A charge against a U.S. soldier can lead to a general, special or summary court-martial. Appeal from a Court Martial. Regardless of the charges brought against you, it is important to find an attorney with the credentials to exclusively defend military members.
These are important facts about court-martial proceedings.
The Basics
A court-martial may take one of three forms: general, special, or summary.
Within five days of being sentenced, you can appeal against a summary court-martial conviction to the next highest command. The commander at the highest level can decide whether the punishment should be kept in place, reduced, or eliminated. They can’t increase the punishment.
A conviction from a military appeals court or summary court-martial cannot be appealed. You can appeal the decision of the senior commander to the Judge Advocate General or the Board of Correction of Military Records if you are not satisfied.
These appeals are handled by military courts of appeals. You are entitled to a military defense attorney free of charge throughout the appeals process. If you wish, you may also hire a civilian defense lawyer at your expense.
The convening authority will automatically review your case before it goes to a military court. This is the person who originally referred the case. They can’t increase penalties, but they can reduce or eliminate them. A judge advocate may be available to help them make their decision.
Understanding the Military Courts of Appeal
If the penalty involves at least one year in confinement or a negative discharge type, the court of the relevant branch of the armed force will automatically review the case. Other cases may be reviewed by a military court of appeal at their discretion.
If a service member is subject to penalties that are not eligible for automatic review, they can request the Judge Attorney General to refer their case to a court. However, this is not usually successful. If the case is rejected for review by a court, they can request that the JAG review it.
An appeals court in the military will decide if the service member has been properly proved guilty beyond a reasonable doubt. They will also investigate any legal errors made during the proceedings.
Although the court of appeal cannot increase penalties, they can reduce penalties or dismiss the case completely.
An automatic review will be given to any guilty plea that results in a negative discharge, or more than one year imprisonment. This review will determine whether the service member pleaded guilty or not during the proceedings.
If the outcome of the appeals process does not meet your expectations, you may appeal to the Court of Appeals for the Armed Forces. If the case involves the death penalty, this court will automatically review it. If the JAG submits a case for review, it must also review it. This is based on finding that there was a legal error or that the sentence was not correct. A service member may ask the JAG for permission to present their case to this court. However, this is rarely successful.
All other appeals will not be considered and granted on a discretionary basis. The service member’s lawyer will have to convince the court that there is good cause for a review. The Court of Appeals for the Armed Forces won’t consider the facts of the case, unlike lower military courts of appeal. It will only review the case for legal errors made by the lower court.
Additional Options
If there are no other options for review, you may file a writ of habeas Corpus with a lower military Court of Criminal Appeals or the Court of Appeals for the Armed Forces. These are only granted in exceptional circumstances. The U.S. Supreme Court can also be reviewed, but again it is unlikely that this will succeed. Even cases involving death penalty or military crimes, the Supreme Court does not have to hear them.
Clemency Requests
An active military member can request clemency from any stage of the appeals or post-judgment process if they have been convicted of a criminal offense at a court of martial. They can ask for clemency from either the convening authority or from a parole and clemency board. The person who refers the case to a court-martial is called the convening authority.
You have the right to an attorney during your court-martial proceedings and all the way through every level of appeal you file. You can either use a military defense attorney (called a judge advocate) or hire a civilian attorney to represent you.