Who is an appellate judge

CAAF answers an unusual question about who is an appellate military judge.

In United States v. Forrest, No. 25-0081 (C.A.A.F. Sept. 21, 2026), CAAF held that an Army Court of Criminal Appeals (ACCA) judge could participate in deciding a case while on terminal leave before retirement.

The issue

Senior Judge Walker began terminal leave on October 10, 2024. ACCA issued its decision in Forrest on November 22, and Walker retired from active duty on November 30. She had also been appointed to a position at CAAF on October 21, before ACCA decided Forrest.

CAAF had recently addressed a related issue in United States v. Abdullah. There, a judge participated in an ACCA decision after retiring from active duty. CAAF held that the appellate court was improperly constituted because the retired judge was no longer assigned to ACCA when the court issued its decision. Abdullah expressly reserved the question presented in Forrest: What happens when the judge is on terminal leave but remains on active duty?

CAAF drew the line at retirement.

Walker remained on continuous active duty and remained assigned to ACCA when the court issued Forrest. CAAF therefore held that neither statute nor rule prohibited her participation in the decision.

Why Forrest matters

Forrest and Abdullah reinforce an important principle: a military appellate court must be properly constituted when it decides a case. CAAF explained that a case is decided when the court issues its decision, and only a properly constituted appellate panel can perform the review required by Article 66, UCMJ.

But Forrest may not answer every question.

The opinion establishes that terminal leave, standing alone, does not disqualify an active-duty judge who remains assigned to a Court of Criminal Appeals. It says considerably less about the relationship among terminal leave, continued military assignment, and employment or appointment elsewhere. CAAF noted that Walker had been appointed to CAAF before ACCA decided Forrest, but the court resolved the case based on her continued active-duty status and assignment to ACCA.

For a more detailed examination of Forrest, Abdullah, appellate panel composition, and the questions that may remain, see Who Is the Court? Appellate Panels, Quorums, and Any Questions at CAAFlog, written by Philip D. Cave.

Forrest is part of a broader question of who may lawfully serve as a trial or appellate judge

If the judge is not properly appointed to a term of office, can she sit as a trial military judge or an appellate one? More to come on this important systemic issue that has been developing since the Supreme Court decided Weiss v. United States.

Cave & Freeburg, LLP represents servicemembers in courts-martial and military appeals. For more information about courts-martial, the UCMJ, and military appellate practice, visit Court-Martial.com and Court-Martial-UCMJ.com.