MILITARY APPEALS

There are several different types of court martial appeals in the military. Which type of appeal your case will fall under depends on the sentence you received.

Automatic Military Appeals Under Article 66, UCMJ

Under Article 66, UCMJ, any case where a service member receives (1) a dishonorable discharge, bad conduct discharge, or dismissal for officers cadets, and midshipman, or (2) confinement for 2 years or more, receives automatic review by the service member’s court of criminal appeals. There are four criminal appeals courts in the military:

• Army Court of Criminal Appeals (ACCA)
• Navy-Marine Corps Court of Criminal Appeals (NMCCA)
• Air Force Court of Criminal Appeals (AFCCA)
• Coast Guard Court of Criminal Appeals (CGCCA)

If a service member’s appeal to the service appeals court is unsuccessful, they may petition the Court of Appeals for the Armed Forces (CAAF) to review the lower court’s decision. CAAF is the highest military court in the land. Unfortunately, CAAF is not required to review the lower appellate court’s decision—it may grant or deny appellate review as it sees fit. CAAF generally only grants review on about 30 to 40 cases per year out of thousands, so you need an experienced military appellate attorney that knows the best practices for having review granted.

If a service member loses on appeal at CAAF, they may appeal to the Supreme Court of the United States, which very rarely grants certiorari (appellate review) of military cases.

Military Appeals by the Accused Under Article 66, UCMJ

If a service member is convicted at court martial and is sentenced to confinement for more than 6 months but less than 2 years and does not receive a punitive discharge (dismissal, dishonorable discharge, bad conduct discharge), appellate review is not automatic. Fortunately, the service member may proactively appeal the conviction to their respective court of criminal appeals.

If the service member loses on appeal at their service’s court or criminal appeals, they may petition the Court of Appeals for the Armed Forces (CAAF) to review the lower court’s decision. But appellate review by CAAF is discretionary—it may grant or deny review at its discretion.

Military Appeals Under Article 69, UCMJ

For a service member convicted at a court martial that does not receive a punitive discharge (dismissal, dishonorable discharge, bad conduct discharge) or confinement of more than 6 months, they may appeal under Article 69 to the Judge Advocate General of their service.

The Judge Advocate General may modify or entirely set aside both the military member’s conviction and the sentence. Petitioning for appeal under Article 69 must be filed with the Judge Advocate General within 1 year after the date of SJA review under Article 64 or Article 65, as the case may be.

Military Appeals Under Article 73, UCMJ

At any time within 3 years of the entry of judgment, a convicted military service member may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud upon the court. Such appeals are rare, but if you feel you have newly discovered evidence in your case or a witness lied during your trial, it would be an incredibly strong basis for having your conviction and sentence thrown out and a new trial ordered.

If you or a loved one has been convicted at a court martial and you want to fight to have that conviction and the sentence overturned, contact the experienced military appeals lawyers at Noel Tipon to learn how we would aggressively represent you during your last chance to set things right.

Top 3 Frequently Asked Questions About Military Appeals

I think my defense attorney did a poor job at my court martial, does that matter?

Yes, it does. Unfortunately we here this complaint from many service members when they come to us to do their appeal. A lot of military members indicate that they regret trying to save money by having a free active duty defense attorney or relatively cheap civilian attorney represent them at their court martial. In many instances they only discover their mistake as their trial was progressing and it became clear that the attorney they chose was no match for government prosecutors.

Luckily, if your trial defense counsel didn’t properly represent you during your court martial, we can raise an ineffective assistance of counsel (IAC) claim on appeal. This issue essentially argues that a defense attorney’s performance was so inadequate that the service member didn’t receive a fair trial, which is a Constitutional right. If successful, you would get your conviction and sentence overturned and a new trial.

What are my chances of getting my conviction reversed on appeal?

It depends. Every case is different so it is impossible to know what a convicted military member’s chances are on appeal without first reviewing the case. Some cases have numerous errors that can result in total exoneration or a new trial. Other cases have just one issue, but it is such a terrible error that the only fair result is to reverse the conviction. Some cases just don’t have any issues that will bring a service member relief from their conviction or sentence.

If you’ve been convicted of a UCMJ offense and you want to get a no-nonsense analysis of appealable issues in your case, contact Noel Tipon today for a free consultation.

How does Mr Tipon prepare a case for appeal?

The first thing we do is read the entire record of a service member’s trial. The record of a court martial trial is usually between 800 and 1,500 pages, but we’ve seen cases that are over 10,000 pages long. While reading the record of trial we take careful notes and highlight potential issues that would warrant a written argument to the appellate courts.

As part of his case analysis he will also speak to the defense attorney that represented the service member during his court martial. The purpose of this conversation is primarily to find out if there is anything missing from the record. Mr. Tipon will also want to get feedback on what the trial attorney believed went wrong and caused the service member to be convicted.

Once we identify the legal errors that we want to bring to the appellate court’s attention, we do exhaustive legal research on each issue. This involves scouring through legal opinions from the Court of Appeals for the Armed Forces, each service’s Court of Criminal Appeals, the United States Supreme Court, and Federal Circuit Courts. We then carefully craft a written legal brief that outlines the errors in the service member’s case that requires his conviction and sentence to be overturned or some other form of relief ordered.

Finally, we prepare for oral argument. This is an opportunity for military appellate judges to ask questions of both the appellate defense counsel and the appellate government counsel. Oral argument is almost always an extremely important part of a service member’s case on appeal.