United States v. Prasad ( 2019 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39003 (reh)
________________________
UNITED STATES
Appellee
v.
Krishil S. PRASAD
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 10 June 2019
________________________
Military Judge: Christina M. Jimenez (rehearing).
Approved sentence: Bad-conduct discharge, confinement for 210 days,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 29 March 2018 by GCM convened at Minot Air Force Base, North
Dakota.
For Appellant: Major Dustin J. Weisman, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, JOHNSON, and LEWIS, Appellate Military
Judges.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Judge LEWIS joined. Senior Judge JOHNSON filed a separate concur-
ring opinion.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Prasad, No. ACM 39003 (reh)
MAYBERRY, Chief Judge:
This case is before us for the second time. In October 2015, a general court-
martial composed of officer and enlisted members found Appellant guilty, con-
trary to his pleas, of two specifications of sexual assault and one specification
of abusive sexual contact, in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920. The court sentenced Appellant to a dishonor-
able discharge, confinement for 30 months, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority approved the ad-
judged sentence. On initial appeal, Appellant raised three assignments of error
(AOEs), and we granted relief as to one of them by setting aside one of the
sexual assault convictions pursuant to United States v. Hills, 75 M.J. 350
(C.A.A.F. 2016). We also set aside the sentence and authorized a rehearing on
both the set aside offense and the sentence. United States v. Prasad (Prasad
I), No. ACM 39003, 2017 CCA LEXIS 610 (A.F. Ct. Crim. App. 5 Sep. 2017)
(unpub. op.).
On 8 February 2018, the General Court Martial Convening Authority
(GCMCA) dismissed the specification we had set aside, 1 having determined a
rehearing was impracticable, and ordered a rehearing for the purpose of sen-
tencing Appellant on the affirmed findings. The rehearing was held at Minot
Air Force Base (AFB), North Dakota, on 28–29 March 2018. 2 A general court-
martial composed of officer members sentenced Appellant to a bad-conduct dis-
charge, confinement for 210 days, forfeiture of all pay and allowances, and re-
duction to the grade of E-1. The convening authority approved the adjudged
sentence.
Appellant now asserts two AOEs: (1) whether the court-martial was
properly constituted when a detailed member did not participate; and (2)
whether Appellant is entitled to relief based on the fact that he paid his own
travel expenses to return home due to “the slow post-trial processing” of his
case. Appellant also requests that we reconsider our decision in Prasad I. We
decline to reconsider our decision in Prasad I, find no prejudicial error, and
affirm the approved sentence.
1We note that the specification is not lined out on the charge sheet found at page 2.4
of the record of trial.
2 The case was forwarded from Grand Forks AFB, North Dakota, to Minot AFB, North
Dakota, due to the fact that the supervisory defense counsel for Appellant’s trial de-
fense counsel at the time of the original trial was the staff judge advocate at Grand
Forks AFB at the time the case was returned in accordance with Prasad I.
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United States v. Prasad, No. ACM 39003 (reh)
I. BACKGROUND
The original rehearing convening order (SO A-4), dated 8 February 2018,
contained the names of 12 officers. On 27 March 2018, the day before the re-
hearing was scheduled to start, a second convening order (SO A-6) was issued.
The second convening order relieved five members from SO A-4 and detailed
five new officers, one of whom was Captain (Capt) RW. The next day, when the
second convening order was identified on the record, the military judge in-
quired as to whether the trial defense counsel had received it. Counsel replied
that she had and had no concerns or objections. After a series of sessions on
the record without the members, 11 members joined the proceedings. When
trial counsel announced the names of the members, only 11 names were read
and Capt RW’s was not one of them. After voir dire, eight members were se-
lected to serve; Capt RW was not one of them.
The rehearing concluded the following day, 29 March 2018. Appellant was
sentenced, inter alia, to 210 days of confinement—the amount of time Appel-
lant served in pretrial confinement. In light of the fact that Appellant had been
confined in excess of 700 days, he was not confined again. Appellant had ob-
tained employment while on appellate leave awaiting final appellate resolution
of his case. Appellant was recalled to active duty for the rehearing and re-
mained on active duty throughout the court-martial. After the completion of
the court-martial, Appellant learned that it could take months to complete the
post-trial processing of the rehearing and requested to go on voluntary excess
leave. That request was approved, and he departed North Dakota on 30 March
2018, the day after the rehearing concluded. Appellant personally paid his
travel expenses to return home.
II. DISCUSSION
A. Request for Reconsideration
This court issued Prasad I on 5 September 2017. Appellant filed a request
for reconsideration with suggestion for reconsideration en banc on 3 October
2017. Citing to Rules 19(b) 3 and 17 of the Joint Courts of Criminal Appeals
Rules of Practice and Procedure (Joint Rules) and Rule 19.3 of the Air Force
Court of Criminal Appeals Rules of Practice and Procedure (AF Rules), the
United States opposed the motion on 10 October 2017. The request was re-
ferred to all appellate judges present for duty but no judge present called for a
3In the Joint Rules of Appellate Procedure for Courts of Criminal Appeals, effective 1
January 2019, these rules are now numbered 31 and 27 respectively. We will use the
previous rule numbers in this opinion.
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United States v. Prasad, No. ACM 39003 (reh)
vote for reconsideration en banc. The original panel 4 voted 3–0 against recon-
sideration, and the order denying the same was issued on 16 October 2017.
After neither Appellant nor the Government filed a petition for grant of review
with the United States Court of Appeals for the Armed Forces (CAAF), on 15
November 2017 The Judge Advocate General returned the case to the GCMCA
for disposition in accordance with our opinion.
The 5 February 2019 assignments of error brief filed by Appellant’s counsel
includes a footnote that reads:
In his original assignment of errors [sic] brief, dated 4 April
2017, [Appellant] raised three points of error. This Court’s opin-
ion addressed all of the assignments of error, except the second
assignment of error (factual sufficiency) as it related to the dis-
missed specification. [Appellant] requests this Court reconsider
its decision on Issues I–III of his original assignment of errors
[sic] brief on the remaining specifications. He incorporates the
facts and arguments on those points of error into this brief by
reference.
This “second request” for reconsideration was filed 18 months after the
panel’s original opinion and 17 months after Appellant’s original request for
reconsideration was denied—well beyond the authorized 30-day window con-
tained within Joint Rule 19(b). Joint Rule 19(c) additionally requires that a
motion for reconsideration “shall briefly and directly state the grounds for re-
consideration, including a statement of facts showing jurisdiction of the Court.”
Appellant’s second request was not filed as a motion, is silent as to how this
Court has jurisdiction to consider this request, and contains no new evidence,
facts, or legal analysis.
In United States v. Williams, 75 M.J. 244 (C.A.A.F. 2016), our superior
court addressed a similar issue where the Government attempted to extend
CAAF’s sixty-day deadline for filing a certificate for review. 5 In Williams, the
Government filed consecutive motions for reconsideration with the court of
criminal appeals (CCA) (30 and 45 days after the original decision), with the
second request seeking reconsideration not of the original panel opinion, but of
4The original panel consisted of Judges Mayberry, Johnson, and Speranza. Judge
Speranza departed the court for another assignment prior to the completion of the re-
hearing.
5In accordance with CAAF’s Rules of Practice and Procedure 19(b)(3) and 34(a), when
the Government is seeking review, the filing deadline is either 60 days from the date
of the decision of the court of criminal appeals (CCA) or, if a petition for reconsideration
was filed at the CCA, within 60 days of the date of final action on the petition for
reconsideration.
4
United States v. Prasad, No. ACM 39003 (reh)
the denial of the initial request for reconsideration. Id. at 245. The CAAF held
that the second request “did not and could not seek reconsideration of the orig-
inal decision” and thus failed to toll the time limits imposed by the CAAF rules.
Id. at 246. In Williams, the CAAF opined that “[t]oday, we face the ‘fancied
danger’ contemplated in [United States v. Sparks, 18 C.M.R. 77, 83 (C.M.A.
1955)].” Williams, 75 M.J at 246. In Sparks, the Court of Military Appeals
(CMA), predecessor to CAAF, held that “[a]s to any fancied danger that peti-
tions for reconsideration of petitions for reconsideration will result, we are sure
that there is no right in an accused to petition without limit.” 18 C.M.R. at 83.
The case now before us goes beyond the fancied danger contemplated by
Sparks and realized in Williams. Here, Appellant filed two requests for recon-
sideration, 17 months apart. The initial motion for reconsideration was denied,
and Appellant opted not to file a petition for grant of review with CAAF. In
light of our original decision, the set-aside specification was dismissed and a
rehearing on sentencing was held. Appellant has now filed additional AOEs
associated directly to the sentencing rehearing. Like the CAAF in Williams,
we see no basis for suspending the requirements of this court’s filing deadlines
and allowing Appellant to seek review of what has already been denied—re-
consideration of the denial of reconsideration—17 months after the denial. We
decline to reconsider our decision in Prasad I.
B. Composition of the Panel
1. Additional Facts
The authenticated record of trial contains both convening orders (SO A-4
and SO A-6), with no names lined through. In response to Appellant’s AOE,
the Government simultaneously filed its Answer and a Motion for leave to at-
tach a declaration from Capt AW, the chief of military justice at the GCMCA’s
servicing legal office. Appellant did not oppose the motion to attach. On 15
March 2019 we granted the motion to attach. Appellant did not subsequently
file a reply brief.
Capt AW’s declaration provides a chronology of events following the issu-
ance of SO A-6. The same day SO A-6 was issued, 27 March 2018, Senior Air-
man (SrA) LR, a paralegal from the Minot AFB legal office, contacted Capt RW
and informed him of his selection as a court member. That evening, Capt RW
responded, “I will be coming back from alert on my T-Day tomorrow and will
not be available for jury duty.”
Early the day of trial, 28 March 2018, SrA LR contacted Capt AW and in-
formed her that Capt RW was “out in the field and is returning this afternoon.”
Capt AW passed this information along to the GCMCA and the GCMCA’s staff
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United States v. Prasad, No. ACM 39003 (reh)
judge advocate (SJA), “who excused the member by striking through the mem-
ber’s name on [SO] A-6.” 6 The order also included an additional signature block
by the SJA and the statement “Member excused effective 28 March 2018.”
At 1019 Eastern Time 7 on 28 March 2018, Capt AW emailed SO A-6 with
the excusal language and Capt RW’s struck-through name to SrA LR at the
Minot AFB legal office. The local time at Minot AFB, which is in the central
time zone, would have been 0919. Capt AW’s declaration includes that her un-
derstanding was that “the member’s unavailability was discussed with the par-
ties and the military judge.” A copy of the modified SO A-6 and an email from
Capt AW to SrA LR with the modified SO A-6 excusing Capt RW was attached
to Capt AW’s declaration.
Approximately 40 minutes after Capt AW’s email containing Capt RW’s
excusal, Appellant’s court-martial was called to order. SO A-6 and the original
SO A-4 were inserted into the record at that time, but the excusal of Capt RW
was not discussed on the record, and neither the email nor the modified con-
vening order (SO A-6) were entered into the record. Preliminary proceedings
not involving the members continued for three hours.
Nearly four hours after Capt AW sent Capt RW’s excusal to the Minot AFB
legal office, Appellant’s court-martial convened with the members for the first
time. The names of Appellant and all persons detailed to the court-martial
were read, including the 11 remaining court members, and the court was as-
sembled. Capt RW’s name was not read. Neither Appellant nor his trial defense
counsel objected to Capt RW’s absence.
2. Law
Whether a court-martial is properly constituted is an issue of law we review
de novo. See United States v. Colon, 6 M.J. 73, 74–75 (C.M.A. 1978).
The members of a court-martial panel are detailed for such service by the
convening authority. Article 25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2). 8 Prior to
assembly of the court-martial, the convening authority has broad power to ex-
cuse any member of the court from participating in the case. Article 25(e),
UCMJ, 10 U.S.C. § 825(e). “Congress has authorized the convening authority
6The SJA had previously been delegated the authority to excuse individual members
pursuant to R.C.M. 505 in August 2016.
7The time is based on Capt AW’s email, which was sent from her duty station in New
Jersey.
8All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.) (MCM),
which applied during Appellant’s trial and clemency.
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United States v. Prasad, No. ACM 39003 (reh)
to delegate excusal authority to his or her staff judge advocate, legal officer, or
any other principal legal assistant, subject to such regulations as may be pre-
scribed.” United States v. Cook, 48 M.J. 434, 436 (C.A.A.F. 1998) (citation omit-
ted).
Rule for Courts-Martial (R.C.M.) 505(a) states “[s]ubject to this rule, the
members, military judge, and counsel may be changed by an authority compe-
tent to detail such persons. Members also may be excused as provided in sub-
sections (c)(1)(B)(ii) and (c)(2)(A) of this rule.” R.C.M. 505(b) dictates the pro-
cedure for such changes, including that “[a]n order changing the members of
the court-martial, except one which excuses members without replacement,
shall be reduced to writing before authentication of the record of trial.” “When
members or counsel have been excused and the excusal is not reduced to writ-
ing, the excusal should be announced on the record.” Id., Discussion.
R.C.M. 505(c)(1)(B)(i) provides the convening authority the ability to dele-
gate “authority to excuse individual members to the staff judge advocate or
legal officer or other principal assistant to the convening authority” when such
an excusal is done before assembly of the court-martial.
R.C.M. 805(b) states:
Unless trial is by military judge alone . . . no court-martial pro-
ceeding may take place in the absence of any detailed member
except: Article 39(a) sessions under R.C.M. 803; examination of
members under R.C.M. 912(d); [or] when the member has been
excused under R.C.M. 505 or 912(f) . . . . No general court-mar-
tial proceeding requiring the presence of members may be con-
ducted unless at least five members are present . . . .
In Colon, a case decided before the implementation of R.C.M. 805, the
CMA held that the absence of four members detailed to a ten-member general
court-martial did not constitute jurisdictional error, holding:
Articles 16, and 29(b) and (c), UCMJ, 10 USC §§ 816, 829(b), (c),
respectively, . . . permit a court-martial to lawfully proceed
where the number of members is less than that detailed by the
convening authority but equal to or greater than the required
quorum for that particular type of court-martial.
6 M.J. at 74.
In United States v. Sargent, 47 M.J. 367, 368 (C.A.A.F. 1997) (citation omit-
ted), the CAAF acknowledged that R.C.M. 805 was drafted in light of the deci-
sion in Colon and opined that “[n]either its wording nor its regulatory history
impart to it jurisdictional significance.” In Sargent, the CAAF held “the statu-
tory quorum for this general court-martial was five members” and “[w]hen the
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United States v. Prasad, No. ACM 39003 (reh)
court-martial opened, nine detailed members were in attendance; therefore,
this court-martial was fully empowered to consider this case.” 47 M.J. at 369
(citing United States v. Gebhart, 34 M.J. 189 (C.M.A. 1992)).
“Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.”
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (quoting United
States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). We review forfeited is-
sues for plain error, whereas “a valid waiver leaves no error to correct on ap-
peal.” Id. (citations omitted). To prevail under a plain error analysis, an ap-
pellant must show “(1) there was an error; (2) it was plain or obvious; and (3)
the error materially prejudiced a substantial right.” United States v. Erick-
son, 65 M.J. 221, 223 (C.A.A.F. 2007) (citations omitted).
“A forfeiture is basically an oversight; a waiver is a deliberate decision not
to present a ground for relief that might be available in the law.” United
States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (quoting United States v.
Cook, 406 F.3d 485, 487 (7th Cir. 2005)). Whether an accused has waived or
merely forfeited an issue is a question of law we review de novo. Ahern, 76
M.J. at 197 (citing United States v. Rosenthal, 62 M.J. 261, 262 (C.A.A.F.
2005)).
3. Analysis
Based on prior judicial interpretations that Article 25 created a “substan-
tial right in the military accused to have the convening authority choose . . .
the basic composition of the court-martial,” the court in Colon held “implicit in
this right . . . is the requirement that a convening authority be notified, prior
to assembly, of absent members he detailed to sit on a court.” 6 M.J. at 75
(citations omitted). The record now shows that Capt RW was excused prior to
the court being assembled by a proper delegate of the convening authority.
Such an excusal was completed consistent with R.C.M. 505 and, per Capt AW’s
understanding, was discussed with the parties and the military judge. While
it is true that no discussion was held on the record and none of the many R.C.M
802 session summaries included any such discussion, in light of the fact that
Capt RW’s excusal was reduced to writing, no discussion was required per
R.C.M. 505.
We are troubled by the inexplicable absence of the modified SO A-6 in Ap-
pellant’s authenticated record of trial. Nevertheless, the attachments to
Capt AW’s declaration clearly establish that Capt RW was properly excused
from Appellant’s court-martial prior to its assembly and explain to our satis-
faction that the military judge, Appellant, and all counsel were aware of the
excusal of Capt RW, and why neither Appellant nor his counsel objected on the
record to the obvious and conspicuous absence of Capt RW.
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United States v. Prasad, No. ACM 39003 (reh)
Assuming arguendo that Capt RW was not properly excused, we consider
whether Appellant’s silence to Capt RW’s absence waived or forfeited this is-
sue, and if not, whether the error, if any, resulted in prejudice. See Cook, 48
M.J. at 436. In Cook, the appellant did not object to the excusal of members
when announced at trial, but on appeal challenged the composition of the
panel. Id. As was the case in Cook, there is nothing in the record to indicate
that Appellant was dissatisfied with the panel at trial. Unlike Cook, Appellant
does argue he was prejudiced, but Appellant’s only assertion of prejudice is
that he “would have had an additional potential vote for a more favorable pun-
ishment” and that he “lost a potential vote for a lower sentence.” Under this
scenario, we review for plain error. We find that the error, if any, was not plain
error.
Our sister court has relied on Sargent on two occasions, finding that the
unexcused absence of a detailed member merited no relief. See United States
v. McMurrin, 72 M.J. 697, 700 n.5 (N.M. Ct. Crim. App. 2013) (finding no prej-
udice where jurisdictional requirement for quorum was still met and the ap-
pellant made no showing of material prejudice to a substantial right); United
States v. Graham, 54 M.J. 605, 607 n.1 (N.M. Ct. Crim. App. 2000) (finding “no
substantial frustration of the convening authority’s court-composition power
or material denial of a right of the appellant” where one of five members was
absent from the proceedings due to a medical emergency without any actual
indication on the record that his absence was excused by the convening author-
ity, and the court-martial proceeded without defense objection).
Appellant’s assertion that “he would have had an additional vote for a more
favorable punishment” is speculative at best. Even if Capt RW had been pre-
sent, there is no way of determining if he would have remained on the panel,
and if he did, that his vote would have resulted in a lesser punishment than
that imposed. Considering the members adjudged significantly less confine-
ment and downgraded the imposed punitive discharge from a dishonorable dis-
charge to a bad-conduct discharge, Appellant has failed to establish how hav-
ing Capt RW on his panel would have resulted in an even more favorable sen-
tence for his convictions for one specification of sexual assault and one specifi-
cation of abusive sexual contact. Appellant has failed to demonstrate any prej-
udice, let alone “substantial prejudice” required in this instance. See Sargent,
47 M.J. at 369; Article 59(a), UCMJ, 10 USC § 859(a).
C. Relief for “Post-Trial Delay”
Appellant does not challenge the legality or appropriateness of the ap-
proved sentence. Instead, he seeks to obtain reimbursement for the cost of his
travel home after garnering approval to go on voluntary excess leave the day
after his court-martial ended. Appellant relies on “post-trial delay” and this
court’s Article 66(c), UCMJ, authority to only affirm a sentence that “should be
9
United States v. Prasad, No. ACM 39003 (reh)
approved.” Appellant asks that we reduce his forfeitures or confinement “so
that he will receive compensation roughly equal to the $591.80 he incurred
moving back to California.” As this issue concerns a matter not directly con-
nected to the approved sentence, we must first determine whether we have
jurisdiction to grant relief. See United States v. Buford, 77 M.J. 562, 563, 565
(A.F. Ct. Crim. App. 2017) (CCA authority to grant relief pursuant to Article
66(c) “limited to a legal deficiency that directly impacted a component of the
sentence”), rev. denied, 77 M.J. 332 (C.A.A.F. 2018). We hold that we do not.
1. Additional Facts
The military judge authenticated the transcript on 18 July 2018. The staff
judge advocate’s recommendation (SJAR) and record of trial (ROT) were re-
ceived by trial defense counsel and Appellant on 19 July 2018. An electronic
copy of the ROT and SJAR were sent to Appellant via a file exchange website
utilized by federal agencies, and he downloaded them that same day. A hard
copy of the SJAR and ROT were sent to Appellant via the United States Postal
Service. Initial delivery was attempted on 26 July 2018 but there was no secure
location to leave the package, and Appellant was directed to arrange for re-
delivery or pick up the package. Appellant acknowledged receipt of the hard
copy ROT and SJAR on 3 August 2018. Appellant and his counsel submitted
clemency matters to the convening authority on 10 August 2018. Neither trial
defense counsel nor Appellant brought the matter of Capt RW’s absence to the
attention of the convening authority in their submissions. Action was taken by
the convening authority on 17 August 2018, 141 days after the sentence was
announced.
2. Law
Whether an appellant has been deprived of his due process right to speedy
appellate review, and whether constitutional error is harmless beyond a rea-
sonable doubt are questions of law we review de novo. United States v. Arriaga,
70 M.J. 51, 55–56 (C.A.A.F. 2011) (citing United States v. Moreno, 63 M.J. 129,
135 (C.A.A.F. 2006)).
When the convening authority does not take action within 120 days of the
completion of trial, the delay is presumptively unreasonable. Moreno, 63 M.J.
at 142. Where a presumptively unreasonable post-trial delay is established, we
consider the four factors the CAAF identified in Moreno to assess whether Ap-
pellant’s due process right to timely post-trial and appellate review have been
violated: “(1) the length of the delay; (2) the reasons for the delay; (3) the ap-
pellant’s assertion of the right to timely review and appeal; and (4) prejudice.”
Id. at 135 (citations omitted).
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United States v. Prasad, No. ACM 39003 (reh)
Absent a showing of prejudice, a due process violation warranting relief
only occurs when, “in balancing the other three factors, the delay is so egre-
gious that tolerating it would adversely affect the public’s perception of the
fairness and integrity of the military justice system.” United States v. Toohey,
60 M.J. 353, 362 (C.A.A.F. 2006).
Even when there is no showing of “actual prejudice” Appellant may be en-
titled to relief under this court’s Article 66(c), UCMJ, authority if the delay is
excessive and we deem relief appropriate under the circumstances. See United
States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). In United States v. Gay,
74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264, 269 (C.A.A.F.
2016), although the CAAF upheld our authority to grant relief under Article
66(c), they did not recognize unlimited authority under Article 66(c) for a CCA
to grant sentencing relief, including for errors collateral to the court-martial
process.
“The scope and meaning of Article 66(c), UCMJ, which is the source of this
court’s authority, is a matter of statutory interpretation, which, as a question
of law, is reviewed de novo.” Buford, 77 M.J. at 564 (citing United States v.
Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015)). Article 66(c), UCMJ, establishes the
jurisdiction of a CCA as follows:
In a case referred to it, the [CCA] may act only with respect to
the findings and sentence as approved by the convening author-
ity. It 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. In considering the record, it may weigh the evi-
dence, judge the credibility of witnesses, and determine contro-
verted questions of fact, recognizing that the trial court saw and
heard the witnesses.
10 U.S.C. § 866(c).
3. Analysis
The 141-day delay is presumptively unreasonable. However, Appellant re-
quests this court to grant relief based on the “delay” so as to “reimburse” him
for the cost of his travel home the day after his trial ended. Appellant was
familiar with the post-trial process as a result of his initial court-martial. Pur-
suant to Moreno, the presumptively reasonable post-trial processing time is
120 days. See Moreno, 63 M.J. at 142. Appellant left the day immediately fol-
lowing his trial, thereby incurring the travel expenses he now seeks reimburse-
ment for.
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United States v. Prasad, No. ACM 39003 (reh)
Buford noted “the authority validated in Gay was rooted and limited to a
legal deficiency that directly impacted a component of the sentence.” 77 M.J. at
565.
While Appellant’s attempt to apply Tardif to the facts of his case is innova-
tive, it is irreconcilable with the facts and the law. Appellant personally chose
to go on voluntary excess leave only one day after his court-martial concluded.
The fact that the post-trial processing ultimately exceeded the judicially recog-
nized reasonable time standards did not cause him to expend his own funds.
His personal, and understandably laudable, desire to return home so as not to
lose his job was the genesis of that expense.
Appellant does not assert that the expectation that he remain on active-
duty in a pay status awaiting post-trial processing was done with an intent to
subject him to illegal punishment. Rather, his allegation is nothing more than
an attempt to create a claim for additional relief after the Government granted
his request to go on voluntary excess leave. The Government could not have
unilaterally required him to take excess leave at that stage of the proceeding—
only he could have initiated such action, and he did. Now, he wants this court
to grant him further relief without any evidence of prejudice directly attribut-
able to the post-trial delay.
There was no direct correlation between the ultimate delay and his depar-
ture as there had been no delay at the time of his departure. As was the case
in Buford, 77 M.J. at 564–66, we are neither persuaded that we have unlimited
authority to grant relief nor convinced that we should exercise any of our lim-
ited authority to grant relief for an administrative matter unrelated to any
legal deficiency that directly impacted Appellant’s sentence and, more im-
portantly, unrelated to the legality or appropriateness of his court-martial sen-
tence.
III. CONCLUSION
The approved findings were previously affirmed. The approved sentence is
correct in law and fact, and no error materially prejudicial to the substantial
rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c) (2016). Accordingly, the sentence is AFFIRMED.
JOHNSON, Senior Judge (concurring):
I concur with the opinion of the court specifically with regard to the issues
presently before the court, including the denial of Appellant’s request that we
reconsider the opinion in Prasad I. I write separately simply to note that I
continue to adhere to the view expressed in my dissenting opinion in Prasad I
12
United States v. Prasad, No. ACM 39003 (reh)
that, in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United
States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and now also United States v.
Guardado, 77 M.J. 90 (C.A.A.F. 2017), I would have set aside the previously-
affirmed findings of guilty due to constitutional error that was not harmless
beyond a reasonable doubt.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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