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The US military doesn’t use the regular civilian criminal courts to try service members accused of committing crimes. Rather, the military has special criminal courts, called courts-martial.
Like defendants in civilian courts, service members have a way of appealing their convictions. But the process is different than the one used in civilian criminal appeals.
What’s An Appeal?
Basically, an appeal, or in military jargon, a post-trial review, is when one side of the case – either the government or the accused service member – disagrees with the outcome of the case and another judge or higher court looks at it again for errors or mistakes. Generally, there isn’t a new and independent decision about whether an accused actually committed the crime. Rather, the court or judge looks at the case to see if the court-martial made a legal mistake that makes the service member’s unfair or unlawful.
Like any criminal matter, appealing a court-martial conviction is usually a complicated process. If you’re looking to have your conviction reviewed, carefully read the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM). If possible, talk to an attorney from the judge advocate general office’s on your base or contact an experienced civilian military law attorney.
The post-trial review process for your case depends on what type of court-martial convicted you and your sentence or punishment.
If you were convicted by a special or general court-martial, and your sentence includes a bad conduct or dishonorable discharge from the service, then the convening authority (CA) will automatically review your case. (The CA is the person, usually your immediate commander, who sent or referred your case to the court-martial).
The CA has the power approve the sentence, suspend all or part of the sentence, disapprove or throw out your conviction or sentence, or reduce the sentence. She can’t increase it, though. For example, if you received a bad conduct discharge with one year in jail and a pay reduction, the CA may reduce the jail time to 6 months and leave everything else the same. But, she can’t order you to serve 14 months.
If the CA approves your sentence and it includes one year or more in jail, a bad-conduct or dishonorable discharge, dismissal (if you’re a commissioned officer), or death, then you have the right to appeal to Court of Criminal Appeals for your branch of the service:
- Air Force Court of Criminal Appeals
- Army Court of Criminal Appeals
- Coast Guard Court of Criminal Appeals
- Navy-Marine Corps Court of Criminal Appeals
Unless your case involves the death penalty, the appeals court has discretion to hear your case or not. In other words, it doesn’t have to take your appeal.
If the appeals court lets your conviction or sentence stand, you may ask the Court of Appeals for the Armed Forces (CAAF) to review your case. Again, this court doesn’t have to listen to your appeal unless:
- Your sentence includes the death penalty, or
- The judge advocate general of your branch of the service orders or sends your case to the CAAF for review
After the CAAF has reviewed your case and you still believe your conviction or sentence is unfair or unlawful, you may ask the US Supreme Court to hear your case. This is done by filing a petition for a writ of certiorari. Here you explain why the Court should hear your case and what you’d like it to do, such as throw out your conviction or lower your sentence.
All Other Cases
Your options for review are limited if you were convicted by a summary court-martial or your sentence doesn’t include a bad-conduct or dishonorable discharge, one year or more in jail, dismissal, or death. The rules and procedure are different for each branch of the service.
Generally, however, the case is reviewed by a judge advocate to determine if the conviction and sentence, as approved by the CA, are proper. If she agrees with the CA, your conviction and sentence are final. If not, she’ll send the case to a general court-martial CA for review. If the CA does nothing, the case is sent to the Judge Advocate General for review. If he agrees, the case is over. If not, he may send it to your service’s Court of Criminal Appeals, where the process above begins.
Questions for Your Attorney
- Why would I hire a private civilian attorney rather than have an appointed military lawyer handle my appeal?
- What are the chances of the Supreme Court hearing my appeal?
- Will the same military lawyer I had at the court-martial represent me on appeal?