Appellate Review After a Court-Martial
A court-martial judgment does not become final when the sentence is announced. It passes through a convening authority whose power has been sharply curtailed, a service court that may weigh the evidence itself, and a civilian court of appeals that hears only what it chooses.
The rule in short
After trial the convening authority takes limited action, the judge enters judgment, and review begins. Sentences including death, a punitive discharge, dismissal or two years or more of confinement go automatically to the service Court of Criminal Appeals with appointed counsel; lesser cases go to the Judge Advocate General. Review then lies to the Court of Appeals for the Armed Forces and, in cases it has reviewed, to the Supreme Court.
A court-martial sentence is announced in the courtroom, but the case is far from over. What follows is a sequence of reviews that has no close analogue in civilian practice: a commander acts first, a service court may reweigh the evidence, and a civilian appellate court staffed by judges appointed for fixed terms sits above the whole structure.
The convening authority's remaining power
The convening authority once held broad clemency power, able to disapprove findings or reduce any sentence for any reason or none. That power has been substantially withdrawn. In most cases the convening authority may no longer set aside a finding of guilty or reduce a sentence below the floor the statute fixes, and where action is taken the reasons must be stated in writing and included in the record.
What remains is meaningful in a narrow band of cases: suspension of parts of a sentence, action on offenses carrying lesser maximum punishments, and disposition of matters submitted by the accused. The military judge then enters judgment, and the entry of judgment rather than the commander's action is what starts the appellate clock.
The Courts of Criminal Appeals
Each service maintains a Court of Criminal Appeals staffed by appellate military judges. Its jurisdiction is defined by the sentence: cases in which the sentence includes death, dismissal, a dishonorable or bad-conduct discharge, or confinement of two years or more receive review as a matter of course, with appellate defense counsel provided.
The power these courts hold is unusual. In addition to reviewing questions of law, a Court of Criminal Appeals may consider the factual sufficiency of the findings, weighing the evidence itself and judging witness credibility, and it may affirm only what it finds correct in law and fact and determines should be approved. Recent amendments have tightened the showing an appellant must make before factual sufficiency review is undertaken, but the power itself survives and has no counterpart in the civilian federal courts of appeals.
The Supreme Court's certiorari jurisdiction over military cases extends only to cases the Court of Appeals for the Armed Forces has reviewed. Where that court denies a petition for grant of review rather than granting and deciding it, there is no decision the Supreme Court may take up. The petition stage is therefore the practical end of the road in most cases, not a formality on the way to a further court.
Cases that do not reach the service court
A sentence below the automatic review thresholds — a short period of confinement, a reduction in grade, a forfeiture, with no punitive discharge — travels a different route. The record goes to the office of the Judge Advocate General of the service for review for jurisdictional defect, legal error and, on a limited basis, factual insufficiency. That office may act on the findings or sentence, or send the case onward to the Court of Criminal Appeals.
The distinction matters because it is drawn by the sentence adjudged rather than by the seriousness of the issue. A significant legal question can arise in a case whose sentence keeps it out of the automatic track, which is one of the considerations bearing on the choice among court-martial forums long before any appeal is contemplated.
| Level | Who sits | Basis of review | Scope |
|---|---|---|---|
| Convening authority | The commander who referred the charges | Automatic, on the record and the accused's submission | Limited clemency; no general power over findings |
| Judge Advocate General | The service's senior judge advocate | Cases below the automatic thresholds | Jurisdiction, legal error, limited factual review |
| Court of Criminal Appeals | Appellate military judges of the service | Automatic where the sentence qualifies | Law and fact; may affirm only what is correct in both |
| Court of Appeals for the Armed Forces | Five civilian judges appointed for fixed terms | Mandatory in death and certified cases; otherwise by petition | Questions of law only |
| Supreme Court | The Justices | Certiorari, and only in cases actually reviewed below | Questions of law only |
The civilian courts above the services
The Court of Appeals for the Armed Forces sits outside the services entirely. Its judges are civilians appointed by the President with the advice and consent of the Senate for fixed terms. Review is mandatory in cases where the sentence extends to death and in cases the Judge Advocate General certifies; in every other case the accused files a petition for grant of review, and the court grants a small fraction of them.
The court decides questions of law. It does not reweigh evidence, and it takes the service court's factual determinations as given. From a decision of that court, certiorari lies to the Supreme Court — but only where the court granted review, certified a question, or otherwise acted on the merits. The deadline for filing at each stage is fixed and unforgiving, in the way that statutory filing periods in other federal review schemes are unforgiving.
When the chain runs out
Exhausting appellate review does not exhaust every remedy. Habeas corpus is available to a prisoner in military custody, though civilian courts confine themselves largely to whether the military system gave the claims full and fair consideration. A Board for Correction of Military Records may amend a record long afterward, and a discharge review board may act on a characterization short of one adjudged by a general court-martial.
Appellate arguments are also built long before the appeal. Objections must be preserved, and issues arising at the preliminary hearing that precedes a general court-martial must be raised before the plea or they are ordinarily forfeited. A member who resolves a matter through non-judicial punishment instead of trial never enters this chain at all, which is among the reasons the choice made at the outset shapes everything after it.
Points to carry away
- The convening authority no longer has general power to set aside findings or reduce a sentence in most cases.
- A Court of Criminal Appeals may review factual sufficiency, a power no civilian federal appellate court holds.
- Automatic appellate review attaches to sentences that include death, a punitive discharge, dismissal, or two years or more of confinement.
- Appellate defense counsel is provided at no cost to the accused in cases under automatic review.
- Review by the Court of Appeals for the Armed Forces is mandatory in death cases and certified cases, and discretionary otherwise.
- The Supreme Court may grant certiorari only in cases the Court of Appeals for the Armed Forces has actually reviewed.
Questions readers ask
What happens to a case with a short sentence and no discharge?
It does not reach the service appellate court automatically. Instead the record goes to the office of the Judge Advocate General of the service, which examines it for legal error, jurisdictional defect and factual insufficiency under a narrower standard. That office may vacate findings or a sentence, or it may forward the case to the Court of Criminal Appeals. An accused in this position must generally ask for review rather than receive it, and the deadlines for asking are short.
Can a service member challenge a conviction in a civilian district court?
Collateral review exists but is narrow. A prisoner in military custody may seek habeas corpus in a federal district court, and civilian courts have historically confined themselves to whether the military courts gave full and fair consideration to the claims raised. Separately, a former member may petition a Board for Correction of Military Records, which can change records and characterizations even where a conviction stands. Neither route functions as a second appeal on the merits.
Does the accused have a lawyer on appeal?
In cases under automatic review by a Court of Criminal Appeals, appellate defense counsel is detailed and provided at no cost, and the accused may also retain civilian counsel. The same appellate defense division ordinarily continues the representation on a petition to the Court of Appeals for the Armed Forces. Representation is thinner in the cases reviewed only by the Judge Advocate General, which is one practical consequence of a sentence falling below the automatic review thresholds.
Sources
- Cornell Legal Information Institute — 10 U.S.C. 866, Article 66, Courts of Criminal AppealsThe jurisdiction of the service appellate courts and their power over findings and sentence.
- Cornell Legal Information Institute — 10 U.S.C. 867, Article 67, Review by the Court of Appeals for the Armed ForcesMandatory, certified and discretionary review at the civilian military appellate court.
- Cornell Legal Information Institute — 10 U.S.C. 867a, Article 67a, Review by the Supreme CourtThe certiorari route and its limitation to cases actually reviewed below.
- Cornell Legal Information Institute — 10 U.S.C. 869, Article 69, Review by the Judge Advocate GeneralThe review track for cases outside automatic appellate jurisdiction.
- United States Court of Appeals for the Armed ForcesThe court's own site, with its rules of practice and published opinions.
- Cornell Legal Information Institute — 10 U.S.C. 1552, Correction of Military RecordsThe collateral records correction route available after review is exhausted.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
