United States v. Wells, ACM S32372

Appellant, an Airman under 21, hosted a dorm-room gathering on 30 May 2014 where multiple Airmen drank; another Airman (A1C LE) became extremely intoxicated and later engaged in sexual activity with A1C TA.
Appellant placed her hand over A1C LE’s mouth to quiet her during the incident and later sent texts instructing others to "act like they don't know" and to inform the group that LE was being taken to the hospital for possible rape testing.
AFOSI investigated allegations of sexual assault by LE against multiple Airmen; Appellant was investigated and charged with assault consummated by a battery, underage drinking, and obstruction of justice, to which she pleaded guilty pursuant to a pretrial agreement.
The military judge sentenced Appellant to a bad-conduct discharge, 75 days confinement, reduction to E-1, and forfeitures; the convening authority took action 189 days after sentencing.
Appellant claimed (1) unreasonable post-trial delay violating due process and sought disapproval of the bad-conduct discharge, and (2) her sentence was inappropriately severe.
The court reviewed delay under Moreno/Barker factors and also considered Tardif/Gay factors for Article 66(c) relief; it affirmed findings and sentence, finding no due process violation or need for sentence reduction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Post-trial delay due process violation	Delay (189 days to action) presumptively unreasonable under Moreno; seek relief (disapprove BCD)	Delay resulted from AFOSI investigation into Appellant’s allegation of being a sexual-assault victim; CA postponed action pending ROI; no prejudice shown	No due process violation: although delay exceeded Moreno standards, Government’s reasons justified delay, counsel diligently asserted rights, and Appellant showed no prejudice; no Tardif relief warranted
Sentence appropriateness	Sentence is inappropriately severe given Appellant’s contention she was also a victim and that conduct was minor	Sentence was within pretrial agreement and appropriate to the misconduct (battery and obstruction)	Sentence affirmed as appropriate; court may not substitute clemency for judicial review

United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (presumption of unreasonable post-trial delay and framework for review)
Barker v. Wingo, 407 U.S. 514 (1972) (four-factor speedy-trial balancing test)
United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006) (extreme delay may harm public perception of military justice)
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (standards for Article 66(c) extraordinary relief for post-trial delay)
United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015) (factors guiding Tardif relief analysis)
United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006) (de novo review of sentence appropriateness)
United States v. Anderson, 67 M.J. 703 (A.F. Ct. Crim. App. 2009) (factors for assessing sentence appropriateness)
United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010) (court cannot act as clemency board when reviewing sentence)