Court-Martial Appeals

If you have already been convicted at a court-martial, you may have the right to appeal your conviction.  As the former Senior Appellate Defense Counsel for the U.S. Coast Guard, Ms. Truax has extensive experience in the appeal of court-martial convictions, having appealed cases to the Coast Guard Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and the United States Supreme Court. 

How the military appeals process works:

Appeals to the Court of Criminal Appeals (CCA) are automatic if the sentence includes a punitive discharge or at least 12 months confinement. 

In cases where appeal is not automatic (including summary courts-martial), the record is reviewed by a judge advocate, who examines the record to determine whether there was jurisdiction over the servicemember and the offense, whether the specifications charged state an offense, and whether the sentence was legal.  The judge advocate recommends corrective action if he or she determines there was an error.  Additionally, you have the right to appeal to the Judge Advocate General of your service, but must do so within two years from the time the convening authority takes action in your case.  The Judge Advocate General can vacate, modify or set aside the findings or sentence or both, and also has the authority to refer the case to the CCA.

If the case does go to the CCA, the Judge Advocate General will detail a military attorney.  But the member is also entitled to hire civilian counsel at his or her own expense, and in most cases, the military counsel remains on the case, and plays an essential role on the defense team.

The appellate counsel reviews the record of trial for appealable issues, submits a brief to the court, and may orally argue the case.  The CCA has the authority to affirm the findings and sentence it believes to be “correct in law, correct in fact, and on the basis of the entire record should be approved.”  This means that, unlike almost all civilian appellate courts, the service courts of criminal appeal in a contested case are free to decide guilt or innocence all over again.  In a guilty plea case, the court decides whether the plea is valid, considering such things as whether there were statements made during or after the plea inquiry that were inconsistent with guilt, or whether the military judge asked enough questions to get all the required facts on the record. 

The CCA can set aside all or part of a finding of guilty, and, as noted, can set aside all or part of a sentence.  Also, regardless of the sentence that was actually adjudged by the court-martial, or approved by the convening authority, the CCA has the power to decide for itself what it thinks the appropriate sentence should be, but it cannot increase the severity of the sentence, and does not have the authority to suspend the sentence. 

The next step in the appellate process is the Court of Appeals for the Armed Forces (CAAF).  This court is made up of five civilian judges, sitting for 15-year terms.  The review is more limited than the Court of Criminal Appeals.  Unlike the CCA, the CAAF cannot decide questions of fact and cannot review the appropriateness of the sentence; it can only decide questions of law.  Also unlike the CCA, review at CAAF is permissive.  In order for that Court to hear the case, the member (or his or her attorney) must petition the Court for review, and the Court must agree to hear the issue.  If the Court declines to hear the case, the appeal is over.  If CAAF agrees to hear the case, the attorney files additional briefs with the Court and, in most cases, orally argues the case.  

If the appeal is unsuccessful at CAAF, the last stop is the U.S. Supreme Court.  Like CAAF, review by the Supreme Court is by petition, and appeal to the Supreme Court is limited to issues that were previously heard by CAAF.  The Supreme Court grants review in only a small percentage of cases, and usually only in cases of national importance.