Appeals of Court-Martial Convictions Through the Legal Process
A court-martial can take three forms: summary, special, or general. 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. 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 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.
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.
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.
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.
Military Law Center Contents