The last time we mentioned United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (link to slip op.), where CAAF found that Article 66(c) permits a CCA to grant relief for “unreasonable and unexplained post-trial delays” without a finding of prejudice, it was in a discussion of an unpublished decision of the Air Force CCA in United States v. Carr, No. 38025 (Aug 15, 2013) and the old commercial that asked, “How many licks does it take to get to the Tootsie Roll center of a Tootsie Pop?”
But meaningful relief under Tardif is elusive. For instance, in Carr the AFCCA granted a two-month reduction of the adjudged forfeitures of pay, but it’s likely that the appellant received none of that money because he was placed on no-pay-due involuntary appellate leave when the convening authority took his (first) action on the sentence.
Similarly, a few weeks ago the Army CCA granted meaningless relief under Tardif.
On 3 May 2012, a military judge sitting as a special court-martial convicted appellant, pursuant to his plea, of a single specification of absence without leave terminated by apprehension in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge and confinement for five months. On 28 February 2013, the convening authority approved the adjudged sentence.
United States v. Russo, No. 20120430, slip op. at 1 (A.Ct.Crim.App. Nov. 19, 2013) (emphases added) (link to unpub. op.). The court finds that the “over 300 days” that elapsed between the appellant’s trial and the convening authority’s action, where the trial proceedings resulted in a transcript “a mere 84 pages in length,” and where there is no proffered explanation or justification for the delay, “warrants relief even in the absence of prejudice.” Slip op. at 2. But then:
the court affirms only so much of the sentence as provides for a bad-conduct discharge and confinement for three months.
Id. (emphasis added). Unfortunately for the appellant, he finished serving the entire five month sentence over a year ago.