UCMJ

UCMJ Changes JAG Review for Courts-Martial

The Uniform Code of Military Justice (UCMJ) underwent several significant changes as a result of the 2016 Military Justice Act. Those changes went into effect on January 1, 2019 and include a new approach to Judge Advocate General (JAG) review of cases that do not qualify for appellate review.

Pre-2019 JAG Review

Prior to 2019, Article 66 of the UCMJ provided for an automatic appeal to the service court of criminal appeals (CCA) for every court-martial in which the sentence included the death penalty, a bad conduct discharge, dishonorable discharge, or dismissal, or confinement for one year or more.

Any general courts-martial where an accused was found guilty but did not receive a sentence that met the requirements under Article 66 was reviewed by the office of the appropriate JAG under Article 69(a).

For courts-martial, such as special or summary courts-martial, that did not fit into either Article 66 or Article 69(a), an accused could apply for review by the office of the JAG under Article 69(b).

Under this version of Article 69, a JAG could send any of these cases that came to them on to the CCA for appellate review.  Additionally, if the JAG acted on a case, and the applicant was unsatisfied with that action, he or she could apply to the CCA for an appellate review.

Current JAG Review

The 2019 UCMJ reduced the number of cases that receive automatic appellate review under Article 66. It is now reserved for cases where the sentence includes the death penalty, a bad conduct discharge, dishonorable discharge, or dismissal, or confinement for two years or more. The new Article 66 did create an additional category of cases eligible for appellate review, although it is not automatic. An accused can file an appeal in a case where the sentence includes confinement for more than six months.

All courts-martial that are not eligible for appeal to the CCA, either through automatic review or upon filing, are now automatically reviewed by the office of the JAG.

Once this cursory review is complete, an accused can apply for another review by the JAG under the revised Article 69.

Under this Article 69, a CCA is given the authority to review actions taken by the JAG when the JAG requests it or an accused submits an application to have their case reviewed.

What These Changes Mean

With these changes, fewer cases are automatically appealed, but the creation of a right to appeal for servicemembers with lower sentences actually makes appellate review available in more cases than before.

For those who were convicted at summary courts-martial, or a special or general court-martial where the adjudged sentence does not qualify them for appellate review, an automatic review will now be done by the office of the JAG.

Following this review, an accused has an opportunity to file an application to the JAG for an additional review. If the JAG accepts the application and takes action on the findings or sentence, then the accused may be able to get their case in front of the appellate court.

Unlike the previous version of Article 69, the appellate court can only review cases where the JAG has actually taken action. An accused who applies for Article 69 review by the JAG and is denied review, or is granted review but then denied any corrective action, will not be able to get their case before a CCA.

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William E. Cassara- Military Law Attorney

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