Your Right to Appeal Court-Martial Convictions – Upcoming Changes

The 2016 National Defense Authorization Act (NDAA) Will Change Your Ability to Appeal Court-Martial Convictions

The 2016 NDAA is the most wide-ranging change to the Uniform Code of Military Justice (UCMJ) since the Military Justice Act of 1983.  One of the significant changes is to your right to an automatic appeal from a court-martial conviction.  Currently, you have the right to an automatic appeal if your approved court-martial sentence includes:  1) death; 2) a dishonorable discharge; 3) a bad-conduct discharge; 4) a dismissal; or 5) confinement for one year or more.[1]  If you do not have one of the above sentences, you do not have an automatic right to an appeal.  And, as of right now, that is the end of the line.[2]

However, that is about to change – for better and for worse.

Pursuant to § 5330 of the 2016 NDAA, Article 66 of the UCMJ will be amended and your automatic right to an appeal will remain mostly the same with one important exception:  the period of confinement.  Specifically, under § 5330 of the 2016 NDAA, you will now be required to receive a sentence to confinement of at least two years to be entitled to automatic right to appeal.  This is a 100% increase in the amount of confinement required before you are eligible for an automatic appeal in the military.

However, § 5330 of the 2016 NDAA also opens the doors to appeals where there none previously existed.  Put simply, while you currently have the right to an automatic appeal under the above conditions, there is no right to a direct appeal otherwise – the courts of criminal appeals simply don’t have the necessary jurisdiction.[3]  But that is about to change.  Come 1 January 2019, if your sentence includes confinement of more than six months but does not otherwise meet the above requirements, the CCA will now have the jurisdiction to hear your case.  However, it is not required to do so.  In other words, the appeal is not automatic.  Instead, like the Court of Appeals for the Armed Forces, the CCA’s will now have what is called “discretionary review.”  This discretionary review means that, for sentences over six months that do not qualify for automatic review, you must ask the CCA to hear your case.

While these changes are both good and bad when attempting to appeal a military conviction, what they highlight is the need for an experienced counsel.  If you have the right to an automatic appeal and the CCA must hear your case, the issues you raise before the court and how you frame your arguments can make a big impact on whether relief is granted.  This is particularly true because the CCA’s are inundated with cases.[4]  Likewise, if you are asking the CCA to review a case it does not have to, it is critical you have an experienced counsel who can substantially increase your chances on appeal by framing arguments in a way that makes the CCA want to hear your case.

If you’d like more information about the appellate process or want to discuss your case, please contact my office for a free consultation.  If you’re still wondering whether it makes sense to hire an experienced appellate counsel, these questions can help you decide whether it makes sense to do so.  You can also review some of the results I have achieved for my clients.

[1] Article 66, Uniform Code of Military Justice (UCMJ).

[2] One exception is, if you were convicted at a general court-martial but did not receive one of the above punishments, your case will be reviewed by the Judge Advocate General of your Service.  See Article 69, UCMJ.

[3] See United States v. Chin, 75 M.J. 220, 224 (C.A.A.F. 2016) (Stucky, Ohlson, JJ., dissenting) (highlighting that the CCA’s are limited by congressional statute); see also Clinton v. Goldsmith, 526 U.S. 529, 119 S. Ct. 1538 (1999).

[4] For example, the Army Court of Criminal Appeals issued 595 decisions in FY 2016.

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