Court Martial Appeals

What Is A Military Appeal?

Perhaps you’ve just been notified that you are under investigation or face Article 15 / NJP punishment. You may be looking for a military attorney to assist right away but you should also consider what happens if you’re convicted. Appeals are an opportunity for a “second chance” but all too often clients don’t know about them or don’t know how to exercise these rights. Don’t make that mistake.

The appellate process will depend upon at which “forum” you were convicted.

Article 15 / Njp

If you were convicted at Article 15 (also known as Office Hours, Captain’s Mast, or NJP), you have the right to appeal to the next higher level of command and—if you request it—the command may have to delay some of your punishment until the appeal is decided. The next higher commander can take any action, including overturning your conviction. This is an important opportunity to have someone else look at your conviction and some action by the higher commander is not unusual, provided your appeal is done right.

Court Martial

Next, if you are convicted at a court martial, you may have the right to appeal to a higher court. The military justice process is FAR from perfect. Investigators violate the constitution, judges make mistakes at trial, Commanders abuse their discretion during the course of your trial. These types of mistakes (and more) may be reviewed on appeal and can result in a “second chance” for you or a loved one. In fact, an aggressive, successful appeal could result in your conviction being overturned entirely, meaning it would be as if it never occurred. You get your life back, you get back pay from the time your pay stopped, and you get reinstated on active duty with the chance for immediate back-promotions. It happens!

Read opinions here and here to see why having a good appellate military lawyer is so important, even if you plead guilty to the charges. 

But notice we say, “MAY” be reviewed on appeal. That review will generally not happen if your lawyer did not “preserve” the issues at the court martial. That’s why it’s so important that you have a trial lawyer who understands the rules of appellate procedure. Even better is that you understand the basics yourself.  To help you, we spend a little time here explaining how the process works.

First, the rules for appeal generally permit your lawyer to raise issues that were “properly preserved” at trial. This requires that your trial lawyer make the proper objections, at the proper time, during trial to “preserve” the issue for appeal. If they don’t, that issue may be deemed “waived” on appeal. Sadly, few trial lawyers have extensive appellate experience so many issues end up “waived” as a result. Make sure you hire a trial attorney with appellate experience–the more experience the better! Otherwise, you might lose this important “second chance.” To help illustrate this point, here’s [hyperlink to the London Opinion] an example of a recent opinion where KML attorneys Don [hyperlink to Don’s page] and Dave [hyperlink to Dave’s page] teamed up to file a successful appeal that resulted in their client’s conviction being overturned, the client being released from a prison sentence of over five years, and the client receiving over two years of pack pay! As you can read, appeals CAN be won. Don’t give up and make sure you have an aggressive attorney experienced in appellate law to assist you.”

[Don] has mastered the art of . . . military justice . . . thorough grasp of rules, procedures, and [criminal law] processes. One of the preeminent experts in this field.” Supervising Military Judge, 2012

Clemency

Your appellate rights depend upon the type of court martial (Summary, Special, or General) and the sentence you receive. Generally, your first opportunity for appellate relief begins immediately after your trial. Your lawyer will be able to point out any errors or mistakes made at the trial level in a “clemency” submission to the convening authority (the convening authority Is the commander who ordered your trial). Depending upon the charge and the sentence, the convening authority may be able to set aside your conviction or disapprove your sentence. This should be considered your first opportunity at appeal and should be aggressively pursued. As the legal advisor for several of these commanders, Don can help explain why a thorough clemency submission can make an enormous difference. But they have to be done correctly and tailored to the commander and the circumstances. These submissions should NEVER be “boilerplate.”

“Routinely sought out by other counsel for comprehensive knowledge of post-trial and clemency [strategies].” Commanding Officer, 2000

Judge Advocate Review

Another opportunity for appeal (again, depending upon the type of court-martial and the sentence awarded) is a review by the Office of the service’s Judge Advocate General. This is also an important opportunity for getting your conviction set aside or your sentence reduced and your lawyer should be all over this. Make sure they are!

Military Courts Of Appeal

The final course of appeal to discuss is to the military appellate courts. If the court martial was a Special or General, and the sentence was severe enough, your case will automatically be appealed. During this appeal, you will get a new active duty military lawyer to represent you. The process is different than your court martial, as an appeal is basically a review of the record of your trial, with no evidence or courtroom appearances required. Instead, if your case goes this route, you’ll likely get a call from a uniformed appellate attorney who will let you know that they’ve been assigned to represent you. That attorney will then review the record of your trial to identify any of the issues written about above.

Appellate Process: Experience Matters!

Because it will be this lawyer alone reviewing your case, it’s critically important that that lawyer have experience in this area. The appellate defense divisions have fantastic military attorneys, some with significant experience. BUT YOU NEED TO MAKE SURE OF THIS! As a Senior Military Appellate Judge, Don saw FAR too many cases where inexperienced counsel missed very important issues. If this happens, those issues will likely never be considered and you’ll never be the wiser. To help avoid this trap, make sure your attorney has as much experience as possible! Ask the military attorney how long they’ve been an attorney, how many military appeals they have done, etc. Know your lawyer’s qualifications.

Once the military records have been reviewed, and if your attorney identified any issues, your attorney will produce a “brief” which is a document that sets forth the issues the attorney identified, the lawyer’s argument as to why the issues should make the court take action, and the lawyer’s argument about what that action should be. This is where advocacy, or persuasive writing, is crucial. These recommendations can range from modifying your sentence (like disapproving the Dishonorable Discharge), to disapproving your sentence and ordering a new sentencing rehearing, to overturning the conviction entirely, without the possibility of you being retried. If your case is automatically appealed, the appellate courts cannot make your sentence more severe—it may only reduce or eliminate it. As you can see, this “second chance” can mean the world to you or a loved one.

Once the attorney submits this brief, a government appellate attorney drafts a response and both documents go to the appellate court where a panel of three judges make the decision. Frequently, one side or the other may request oral argument or the court may even order it without the parties’ request. If an oral argument is ordered then the parties will argue the case live before the court (likely in Washington D.C.), but it is only a hearing…no testimony or evidence is involved.

Military law also requires the appellate court to review the record independently to ensure that the court is itself convinced of guilt beyond a reasonable doubt. Once the panel makes a decision, the decision is returned to the parties. At that point the parties can request that the panel reconsider its decision, or even that the panel send the decision to the entire court composed of approximately nine judges for reconsideration by the entire court. However, these requests for reconsideration have timelines and can only be granted if certain steps are taken first. Again, a reason why your appellate attorney MUST ABSOLUTELY know what he or she is doing. Miss a step or a timeline and you miss this chance.

Court Of Appeals For The Armed Forces

If the appellate military court upholds your conviction, then your attorney may seek review by the next higher court, known as the Court of Appeals for the Armed Forces (CAAF). The CAAF is composed of civilian judges. Appeals to this court are largely “discretionary,” meaning the court may decline to permit the appeal. Therefore, your appellate attorney must know exactly what the CAAF is looking for before you request an appeal to this court.

United States Supreme Court

Finally, you may attempt to appeal your case to the U.S. Supreme Court (USSC).  Like CAAF, the USSC has discretion on what cases it will allow and only a tiny fraction of military cases that are appealed to USSC are accepted.

All Writs Act

When all other avenues are exhausted, you have the right to file certain Writs. Writs are another name for an appeal and are generally applicable only in extraordinary circumstances when no other opportunity for relief is available (for example, all of your appeals are exhausted but you experience unusual punishment in prison.) There are two types of writs:

Writ of Habeas Corpus. This writ is only available to service members still in confinement.

Writ of MandamusThis type of writ is available to all convicted service members but three prerequisites are required: (1) a clear right to the relief sought; (2) a plain duty on the part of Government to do the act in question; and (3) there is no other adequate remedy available.

BUT BE CAREFUL: A service member may only bring a writ if the service member “preserved” the error by raising it during his trial or appeal. This is yet another reason you select an attorney for trial who understands these requirements and takes action to preserve the necessary issues should they be needed later.

Be Informed!

Learn all you can about these courts and their procedures. To help you do so, we’ve provided links here where you can read the rules yourself and formulate any questions for your attorney.

Call us to see if we can help

We hope this information has helped better inform you and assists you in making important decisions. Don’t discount the importance of an appeal! When done right, it may give you your life back. If you have questions, please give us a call for a free consultation and let us see if we can help.

King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most

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Ariel DifoAriel Difo
02:32 17 Feb 24
I was told by my command and even military lawyers that my separation from the military was inevitable and that there was no way to fight it. I lost all hope was going to accept my separation from the military. But, thanks to the guidance of Mr. King, I was encouraged to fight for my name and was even able to win my board with the help of Mr. King and his Firm. Angela and Kasheta were always there to assist me with any questions or concerns I had, and Angela did an amazing job scrutinizing the discovery and finding many flaws with the accusations. It was their hard work and dedication that eventually led to me being retained in the military. Mr. King was always professional and instilled confidence in me that I had nothing to fear. I would highly recommend his firm, knowing that his team will give you one hundred percent of their efforts and help you fight for what's right.
Adam WAdam W
00:27 10 Feb 24
Don and his team at King Military Law are truly incredible people. It's rare that you can call a law firm and speak directly with a lawyer, let alone someone like Don. He gave my father and I exactly the information we needed despite the challenges that ensued. It gave us hope in a very difficult time. Even afterwards, he's done everything he can to help me and my family take action and hopefully help many others in the process. Thank you Don 🙏
cforceman1cforceman1
19:16 09 Feb 24
I recently hired Don King and his team for my legal situation and they delivered expertly. I was not sure what my options were and they laid it out for me in a way I can understand. There are no guarantees when it comes to legal situations but I was lucky that I went with what I came to see was the best in the game. Give them a call. I wish you the same result that I had especially with Angela and Kasheta on the case too.
B MB M
21:58 24 Jan 24
Potentially found myself on the wrong side of an NJP that would have jeopardized my military career and discharge. This was not only a threat to my meticulously built reputation, but also to my future after military service. I was incredibly worried with no idea who to contact or trust.Here comes King's Law Firm - they are a dedicated and diligent team, filled with experienced professionals that have seen almost anything a service member can encounter. This is crucial - they have the unique perspective to provide comprehensive and informed legal advice. Upon listening to my situation, they instantly had a plan of action for me. This provided so much clarity and much needed relief.I cannot stress how beneficial the King Law Firm team has been to me. I need to shout out Ms. De La Garza - she actively listen to me for well over 20 minutes so that she could have the most accurate understanding of my situation. Her attentive nature tied with vast experience makes her such an invaluable asset to have on your side.I deeply appreciate the help, and will certainly use your firm in the future!
Lucas VazquezLucas Vazquez
01:43 11 Jan 24
If you're seeking legal assistance, King Military Law is where you need to go. I was going through legal issues with my command, Mr. King and his staff did above and beyond to help me. From making me feel comfortable and guiding me throughout the case. I can't thank them enough.
Christopher EsquivelChristopher Esquivel
03:25 05 Dec 23
Mr. King is very knowledgeable in military law. He was able to help me and made sure to explain everything in the most simple terms so that I can ensure I was in good hands. He is quick to help you address the issues you are going through and help you find solutions.
kyle doughertykyle dougherty
01:23 02 Nov 23
Don King and his practice, "King Military Law," have been an absolute game-changer in my life. From the moment I spoke to Don for a free consultation over a year ago, I knew I was making the right choice. The journey that followed has been nothing short of extraordinary.I had the opportunity to consult with several military lawyers, but it was Don's unwavering commitment and his word that won me over. He assured me he would stand by my side, and that promise has been upheld most remarkably. Don, along with his exceptional paralegals, Angela and Katesha, embarked on a tireless journey to fight for my rights and my future.The most significant battle they helped me win was against an administrative separation board. The dedication and diligence they put into my case were unparalleled. They left no stone unturned, meticulously examining every detail and aspect of my situation. Their level of commitment to my case was nothing short of inspiring.What truly sets Don King and his team apart is their exceptional communication. They consistently went above and beyond, ensuring I was informed at every stage. Their accessibility and willingness to answer any questions I had, no matter the time or day, gave me peace of mind during what could have been an extremely stressful period for my family and me.Don and his team didn't just treat my case as another file; they treated it as a number one priority. Their genuine care and concern for my well-being and the well-being of my witnesses were evident throughout our time together. They provided support and advocacy that goes above and beyond the call of duty.In conclusion, I couldn't be more thrilled with my experience with King Military Law. Don King and his exceptional team have met and exceeded my expectations in every way. If you need military legal representation, I wholeheartedly recommend Don King and his practice. They are not just legal professionals; they are compassionate allies who will fight relentlessly to ensure that justice prevails. Thank you, Don King and King Military Law, for giving me a second chance and being the unwavering support I needed during a challenging time. You are nothing short of amazing.
Cody WhortonCody Whorton
04:54 21 Oct 23
I am a Chief Petty Officer; I have served for our world’s finest Navy for 13 years. Unfortunately, I had a potential career ending legal event that threatened me with an administrative separation board. After calling numerous lawyers in San Diego, I called Mr. Don King and his legal team. Let me tell you, it was one of the best decisions that I have ever made. After speaking with Mr. King, I immediately felt that I had the best legal representation that I could possibly find. I WAS RIGHT! Don is the most honest, hard-working, and compassionate lawyer you are going to find! His team fought for me like I was their son. His team is super responsive and always helpful. They were very knowledgeable and were able to answer all my questions regarding the process. Don’s paralegal Angela would always ensure all required documentation was in order and received in a timely manner. She would even talk to me when I was feeling down and ensured I was making the right decisions on my part. Don fought at my board like it was the last day on earth. This is the best legal team in San Diego. If you choose only one lawyer, choose Mr. Don King and his legal team. YOU WILL NOT REGRET IT! Thank you, King family! My wife and I will never forget what you did to help us win this battle.
Scott PRESTIGIOCOMOScott PRESTIGIOCOMO
00:29 14 Oct 23
Had a conversation today with Mr king about a military court case 2000 miles away and spoke with over 20 other attorneys and not 5 of them combined gave me the amount of advice that he did himself! Very well educated in his field with a wealth of knowledge. I have multiple high end attorneys on retainer here in my state so I’m not foreign to well experienced attorneys and this man was what I am familiar with when it comes to well experienced. Sad that I had to swim thru a pool of uneducated attorneys whom claimed to be the best in their field only to find out that they had no clue to what seemed to myself and my legal/political friends to be a somewhat simple question for someone claiming to be a pro! This man is the real deal! This is not a paid or fake comment and I have never met this person who is very far from here and he helped me as if I was standing in front of him! Even as he was walking his dog he took his own time to get back to me. If you’re looking for a legit attorney then you’ve found him! I’d give more stars if possible. I’ll be telling my friends on the west coast in the area about you. Thank you for your time sir!
Jess SackettJess Sackett
20:19 15 Sep 23
Mr King recently defended my daughter for misconduct. His defense ended with a unanimous board decision clearing my daughter of that charge. Mr King was tenacious and unrelenting in her case. His staff are true professionals and highly skilled and experienced in preparing the cases. If you or someone you know needs a lawyer who will fight for you Mr King is the one you want in your corner.
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