Before December 23, 2022, Article 66 of the Uniform Code of Military Justice (UCMJ) set up two ways for convicted servicemembers to get direct appellate review from the service courts of criminal appeals. First, courts-martial that resulted in a sentence that included death, dismissal, dishonorable discharge, bad conduct discharge, or confinement for two years or more were automatically reviewed by the service courts.
Second, a separate set of servicemembers convicted at court-martial whose sentence did not qualify them for automatic review could submit an appeal to the service court. This second set included those whose sentence included more than six months of confinement and those whose cases the Government had appealed under Article 62.
This second set also included servicemembers who had first had their case reviewed by their service’s Judge Advocate General (JAG). The JAG had the authority to modify or set aside the findings and sentences in cases, or to send cases to the service courts. Where the JAG did not send the cases to the service court, the servicemember could apply to the service court for review if they were unhappy with the JAG’s decision.
Under this system of review, servicemembers who received sentences with less than six months confinement and no punitive discharge were required to ask the JAG for review before getting any chance of having the service courts review the case.
However, the 2023 National Defense Authorization Act changed Article 66, UCMJ, and expanded the ability for servicemembers to have their cases reviewed by the service courts. The newly modified Article 66 keeps the first review category for automatic review the same, but opens up the second category to allow for a servicemember convicted at general or special court-martial to appeal to the service court no matter the sentence received. This appeal for the second set of servicemembers must be filed within 90 days of the accused being notified of his or her appellate rights–a step that usually occurs at the end of the trial.
A servicemember in the second, non-automatic category, that misses this 90 day window cannot appeal to the service court of appeals or request Article 69 , UCMJ, JAG review. Instead, those cases will be reviewed under Article 65, UCMJ.
In summary, the 2023 NDAA has opened up the right to appeal to a much larger group of servicemembers, especially those whose cases were sent to the new special court-martial under Article 16(c)(2)(A) that limits sentences to less than six months confinement with no available punitive discharge. However, servicemembers in this category must act quickly and get the appeal submitted within 90 days of receiving their notice of a right to appeal.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.