              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                              No. ACM S32400
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                       Steven R. BICKHAM, JR.
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 25 May 2017
                          ________________________

Military Judge: Shelly W. Schools.
Approved sentence: Bad-conduct discharge, confinement for 30 days,
and reduction to E-1. Sentence adjudged 16 December 2015 by SpCM
convened at Sheppard Air Force Base, Texas.
For Appellant: Colonel Christopher W. Dentel, USAF.
For Appellee: Lieutenant Colonel Lance R. Smith, USAF; Gerald R.
Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Senior Judge J. BROWN delivered the opinion of the court, in which
Chief Judge DREW and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

J. BROWN, Senior Judge:
    A special court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas pursuant to a pretrial agreement,
of an attempt to steal insurance money of a value of more than $500, a three-
day absence without leave, and a false official statement, in violation of Arti-
                 United States v. Bickham, No. ACM S32400


cles 80, 86, and 107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
880, 886, 907. The military judge sentenced Appellant to a bad-conduct dis-
charge, confinement for 30 days, and reduction to E-1. The convening author-
ity waived automatic forfeitures for the benefit of Appellant’s dependents, but
otherwise approved the adjudged sentence.
    Appellant now requests “appropriate sentence relief” pursuant to United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) for delay between the convening
authority’s action and docketing of his case with this court. We disagree and
affirm.

                               I. BACKGROUND
    Appellant, who was assigned at the time to work as a security forces pa-
trolman on Sheppard Air Force Base, completed an Air Force Security Forces
witness statement and provided it to another security forces member to sign,
in his official capacity, as a “witness/interviewer.” In the statement, Appel-
lant falsely claimed that, while he and his wife were at an off-base gym, a
computer valued at $1300, an iPod valued at $100, and wedding rings valued
at $2500 were stolen from his vehicle.
    Appellant then submitted a false claim to his insurance company request-
ing reimbursement for the items that were purportedly stolen from his vehi-
cle. When explaining the purported incident to his insurance company, he
identified himself as a security forces patrolman on base and stated that sim-
ilar incidents of theft had previously occurred on base because foreign na-
tionals were on base and, “a lot of times, they do things like that.”
    In addition, Appellant told his supervisor that he was extended on conva-
lescent leave for three days in July 2015. Appellant knew, however, that he
was not on convalescent leave and was required to report to duty for those
three days.

                    II. DISCUSSION—POST-TRIAL DELAY
    Appellant’s case was docketed with this court 49 days after the convening
authority’s action. Appellant seeks sentence relief due to the delay between
the convening authority’s action and our docketing of his case. In determining
whether to provide Tardif sentencing relief, Appellant also asks that we con-
sider that the Government served the record of trial (ROT) on Appellant 22
days after it was authenticated, rather than “as soon as . . . authenticated” as
set forth in Rule for Courts-Martial 1104(b)(1)(A). Appellant does not allege
any prejudice.
    The Government submitted an affidavit explaining that the delay in serv-
ing Appellant the ROT was attributable to logistical difficulties in serving the

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                 United States v. Bickham, No. ACM S32400


record on Appellant because he was on leave and, even when not on leave, his
leadership also elected to allow Appellant to stay at home.
    The Government’s affidavits also addressed the actions taken between ac-
tion and docketing. The Government explained that it took approximately a
week between action and the base legal office sending the ROT to their high-
er headquarters for review. The higher headquarters’ initial review took a
week and identified errors in the ROT, to include missing receipts. The high-
er headquarters notified the base legal office of the errors, and the base legal
office took approximately three weeks to locate and provide the missing re-
ceipts. After receiving these missing items, the higher headquarters took an
additional week to finalize their review of the ROT and then forwarded it for
docketing. By this time, 49 days had elapsed.
   “[C]onvicted servicemembers have a due process right to timely review
and appeal of courts-martial convictions.” United States v. Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006). Accordingly, we review de novo Appellant’s claim
that he has been denied his due process right to a speedy post-trial review
and appeal. Id.
    In Moreno, the Court of Appeals for the Armed Forces (CAAF) established
a presumption of unreasonable post-trial delay that requires a due process
review when the convening authority does not take action within 120 days of
trial, when a record of trial is not docketed with us within 30 days of the con-
vening authority’s action, or when we do not render a decision within 18
months of the case’s docketing. Id. at 142.
    If there is a Moreno-based presumption of unreasonable delay or an oth-
erwise facially-unreasonable delay, we examine the claim under the four fac-
tors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the
right to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135.
Moreno identified three types of prejudice arising from post-trial processing
delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impair-
ment of ability to present a defense at a rehearing. Id. at 138–39.
    “We analyze each factor and make a determination as to whether that
factor favors the Government or [Appellant].” Id. at 136. Then, we balance
our analysis of the factors to determine whether a due process violation oc-
curred. Id.; see also Barker, 407 U.S. at 533 (“Courts must still engage in a
difficult and sensitive balancing process.”). “No single factor is required for
finding a due process violation and the absence of a given factor will not pre-
vent such a finding.” Moreno, 63 M.J. at 136. However, where an appellant
has not shown prejudice from the delay, there is no due process violation un-
less the delay is so egregious as to “adversely affect the public’s perception of


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                   United States v. Bickham, No. ACM S32400


the fairness and integrity of the military justice system.” United States v.
Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
    The period of 49 days between action and docketing in this case is pre-
sumptively unreasonable, exceeding the standard by 19 days, and triggers a
full due process review under Moreno. However, Appellant has not claimed
any legally cognizable prejudice from the delay, and we find none. Balancing
the remaining factors, and considering the Government’s explanation for the
delay, we do not find the delay so egregious that tolerating it would adversely
affect the public’s perception of the fairness and integrity of the military jus-
tice system. See Toohey, 63 M.J. at 362. Therefore, we find no due process vio-
lation.
    Although we find no due process violation in Appellant’s case, we none-
theless consider whether Article 66(c), UCMJ, 10 U.S.C. § 866(c), relief pur-
suant to Tardif is appropriate. 57 M.J. at 224. In resolving Appellant’s re-
quest for Tardif relief, we are guided by factors enumerated in United States
v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264
(C.A.A.F. 2016), with no single factor being dispositive. * We are also mindful
of the CAAF’s admonition that “delay in the administrative handling and
forwarding of the record of trial and related documents to an appellate court
is the least defensible of all [post-trial delays] and worthy of the least pa-
tience.” United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990) (hyphen omit-
ted).
    We find the Government’s explanations for the 49-day delay between ac-
tion and docketing unpersuasive. However, after balancing the remaining
factors, we conclude no extraordinary exercise of our Article 66(c) authority is
warranted here. Considered as a whole, Appellant’s case has not been sub-
jected to excessive delay, and we discern no particular harm to Appellant.


* These factors include: (1) How long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is nonetheless evidence of harm (either to the
appellant or institutionally) caused by the delay; (4) whether the delay has lessened
the disciplinary effect of any particular aspect of the sentence, and whether relief is
consistent with the dual goals of justice and good order and discipline; (5) whether
there is any evidence of institutional neglect concerning timely post-trial processing,
either across the service or at a particular installation; and (6) whether, given the
passage of time, whether this court can provide meaningful relief in this particular
situation. United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75
M.J. 264 (C.A.A.F. 2016).




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                 United States v. Bickham, No. ACM S32400


The delay has not lessened the disciplinary effect of Appellant’s sentence. The
delay has not adversely affected our ability to review Appellant’s case or
grant him relief, if warranted. The circumstances of Appellant’s case do not
move us to reduce an otherwise appropriate sentence imposed by the military
judge and approved by the convening authority. See also United States v.
Gines, No. ACM S32410, 2017 CCA LEXIS 200 (A.F. Ct. Crim. App. 23 Mar.
2017) (unpub. op.) (no relief for 46 days between action and docketing); Unit-
ed States v. Ruiz, No. ACM 38752, 2016 CCA LEXIS 470 (A.F. Ct. Crim. App.
9 Aug. 2016) (unpub. op.) (no relief for 57 days between action and docketing);
United States v. Spencer, No. ACM S32198, 2015 CCA LEXIS 38 (A.F. Ct.
Crim. App. 5 Feb. 2015) (unpub. op.) (no relief for 46 days between action and
docketing).

                              III. CONCLUSION
    The approved findings and sentence are 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). Accordingly, the
findings and sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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