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for “unreasonable and unexplained post-trial delays” without a finding of prejudice, it was in a discussion of an unpublished decision of the Air Force CCA in United States v. Carr, No. 38025 (Aug 15, 2013) and the old commercial that asked, “How many licks does it take to get to the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.

5 Responses to “Meaningless Tardif relief from the Army CCA”

  1. Bill Cassara says:

    Zach:  I may be wrong, but doesn’t he get two months of base pay for this?  

  2. Zachary D Spilman says:

    You know, I didn’t catch this at the time, but you’re right that under Article 58b the appellant automatically forfeited 2/3 of his pay while confined (this being a special court-martial). So, with no adjudged forfeitures, he should get that 2/3 pay back for those two months.

    Except for two big caveats. First, if the appellant was past his expiration of obligated service (EAOS) date, he had no pay due (see this post). And I note that this was a UA terminated by apprehension case with no adjudged forfeitures or reduction of rank (and the appellant was an E-2), so I think the odds of the appellant being past his EAOS are pretty good (unlike automatic forfeitures under 58b, automatic reduction under 58a isn’t effective until the CA acts).

    Second, the appellant pleaded guilty pursuant to a pretrial agreement, and I can’t imagine that the agreement didn’t require him to request voluntary appellate leave after the sentence was announced. If he wasn’t on voluntary appellate leave, he would have been hanging around the unit (as an E-2) until the convening authority acted and placed him on involuntary appellate leave. And I consider the chances that the CA would wait 301 days to act if the appellant was still hanging around to be zero (unless he went UA again, but then there would really be no pay due).

    The common pretrial agreement term regarding voluntary appellate leave is that it must be requested “within 14 days of announcement of the sentence.” Assuming that or a similar term was used in this case, the appellant would have had no pay due once released from confinement, regardless if it was after 3 months or 5 months time served.

    In fact, assuming he did request voluntary appellate leave within 14 days of the sentence being announced, and assuming that he was placed on appellate leave effective the day he was released from confinement, one could argue that the effective date of his appellate leave is now two months earlier.

    Meaning the appellant now owes the government 1/3 pay plus allowances for those two months.

    Will DFAS come looking for that money? Who can say. But there is a budget crisis, don’t-cha-know.

  3. Bill Cassara says:

    Actually in the Army that term is pretty rare in my experience.  And wouldn’t his ETS (EAOS for you in the water) date be pushed back for the time he was AWOL?   But in the long run, you are right.  This is the epitome of a Pyrrhic victory.

  4. stewie says:

    Correct, it’s all bad time and not counted for purposes of ETS.  The only way it would count is if he went AWOL near his ETS date and that once he returned to control then he went past his obligation.I think the larger question is, how do you crack the nut of post-trial delay?  On the one hand, I know first-hand that many SJA shops are understaffed in the court-reporter realm and there are legit reasons why some of these take so long (and less than legit reasons some of the time too).  On the other hand, any staffing issues are on the Government with a big G.

  5. Charlie Gittins says:

    Although I am no longer counsel of record, I hear that the SGT Bozicevich record of trial still has not been authenticated — 2 years and 4 months after the trial ended.  Talk about unreasonabkle delay . . . . .