2024 (October Term)
United States v. Folts, 86 M.J. 84 (the courts of criminal appeals are courts of limited jurisdiction, defined entirely by statute).
(Article 66(b)(3), UCMJ, 10 USC § 866(b)(3) (2018), provided that a CCA shall have jurisdiction over a court-martial in which the judgment entered includes death, a punitive discharge, or confinement for two years or more, a provision known as "automatic review" by the CCA; and prior to December 23, 2022, Article 66(b)(1)(A), UCMJ, 10 U.S.C. § 866(b)(1)(A) (2018), provided that a servicemember convicted by a court-martial whose sentence included confinement for more than six months and less than two years, with no punitive discharge, had the right to apply for review by the CCA within a certain period of time, a provision known as a "direct appeal" by the CCA; cases in which the sentence did not qualify for either automatic review or a direct appeal, or in which a convicted servicemember elected not to exercise the right to a direct appeal or withdrew from appellate review, were reviewed by a designated attorney pursuant to Article 65(d)(2), UCMJ, 10 U.S.C. § 865(d)(2) (2018)).
(a servicemember whose case was reviewed by an attorney pursuant to Article 65(d)(2), UCMJ, had a potential route for review by the CCA, as Article 69, UCMJ, 10 U.S.C. § 869 (2018), provided that such a servicemember could apply for review by the Judge Advocate General; such an application would be timely if submitted within one year after completion of Article 65(d)(2), UCMJ, review; after the Judge Advocate General completed the Article 69(c), UCMJ, review, the servicemember could then apply to the CCA for review, and the CCA had the discretion to grant such review only if (1) the application demonstrated a substantial basis for concluding that the action on review under Article 69(c), UCMJ, constituted prejudicial error, and (2) the servicemember filed the application within sixty days of notification of the Judge Advocate General's decision or sixty days after notification was deposited in the United States mail, whichever was earlier).
(on December 23, 2022, Congress passed the FY23 NDAA; the FY23 NDAA, while retaining the same criteria for automatic CCA review, significantly expanded eligibility for direct appeals of general and special court martial convictions under Article 66, UCMJ; in its new form, Article 66(b)(1)(A), UCMJ (Supp. IV 2019-2023), provides that a lower court has jurisdiction over a timely appeal from the judgment of a court-martial, entered into the record under Article 60c(a), UCMJ, 10 U.S.C. § 860c(a) (2018), that includes a finding of guilty; in effect, the FY23 NDAA made every general or special court-martial conviction reviewable by the lower court, regardless of sentence).
(although Congress could have chosen to remain silent on the effective date of the FY23 NDAA which would have meant that it took effect on the date of enactment, instead Congress gave clear direction to what cases could not take advantage of the FY23 NDAA by providing that the changes to Articles 66 and 69, UCMJ, shall not apply to: (1) any matter that was submitted before the date of enactment of this Act to a Court of Criminal Appeals, or (2) any matter that was submitted before the date of the enactment of this Act to a Judge Advocate General under Article 69, UCMJ; an appellant can only submit matters to the CCA or the Judge Advocate General in a case where a court martial judgment has already occurred, so this provision gives clear direction by Congress that it foresaw applicability over judgments that occurred prior to its enactment).
(the FY23 NDAA is clear and unambiguous in its application; to qualify for review under the new Article 66, UCMJ, there must be a court-martial conviction that has not already been appealed through Article 66 or 69, UCMJ, as of the effective date of the amendment).
(in this case, at the time of appellant's conviction, his case was ineligible for direct appeal under the applicable version of Article 66(b)(1), UCMJ, because he had not received a sentence of confinement exceeding six months and he was not entitled to an automatic review under the applicable version of Article 66(b)(3), UCMJ, because his sentence did not include a punitive discharge; however, five months after appellant's conviction, in the FY23 NDAA, Congress amended Article 66, UCMJ, to afford direct appellate review by a CCA to all servicemembers who were convicted at a general or special court-martial, regardless of the sentence received; in addition, appellant's judgment did not fall into either of the two categories that Congress excepted in the FY23 NDAA from the application of the expanded direct appeal rights under Article 66, UCMJ; in this regard, as of the date of the FY23 NDAA, appellant had not submitted an Article 66, UCMJ, appeal to the CCA nor had he submitted his case for review by the Judge Advocate General pursuant to Article 69, UCMJ; however, appellant was still within the one-year period following completion of his Article 65, UCMJ, review in which to apply for review under Article 69, UCMJ; and the FY23 NDAA is clear and unambiguous in its application; to qualify for review under the new Article 66, UCMJ, there must be a court-martial conviction that has not already been appealed through Article 66 or 69, UCMJ, as of the effective date of the amendment; because appellant's case did not meet the disqualifying criteria, the CCA had jurisdiction over appellant's Article 66(b)(1)(A), UCMJ (Supp. IV 2019-2023), appeal).
(in this case, appellant's direct appellate appeal process did not become final when the Article 65, UCMJ, review was completed despite the fact that Article 57(c)(1)(A), UCMJ, provides that in those cases that are reviewed by a designated attorney pursuant to Article 65, UCMJ, appellate review is complete "under this section" when the Article 65, UCMJ, review is complete; the purpose of Article 57(c)(1)(A), UCMJ, is to define the term completion of appellate review "under this section;" that is, the definition specifically applies to how that term is used in Article 57(a)(5), UCMJ, to explain when the government may proceed with executing a punitive discharge or sentence of death; taken together, Article 57(a)(5) and (c)(1)(A), UCMJ, explain that the government may proceed with executing, for example, a bad-conduct or dishonorable discharge once Article 65, UCMJ, review is complete, when such review is necessitated after an appellant withdraws from automatic review by a CCA under Article 66, UCMJ; while the completion of Article 65(d), UCMJ, judge advocate review carries significance in some cases for implementing the sentence of a court-martial, the completion of such review does not make appellate review final).
(in this case, appellant's direct appellate appeal process did not become final when the Article 65, UCMJ, review was completed despite the fact that final judgment as to the legality of the proceedings for the purposes of Article 76, UCMJ, occurs after the Article 65(d), UCMJ, review is completed; after Article 65(d), UCMJ, review, further review by the Judge Advocate General under Article 69, UCMJ, is optional and the CCA has potential discretionary review over certain aspects of appellant's case under Article 69, UCMJ; this pathway for appellant to obtain additional review of his court-martial was expressly provided to him by Congress, and it had not expired at the time the FY23 NDAA went into effect; accordingly, the CCA still had potential jurisdiction over the case, and appellant's case was not final under Article 76, UCMJ).
2020 (October Term)
United States v. Brown, 81 M.J. 1 (Congress created a bifurcated statutory scheme for the appellate review of completed courts-martial, depending upon the sentence approved by the convening authority; a court of criminal appeals exercises jurisdiction over a broad range of cases under Article 66(b), UCMJ, including every case in which the approved sentence extends to a punitive separation or confinement for a year or more unless mandatory review is waived; in this case, because the accused’s sentence was below the Article 66(b), UCMJ, threshold for mandatory review at the lower court, the Article 66(b), UCMJ, pathway to appellate review was unavailable to him; however, Article 69, UCMJ, provided a second pathway to review before a court of criminal Appeals for an accused convicted and sentenced at a special court-martial; cases not reviewed by the lower court pursuant to Article 66(b), UCMJ, such as the instant case tried at a special court-martial, can still be reviewed by the Judge Advocate General upon application of the accused for, inter alia, error prejudicial to the substantial rights of the accused, and the Judge Advocate General can then choose whether to send the case to the lower court for review under Article 66, UCMJ).
(in this case, the CCA had statutory jurisdiction to entertain a writ petition where although appellee’s sentence was not reviewable under Article 66, UCMJ, because he was not sentenced to one year or more of confinement and did not receive a punitive discharge, the TJAG could potentially refer the case for review pursuant to Article 69(d), UCMJ, and thus potential jurisdiction existed for the CCA, even though there were still several conditions precedent to its ultimate review).
(for courts-martial referred on or after January 1, 2019, pursuant to Article 66(b)(1)(D), an accused is entitled to have the courts of criminal appeals review his case with respect to matters of law if the accused applies for review from a decision of TJAG under Article 69(d)(1)(B) and the application has been granted by the court; thus, it is no longer the case that only those cases that the Judge Advocate General elects to refer to the court of criminal appeals under Article 69(d), UCMJ, may be heard by the lower court).
2017 (October Term)
United States v. Jacobsen, 77 M.J. 81 (military courts, as Article I courts, are courts of special jurisdiction and their authority to act is conferred and strictly confined by statute).
2014 (September Term)
United States v. Arness, 74 M.J. 441 (the CCAs are courts of limited jurisdiction, defined entirely by statute).
(the limited jurisdiction of the CCAs is spelled out in two statutes, Articles 66 and 69, UCMJ).
(under Article 66, UCMJ, the CCA is required to review the record in each trial by court-martial in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more; general court-martial cases not meeting the minimum requirements of Article 66 must be reviewed in the office of the JAG, absent an accused’s waiving or withdrawing from appellate review; if any part of the findings or sentence is found to be unsupported in law or if reassessment of the sentence is appropriate, the JAG may modify or set aside the findings or sentence or both; under limited circumstances, the JAG may also modify or set aside the findings or sentence of cases not reviewed under Article 66 or Article 69).
(under Article 69, UCMJ, the CCA may review any court-martial case which is subject to action by the JAG under Article 69 and is sent to the CCA by order of the JAG and it may review any action taken by the JAG under this Article 69 in such case; however, review in such cases is limited to matters of law, unlike the CCA’s normal review under Article 66(c)).
(where appellant’s approved general court-martial sentence was less than the statutory minimum required to trigger direct review by the CCA and after the JAG determined under Article 69(a), UCMJ, that the findings and sentence were supported in law, and elected not to send the case to the CCA for review under Article 69(d), the CCA concluded that it had jurisdiction to consider appellant’s petition for a writ of error coram nobis; this was error, even though it denied appellant relief; consideration of extraordinary relief is not in aid of the CCA’s jurisdiction, where the CCA had none in the first place; Article 69 does not authorize the CCA to review every case which is subject to action by the JAG pursuant to Article 69; instead, it grants the CCA authority to review any action taken by the JAG under Article 69 in any case that the JAG elects to refer to the CCA; because in this case, the JAG did not refer appellant’s case to the CCA - a statutory prerequisite for its review - the CCA was without jurisdiction to review it; to the extent that McPhail v. US, 1 MJ 457 (CMA 1976) and Unger v. Ziemniak, 27 M.J. 349 (CMA 1989), Dew v. US, 48 MJ 639 (A Ct Crim App 1998), are inconsistent with the opinion in this case, they are overruled).
2010 (September Term)
United
States v. Daly, 69 M.J. 485 (where the
government’s notice of appeal under
Article 62 was not timely filed, the CCA was without jurisdiction to
consider
the government’s appeal).
Denedo
v. United States, 66 M.J. 114 (although
military appellate courts are among
those empowered to issue extraordinary writs under the All Writs Act,
the Act
confines a court to issuance of process in aid of its existing
statutory
jurisdiction and does not enlarge that jurisdiction).
(on direct appeal in
courts-martial in which
the sentence extends to a punitive discharge, the CCA conducts a de
novo review
of the findings and sentence approved by the convening authority; any
request
for coram nobis relief is limited to the findings and sentence of the
court-martial reviewed by the CCA; where, as in this case, appellant
has raised
a claim of ineffective assistance of counsel that goes directly to the
validity
and integrity of the judgment rendered and affirmed, a petition for
writ of
error coram nobis was in aid of the existing jurisdiction of the CCA).
(when court-martial
jurisdiction has been
invoked properly at the time of trial, the jurisdiction of the court of
criminal appeals to review the case does not depend on whether a person
remains
in the armed forces at the time of such review).
(regarding
post-trial matters, Courts of
Criminal Appeals have jurisdiction to refrain from addressing the
merits of a
case, and instead return an action to the convening authority
if further clarification of the meaning of the action is necessary).
2003
United
States v. Riley, 58 MJ 305 (a lower court’s authority
on
remand is limited by the limitations and conditions prescribed by the
remand).
2001
United
States v. Erby, 54 MJ 476 (the Courts of Criminal
Appeals have
authority under Article 66(c), UCMJ, to determine whether a sentence is
correct
in law, and that authority includes determining on direct appeal if the
adjudged and approved sentence is being executed in a manner that
offends the
Eighth Amendment or Article 55, UCMJ).
1999