As discussed previously here, the 2023 National Defense Authorization Act opened up access to the appellate courts to every servicemember convicted at general or special courts-martial, no matter the sentence. If you are court-martialed and receive a sentence that includes a bad conduct discharge, dishonorable discharge, dismissal, or confinement for two years or more, your case will still be automatically appealed to the individual service court of criminal appeals.
However, if you receive a sentence that does not include a discharge and is for less than two years confinement, you have to take action in order to appeal your case. And that action must be taken within 90 days of receiving notice of your appellate rights.
This new law went into effect on December 23, 2022, and so it affects two different groups of people. The first group is anyone who is tried in 2023 and going forward and falls into this category of lighter sentences. They will receive notice of their appellate rights and have 90 days to submit an appeal. The manner in which each service is handling these two groups and the required notice differs and is important.
Each Service’s Approach to Future Courts-Martial
The Army will have the commands issue the notice of appellate rights to a convicted servicemember in future courts-martial on the date that the military judge enters the judgment in the case, usually not long after the trial ends. However, they recognize that this process may not allow for the records of trial to be completed and sent to appellate defense counsel, so the Army Court of Criminal Appeals is probably going to issue a rule on the timing of filing for appeals that will allow for filing later than 90 days after the notice for Army cases.
The Navy and Marine Corps will have the administrative branch of the Navy and Marine Corps Appellate Review Activity issue the notice of right to appeal to convicted servicemembers when a completed record of trial is received. This practice will ensure that the record is complete and an appellate defense counsel can review the case within the 90 day time frame after the notice of appeal is sent.
The Air Force will have the General Court-Martial Convening Authority issue the notice of right to appeal. The notice should be issued when the record is complete and a copy will be sent to appellate defense counsel so that they can also review the record before the 90 days runs out.
The Coast Guard has a centralized records administration, much like the Navy and Marine Corps, and so the records custodian in that department will issue the notice of right to appeal and provide a copy of the record to an appellate defense counsel at the same time.
Each Service’s Approach to Recent Courts-Martial
The second group affected by the new legislation includes those who had their trials held in the last few years and who would have been eligible to have their cases reviewed by the Judge Advocate General under Article 69, UCMJ. As I explained in my previous post, these cases that were not previously eligible for appellate review were able to be reviewed by the JAG. Convicted servicemembers had one year to submit for this Article 69, UCMJ review, but could have requested review for up to three years by showing good cause for the delay.
The application of this new legislation to these cases is clear, but the execution is murkier.
The Army intends to notify servicemembers who fall into this second group of their new appellate rights and then give them 90 days from this notification date to submit an appeal. In the meantime, if a Soldier is being administratively separated from the service by the command before they have had the opportunity to appeal their court-martial conviction, the Army does not intend to stop the command from going forward. This raises questions as to whether the appellate court will retain jurisdiction over cases where the individual is no longer in the service and what relief can be granted such an individual if the conviction is set aside.
The Navy and Marine Corps do not have a solid plan on how they will identify and notify individuals that fall into this second category. Arguably, these Sailors and Marines will maintain the ability to appeal until such a notification is made. These services also do not have a plan in place on how to address cases where the command is administratively separating servicemembers before their appeal is complete. The same questions arise as in the Army and may lead to litigation over impending separations.
The Air Force intends to notify servicemembers in this second category of their right to appeal. Unlike the other services, the Air Force are not allowing commanders to administratively separate Airmen until their appellate review is complete.
The Coast Guard is notifying those who were convicted after December 23, 2021 of their new appellate rights. Their numbers that fall into this category are extremely small, so they will deal with the administrative separation issue as it arises.
Bottom Line
The bottom line to all of this is–if you have been convicted of an offense and you received a sentence that did not include a discharge or two years or more of confinement, you may have a new right to appeal to your service’s court of criminal appeals. But you must act quickly or else this right might expire. If you or your loved one has been convicted at a court-martial and wants to find out if you are now eligible to appeal that conviction, call Bill Cassara at (706) 445-2943 for a free consultation.