Military Appeals and the “Military Justice” Act of 2016

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The Military Justice Act of 2016 outlines significant changes to post-trial and appellate review for military members.  The Uniform Code of Military Justice (UCMJ) establishes two levels of military appellate courts. The first level of review comes at the service Courts of Criminal Appeals (CCAs). Article 66, UCMJ, requires each military service to established a CCA – Army CCA (ACCA), Navy-Marine Corps CCA (NMCCA), Coast Guard CCA (CGCCA), and the Air Force CCA (AFCCA). The CCAs are composed of senior active duty and reserve Judge Advocates sitting in three-judge panels. Under the current version of Article 66, review by a CCA is automatic in all cases in which the sentence includes a bad-conduct discharge, dishonorable discharge, or confinement for one year or more.

The Military Justice Act of 2016 modifies the CCAs’ jurisdiction in significant ways. The Act also grants the Government the right to appeal a sentence that “violates the law” or is “plainly unreasonable.” The Act becomes effective on a date to be determined by the President or not later than January 2019.

No More Automatic Review In Certain Cases

The revised version of Article 66, UCMJ, will replace the requirement for automatic review of cases in which the sentence includes one-year or more of confinement with a requirement for automatic review of cases in which the sentence includes two years or more of confinement. The new law leaves unchanged the requirement for automatic review in cases in which the sentence includes dismissal of a commissioned Officer, dishonorable discharge, or bad-conduct discharge.

Petition for Review

Under the Act, some convicted service members will no longer receive automatic review, but instead may petition the CCA for review of their case. If the service member received a sentence to confinement for more than six months but less than the two-year threshold for automatic review, he can petition for review. This change is presumably a slight expansion of appellate rights for some service members, though it is unclear if the CCA will grant review for each petition, and a diminishment of appellate rights for others.

On the other hand, the Act decisively expands appellate rights for a category of convicted service members previously deprived of review by any appellate court. Under the current version of Articles 66 and 69, UCMJ, a significant number of courts-martial convictions fall outside the jurisdiction of any appellate court: any case in which the sentence includes confinement of less than one-year and not including a punitive discharge is reviewed by a the office of the Judge Advocate General and not by an appellate court.

Revisions to Article 69 under the new Act would permit convicted service members whose sentence is six months or less and does not include a punitive discharge to petition the CCA for review of their case. The application for review by the CCA must be filed within sixty days of notification of the decision of the Judge Advocate General under Article 69. Article 69 limits the CCAs’ jurisdiction in such cases to “matters of law.” In other words, the CCA may not review this category of cases for factual sufficiency. Factual sufficiency examines whether or not evidence or an inference of evidence was presented to support each element of every offense for which there was a finding of guilt. Even with this caveat, however, the revision to Article 69 represents a significant improvement in military appellate practice. Please note that this amendment is not retroactive, meaning that those military members who were convicted of sex offenses prior to mandatory minimum punishments that would provide appellate relief are not going to be grandfathered into this provision after the fact. The amendment will apply prospectively for convictions that occur on or after the effective date.

Government Appeal of Sentences

Significantly, the Act modifies Article 53, UCMJ, granting the Government the power to appeal a court-martial sentence, “on the grounds that the sentence violates the law . . . or the sentence is plainly unreasonable.” If the CCA finds that the sentence violates this provision, then a rehearing on sentencing may be ordered in an effort presumably to increase the punishment for a military accused. The Government’s new power to appeal sentences is the most significant post-trial change in the Military Justice Act of 2016.

This change to the law creates a whole new class of appellate litigation. The CCAs will have to determine what “plainly unreasonable” means under the new law – stand by for years of appellate litigation on this issue.

Factual Sufficiency Review Retained

Under the Military Justice Act of 2016, the CCAs retain their power to review cases for factual sufficiency. Article 66, UCMJ, grants the CCAs unique power to review courts-martial findings for factual sufficiency. Courts of Criminal Appeals, “may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” This language is left unchanged in the new version of Article 66.

Court of Appeals for the Armed Forces

The second level of military appellate review takes place at the Court of Appeals for the Armed Forces (CAAF). The CAAF is composed of five civilian judges appointed by the President, with advice and consent of the Senate, for fifteen-year terms. The Military Justice Act of 2016 makes only cosmetic changes to Article 67, UCMJ. The CAAF will continue to exercise discretionary review of the decisions of the CCAs. In that capacity, the CAAF will likely be asked to weigh in on the meaning of some of the changes brought by The Military Justice Act of 2016. In particular, the CAAF may be asked to help define the meaning of “plainly unreasonable” when the government uses its new power to appeal court-martial sentences. Because the Military Justice Act does not come into effect immediately, it may be a long while before the CAAF has an opportunity to weigh-in on this and the other provisions of the Act.

The changes to post-trial practice will reverberate for decades; it is imperative to ensure that a military service member’s rights are protected at trial and beyond.

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