If you are a service member who was convicted at a court-martial, you know the fight is not over. The military justice system gives you options to appeal the decision, reduce your sentence, or even overturn your conviction. This guide breaks down the complex process into simple steps, covering your rights and the many deadlines you must meet.
The Three Types of Court-Martial and Initial Appeals
The military has three forms of court-martial: summary, special, and general. The type of court-martial you had determines your first appeal steps.
In a summary court-martial, your first appeal is to the next level of command higher than the person who sentenced you. You must make this appeal within five days of sentencing. That senior commander can choose to leave your punishment as is, reduce it, or completely eliminate it. A commander cannot increase your punishment. If the ruling from the senior commander is not satisfactory, you may be able to appeal to a judge advocate, the Judge Advocate General, and possibly the Board of Correction of Military Records, but you do not have the right to appeal to a military court of appeals at this level.
Both special and general court-martial convictions can be appealed through a military court of appeals. However, all rulings for these two types of court-martial must first go to the convening authority. The convening authority is the person who referred your case to the court-martial in the first place. Like the senior commander in a summary court-martial, the convening authority can reduce, eliminate, or uphold the punishment, but they cannot make it harsher. They often consult a judge advocate for advice on their decision.
Strict Deadlines and Your Right to an Attorney
Time is the most important factor in military appeals. Unlike the civilian court system, military appeals have strict, short deadlines. For most appeals, you have about 90 days from the time you get the final court-martial order. However, some actions require a response in 30 days or less. If you miss these deadlines, you usually lose your chance to appeal, so acting quickly is essential to protecting your rights.
You always have the right to a defense attorney during an appeal. You can use a free military defense attorney, or you can pay out of pocket for a civilian defense attorney. While military defense lawyers are skilled, they may have less time and experience dedicated to successful appeals than a private lawyer might.
Clemency Request: The First 10 Days
Before any formal appeal begins, you have a chance to request clemency, or a pardon, from the convening authority. The 2024 Manual for Courts-Martial (MCM) limits this power, but the convening authority can still reduce or suspend parts of your sentence, especially for non-serious offenses. The deadline for clemency petitions is very short: only 10 days from when your sentence is announced. This makes it a crucial first move.
Initial Review by the Service Courts of Criminal Appeals
The military has four criminal appeal courts, one for each branch:
- The Army Court of Criminal Appeals
- The Air Force Court of Criminal Appeals
- The Navy-Marine Corps Court of Criminal Appeals
- The Coast Guard Court of Criminal Appeals
Your case will be automatically sent to the court for your specific branch if your sentence includes a punitive (disciplinary) discharge, a dismissal for an officer, or confinement of two years or more. This automatic review also covers death penalty cases.
These service courts check three main things: if the convicted service member was proven guilty in the proper legal manner, if there were any legal errors during the trial, and if the sentence is appropriate. Like the convening authority, these courts can uphold the sentence, reduce the penalties, or eliminate them, but they cannot increase the punishment.
Uniquely, these military courts can perform a “factual sufficiency” review. This means they can reweigh the evidence and judge the witness credibility themselves to make sure your guilt was proven beyond a reasonable doubt. This is a very powerful type of review that is not available in most civilian courts.
Legal Standards for Service Courts
When reviewing a case, the service courts apply different legal standards:
- De Novo Review: For questions purely about the law (like constitutional issues or UCMJ rules), the court reviews the issue from scratch without relying on the trial court’s conclusions.
- Harmless Error Standard: If your attorney objected to an error during the trial, the government has to prove that the error was “harmless beyond a reasonable doubt.” This is a favorable standard for the defendant.
- Plain Error Analysis: If an error happened but was not objected to during the trial, the appeals court uses a much higher standard to see if the error was so obvious and severe that it unfairly hurt your rights.
Grostefon Doctrine and TJAG Certification
As an appellant, you have a special right under the Grostefon Doctrine to personally bring up appeal issues, even if your military appellate defense counsel decides not to use them as their primary argument. Your attorney must formally present these personally asserted issues to the court, making sure all of your concerns are heard.
The Judge Advocate General (TJAG) of your service can also “certify” an issue to the next higher court. This happens when the TJAG believes the service court made a major legal mistake or when an important legal question needs to be settled at the highest level. This certification can work for or against a service member.
Higher Appeals: CAAF and the Supreme Court
If you are not successful at the service court level, you can petition the Court of Appeals for the Armed Forces (CAAF). This court has five civilian judges and is not required to hear your case; they select the cases they will review. You have 60 days from the service court’s decision to petition. The CAAF focuses on major legal errors and constitutional issues. They review about 15% of the cases that petition them.
The final appeal level is the US Supreme Court. A petition must be filed within 90 days of the CAAF decision. The Supreme Court rarely accepts military cases, only focusing on constitutional issues or questions of federal law with broad national impact.
Article 69 Review and Last Resort Options
Article 69 of the UCMJ permits the Judge Advocate General to review cases that do not qualify for automatic review by the service appellate courts. This includes all summary courts-martial and some special or general courts-martial with lighter sentences (less than two years of confinement and no punitive discharge). You must request this review within one year.
If you have no other options left, you can file a writ of habeas corpus with a military criminal appeals court or the US Supreme Court. These requests are rarely granted.
Get Help with Your Court-Martial Appeal
Going through the appeals process, especially with strict deadlines and complex legal standards, is a challenge. A successful appeal starts with immediate preparation and working with a knowledgeable military defense attorney. If you are convicted or are facing a court-martial, you have the right to have an experienced military criminal defense lawyer protecting your rights.
Contact a military criminal defense lawyer at Mangan Law today to discuss your case and begin preparing your appeal strategy within the strict timelines.