Appealing a Military Court-Martial Conviction

The military has built-in protections for convicted service members, including automatic review of special and general court-martial convictions.

By , J.D. · The Colleges of Law

Can a court-martial conviction be overturned? It's possible, depending on which type of court-martial tribunal—summary, special, or general—you've had. Each type of court-martial has its own appeals process.

Understanding the Military Court-Martial Appeal Process

After a special or general court-martial conviction, your case is automatically reviewed by the person who referred it to the court-martial (known as the "convening authority"). Courts-martial appeals and reviews are governed by the Uniform Code of Military Justice (10 U.S.C. §§ 860-876) and Chapter XII of the Manual for Courts-Martial.

The review begins by having a staff judge advocate examine the trial record. The record then is reviewed by the convening authority, who has the right to mitigate (reduce) the findings or sentence of your case. The convening authority can also dismiss the charges altogether, but they can't increase your sentence. If you aren't satisfied with the results of the convening authority review, you may be able to appeal to the military court of appeals for your branch of the service.

You have the right to an attorney during your special or general court-martial proceedings and throughout every level of the appeal process. You can either use a military defense attorney (called a judge advocate) or hire a civilian attorney to represent you. For a summary court-martial, you don't have a right to a cost-free military defense attorney, but you can still hire a civilian attorney to represent you.

Court of Military Appeals

Special court-martial and general court-martial convictions can sometimes be appealed to the military courts of appeal. Military judges sit on the Court of Criminal Appeals. There are four military courts of appeals:

If your sentence is a dishonorable discharge, bad conduct discharge, dismissal (if you are an officer), confinement for at least a year, or death, your case will automatically be reviewed by the Court of Criminal Appeals for your specific branch of the armed forces. For other sentences, the courts of appeal have discretion about whether to hear your case or not—judge advocates typically review court-martial convictions with lesser sentences.

You can also petition the Judge Advocate General (JAG) to order your case to be reviewed by the Court of Criminal Appeals, but such petitions are rarely granted. If you're unable to obtain a review through the appeals court, you have the right under Article 69 of the Uniform Code of Military Justice to request that the JAG review your case.

How the Court of Military Appeals Reviews Your Case

The Court of Criminal Appeals looks for legal mistakes and factual errors made in your case. This court also checks the facts and evidence to ensure that your guilt was proven "beyond a reasonable doubt." Additionally, it reviews the severity of your sentence. It's important to note that this court can reduce your sentence but can't make it more severe.

If you pled guilty and received a punitive discharge or confinement of a year or more, your guilty plea will also be evaluated. This is to ensure that you really believed you were guilty and didn't indicate that you believed you were innocent during the court proceedings. If your appeal to the military appeals court in your branch isn't successful, you can appeal again to the Court of Appeals for the Armed Forces.

Appealing to the U.S. Court of Appeals for the Armed Forces

The scope of review by the Court of Appeals for the Armed Forces is more limited than the lower courts. The court can only look for any legal errors made by the military appeals court—it won't review the facts for any mistakes.

Not all cases can be heard by the Court of Appeals for the Armed Forces. But if you received the death penalty, you have an absolute right to appeal to this court. Additionally, the court is required to examine any case forwarded by the JAG. Usually, the JAG will order the US Court of Appeals to review your case if it has a clear legal error or an inappropriate sentence. You can ask the JAG to submit your case to this court of appeal if no legal or sentencing errors exist, but these requests are rarely approved.

If your case is not forwarded by the JAG, your attorney will need to know how to file a case in the armed forces tribunal by petitioning to the Court of Appeals for the Armed Forces showing "good cause" (meaning, a good reason) why your case should be reviewed. The court can agree to hear your case or can decline.

If your appeal is again denied at the U.S. Court of Appeals for the Armed Forces, you may petition the U.S. Supreme Court to hear your case. The Supreme Court reviews only a tiny handful of cases that it receives certiorari (review) petitions for each year, and the Court has enormous discretion about which cases it will decide to hear ("grant cert"). Even if you've been sentenced to death, the Supreme Court can decline to hear your case, and not all decisions of the U.S. Court of Appeals for the Armed Forces can be appealed to the U.S. Supreme Court.

Clemency Requests

A clemency ("leniency") request involves asking a military authority to set aside a conviction or reduce the sentence of a court-martial conviction. Members of the military found guilty in a court-martial have the option to request clemency at any time during—and even after—the appellate process.

Clemency can be granted by the convening authority or the clemency board for your military branch. Clemency must be requested from the convening authority after your sentence but before your case is closed. This method isn't easy, but it's worth asking in case something new comes up during your trial that wasn't covered in your pretrial agreement. If your request is denied, the next step is to request clemency from your branch's clemency and parole board.

Clemency and Parole Boards

Clemency and parole boards are composed of five senior military officers who make recommendations to the Service Secretary for your branch of military service. Under DOD Instruction 1325.7 Section 16, these boards are responsible for independent and impartial evaluations of a prisoner's request for parole, mandatory supervised release, clemency, reduction in sentence, and restoration to duty.

The military has three clemency boards—the Air Force Clemency and Parole Board, Army Clemency and Parole Board, and the Navy Clemency and Parole Board (also serving the Marines and Coast Guard). You can submit a clemency petition to the board for your branch of service. You can get help with your clemency petition from an attorney or a representative from a veterans' service organization.

When Do You Become Eligible for Clemency Consideration?

Your eligibility for clemency is determined by the length of your sentence. For example, if your sentence is for less than one year, you aren't ordinarily eligible for clemency. If your sentence is for a year or more but below ten years, you should generally be considered for clemency nine months into your sentence. For life sentences without parole, you aren't eligible for clemency until you have served twenty years, at which point you're eligible for consideration every three years. You can learn more by reviewing the DOD Instruction 1325.7 Section 17, Eligibility and Procedures for Consideration for Clemency.

How Clemency Cases Are Evaluated

Your request for clemency will be evaluated according to DOD regulations and regulations for your specific branch of the service. Generally, the boards evaluate:

  • the crime you committed and the circumstances surrounding it
  • your life outside the military, including social supports
  • your military service history
  • whether you have participated in rehabilitation or education programs while incarcerated
  • restitution, if any, that you've made to victims
  • recommendations made by the judge who convicted you
  • psychiatric evaluations, and
  • victims' statements.

You won't be able to appear in person before any of the branch clemency and parole boards. The Air Force board accepts only written petitions and no appearances, but the Army and Navy boards allow your friends, family, or attorney to appear on your behalf. (The Navy boards occasionally allow you to submit a video.)

How Will I Know What the Board has Decided?

The clemency and parole board will communicate their decision regarding your case to the military correctional facility where you are held. The facility staff will then inform you about the decision. Following that, it will be your responsibility to inform your attorney, family members, or friends who assisted you with your petition about the decision.

Getting Help With Your Military Tribunal Appeal

You'll have your best chance of overturning a military court-martial conviction if you have an experienced attorney who is knowledgeable about veterans' law. Check out our article on hiring a veterans law attorney if you need help choosing who to represent you.

Updated March 11, 2024

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