This page deals with appeals from nonjudicial punishment under UCMJ Article 15, and from a court-martial conviction.
UCMJ Article 15
A person punished under UCMJ Article 15 has the right to appeal to the next superior in the chain of command. Normally you only have five days in which to appeal, but that time can and should be extended for good cause. One point to remember that a timely filed appeal delays imposition of a punishment to extra duty or restriction pending the outcome of the appeal. An appeal can possibly result in a new hearing, a reduction in punishment, or the punishment dismissed altogether.
Further information can be found in Para. 7, Part V., Manual for Courts-Martial, which should be available in every unit administration office, legal office, or base library. The MCM is available on line at this link.
Summary court-martial.
Special (SPCM) or general court-martial (GCM).
If you were prosecuted at SPCM or GCM, and your sentence included a punitive discharge or at least one year confinement you case will be reviewed by the court of criminal appeals (CCA). Unlike a civilian court the CCA acts as a “second jury” and can reverse a finding of guilty. The CCA can also reduce your sentence. See e.g. United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) and United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), interesting companion cases. Basically what this means is that each of the judges of the court have to be personally satisfied that you are guilty beyond reasonable doubt. Even if you were convicted at trial the judges can decide that you shouldn’t have been found guilty and enter a not guilty finding.
[A CCA] may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
The CCA has on occassion been colorfully referred to as the 800-lb gorilla.
This awesome, plenary, de novo power of review grants unto the Court of Military Review authority to, indeed, “substitute its judgment” for that of the military judge. It also allows a “substitution of judgment” for that of the court members.
United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).
Moreover, Courts of [Criminal Appeal] are something like the proverbial 800-pound gorilla when it comes to their ability to protect an accused.
United States v. Parker, 36 M.J. 269 (C.M.A. 1993).
A finding of not guilty at trial cannot be overturned on appeal. Your sentence cannot be increased on appeal.
If the CCA denies your appeal then you have the right to petition the Court of Appeals for the Armed Forces (CAAF). Unlike the CCA, the CAAF may only act as to matters of law.
If the CAAF denies a petition for review your appeals are complete and the case is final, you do not have a right to petition the United States Supreme Court.
If the CAAF grants your petition but decides the case against you then you can petition the United States Supreme Court for a writ of certiorari.
If you were prosecuted and convicted at GCM, but you did not get a punitive discharge and at least one year confinement, your case will be reviewed in the Office of The Judge Advocate General (TJAG). You don’t have to do anything to request this review, it is automatic. But, and you are not told this, you can submit an appeal type brief or request that the TJAG take specific types of actions in your case. If the TJAG has already acted you can request a reconsideration. An experienced civilian military lawyer can help you submit your brief.
If your case was a SPCM and you did not get a bad conduct discharge, then you have the right to petition the TJAG to review your case. There is a two year post-trial deadline for submitting a petition.
If your case was reviewed under either 69(a) or 69(b), the TJAG can certify your case to the court of criminal appeals for further appellate review. The rules do not say this, but you can ask the TJAG to do just that.
An experienced civilian military lawyer can help you with an appeal. Contact us for more information and to discuss your appeal.
Waiver. One interesting point is that a person can waive their appeal. LTC Lakin just did this in his case. By withdrawing from appellate review it is possible to speed up the process of complete separation from the military. On the down-side, any further appeal of a military conviction is forfeited; and most importantly for those with a family, medical benefits end.
