IN THE CASE OF
UNITED
STATES, Appellee
v.
Michael E.
BODKINS, Private (E-2)
No.
04-0252
Crim. App.
No.
20010107
Argued
Decided
Counsel
For Appellee:
Captain
Military
Judge: Donna L. Wilkins
This
opinion is subject to editorial correction before final publication.
PER
CURIAM:
At
a special court-martial composed of a military judge sitting alone,
Appellant
was convicted, pursuant to his pleas, of two periods of unauthorized
absence,
in violation of Article 86, Uniform Code of Military Justice
[hereinafter
UCMJ], 10 U.S.C. § 886. He was sentenced
to a bad-conduct discharge, confinement for two months, forfeiture of
$695 pay
per month for two months, and reduction to E-1.
The convening authority approved the sentence as adjudged, and
the Army
Court of Criminal Appeals affirmed in a published opinion. 59
M.J. 634
(A. Ct. Crim. App. 2003).
On
Appellant’s petition, we granted review of the following issue:
whether THE ARMY
COURT OF CRIMINAL APPEALS ABDICATED ITS ARTICLE 66(C) RESPONSIBILITY
WHEN IT
FOUND THAT THE POST-TRIAL PROCESSING OF APPELLANT’S CASE WAS
UNREASONABLE,
UNEXPLAINED, AND DILATORY, BUT REFUSED TO CONSIDER THIS ERROR IN
ANALYZING THE
APPROPRIATENESS OF APPELLANT’S SENTENCE BECAUSE IT RULED THAT THE ERROR
WAS
WAIVED.
I. BACKGROUND
As
noted by the Court of Criminal Appeals,
Appellant pled guilty and was sentenced in a court-martial that
resulted in a
short, seventy-four page record. 59 M.J. at 634-35. The court-martial proceedings did not produce
any legal or factual issues.
In
the course of determining whether the
findings and sentence should be approved under Article 66(c), UCMJ, 10
U.S.C. §
866(c), the lower court considered whether relief was warranted as a
result of
post-trial delay. See 59 M.J.
635-36. (citing United States v. Tardif, 57 M.J. 219 (C.A.A.F.
2002); United States v. Collazo,
53 M.J.
721 (A. Ct. Crim. App. 2000)).
The court stated:
Despite
unreasonable, unexplained, and
dilatory post-trial processing, we conclude that relief is waived. Trial defense counsel did not request speedy
post-trial processing. Neither trial nor
appellate defense counsel sought any reduction in appellant’s sentence
as a
result of the slow post-trial processing.
Trial defense counsel must make a timely request for speedy
post-trial
processing, if that is what appellant desires.
Id.
at 634 (footnotes omitted). The court
also noted that Appellant did not
request expeditious post-trial processing, and suggested possible
reasons for
not making such a request:
A
possible tactical reason for appellant
and his counsel not to ask for expeditious post-trial processing,
thereby
hastening the execution of appellant’s discharge, is the continuing
availability of military benefits. . . . Although appellant was not
entitled to
pay and allowances while on excess leave, he and his family, if any,
were
entitled to other important benefits. He
and his family presumably retained their military identification cards and were entitled to medical,
commissary,
and post-exchange benefits to the same degree as other active duty
soldiers and
family members, up to the point of appellant’s discharge. . . .
Furthermore,
appellant may have had other compelling personal reasons for not
wanting
expeditious execution of his discharge; this court will not speculate
about
these reasons, if any.
II.
DISCUSSION
The
requirement to take post-trial action
on the results of a court-martial is vested in a military commander,
the
convening authority, who performs this function with the assistance of
his or
her staff judge advocate. Article 60, UCMJ, 10 U.S.C. § 860.
The responsibility of the convening authority
to complete post-trial processing in a timely fashion is not dependent
upon a
request to do so from the accused.
A
Court of Criminal Appeals must review the
record in each case referred to it and “may affirm only such findings
of guilty
and the sentence or such part or amount of the sentence as it finds
correct in
law and fact and determines, on the basis of the entire record, should
be approved.” Article
66(c), UCMJ, 10
U.S.C. § 866(c). In performing
its affirmative obligation to consider sentence appropriateness, the
court must
take into account “all the facts and circumstances reflected in the
record,
including [any] unexplained and unreasonable post-trial delay.” Tardif, 57 M.J. at
224.
In
the present case, the court below
described the post-trial processing of this case as “unreasonable,
unexplained,
and dilatory.” 59 M.J.
at 634. Under these
circumstances, the court erred in asserting that the defense was
required to
ask for timely processing, and that failure to do so waived
any right to relief.
Under
Tardif, the Courts of Criminal Appeals have broad discretion to
grant or
deny relief for unreasonable or unexplained delay, and a finding of
specific
prejudice is not required. 57 M.J. at 224.
The
court also may rely upon continuing eligibility for limited military
benefits
as a factor in assessing the impact of post-trial delay, but it must do
so in a
manner that focuses on the circumstances of the particular case. Because post-trial processing entails
continuing eligibility for benefits in all cases, it is not appropriate
to rely
on the availability of benefits as a basis for denying relief in a
particular
case without relating it to the circumstances of the accused in that
case. In that regard, we note that the
court below
speculated as to the possible interest of the accused and his family in
continued benefits, 59 M.J. at 637, but the record indicates that the
accused did
not have any dependents.
Under
these circumstances, we cannot be
confident that the court below took into account “all the facts and
circumstances reflected in the record,” Tardif, 57 M.J. at 224,
in
determining whether relief is warranted for the unreasonable,
unexplained, and
dilatory post-trial processing in this case.
Accordingly, a remand for further consideration is appropriate.
III.
CONCLUSION
The
decision of the Court of Criminal
Appeals is affirmed as to findings and set aside as to sentence. The record is returned to the Judge Advocate
General of the Army for remand to the Court of Criminal Appeals for
further
consideration of whether the sentence should be approved in view of the
court’s
determination on initial review that the post-trial processing of this
case was
unreasonable, unexplained, and dilatory.
Thereafter, Article 67 will apply.