No. 42,434; NMCM No. 81-1944 | United States Court of Military Appeals | Apr 18, 1983
Lead Opinion
Opinion of the Court
On December 29, 1979, appellant was tried at the U.S. Naval Support Activity, Naples, Italy, by a special court-martial consisting of a military judge alone. He pleaded guilty to Charge I and its two specifications of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. Pursuant to a pretrial agreement, the remaining charges were dismissed.
After this commendable swiftness in preparing the record and taking the initial action thereon, a hiatus of ten months occurred in the appellate review of the case. Finally, on November 3, 1980, the staff judge advocate to the supervisory authority prepared his review. This review, which
The United States Navy-Marine Corps Court of Military Review affirmed the findings and sentence in a per curiam opinion. In a concurring opinion, one of the judges of that court criticized the “excessive and deplorable delay”; but, since he found no prejudice to appellant, he joined in denying relief. 12 M.J. 629" court="None" date_filed="1981-10-30" href="https://app.midpage.ai/document/united-states-v-sutton-8644244?utm_source=webapp" opinion_id="8644244">12 M.J. 629, 631 (1981).
We granted review to consider this issue: WHETHER THE APPELLANT HAS BEEN DENIED HIS RIGHTS TO SPEEDY REVIEW AND MILITARY DUE PROCESS, AND HAS THEREFORE BEEN PREJUDICED BY THE 321 DAY DELAY OF THE SUPERVISORY AUTHORITY IN ACTING ON THE CASE.
The result here is foreshadowed by United States v. Clevidence, 14 M.J. 17" court="None" date_filed="1982-08-30" href="https://app.midpage.ai/document/united-states-v-clevidence-8644653?utm_source=webapp" opinion_id="8644653">14 M.J. 17 (C.M.A. 1982). In that case, a special court-martial had convicted the accused of several military offenses and sentenced him to a bad-conduct discharge, confinement, and partial forfeitures. Then a delay of 200 days occurred in authenticating the record of trial. Ultimately, the action of the supervisory authority was completed some 313 days after sentence was imposed. Cievidence, who had been placed on appellate leave at his own request, claimed prejudice by reason of the long delay in the appellate review of his case — especially prejudice with respect to employment opportunities in the civilian community.
In dismissing the charges in Cievidence, we emphasized the statements from United States v. Johnson, 10 M.J. 213" court="None" date_filed="1981-01-26" href="https://app.midpage.ai/document/united-states-v-johnson-8643634?utm_source=webapp" opinion_id="8643634">10 M.J. 213, 218 (1981) (Everett, C.J., concurring in the result), that we wished to discourage “a return to the intolerable delays that persuaded the Court to adopt the [Dunlap] presumption,” and that “to help prevent such an occurrence, the Court should be vigilant in finding prejudice wherever lengthy post-trial delay in review by a convening authority is involved.” Then, we pointed out:
We are reluctant to dismiss charges because of errors on the Government’s part and we would especially hesitate to do so if the case involved more serious offenses. However, it seems clear that unless we register our emphatic disapproval of such “inordinate and unexplained” delay in a case like this, we may be faced in the near future with a situation that would induce a return to the draconian rule of Dunlap.
14 M.J. 17" court="None" date_filed="1982-08-30" href="https://app.midpage.ai/document/united-states-v-clevidence-8644653?utm_source=webapp" opinion_id="8644653">14 M.J. at 19 (footnote omitted).
For all practical purposes, the present case is on all fours with Cievidence. Appellant was convicted by special court-martial of routine military offenses. After his conviction, he was placed on appellate leave, and he now asserts that he was prejudiced in obtaining civilian employment. No better excuse was given here for the delay than that which was offered in Cievidence. Although the delay here occurred between the action of the convening authority and that of the supervisory authority — rather than in authenticating the record — this difference seems immaterial. Accordingly, we conclude that Sutton should receive the same relief that was granted in Cievidence.
The decision of the United States Navy-Marine Corps Court of Military Review is reversed; the findings and sentence are set aside; and the charges are dismissed.
. Charge II alleged willful disobedience of an order; Charge III contained three specifications of violation of Navy Regulations; and Charge IV alleged breach of restriction, in violation of Articles 91, 92, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 891, 892, and 934, respectively. Note that Special Court-Martial Order No. 1-81, dated February 10, 1981, does not set forth Charge IV.
. After we granted review of this case, the Government submitted an affidavit of the erstwhile staff judge advocate, which describes the increased caseload in his office at the time of Sutton’s case and explains that a number of cases had been “stacked ... in a corner without filing or routing for review.” However, the affiant could not say whether appellant’s “case was in the stack that was put aside, or whether it was affected only by the office backlog.”
. We recognize that dismissal of charges after a conviction involves somewhat different considerations than apply to a dismissal before
Dissenting Opinion
(dissenting):
I too am appalled by the unexplained, and unexplainable, delay in processing the accused’s record of trial. However, for the reasons set forth in my dissenting opinion in United States v. Clevidence, 14 M.J. 17, 19 (C.M.A.1982), I respectfully dissent.