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Appellate Review of Courts-Martial

Courts-martial are conducted under the UCMJ, 10 U.S.C. §§ 801-946, and the Manual for Courts-Martial. If the trial results in a conviction, the case is reviewed by the convening authority -- the person who referred the case for trial by court-martial. The convening authority has discretion to mitigate the findings and sentence.

If the sentence, as approved by the convening authority, includes death, a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or confinement for one year or more, the case is reviewed by an intermediate court. There are four such courts -- the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Air Force Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals. The Courts of Criminal Appeals review the cases for legal error, factual sufficiency, and sentence appropriateness. All other cases are subject to review by judge advocates under regulations issued by each service. After such review, the Judge Advocate General may refer a case to the appropriate Court of Criminal Appeals. The Courts of Criminal Appeals also have jurisdiction under Article 62 of the UCMJ to consider appeals by the United States of certain judicial rulings during trial. Review under Article 62 is limited to issues involving alleged legal errors.

The Court’s primary jurisdictional statute is Article 67(a) of the UCMJ, which provides:

The Court of Appeals for the Armed Forces shall review the record in –

1. all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death;
2. all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review; and
3. all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.

Under Article 67(c), the Court’s review is limited to issues of law.
The Courts of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces also have jurisdiction to consider petitions for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651.

The Supreme Court of the United States has discretion under 28 U.S.C. § 1259 to review cases under the UCMJ on direct appeal where the U.S. Court of Appeals for the Armed Forces has conducted a mandatory review (death penalty and certified cases), granted discretionary review of a petition, or otherwise granted relief. If the U.S. Court of Appeals for the Armed Forces has denied a petition for review or a writ appeal, consideration by the Supreme Court may be obtained only through collateral review (e.g., a writ of habeas corpus).

(Page updated 10/31/06)