Full Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before the Court Sitting En Banc 1 UNITED STATES, Appellee v. Sergeant DA YTRON ABDULLAH United States Army, Appellant ARMY 20230223 Headquarters, Fort Carson Jacqueline L. Emanuel, Military Judge Lieutenant Colonel Kenton E. Spiegler, Acting Staff Judge Advocate (pretrial) Lieutenant Colonel Abraham L. Young, Acting Staff Judge Advocate (post-trial) For Appellant: Colonel Philip M. Staten, JA; Major Mitchell D. Herniak, JA; Major Amanda R. Williams, JA (on brief); Colonel Philip M. Staten, JA; Lieutenant Colonel Autumn R. Porter, JA; Major Mitchell D. Herniak, JA; Major Amanda R. Williams, JA (on reply brief). For Appellee: Colonel Christopher B. Burgess, JA; Lieutenant Colonel Jacqueline J. DeGaine, JA; Major Kalin P. Schlueter, JA (on brief). 6 November 2026 OPINION OF THE COURT ON REMAND COOPER, Senior Judge: Appellant asserts he is entitled to relief for 163 days of post-trial delay. Having considered the entire record, we disagree. Even if we were to conclude that 163 days constitutes excessive post-trial delay in this case, we find: (1) it was not "so egregious that tolerating it would adversely affect the public's perception of the fairness and integrity of the military justice system," United States v. Anderson, 82 M.J. 82, 87 (C.A.A.F. 2022) (citation omitted); and (2) setting aside appellant's bad­ conduct discharge is not appropriate relief under Article 66(d), Uniform Code of Military Justice, 10 U.S.C. § 866(d) (2018) [UCMJ]. 1 Judge BURGESS did not participate in this case. ABDULLAH - ARMY 20230223 BACKGROUND A military judge, sitting as a special court-martial, convicted appellant, pursuant to his pleas, of one specification of desertion, one specification of absence without leave, one specification of willfully disobeying a superior commissioned officer, and one specification of wrongful use of a Schedule I controlled substance, in violation of Articles 85, 86, 90, and 112a, UCMJ. Pursuant to his plea agreement, the military judge sentenced appellant to a bad-conduct discharge, confinement for ninety days, and to be reduced to the grade of E-1.2 Appellant's one-day trial took place on 20 April 2023. Appellant submitted matters under Rule for Courts-Martial 1106 on 1 May 2023. On 13 July 2023, the convening authority took no action on the findings or the sentence. The convening authority action was forwarded to the military judge on 3 August 2023, and on 8 September 2023, the military judge completed the Entry of Judgment (EOJ). The military judge subsequently completed her review and certification of the record of trial (ROT) on 22 September 2023. This court received the ROT on 30 September 2023, 163 days after the announcement of sentence. The Office of the Staff Judge Advocate (OSJA) included a "Post-Trial Processing Timeline" memorandum [hereinafter "post-trial memo"] in the ROT, dated 27 September 2023, and signed by the Post-Trial Noncommissioned Officer in Charge, which discussed personnel changeover and experience and operational tempo as factors that "may have hindered the processing time for US v. Abdullah." (emphasis added). PROCEDURAL HISTORY On initial review under Article 66, UCMJ, a panel of this court affirmed the findings but, based on delay in post-trial processing, affirmed only so much of the sentence as provided for ninety days of confinement. United States v. Abdullah 2 Although the military judge discussed awarding appellant fifty-one days of pretrial confinement credit during the plea colloquy, when she announced her sentence on the record, she neglected to say anything about the pretrial confinement credit. The Statement of Trial Results, however, correctly reflects an award of fifty-one days of confinement credit. Appellant is not asserting that he did not receive this credit, but to the extent there is any confusion, we confirm that appellant's sentence should properly reflect fifty-one days of pretrial confinement credit. See, e.g., United States v. McDonald, ARMY 9900233, 2000 CCA LEXIS 330 (Army Ct. Crim. App. 13 Jul. 2000) (mem. op.) (correcting the same error), pet. denied, 54 M.J. 353 (C.A.A.F. 2000). 2 ABDULLAH - ARMY 20230223 (Ahdullah T), ARMY 20230223, 2024 CCA LEXIS 199, at *12 (Army Ct. Crim. App. 30 Apr. 2024) (mem. op.). On 14 June 2024, this court granted the government's request for reconsideration en bane and vacated Abdullah I. On 5 November 2024, the en bane court affirmed the findings and sentence as adjudged. United States v. Abdullah (Abdullah II), 2024 CCA LEXIS 479, at *22 (Army Ct. Crim. App. 2024). The majority opinion concluded that the post-trial processing did not constitute unreasonable delay in violation of due process or Article 66, UCMJ, and that relief under Article 66(d)(2), UCMJ, was not appropriate. Id., at *13-16, 21-22. The Court of Appeals for the Armed Forces [CAAF] granted review to determine whether a retired appellate military judge and a judge on terminal leave impermissibly participated in the en bane decision. United States v. Abdullah, 86 M.J. 138 (C.A.A.F. 2025) (order granting review). The CAAF subsequently held that the en bane court was improperly constituted because a retired judge, no longer assigned to the court, participated in the decision without statutory authority. United States v. Abdullah (Abdullah III),_ M.J. __, 2026 CAAF LEXIS 512, at *9- 10 (C.A.A.F. 12 Jun. 2026). The CAAF set aside Abdullah II and remanded the record for "a new Article 66, UCMJ, 10 U.S.C. § 866 (Supp. III 2019-2022) review by a properly constituted en bane court." Id., at *21. Accordingly, sitting en bane, we now conduct a new independent review of the entire record as required by Article 66, UCMJ. LAW AND DISCUSSION We review allegations of unreasonable post-trial delay de novo. Anderson, 82 M.J. at 85 (citing United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006)). The CAAF has long recognized that service level courts of appeal have two separate and independent avenues to provide relief for dilatory post-trial processing: (1) the Due Process Clause of the Fifth Amendment; and (2) the statutory basis under Article 66, UCMJ. Id. (quoting Toohey v. United States (Toohey I), 60 M.J. 100, 101-02 (C.A.A.F. 2004). 3 3 Before the Military Justice Act of 2016 (MJA 2016) took effect in January 2019, Article 66(c), UCMJ, authorized this court to approve only "such part or amount of the sentence, as it f[ound] correct in law and fact and determine[d], on the entire record, should be approved." The MJA 2016 retained that authority in Article 66(d)(l) and added Article 66(d)(2), which permits us to provide appropriate relief for error or excessive post-judgment delay. See Pub. L. No. 114-328, 130 Stat. (continued . . .) 3 ABDULLAH -ARMY 20230223 Our superior court adopted the four factors from Barker v. Wingo, 407 U.S. 514 (1972), in order to provide a framework for analyzing post-trial delay and due process: "(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 (other citations omitted). In United States v. Toohey, our superior court further held: "no single factor [is] required to find that post .. trial delay constitutes a due process violation." 63 M.J. 353, 361 (Toohey II) (C.A.A.F. 2006) (alteration in original) (quoting Moreno, 63 M.J. at 136). Our superior court recently affirmed the application of these factors in analyzing due process post-trial delay in Anderson. 82 M.J. at 86-88. With respect to the length of the delay, in Moreno, our superior court established a presumption of reasonableness for post-trial processing where the convening authority took initial post-trial action within 120 days of trial, and the case was docketed with this court 30 days later. 63 M.J. at 142. In light of the changes implemented by MJA 2016, we modified our post-trial delay jurisprudence in United States v. Brown by holding that "this court will presume unreasonable delay in cases where more than 150 days elapse between final adjournment and docketing with this court." 81 M.J. at 510 (citations omitted). In United States v. Winfield, issued one week after the trial in appellant's case adjourned, we abandoned Brown's 150-day time limit, finding instead that some cases might "justifiably take longer than 150 days to process for appellate review" while others should take significantly less time. 83 M.J. at 665. Instead of imposing a bright-line time limit, we held that in determining the reasonableness of the delay, "we will scrutinize even more closely the unit-level explanations for post­ trial processing delays." Id. We also further explained, "we are consistently interested to know about a case's transcript length, competing requirements (e.g., actual operational exigencies, in-court coverage), military judge availability, court reporter availability and utilization for transcription, and resource shortfalls (e.g., insufficient throughput capacity despite court reporter regionalization)." Id. at 666 (emphasis in original). When considering whether a delay is unreasonable, this (. . . continued) 2000, 2933 (2016). Nothing in Article 66(d)(2), UCMJ, indicates that Congress intended to displace due process analysis or to limit this court's established Article 66(d)(l) discretion to grant relief for dilatory post-trial processing. See United States v. Brown, 81 M.J. 507, 511 n.2 (Army Ct. Crim. App. 2021) ("We reject any argument that Article 66(d)(2), UCMJ, somehow cabins our broad and well­ established sentence appropriateness authority under Article 66(d)(l), UCMJ, to provide relief for dilatory post-trial processing occurring at other phases of a court­ martial."), rev'd on other grounds, United States v. Winfield, 83 M.J. 662 (Army Ct. Crim. App. 2023). 4 ABDULLAH - ARMY 20230223 court broadly focuses "on the totality of the circumstances surrounding the post-trial processing timeline for each case, balancing the interplay between factors such as chronology, complexity, and unavailability, as well as the unit's memorialized justifications for any delay." Id. In this case, we find no due process violation. Considering the length of the delay, although discrete portions of the post-trial processing were less than efficient, the overall 163-day period does not weigh in the appellant's favor. We note it took the convening authority seventy-three days to take no action on appellant's sentence and another twenty-one days to transmit the convening authority's action to the military judge to complete the EOJ. The government certainly could have moved with greater efficiency, especially on this short transcript of 100 pages with only four government exhibits and four appellate exhibits. However, we do not find the 163 days of delay here is so egregious that it weighs in appellant's favor, despite exceeding the standard under Moreno. With respect to the purported reasons for the delay, we emphasized in Winfield that "Staff judge advocates who decline to memorialize delays with thorough, credible, and relevant specificity do so at the peril of their units' cases on appeal." 83 M.J. at 665-66. Following Winfield, a responsible party within the OSJA, with supervisory oversight of the post-trial process, should provide a detailed explanation for lengthy lapses of progress in post-trial processing. Here, we do not find the post-trial processing memo provided by the OSJA adequately explains the periods of time in which the processing of this case lagged. As noted above, it took the convening authority seventy-three days after the submission of appellant's post-trial matters to act on appellant's sentence and it took the government another twenty-one days to complete the ministerial task of transmitting the convening authority's action to the military judge. With no explanation for these delays in the post-trial memo, this court lacks information necessary to consider the totality of the circumstances surrounding the delay. In accounting for delays, "personnel and administrative issues, such as those raised by the Government in this case, are not legitimate reasons justifying otherwise unreasonable post-trial delay." United States v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011) (citations omitted). As such, the second Barker factor weighs in favor of appellant. As to the third Barker factor, because appellant did not assert his right to a timely review and appeal, this factor weighs in favor of the government. When there is no finding of prejudice under the fourth Barker factor, as is the case here, a due process violation only occurs when "in balancing the three other factors, the delay is so egregious that tolerating it would adversely affect the public's perception of the fairness and integrity of the military justice system." Anderson, 82 M.J. at 87 (quoting Toohey II, 63 M.J. at 362). 5 ABDULLAH - ARMY 20230223 We do not believe that unique facts and circumstances exist in this case that would affect the public's perception of fairness and integrity of the military justice system such that a due process violation occurred. First, we do not find that the post-trial delay of 163 days is so extreme that the delay alone would negatively impact the public's perception of our military justice system. Second, our military justice system, rooted in Article I of the U.S. Constitution, is a disciplinary system the purpose of which is "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States." Manual for Courts-Martial, United States (2019 ed.), pt. I, ,r 3. Appellant's disregard for lawful military authority and regulations on multiple occasions, particularly as a noncommissioned officer, was significant. For these reasons, we find nothing unique in this case that would have an adverse impact on the public's perception of the fairness and integrity of the military justice system. Appellant asserts that this court should grant relief not for a due process violation, but rather because the post-trial delay in this case is excessive under Article 66(d)(2), UCMJ. Article 66(d)(2), UCMJ, dictates that we "may provide appropriate relief' upon a demonstration of "error or excessive delay in the processing of the court-martial" after entry of judgment. (emphasis added). Article 66( d)(2), UCMJ, leaves the determination as to whether relief is provided, and what type of relief is appropriate, to this court's discretion. The CAAF held in United States v. Valentin-Andino that while relief must be "appropriate"-meaning "suitable considering the facts and circumstances surrounding that case"-this standard neither requires the court to grant objectively meaningful relief nor obligates it to explain its reasoning. 85 M.J. 361, 367 (C.A.A.F. 2025). Having considered appellant's request, we find the twenty-two-day delay between entry of judgment and our receipt of the ROT was not excessive, and no relief is appropriate under the facts and circumstances of his case. Recognizing we are under no obligation to explain our reasoning, we choose to do so here to provide clarity. Appellant committed multiple incidents of continued misconduct over the course of five months, which included driving while intoxicated, illegal use of a controlled substance, deserting his unit, disobeying a commissioned officer, driving a vehicle without a valid driver's license, registration, or insurance, and possession of a controlled substance in his barracks room.4 Appellant's misconduct only ceased once he was placed in pretrial confinement. A bad-conduct discharge is an appropriate characterization of appellant's service given the severity and breadth of his misconduct, even accounting for the mitigation 4 We acknowledge some of these acts constitute uncharged misconduct. These acts were included in the stipulation of fact signed by appellant in accordance with his plea agreement and entered into evidence at his guilty plea. 6 ABDULLAH - ARMY 20230223 evidence he presented during the presentencing hearing. We similarly conclude that appellant's sentence to 90 days of confinement and reduction to the grade of E-1 is appropriate under the circumstances. Therefore, even if we were to find the delay was excessive under Article 66(d)(2), we conclude no relief is appropriate in this case. For all the aforementioned reasons, there was no unreasonable post-trial delay in this case in violation of appellant's due process rights or in violation of Article 66(d)(2), UCMJ. CONCLUSION The findings of guilty and the sentence are AFFIRMED. Chief Judge FLOR, Senior Judge POND, Judge WILLIAMS, Judge JUETTEN, and JUDGE STEELE concur. MORRIS, Senior Judge, concurring in the result. While I agree with my colleagues in the majority that the post-trial delay in this case did not violate the Due Process Clause of the Fifth Amendment or Article 66(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 866, I write separately because I would have found the 163-days of post-trial delay excessive and weighed in favor of appellant under prong one of the Barker analysis. In United States v. Winfield, when this court overruled Brown's 150-day timeline, we acknowledged that "some cases justifiably take longer than 150 days to process for appellate review. Others should take significantly less time." 83 M.J. 662, 665 (Army Ct. Crim. App. 2023). By deciding that 163 days to process a record with a 100-page transcript that lacked any complex legal issues or errors and included minimal exhibits was not excessive, the majority has rendered this court's opinion that some cases should take significantly less time meaningless. SCHLACK, Judge, concurring in the result. I concur in the court's judgment affirming the findings and sentence. I agree appellant is not entitled to relief for post-trial delay under either the Due Process Clause or Article 66(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 866. I write separately because I would resolve the first Barker factor differently than the court does. I agree with the court's recitation of the governing legal standard and need not repeat it. My disagreement is with the court's application of that standard­ specifically, its conclusion that the length-of-delay factor does not favor appellant based principally on the aggregate number of days between trial and docketing. 7 ABDULLAH - ARMY 20230223 The Military Justice Act of 2016 (MJA 16) changed the post-trial process and the sequence of events leading to appellate review. See Pub. L. No. 114-328, 130 Stat. 2000, 2933 (2016). In United States v. Winfield, this court abandoned the 150- day presumption adopted in United States v. Brown and directed a case-specific inquiry into the processing of each record. 83 M.J. 662, 665-68 (Army Ct. Crim. App. 2023). The aggregate number of days required to process a case does not itself answer whether the delay was lengthy in that case, and unit-level explanations must explain identified periods of delay. For the reasons set forth by the court, this was an uncomplicated case with identified periods of government-controlled delay: seventy-three days after appellant submitted post-trial matters before the convening authority took no action, and another twenty-one days before that action was transmitted for completion of the Entry of Judgment. The post-trial memorandum does not meaningfully explain either period. I would therefore find that the first and second Barker factors favor appellant. I agree, however, that appellant did not assert his right to timely review, does not allege prejudice, and has not established a delay "so egregious that tolerating it would adversely affect the public's perception of the fairness and integrity of the military justice system." United States v. Anderson, 82 M.J. 82, 87 (C.A.A.F. 2022) (citation omitted). One final point bears mention. The post-MJA 16 process includes two periods in which delay may be difficult to identify or remedy: the period before entry of judgment and the period after entry of judgment but before this court has received appellant's record of trial. Before entry of judgment, the military judge retains authority over a case, and appellant may seek a post-trial session or other appropriate relief to accommodate for any delay. However, as the record may not contain a chronology accounting for each period of delay within pre-judgment processing, time may pass without any explanation in the record for why the case was not moving. I find this period especially troublesome since our current authorities under Article 66(d)(2), UCMJ, are limited to review of the time period following entry of judgment. After entry of judgment, trial proceedings have concluded, but the case may remain at the installation for any remaining transcription, certification, and transmittal. During this period, the case may remain undocketed at this court, leaving appellant-absent extraordinary relief-without an ordinary means to obtain this court's review of continued post-trial delay. These two periods are why unexplained government-controlled delay must receive meaningful weight in our evaluation of the Barker factors. If the absence of 8 ABDULLAH - ARMY 20230223 a bright-line rule becomes an unstated numerical safe harbor, where even egregious delay can be left untreated if it occurs during certain periods of the post-trial processing timeline, we diminish this court's ability to ensure accountable post-trial processing. My concern has not materialized in the present case. But if we ignore it, we risk creating a due process problem of our own making. For these reasons, I concur in the result. FOR THE COURT: rl���E�,Vf_· HERRING, JR. ff Clerk of Court 9