Appeals of Court-Martial Convictions
A court-martial can take three forms: summary, special, or general. (Read more here about the distinctions among these proceedings.) You can appeal a conviction at a summary court-martial to the next higher level of command within five days of receiving your sentence. The commander at the higher level can decide whether to leave the punishment in place, reduce the punishment, or eliminate it altogether. They cannot increase the punishment. You do not have a right to appeal a conviction from a summary court-martial to military appeals courts. If you are not satisfied with the senior commander’s decision, you can submit an appeal to the Judge Advocate General and potentially the Board of Correction of Military Records.
The rest of this discussion covers appeals from convictions at special or general courts-martial. These appeals proceed through military courts of appeals. You have a right to a free military defense attorney throughout the appeals process, and you can hire a civilian defense attorney at your own cost if you choose. Before your case goes to a military court of appeals, however, it will be automatically reviewed by the convening authority. This is the person who initially referred the case to a court-martial. They cannot increase the penalties but only can reduce or eliminate them. They may consult a judge advocate to guide them in their decision.
Understanding the Military Courts of Appeal
There are four courts of criminal appeals in the military: the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Air Force Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals. The court for the appropriate branch of the armed forces will review a case automatically if the penalties involve at least one year of confinement or a negative type of discharge. (They also review death penalty cases automatically.) A military court of appeal also may review other cases at their discretion. A service member who receives penalties that do not qualify for automatic review can ask the Judge Attorney General to submit their case to a court of appeal, but this is usually not successful. However, they can ask the JAG to review their case if it is not accepted for review by a court of appeal.
A military court of appeal will determine whether the service member was properly proven guilty beyond a reasonable doubt. They also will investigate any legal errors that may have occurred during the proceedings. The court of appeal cannot increase the penalties, but they can reduce the penalties or dismiss the case entirely. Any guilty plea that resulted in a negative discharge or at least one year of confinement also will receive an automatic review. This will consider whether the service member voluntarily pleaded guilty and did not maintain their innocence during the proceedings.
If you do not get the desired result at this stage of the appeals process, you can pursue a further appeal to the Court of Appeals for the Armed Forces. This court will automatically review a case if it involves the death penalty. It also must review a case if the JAG submits it for review, based on a finding that a legal error occurred or that a sentence was improper. (Again, a service member can ask the JAG to submit their case to this court, but this is usually not successful.) All other appeals will be granted on a discretionary basis, and the service member’s attorney will need to persuade the court that good cause justifies a review. Unlike lower military courts of appeal, the Court of Appeals for the Armed Forces will not consider the facts of the case. It will review the case only for legal errors by the lower court.
Further Options
If you have no remaining options for review, you can file a writ of habeas corpus with a lower military court of criminal appeals or the Court of Appeals for the Armed Forces. These are granted only in extraordinary circumstances. You also can seek review by the U.S. Supreme Court, although again this is unlikely to succeed. The Supreme Court is not required to hear any case, even those involving the death penalty, and some military criminal cases are not eligible for appeal to the Supreme Court.
One final option involves asking for clemency, which you can do at any stage of the appellate process or afterward. Read more here about requesting clemency.
