U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32416
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UNITED STATES
Appellee
v.
Braxton T. SWAFFORD
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 17 October 2017
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Military Judge: Mark W. Milam.
Approved sentence: Bad-conduct discharge, confinement for 2 months,
and reduction to E-1. Sentence adjudged 29 March 2016 by SpCM con-
vened at Sheppard Air Force Base, Texas.
For Appellant: Major Allen S. Abrams, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary
Ellen Payne, USAF; Major Meredith L. Steer, USAF; Captain Sean J.
Sullivan, USAF; Gerald R. Bruce, Esquire.
Before DREW, MAYBERRY, and DENNIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Chief Judge
DREW and Senior Judge MAYBERRY joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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DENNIS, Judge:
A military judge sitting as a special court-martial convicted Appellant, in
accordance with his pleas, of one specification of wrongful use of marijuana on
divers occasions and one specification of wrongful distribution of marijuana on
United States v. Swafford, No. ACM S32416
divers occasions, in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a. The military judge sentenced Appellant to a bad-
conduct discharge, confinement for two months, and reduction to the grade of
E-1. The convening authority approved the sentence as adjudged.
Appellant’s single issue on appeal is whether a 9-day violation of the 30-
day post-trial processing standard for forwarding the record of trial for appel-
late review warrants modest relief pursuant to United States v. Tardif,
57 M.J.
219 (C.A.A.F. 2002). Finding no material prejudice to Appellant’s substantial
rights, we affirm.
I. BACKGROUND
While assigned to Sheppard Air Force Base, Texas, Appellant struggled to
acclimate to his new life in the Air Force. He eventually began using marijuana
he received from a civilian friend. At some point, Appellant was asked by sev-
eral trainees visiting the base whether he could obtain marijuana for them and
he agreed.
Appellant’s trial convened and adjourned on 29 March 2016. The staff judge
advocate’s recommendation (SJAR) was completed on 19 May 2016 and served
on Appellant on 2 June 2016. On 10 June 2016, Appellant submitted a waiver
of his clemency through his defense counsel. The addendum to the SJAR was
signed on 16 June 2016 as was the convening authority’s action. Appellant’s
record of trial was docketed with this court on 25 July 2016.
II. DISCUSSION
United States v. Moreno,
63 M.J. 129, 142 (C.A.A.F. 2006), established a
presumption of unreasonable post-trial delay when a record of trial is not dock-
eted with the service court within 30 days of the convening authority’s action.
When such a facially unreasonable delay occurs, there are two phases to our
analysis of whether an appellant is entitled to relief. First, we determine
whether the delay amounts to a denial of Appellant’s due process right to
speedy post-trial review and appeal.
Id. at 135. Next, even if we find no due
process violation, we also consider whether this court should exercise its power
under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to grant relief for excessive post-
trial delay.
Tardif, 57 M.J. at 224.
In this case, 39 days elapsed between the convening authority’s action and
docketing with this court, exceeding the Moreno standard by nine days. See
Moreno, 63 M.J. at 142. Appellant requests that we exercise our Article 66(c)
authority to grant meaningful relief pursuant to Tardif, but he does not assert
a due process violation.
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United States v. Swafford, No. ACM S32416
We are required to conduct a due process analysis because a facially unrea-
sonable delay exists.
Moreno, 63 M.J. at 136. 1 Where an appellant has not
shown prejudice from the delay, there is no due process violation unless the
delay is so egregious as to “adversely affect the public’s perception of the fair-
ness and integrity of the military justice system.” United States v. Toohey,
63
M.J. 353, 362 (C.A.A.F. 2006). Here, Appellant has alleged no prejudice, and
we find none. We are not persuaded that the nine-day delay, and the reasons
therefor, 2 are sufficiently egregious to bring discredit upon the fairness or in-
tegrity of the military justice system. Accordingly, we find no due process vio-
lation.
Next, we turn to Appellant’s request for relief under Tardif. 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), this court identified several factors to determine whether re-
lief is warranted for delays in post-trial processing. These factors include: (1)
how long the delay exceeded the standards set forth in Moreno; (2) what rea-
sons, if any, the Government set forth for the delay, and whether there is any
evidence of bad faith or gross indifference to the overall post-trial processing of
this case; (3) whether there is some evidence of harm (either to an appellant or
institutionally) caused by the delay; (4) whether the delay has lessened the
disciplinary effect 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) given the passage of
time, whether this court can provide meaningful relief in this particular situa-
tion.
Gay, 74 M.J. at 744.
Having considered these factors on balance, we do not find that the exercise
of our Article 66(c) authority to modify the sentence is warranted. While we
note that the 30-day processing goal is the easiest of all Moreno standards to
accomplish, when viewed as a whole, the processing of Appellant’s case has not
been subjected to excessive post-trial delay. We find no material harm to the
1 We consider four factors in determining whether post-trial delay amounts to a viola-
tion of due process rights: (1) the length of the delay; (2) the reasons for the delay; (3)
the appellant’s assertion of his right to a timely review; and (4) prejudice to the appel-
lant.
Moreno, 63 M.J. at 135. “No single factor is required for finding a due process
violation and the absence of a given factor will not prevent such a finding.”
Id. (citing
Barker v. Wingo,
407 U.S. 514, 533 (1972)).
2 In an apparent effort to minimize delays in the processing of Appellant’s case, the
base legal office prepared only enough copies of the record of trial for Appellant and
his defense counsel. The remaining copies of the record required for docketing were
prepared after action had already been taken while the legal office was also processing
several other ongoing courts-martial.
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United States v. Swafford, No. ACM S32416
public’s perception of the integrity of the military justice system, this court’s
ability to conduct our review of whether relief is warranted, or Appellant’s due
process rights. See
Toohey, 63 M.J. at 362.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
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