v. Green, supra; United States v. Milan, supra. Such delays only serve to discredit our military justice system. They must cease immediately. Accordingly, the findings of guilty and the sentence are set aside. The charges are ordered dismissed. KASTL, Senior Judge, concurs. Footnotes [1] Chronology — United States v. King 29 Oct 82 — Sentence adjudged 13 Jan 83 — Action by special court-martial convening authority 13 May 83 — Action by general court-martial convening authority 7 Nov 83 — Record forwarded to The Judge Advocate General 8 Dec 83 — Record arrived at Office of Judge Advocate General [2] Article 65(b), U.C.M.J.; M.C.M., 1969 (Rev.), para. 94a (3). [3] The Government’s MOTION TO SUBMIT DOCUMENTS, dated 21 Mar 1984, is GRANTED. [4] The Accused’s MOTION FOR LEAVE TO FILE AFFIDAVIT, dated 24 Feb 1984, is GRANTED.