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

From Our Blog

Defense Counsel Mistakes Result in Client’s Convictions Which Are Then Overturned by the Military Appellate Court

Defense Counsel Mistakes Result in Client’s Convictions Which Are Then Overturned by the Military Appellate Court

Military law is a complex and fascinating subject that affects the lives of millions of individuals serving in the armed…
When Military Appeals Work

When Military Appeals Work

I have written and spoken frequently on the importance of a thorough review for appeal. When a servicemember is convicted…

Google Reviews

King Military Law
5.0
Based on 35 reviews
powered by Google
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.
Liv SLiv S
07:58 06 Sep 23
My journey with King Military Law began when my Navy Reserve Center falsely accused me of committing a crime but failed to notify me until nearly a year had passed after said crime. I was literally looking at losing everything I had ever worked towards the 16 years I had spent in the military to include a burgeoning career in the healthcare sector, my security clearance, my G.I Bill benefits, ect. If you think that situation can’t get any more stressful, try searching for legal counsel who will treat your case with the utmost importance instead of just a money grab. Thankfully, I found King Military Law quickly and was sold from the many 5-star reviews to Don’s impressive resume, and Kasheta’s prompt response to my initial query.During the consultation, Don did not shy away even after I explained the details of my rather complex case. In fact, he seemed to relish in the challenge of it all. Once retained, he and the rest of his legal team immediately began working various angles of my case and even provided further support by helping me navigate through several legal forms provided by my command to ensure that none of my rights were signed away.As it is the Navy Reserve, I had to wait several months for my Administrative Separation Board to convene; however, Don and his legal team always answered any questions that I had or dealt with any situations that arose in a timely manner and kept me in the loop as new details emerged.To say I was beyond stressed out the weekend of my Administrative Separation Board is an understatement, Angela’s positive demeanor and Don’s encouraging words were greatly appreciated. Don is a talented legal force and well versed in proceedings, his eloquence and extensive knowledge of military law is clear. However, what stuck out to me the most is the moment when the opposing counsel launched a particularly catty and rather unwarranted personal attack on my character. Don immediately but gracefully rebuffed his attack, providing a compelling and moving argument in which he showered me with praise and related similar experiences he had in the navy to my case in order to appeal to board members on my behalf.Thanks to King Military Law, I was able to win my case and can finally relax for the first time in nearly a year. I can’t thank the exceptional legal team (Don, Kasheta, Angela, and Ashley) enough for their tireless efforts, they’re absolute consummate professionals who truly care about their clients and will always go that extra mile for them. I HIGHLY recommend King Military Law to any service members in need and seeking out legal counsel.
Eddie RobinsonEddie Robinson
02:35 04 Sep 23
Mr. King & his associates (Ms. Kasheta) were very responsive and caring to me and my son's case. They explained in terms I could understand, they were timely, and they were caring. My son had serious charges against him and I am hundreds of miles away on the East coast and very scared. He was able to be there to see my son and let him know he had someone on his side. I know we pay for attorneys but you want to feel comfortable with your choice. My son is coming home free & clear. You will be very satisfied with King Military Law when you just can't be there yourself. THANK YOU MR KING & STAFF. posting from : Alethia
Hailey PorterHailey Porter
15:24 30 Aug 23
King Military Law saved my best friend's life and career. The Navy likely illegally separated a close friend of mine with 14 years of service, at the time, as a Sailor. As was I, she was stuck overseas in Afghanistan in 2020 due to the travel ban Gen Miller initiated to prevent personnel from entering and leaving Theater. She wasn't able to fulfill her naval obligations due to the ban. She fought tooth and nail to come back into service and went through MEPs for a second time to continue serving. The Navy again tried to ADSEP the sailor for a separate reason, and that's when she hired King Military Law. If my friend was given her charges she would've lost her medical career, intelligence career, and at this point 16 years of active service. I was present for her ADSEP board and watched King Military Law in action. The process was extremely nerve-racking. The recorder wasn't pulling any punches about my friend's character they were trying to portray to the board. King Military Law's kindness, professionalism, and strategy saved her life. They helped her beat a case that typically the service member wouldn't win. I 10/10 recommend King Military Law. For the first time in 2 years, my friend is able to truly rest and breathe.
Bryce BeeckmanBryce Beeckman
04:26 30 Aug 23
Don is absolutely amazing, I cannot thank him enough for how much he helped me out with my case. He knows the Navy legal system inside out and has a ton of experience. If it weren’t for him I would have never been reinstated. My chain of command literally tried to rail road me, twist my story, and even tried to tell me that it was illegal to get legal representation, but Don worked with me every step of the way. Before contacting Don I spoke with other lawyers and they did not care at all, and didn’t even listen to me and my case. The JAG even blew me off and told me that I was going to loose, didn’t even want to help me out, but Don did it, and got my rank back. I’m so incredibly grateful that he had my back. Don is the way to go for anything legal dealing with the Navy, hese #1 in my books.
Dina TrujilloDina Trujillo
04:46 15 Aug 23
Where do I begin? This will be a bit lengthy as I want to share my experience King Military Law. There aren’t enough words to express how grateful, blessed, and completely honored we are to have had Don King and his team representing my Marine. A few months ago, my son found himself in a very difficult, very scary and extremely stressful situation. A parents worst nightmare. My son was being FALSLEY accused of of a very serious crime. My son had no chance to speak his truth, and was immediately guilty in the eyes of command with absolutely no chance for a positive outcome. This was extremely heart wrenching to a mother who 100% knows without a doubt that her son is innocent, it completely broke me and tore me apart. There was nothing I could do. Once Don heard my sons case he immediately took action. Don ensured that my sons rights were protected. Don protected my Marine when I could not. Don made sure that my son would not get screwed out of what he was entitled to, since my son was a few months from completing his enlistment.Don fought for my boy, presented facts and had these serious charges dismissed against my son, all without having to go to court martial. Don believed in my son from day one and relentlessly fought for him.Don is caring and compassionate and genuinely cares. While going through this stressful situation, Don made sure to reach out to my Marine a few times a week to check in with my son to make sure he was mentally and emotionally doing well. Don kept us updated throughout the process and we always knew what to expect. In the end my son was separated under honorable conditions and is now home. All which never would’ve happened without Don. Don saved my sons career and ensured that my son could have a successful and bright future in the civilian world.I promise that you will not find another Military Attorney with the experience and knowledge that Don has, just take a look at his resume. Don is a warrior who will run circles around anyone. Thank you so much Don and Kasheta for everything! Forever thankful.
Rancell GonzalezRancell Gonzalez
06:29 08 Aug 23
This guy has the best legal team in the nation, hands down. All odds were against my best friend, another co-worker, and myself. Somehow, he managed to win every single battle. Don King literally fought for us 24/7, it did not matter to him whether it was the weekend or late at night. Don always answers the phone provides support through stressful times. Don is a winner, what can I say. I will always be forever grateful that I hired this man. When you go to court with him, you will see that you didn't waste your money and time, but you invested it. This guy awesome, I would hire him a 10000000000000 times if had to because I know he will win.
Kiki WhiteKiki White
00:27 13 Jul 23
Mr. King went above and beyond during our consultation. He was professional, knowledgeable, and very thorough. We went over the 30 minutes. Mr. King did not try to rush me off the phone. This is an attorney who truly cares for a client or potential client. I would highly recommend retaining Mr. King as an attorney. Thank you so much for your assistance Mr. King!
Jeovani StouteJeovani Stoute
02:47 05 Jul 23
Mr. King provided advice for a pending legal issue I am facing. His experience, professional demeanor, and care is unmatched.
Leslie PuikLeslie Puik
01:03 07 May 23
There aren't enough words of high praise to express our appreciation for Don King of King Military Law. He and his very qualified staff Kasheta and Angela took care of our needs like we were their only clients. They are all highly professional, superb communicators, responsive, and thorough. They are caring, compassionate and patiently listen to and address every concern as though they were helping one of their family members. Don excels at helping others understand the processes of the law. He educates his clients so that they can navigate toward the best possible solution and outcome. We will be forever grateful for the entire team's effort to help our family through the most challenging time of our lives.I highly recommend King Military Law.
js_loader

See All Reviews