## Facts

- Gilbert T. Allende, a U.S. Navy Mess Management Specialist Second Class, was tried by a general court-martial with officer and enlisted members.
- He was convicted of violating a lawful order (Article 92), four specifications of larceny (Article 121), and obtaining services by false pretenses (Article 134).
- The convening authority approved a sentence including a bad-conduct discharge, one year of confinement, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.
- Post-trial processing was extraordinarily slow: 2,484 days elapsed from trial adjournment to completion of Article 66 review, including 734 days while the case was with a panel.
- During the pending appeal, the discharge document (DD-214) was not issued under prevailing practice; Allende asserted this harmed his employment prospects.
- Allende submitted an affidavit claiming at least six potential employers declined to consider him due to the absence of a DD-214, but he provided no corroboration from employers.
- On appeal, an issue arose because trial counsel had erroneously authenticated the record of trial; a properly authenticated substitute record was available for review.
- The Navy-Marine Corps Court of Criminal Appeals affirmed the findings and reduced confinement to nine months due to post-trial delay as sentence appropriateness relief.

## Issues

1. Whether the lower court properly assessed prejudice after finding the record of trial was erroneously authenticated by trial counsel.
2. Whether the 2,484-day post-trial delay violated due process, where the appellant alleged employment-related harm tied to the delayed issuance of a DD-214.

## Decision

- CAAF affirmed the service court’s decision.
- Any error from trial counsel’s erroneous authentication was harmless because appellate review proceeded on a properly authenticated substitute record and no material prejudice was shown.
- The post-trial delay was facially unreasonable, but Allende failed to prove actual prejudice sufficient to establish a due process violation.
- The sentence relief granted by the service court (reducing confinement to nine months) remained in effect as discretionary relief, not as a constitutional remedy.

## Legal Principles

- Record-authentication defects do not warrant relief absent material prejudice to substantial rights; a properly authenticated substitute record can cure an authentication error for appellate review purposes.
- Excessive post-trial delay may be facially unreasonable, but a due process violation requires a showing of actual prejudice; delay alone is insufficient.
- Employment-related prejudice from appellate delay must be supported by objective evidence; an appellant’s uncorroborated affidavit about employer decisions is generally insufficient where employer statements or similar proof are reasonably available.
- Service courts may grant sentence relief for post-trial delay under Article 66 sentence-appropriateness authority even when no due process violation is established.

## Conclusion

CAAF held that substitute authentication rendered the record-authentication error harmless and that, despite extraordinary post-trial delay, due process relief was unavailable because the appellant did not substantiate employment-related prejudice; discretionary sentence relief granted by the service court was affirmed.


United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008)