IN THE CASE OF
UNITED STATES, Appellee
Anthony L. JONES, Lance Corporal
Crim. App. No. 200100066
GIERKE, C.J., delivered the opinion of the Court, in which EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a dissenting opinion.
For Appellant: Captain Richard A. Viczorek, USMC (argued); Commander George F. Reilly, JAGC, USN, and Major Eric P. Gifford, USMC (on brief).
For Appellee: Major Robert M. Fuhrer, USMCR (argued); Commander Charles N. Purnell, JAGC, USN, and Captain Glen R. Hines Jr., USMC (on brief); Colonel R. M. Favors, USMC, Colonel William K. Lietzau, USMC, Commander R. P. Taishoff, JAGC, USN, and Lieutenant Christopher J. Hajec, JAGC, USNR.
Military Judge: J. F. Havranek
This opinion is subject to editorial correction before final publication.
Chief Judge GIERKE delivered the opinion of the Court.
The lower court found excessive post-trial delay, but declined to grant relief because it determined that the delay did not prejudice Appellant and that the sentence was appropriate. Like the lower court, we conclude that the unexplained post-trial delay in this case was unreasonably lengthy. The key issue before this Court is whether the unreasonable post-trial delay prejudiced Appellant as a matter of law. Appellant’s own declaration and declarations from three officials of a potential employer indicate, with various degrees of certainty, that he would have been considered for employment or actually hired if he had possessed a discharge certificate (DD-214). We hold that these unrebutted declarations were sufficient to demonstrate prejudice.
though the verbatim record of trial is
only 37 pages in length, it took over 6 months, until [July 17,] 2000,
record to be transcribed, authenticated, and served on Appellant’s
defense counsel.”3 Another
sixty-six days would pass before the
staff judge advocate issued the Rule for Courts-Martial 1106
recommendation. That document was not
served on the defense counsel until
the convening authority’s action did not end the delay in this case. The
October 2001, the
Before the lower court, Appellant submitted a declaration concerning his post-trial activities, as well as three declarations from officials of a potential employer. In May and June of 2000, Appellant completed a course of study at a truck driver’s school and received a truck driver’s license. In July 2000 -- a bit more than four months after he went on appellate leave and approximately six months after his court-martial -- Appellant applied for a job with U.S. Xpress Enterprises, a national trucking company.
A declaration from Mr. Joseph Fuller, the director of U.S. Xpress’s Driver Services Department, stated that Appellant had applied for a position as a driver. Mr. Fuller explained that under company policy, job applicants who were in the military must provide “a form DD-214, Proof of Discharge Certificate. Since Anthony Jones was unable to provide such documentation, we were unable to complete a check of his employment background in order to process his application. As such, he was not considered for employment.” Mr. Fuller was aware of Appellant’s court-martial conviction and pending bad-conduct discharge. Nevertheless, “Under our current company policy, Anthony Jones would not have been excluded from consideration for employment based solely upon the adverse discharge from the armed forces. Instead, our company would evaluate the underlying conduct that led to the offenses.” Mr. Fuller observed that “given the uniquely military offenses committed by Anthony Jones and, assuming that he was otherwise qualified, he would have been seriously considered for employment during the summer of 2000 had he possessed a DD-214.” Appellant also presented a declaration from Ms. Afton Yazzie, an Assistant Instructor with U.S. Xpress. She stated that Appellant participated in a company orientation program in July 2000. He was invited “to attend the orientation based upon his initial application and qualifications. Persons attending the company orientation are generally hired upon successful completion as they are pre-screened to ensure that they have the proper licensing and background requirements.” But Appellant’s “employment application had been flagged as he was missing required proof of past employment.” Ms. Yazzie’s declaration stated that “[d]ue solely to his inability to meet this requirement, he was told that he could not complete orientation and a decision on his employment with U.S. Xpress was deferred until he could provide a DD-214.” She also explained that Appellant applied again later in 2000 and twice in 2001, but each time “the decision was made that his lack of a DD-214 prevented his employment.” The final declaration was from Ms. Brenda Cole, an orientation instructor with U.S. Xpress. Ms. Cole’s declaration was the most certain of the three. She specifically stated, “I can personally attest that had Anthony Jones provided a DD-214 in July 2000, he would have been hired as a truck driver with U.S. Xpress at the conclusion of the orientation program.” She also recounted that as Appellant “was leaving the orientation, one of our recruiters told him to reapply for employment once he received his DD-214 and he would be hired.”
A position with U.S. Xpress would have produced an average salary of $3,500 to $4,000 per month, in addition to substantial employee benefits. When Appellant did not obtain a position with U.S. Xpress, he obtained alternative employment as a delivery truck driver earning about $7 to $10 per hour working part-time or through temporary agencies.
The Government presented no information to rebut any of these declarations.
this finding of unexplained excessive
post-trial delay, the central legal issue then became whether the delay
prejudiced Appellant. The
Appellant’s trial lasted fifty-five minutes
and resulted in a thirty-seven-page record of trial.
Yet 363 days elapsed before the record was
docketed with the
Determining whether post-trial delay violates an appellant’s due process rights turns on four factors: (1) the length of the delay; (2) the reasons for the delay, (3) the appellant’s assertion of the right to a timely appeal; and (4) prejudice to the appellant.16 As we have explained, the “length of delay” factor serves two functions: “First, the length of delay is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance.”17 Second, “if the constitutional inquiry has been triggered, the length of delay is itself balanced with the other factors and may, in extreme circumstances, give rise to a strong presumption of evidentiary prejudice affecting the fourth Barker factor.”18 Because we conclude that the post-trial delay in this case was facially unreasonable, we will analyze the remaining three factors.
The Government has offered no justification for the appellate delay in this case, and the record fails to disclose any.
record also reflects that Appellant
complained about the delay in post-trial processing.
The lower court found that, “on two or more
occasions,” Appellant “contacted a junior member at his unit, explained
problems that he was having in obtaining employment because of the
obtaining his DD-214, and made clear his desire to move the process
rapidly.”19 The lower
court also noted that the record
“contains a series of letters and faxes documenting Appellant’s
efforts to engage the Marine Corps, his U.S. Senator, and his appellate
counsel in expediting the processing of his case.”20
In our view, the most critical issue in this case is whether the excessive post-trial delay prejudiced Appellant.21 Unlike the lower court, we conclude that it did.
Whether Appellant has established prejudice is a legal question subject to de novo review.22 We have often recognized interference with post-military employment opportunities as a form of prejudice that warrants relief for unreasonable post-trial delay.23 The record indicates that as a result of the unreasonable post-trial delay, Appellant has suffered this form of prejudice.
declaration affirmatively stated
that, based on her personal knowledge, Appellant would have been hired
Xpress if only he had a DD-214. If that
were the only document that Appellant had submitted, it would seem
unquestionable that he has established that the unreasonable post-trial
prejudiced him. But, in addition to his
own declaration, Appellant submitted two more declarations from U.S.
officials. One of these, executed by the
director of the Driver
Services Department, stated
that had Appellant had his
DD-214, he would merely “have been seriously considered for employment.”
The Government argues that Appellant was not prejudiced by the excessive delay in this case. At oral argument, the Government observed that the commercial driver’s license that Appellant presented in support of his prejudice claim was issued in October 2000, several months after U.S. Xpress considered him for a position. The Government also observes that Appellant applied for a position with U.S. Xpress approximately six months after his court-martial ended. Even if the post-trial review had been handled with utmost speed, the case would certainly have remained on appellate review at that point and Appellant would not have had his DD-214.
We conclude, however, that Appellant has demonstrated on-going prejudice. His declaration -- which the Government has never rebutted -- indicated that U.S. Xpress officials told Appellant that he should contact them again once he received his DD-214. Ms. Yazzie’s declaration indicated that Appellant reapplied to U.S. Xpress in the fall of 2000, January 2001, and May 2001. Ms. Yazzie also indicated that Appellant “was, and still is to my knowledge, invited to apply again once he obtains a DD-214.” So Appellant’s ability to have his employment application considered by U.S. Xpress was prejudiced after he obtained the commercial driver’s license attached to his declaration24 and after he likely would have received a DD-214 if only his post-trial review had been completed within a reasonable time.
speculation is necessary to conclude
that the unrebutted declarations establish that the unreasonable
delay prejudiced Appellant. Nor do the
declarations conflict on this point: all
four agree that Appellant would have been considered for a
U.S. Xpress if he had his DD-214. The
issue in this case is whether Appellant was prejudiced by the
lengthy delay, not whether he had a guaranteed offer of employment. In
the four unrebutted declarations
Appellant has submitted to demonstrate prejudice, the dissent engages
unsupported supposition to reject their import.
The simple answer to the dissent’s speculation is that the
had an opportunity to rebut the declarations but did not do so. Three of the four declarations at issue were
executed by officials of U.S. Xpress, who have no apparent connection
party in this case. If, as the dissent
supposes, U.S. Xpress would not have offered Appellant a position if
officials were aware of the extent of his unauthorized absences, then
Government could have obtained and submitted to the lower court
demonstrating that point. The Government
did not. Rather, the Government provided
no counterevidence to the lower court either before or after that court
attached the four declarations to the record.
It is, therefore, appropriate to
content of the unrebutted declarations, rather than guessing as to what
declarants would have said if they hypothetically had access to the
that the dissent discusses. This is
consistent with our well-established approach to supplementing the
record with affidavits while the case is on appeal:
“if the affidavit is factually adequate on
its face to state a claim of legal error and the Government either does
contest the relevant facts or offers an affidavit that expressly agrees
those facts, the court can proceed to decide the legal issue on the
those uncontroverted facts.”25 This is such
a case. By considering these unrebutted
which were already attached to the record by order of the lower court,
not engaging in fact-finding. Rather, we
are applying the law to unrebutted facts contained within the record,
a standard role of an appellate court.26
We also disagree with the dissent’s suggestion that in lieu of presenting a DD-214, Appellant could have satisfied his potential employer by providing an affidavit from his defense counsel explaining his status or a copy of his record of trial. Mr. Fuller’s declaration indicates that it was the lack of the form itself –- and not the absence of information from that form –- that disqualified Appellant as a prospective employee. Some employers’ insistence that veterans applying for jobs present a DD-214 is understandable. They may be reluctant to devote time and money to train a prospective employee without documentation demonstrating that the individual is no longer on active duty. But regardless of whether Appellant’s potential employer should have required a DD-214 as a condition of employment, it appears that the potential employer did. The unreasonable post-trial delay in this case prevented Appellant from satisfying that requirement.
We therefore conclude that Appellant was prejudiced by the facially unreasonable post-trial delay. Balancing the four factors, we hold that the post-trial delay violated Appellant’s due process rights. The same evidence that supports the due process test’s prejudice factor also demonstrates prejudice for purposes of Article 59(a), UCMJ.27 Accordingly, Appellant is entitled to relief.
Because this case involves a finding of legal error accompanied by Article 59(a) prejudice, we may order a remedy ourselves rather than remanding the case for that purpose. We consider ordering relief ourselves to be particularly appropriate to bring a close to the overly prolonged post-trial proceedings in this case. Formulating such a remedy is an exercise of authority under Article 59(a) to eliminate material prejudice to Appellant’s due process rights; it is entirely distinct from the Court of Criminal Appeals’ Article 66(c) sentence appropriateness powers.
In Tardif, we considered whether a court that finds unexplained and unreasonable post-trial delay can grant relief “short of dismissal of the charges.” 28 We noted that Dunlap v. Convening Authority29 adopted a universal remedy for unreasonable post-trial delay: dismissal of the charges and specifications. But in Tardif, we also recognized criticisms of “the draconian remedy required by Dunlap and its progeny.”30 We cited with approval the pre-Dunlap rule that “denial of the right to speedy trial resulted in dismissal of the charges only if reversible trial errors occurred and it was impossible to cure those errors at a rehearing because of the excessive post-trial delay.”31
In Tardif, we noted that “appellate courts are not limited to either tolerating the intolerable or giving an appellant a windfall.”32 Rather, in cases involving unreasonable post-trial delay, courts should “tailor an appropriate remedy, if any is warranted, to the circumstances of the case.”33
In this case, an appropriate remedy is to disapprove the bad-conduct discharge. Appellant pleaded guilty, and nothing that has occurred since trial has suggested that the findings are not accurate. Setting aside the findings would be a windfall for Appellant.
Setting aside the bad-conduct discharge is a remedy more proportionate to the prejudice that the unreasonable post-trial delay has caused. The post-trial delay has had an adverse effect on Appellant’s ability to find employment. Removing the bad-conduct discharge’s adverse effect on Appellant’s employment opportunities may help to restore him to the position he would have been in had the post-trial review been accomplished with reasonable speed.
The portion of the United States Navy-Marine Corps Court of Criminal Appeals’ decision affirming the bad-conduct discharge is reversed. The bad-conduct discharge is set aside. The remainder of the Navy-Marine Corps Court of Criminal Appeals’ decision, which affirmed the findings and confinement for forty-five days (as partially suspended by the convening authority) and reduction to pay-grade E-1, is affirmed.
1 10 U.S.C. §§ 886, 887 (2000).
21 Of course, in the
exercise of their unique Article 66(c) sentence appropriateness powers,
Courts of Criminal Appeals retain the authority to grant sentence
unexplained and unreasonable post-trial delay even absent prejudice. See
22 See United States v. Diaz, 45 M.J. 494, 496 (C.A.A.F. 1997) (“We hold that a de-novo-review standard to assess prejudice [is] required by Article 59(a), UCMJ, 10 USC § 859(a) . . . .”); Tardif, 57 M.J. at 228 (Sullivan, S.J., dissenting) (“We review a Court of Criminal Appeals decision on prejudice resulting from post-trial delay on a de novo basis.”).
28 Tardif, 57 M.J.
at 224. We
cite Tardif only for its discussion of the appropriate remedy
unreasonable post-trial delay.
CRAWFORD, Judge (dissenting):
converts the dicta in United States v. Shely, 16 M.J. 431, 433
to a holding in this case. Cf.
In concluding that Appellant has suffered prejudice, the majority disregards not only our precedent requiring a showing of actual prejudice, United States v. Jenkins, but also common sense. None of the affiants had full knowledge of Appellant’s military record when they executed their affidavits. Nor do those affidavits -- read separately or together -- raise more than a mere inference that Appellant would have been employed but for the absence of a DD Form 214.1
There are three carefully crafted affidavits in this case from: Ms. Brenda Cole (an orientation instructor), Mr. Joseph Fuller (director, Driver Services Department), and Ms. Afton Yazzie (an assistant orientation instructor). No affiant claims to have had hiring authority and only Mr. Fuller acknowledges Appellant’s pending bad-conduct discharge. Ms. Cole, who claims no connection to the hiring process, sagely swears “that had Anthony Jones provided a DD [Form] 214 in July 2000, he would have been hired as a truck driver with U.S. Xpress at the conclusion of the orientation program.” (Emphasis added.) Ms. Yazzie -- also unconnected to the hiring decision and claiming no source of knowledge other than Appellant -- avers, in various ways, that the absence of a DD Form 214 prevented a hiring decision in Appellant’s case. Mr. Fuller, whose job title implies hiring authority, avers only that “given the uniquely military offenses committed by Anthony Jones and, assuming that he was otherwise qualified, he would have been seriously considered for employment during the summer of 2000 had he possessed a DD [Form] 214.” (Emphasis added.)
The common ground shared by these affidavits is not an unqualified statement that Appellant would have been hired as a truck driver had he possessed a DD Form 214. What these affidavits share is a carefully woven series of exceptions, exclusions, and restrictions wide enough through which to drive a truck. Regarding in particular the statement of Mr. Fuller -- the one affiant who even implies having hiring authority – one need look no further than the plain words of the affidavit to discern its true character. The phrases “Anthony Jones would not have been excluded from consideration for employment based solely upon the adverse discharge” and “assuming that he was otherwise qualified, he would have been seriously considered for employment” were likely crafted less to suggest the legal prejudice required by this Court, and more to negate any inference of factual prejudice that might potentially be alleged by Appellant in a civil court.
There is simply no indication in any of these documents that any of these individuals was aware of Appellant’s repeated absences from work, his service record, or his financial difficulties. Far from suggesting that the Government “interfered” with Appellant’s employment opportunities, everything we are asked to consider compels a conclusion that Appellant concealed his absences, service record, and financial difficulties to secure even the shrewdly worded affidavits he offers this Court. In that regard, Mr. Fuller’s reference to Appellant’s “uniquely military offenses” sheds welcome light on the characterization Appellant may have lent his past, absent documentation to the contrary. Mr. Fuller noted that Appellant was “unable to provide such documentation . . . [as to] his employment background in order to process his application.” Since Appellant’s military record would contain all of his absences -- not just the absences to which he pleaded guilty -- it is not difficult to understand why Appellant failed to disclose his personnel records, or his record of trial, or seek an alternative to the DD Form 214.
Although the majority accurately quotes Mr. Fuller’s affidavit in the background section of the lead opinion, I cannot agree with the majority’s later, implicit, factual determination that Mr. Fuller’s qualifying phrase, “assuming that he was otherwise qualified” is entitled to no weight in evaluating whether Appellant “would have been seriously considered for employment.” Not surprisingly, the factual finding of prejudice collapses when you consider the statement, ”assuming he was otherwise qualified,” and Mr. Fuller’s guarded inclusion of that qualifying phrase compellingly invites the conclusion of no error.
cannot engage in factual findings. As we
recently explained, “[i]n Ginn, we announced . . . six
principles to be
applied by the courts of criminal appeals in disposing of post-trial,
collateral, affidavit-based claims, such as ineffective assistance of
. . .”
At the very least, if there is a factual issue, this case should be remanded to the court of criminal appeals, which has the power to analyze affidavits and if, as the majority indicates, further evidence is needed, such evidence could be gathered by the parties and submitted to a court that has fact-finding authority.
The DD Form 214 is a one-page document that would show Appellant’s punitive discharge, his schooling, his time in service, etc., as well as his “bad time.” The record clearly shows that Appellant’s record is anything but stellar as to being present for work. Appellant was charged with six specifications of being absent from his place of work without proper authority during the following periods of time:
Appellant intentionally missed the overseas movements of his battalion
USS Peleliu on April 19 and
Rather than the bare-bones DD Form 214, Appellant was in possession of the record of trial, which would have provided the background for these offenses and his military record. There is no indication that Appellant sought the assistance of defense counsel for an affidavit explaining his status, sought assistance from the convening authority, or gave the potential employer a copy of his record of trial, which contained his service records from which the DD Form 214 is completed. It does not take much common sense to explain why Appellant did not implement any of these steps to disclose fully and accurately his military record to U.S. Xpress. Does anyone reasonably believe that the hiring manager for U.S. Xpress would look favorably upon an employment/military record such as Appellant’s?
compels me to conclude that an individual absent from work as much as
would not be a truck driver with this firm.
That same common sense should tell this Court that an employer
dependable and financially responsible employee would not look
Appellant’s military record, with or without a DD Form 214. If
the employer had full knowledge of Appellant’s military record -- the
disclosure of which was under Appellant’s control -- and was still
aver that Appellant would have been hired but for the lack of a DD Form
then I would agree that Appellant had met his burden of demonstrating
prejudice. However, that is clearly not
the case here. Any “prejudice”
was manufactured by Appellant’s own
inaction in failing to give his prospective employer all the
Appellant possessed. Appellant has failed to meet his burden to
that the hiring authority at U.S. Xpress, with full knowledge of
military record, would have hired him but for the lack of a DD Form 214. Thus, I agree with the court below that
Appellant’s claim of prejudice is too speculative and that he has “not
demonstrated the necessary prejudice to entitle him to relief for the
unreasonable and unexplained post-trial delay . . . in the processing
record of trial.” United
States v. Jones, No. NMCM 200100066,
LEXIS 155, at *2, 2003 WL 21785470, at 1 (N-M.
Court has long recognized” the right to a speedy post-trial review of
findings and sentence at a court-martial.
Diaz v. Judge Advocate General of the Navy,
M.J. 34, 37 (C.A.A.F. 2003). We
also recognize the “constitutional right to a timely review guaranteed
. . .
under the Due Process Clause.”
A servicemember normally does not receive a DD Form 214 until he or she has exhausted his or her appellate remedies. Thus, most of the appellants before this Court do not yet have a DD Form 214, and would have no reason to expect to have one before their appeals are complete. If we permit relief on the ground that this appellant did not have a DD Form 214, the same rationale will apply to hundreds of cases on appellate review where there has been an imposition of a punitive separation. At the very least, given the critical nature of the information known to Appellant and contained in the record of trial, one would expect that a DuBay hearing would be a prerequisite to relief, at which Appellant would be required to demonstrate that, in light of all pertinent information, he would have been hired but for the absence of a DD Form 214.
Thus, I respectfully dissent. Appellant has not met his burden to show actual prejudice and has failed to take reasonable action to resolve his own problems. Further, a finding of prejudice would open the door to similarly weak and speculative claims from many appellants before this Court.
1 See Dep’t of Defense Instruction 1336.1, Certificate of Release or Discharge from Active Duty, DD Form 214/5 Series (Jan. 6, 1989, incorporating through Change 3, Feb. 28, 2003).