25 M.J. 750 | U.S. Navy-Marine Corps Court of Military Review | 1987
On 18 November 1985 the accused was convicted pursuant to his pleas at a special court-martial bench trial of wrongful use of marijuana and attempted larceny of $1.00, in violation of Articles 112a and 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a and 880, and sentenced to a bad-conduct discharge, confinement at hard labor for 25 days, and reduction to pay grade E-l. On 7 February 1986 the convening authority approved the sentence. But it was not until 14 July 1987 that the record of trial was received at this Court for review.
Absent prejudicial error occurring during the court-martial proceedings, the accused is not entitled to relief by reason of the inordinate delay in forwarding the record to this Court. See United States v. Green, 4 M.J. 203 (C.M.A.1978); United States v. McLarahmore, No. 81 0825 (NMCMR 17 January 1986) (unpublished), pet. denied, 24 M.J. 438 (C.M.A.1987). Therefore, we affirm the findings of guilty. Nevertheless, under the circumstances, including the delay, we find it appropriate to modify the sentence and disapprove the punitive discharge.
In United States v. Banks, 7 M.J. 92 (C.M.A.1979), the Court prospectively overturned the Dunlap rule regarding speedy review at the command level and restored the Gray-Timmons test-for-prejudice rule when review delays occurred at that level. United States v. Johnson, 10 M.J. 213 (C.M.A.1981). Then, in United States v. Clevidence, 14 M.J. 17 (C.M.A.1982), a case involving inordinate delay prior to the convening authority’s action, the Court dismissed the charges, finding prejudice where an accused on appellate leave had been hindered in finding adequate employment because potential employers were concerned that he might be recalled to active duty. It stated that to help prevent a return to the intolerable delays that had persuaded the Court to adopt the discarded Dunlap presumption, it would be vigilant in finding prejudice wherever lengthy post-trial delay in review by a convening authority is involved, but noted that it would especially hesitate to dismiss charges if the case involved more serious offenses. Id. at 19. The Court in Clevidence did not extend the new test for prejudice to delays in the appellate process occurring after the supervisory authority’s action. Id. at 21, n. 6, (Cook, J., dissenting). We are unaware of any subsequent case which has done so and, therefore, conclude that the law as enunciated in United States v. Green, supra, governs the case before us.
Although we condemn delay in this case we would not overrule Green, if we could do so. United States v. McLarahmore, supra. In Clevidence and its progeny, the Court of Military Appeals, in what it characterized as an exercise of supervisory jurisdiction, dismissed the charges to prevent a return to inordinate and unexplained post-trial delays prior to the supervisory authority’s action. There are significant differences between the trial and appellate stages of a criminal proceeding. United States v. Johnson, supra, at 217 (Everett,
Although the post-trial processing of this case prior to the date of the convening authority’s action could have been more expeditious, the delay was not inordinate. Thus, the issue is whether the subsequent inordinate delay in forwarding the record to this Court for review entitles the accused to relief. In this case since we can find no prejudicial error in the eourt-martial proceeding, we hold that it does not.
. We do not believe that United States v. Sowers, 24 M.J. 429 (C.M.A.1987) (summary disposition), a case involving alleged inordinate post-trial delay prior to the supervisory authority’s action and very lengthy delay at the Court of Military Appeals, in which the Court dismissed the charges because of lack of speedy disposition, is precedent for overruling Green and extending the rule in Clevidence to delay at the appellate level. The issue upon which the Court granted review was delay prior to the convening authority’s action.
. Absence of evidence that the judge advocate’s recommendation was served upon defense counsel before the convening authority acted does not entitle the accused to relief. See United States v. Kincheloe, 14 M.J. 40, 43, 44 (C.M.A.1982). First, defense counsel’s lengthy delay in failing to object to lack of service waives the objection. Second, we find no error in the review.