We are familiar with post-conviction challenges to convictions obtained under the Uniform Code of Military Justice (UCMJ).
Appealing Convictions from Special and General Court-Martials
If you are convicted by special or general court-martial, your case will get automatically reviewed by the person who referred the case for court-martial. This person, called the “convening authority,” has the right to mitigate the findings and sentence. “Mitigate” means the convening authority can reduce the charge you were convicted of and/or reduce your sentence. The convening authority can also dismiss the charges. The one thing the convening authority cannot do is increase the sentence imposed.
The convening authority may seek advice from the judge advocate (military counsel) while conducting this review. Reviews of courts-martial are governed by the Uniform Code of Military Justice, 10 U.S.C. § § 859-876, and the Manual for Courts-Martial. (See also the 2018 Amendments to the Manual for Courts-Martial)
If you are not satisfied with the results of the convening authority review, you may be able to appeal to the military court of appeals for your branch of the service.
Right to an Attorney
You have the right to an attorney during your court-martial proceedings and all the way through every level of appeal you file. You can either use the military defense attorney (called a judge advocate) or you can retain the the National Post-Conviction Project, who will provide you with a qualified team experienced in court martial defense, supervised by an attorney knowledgeable regarding court martials.
Military Courts of Appeals
Special court-martial and general court-martial convictions can sometimes be appealed to the military courts of appeal. Military judges sit on the Court of Criminal Appeals.
There are four military courts of appeals:
- Army Court of Criminal Appeals
- Navy-Marine Corps Court of Criminal Appeals
- Air Force Court of Criminal Appeals, and
- Coast Guard Court of Criminal Appeals.
If your sentence is a dishonorable discharge, bad conduct discharge, dismissal (if you are an officer), confinement for at least a year, or death, your case will automatically be reviewed by a military court of appeal. For other sentences, the courts of appeal have discretion about whether to hear your case or not. You can also petition the JAG to order your case to be reviewed by the court of criminal appeals, but such petitions are rarely granted.
If you are unable to obtain review through the appeals court, you also have the right under Article 69 of the Uniform Code of Military Justice to request that your case be reviewed by the Judge Advocate General.
How the Military Courts of Appeals Review Your Case
The court that reviews your case will look for any legal mistakes or errors made in deciding facts that were made to the court-martial as well evaluate the level of punishment imposed. The court can change your sentence but cannot make it more severe.
Likewise, the court will review the facts and evidence presented to make sure you were proven guilty “beyond a reasonable doubt.”
If you pled guilty and received a punitive discharge or confinement of a year or more, your guilty plea will also be evaluated. This is to make sure you really believed you were guilty and did not, during the course of the proceedings, indicate that you believed you were innocent.
Court-martial convictions with lesser sentences than those described above are reviewed by judge advocates.
If your appeal to the military appeals court in your branch is not successful, the next step is to consider an appeal to the Court of Appeals for the Armed Forces.
Appealing to the U.S. Court of Appeals for the Armed Forces
Not all cases can be heard by the Court of Appeals for the Armed Forces. However, if you have been sentenced to death, you have an absolute right of appeal to this court. In other cases, your attorney will need to file a petition to the court showing “good cause” (meaning , a good reason) why your case should be reviewed. The court can agree to hear your case or can decline. The court is required, however, to hear any cases sent by the Judge Advocate General (JAG) for review. The JAG will order a review if there has been a legal error or an inappropriate sentence imposed. You can ask the Judge Advocate General to send your case to the court but this request will very rarely be granted.
The scope of review by the Court of Appeals is limited. All it can do is look for any legal errors made by the military appeals court. It will not look at the facts and identify any factual errors made. It will only look to see if the military appeals court made a mistake when applying the law to the facts of your situation.
Filing a Writ of Habeus Corpus
The Courts of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces can also hear petitions under the All Writs Act, 28 U.S.C. § 1651. These are called writs of habeus corpus and they are generally filed only in extraordinary circumstances when no other avenue of relief is available. For more information about these writs, contact the National Post-Conviction Project.
Appealing to the United States Supreme Court
The U.S. Supreme Court reviews only a tiny handful of cases that it receives each year, and the Court has enormous discretion about which cases it will decide to hear. Even if you have been sentenced to death, the Supreme Court has the discretion to hear your case. Not all decisions of the U.S. Court of Appeals for the Armed Forces can be appealed to the U.S. Supreme Court.
Throughout the appellate process, and even after it is over, you have the right to petition the convening authority (the person who originally brought charges against you), the Judge Advocate General, and the clemency board for your branch, for “clemency” (lenience). Through clemency, all or part of your sentence can be suspended.
Appealing a Summary-Courts Martial
You have different appeal rights if you were convicted of an Article 15 offense through a Summary Court-Martial. There is no automatic review process for an Article 15 conviction; you’ll need to request an appeal.
You have the right to appeal an Article 15 to the next higher level of command, where typically a lawyer from the staff judge advocate’s office reviews it and sends it to the senior commander for a decision. (You can request that your punishment be delayed pending the outcome of the appeal.) The commander can affirm the guilty finding and punishment, reduce the punishment, or set the Article 15 aside and entirely remove all punishment. You have five days from the time your punishment is announced to request this appeal.
If you are not successful, you cannot appeal to the military appeals courts because they have no authority to review Article 15s. You can ask the Judge Advocate General to review your case, and if that doesn’t work, you can appeal to the Board of Correction for Military Records.
In What Ways Can a Military Court Conviction Be Reviewed By a Federal Civil Court?
A federal civil court can review a military court conviction if it deals with issues of federal or constitutional law. Some of the more common examples include:
- Petitioning for a writ of habeas corpus: arguing that a military conviction constitutes unlawful imprisonment
- Petitioning for a writ of mandamus: trying to force a military court to do something under a direct order from the federal civil court
- Enforcement of the Tucker Act: attempting to recover for lost pay or benefits as a result of a court martial conviction
- Seeking injunctive relief: asking the federal civil court to force the military court to do something
Are There Any Requirements or Restrictions Before a Federal Civil Court Can Review a Military Court Conviction?
Yes. A federal civil court cannot review a military court decision unless the person convicted has exhausted all possible remedies. In other words, the person must have no other option to contest the military courts decision besides a federal civil court. An additional requirement for habeas corpus cases requires that the convicted person currently be imprisoned or in custody at the time they file their petition.
Are There Any Restrictions on a Federal Civil Court Once a Review Takes Place?
Yes. Many federal courts believe that review of a military court conviction is strictly procedural. In other words, as long the military court provided a fair and reasonable trial to the convicted person, these federal courts feel there is no need to review the decision.
In contrast, other federal courts believe that they can review the decision itself, so long as it deals with issues of federal or constitutional law.