Proven Military Appellate Defense

A court-martial conviction is not the end. It may feel that way — but the military justice system provides multiple levels of review, post-conviction remedies, and avenues for relief that most convicted service members never fully understand or pursue. Convictions are overturned. Sentences are reduced. New evidence is developed. Errors at trial are exposed. Careers and retirements are preserved.

But none of that happens automatically, and none of it happens without experienced counsel who knows how to find the issues, develop the record, and argue effectively before appellate courts.

Philip Cave has spent his entire legal career in military law and military appellate practice. He served as Deputy Director of the Navy and Marine Corps Appellate Defense Division and has argued before every military court of criminal appeals and the Court of Appeals for the Armed Forces (CAAF). Nathan Freeburg brings more than 20 years of trial experience, including cases that have generated appellate issues from the ground up. Between them, they have handled hundreds of military appeals — not as a secondary practice, but as a core part of what they do.

If you were convicted at a court-martial, had charges dismissed at trial but face retrial, are serving a sentence you believe is unjust, or believe your trial counsel failed you, call us. There is likely more you can do than you think.

Call 800-401-1583 or 202.931.8509 for a confidential consultation.

The Military Appellate System — How It Works

The military justice system has multiple levels of appellate review, each with distinct jurisdiction, standards, and opportunities for relief.

Courts of Criminal Appeals (CCAs)

The first level of appellate review for general and special court-martial convictions is the service Court of Criminal Appeals:

• Army Court of Criminal Appeals (ACCA)
• Navy-Marine Corps Court of Criminal Appeals (NMCCA)
• Air Force Court of Criminal Appeals (AFCCA)
• Coast Guard Court of Criminal Appeals (CGCCA)

The FY2023 National Defense Authorization Act significantly expanded CCA jurisdiction. Under the amended Article 66, UCMJ, any conviction by court-martial — including summary court-martial convictions — is now subject to judicial review regardless of the sentence imposed. Before this change, review was only automatic if the sentence included a punitive discharge or two or more years of confinement. This expansion is one of the most favorable legislative changes for convicted service members in decades, and it opens the door to appellate relief for cases that previously had no meaningful avenue for review.

CCAs review both the law and the facts of your case. They can:

• Set aside findings of guilty
• Dismiss charges with or without prejudice
• Reduce the sentence
• Order a new trial or rehearing on findings or sentence
• Order a DuBay evidentiary hearing to develop facts not in the trial record

The factual sufficiency review that CCAs conduct is unlike anything available in most civilian appellate courts — they can independently weigh evidence and determine whether the government proved guilt beyond a reasonable doubt. Congress has narrowed but not eliminated this authority. Under the amended Article 66(d), UCMJ (effective 2019), an appellant must specifically request factual sufficiency review and make a threshold showing of a deficiency in proof. CCAs then apply “appropriate deference” to the trial court’s findings. This is a harder standard than it used to be — but it is still a genuine avenue for relief in cases involving weak evidence, credibility disputes, or elements the government failed to prove.

Court of Appeals for the Armed Forces (CAAF)

After CCA review, convicted service members may petition the Court of Appeals for the Armed Forces. CAAF is the highest military appellate court — an Article I court composed of five civilian judges appointed by the President and confirmed by the Senate. CAAF’s review is discretionary (except for cases where the Judge Advocate General certifies an issue), focusing on questions of law.

CAAF’s decisions are binding on all military courts. When CAAF takes a case and rules in the defense’s favor, the impact extends beyond the individual appellant. We have argued issues before CAAF that changed military law — not just resolved individual cases.

After CAAF, further review by the United States Supreme Court is theoretically available under 28 U.S.C. Section 1259. It is rare, but it has happened in military cases — including cases with national security or constitutional dimensions.

Article 69 Review — Judge Advocate General Review

Service members who were convicted at a general or special court-martial but whose case does not qualify for automatic CCA review, or who did not initially pursue appellate review, may petition the Judge Advocate General of their service for Article 69 review. The JAG may modify or set aside findings and sentence if they find the proceedings were contrary to law or involved a manifest injustice. This is an underutilized avenue — and for some service members, it is the only door still open.

What Grounds Support an Appeal?

Every appeal requires showing that an error occurred and that the error was prejudicial — meaning it affected the outcome in a meaningful way. The strongest appellate grounds we develop and litigate include:

Legal and Factual Sufficiency

The government must prove every element of every charged offense beyond a reasonable doubt. When the evidence presented at trial simply does not support the conviction — when witness credibility was fatally undermined, when the physical evidence contradicted the government’s theory, when the documentary evidence was misread — the conviction can be set aside on appeal. This is particularly important in Article 120 cases, where convictions sometimes rest on a single witness’s uncorroborated testimony and nothing else.

In one case, we represented on appeal a Marine Corps E-4 convicted of sexual assault and sentenced to years in prison, a dishonorable discharge and sex offender registration. In our appellate brief to the NMCCA we explained how his conviction was factually insufficient. The NMCCA agreed and completely overturned the conviction without a retrial being authorized. He walked out of confinement a free man. That result came entirely from aggressive appellate advocacy.

Ineffective Assistance of Counsel

The Sixth Amendment right to effective assistance of counsel applies at courts-martial. Under the Strickland standard — adopted in the military context by United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2011), and refined in United States v. Captain, 75 M.J. 99 (C.A.A.F. 2016) — an appellant must show (a) trial defense counsel’s performance was deficient (fell below the objective standard of reasonable performance) and (b) the deficiency caused prejudice (there is a reasonable probability the outcome would have been different with adequate representation).

Ineffective assistance claims are common in courts-martial because:

• Military defense counsel are frequently overworked and under-resourced compared to OSTC prosecutors
• Junior defense counsel lack the trial experience needed to handle complex Article 120 or financial crimes cases
• The resource disparity documented by the DAC-IPAD — OSTC teams with six personnel against a one or two junior defense counsel — creates structural conditions for IAC
• Defense counsel sometimes fail to investigate, fail to call witnesses, fail to file critical pretrial motions, or fail to challenge evidence that a competent attorney would have challenged

In United States v. Suarez, 86 M.J. 65 (C.A.A.F. 2024), CAAF found ineffective assistance where trial defense counsel failed to move for production of two OSI video-recorded witness statements that were lost by the government — with no reasonable explanation for the inaction and a reasonable probability the motion would have been meritorious.

When an IAC claim involves facts outside the trial record — what counsel did or did not do, what witnesses were available, what investigation was conducted — an appellate court may order a DuBay evidentiary hearing to develop those facts before ruling.

Unlawful Command Influence

Unlawful command influence (UCI) is Article 37’s prohibition on anyone subject to the UCMJ attempting to coerce or influence courts-martial proceedings by unauthorized means. UCI claims have become increasingly important in Article 120 cases, where congressional pressure, institutional mandates, and OSTC performance expectations create exactly the kind of atmosphere that courts have recognized as unlawful influence.

As noted in United States v. Barry, 78 M.J. 70 (C.A.A.F. 2018), UCI can be committed by any person subject to the UCMJ — not just commanders — and a finding of UCI can infect the entire proceeding. Once the defense raises UCI with some evidence, the burden shifts to the government to prove beyond a reasonable doubt that the proceedings were unaffected.

We have successfully litigated UCI issues from the pretrial stage through appeal. A retired Army Lieutenant Colonel at Fort Belvoir had all charges dismissed after Mr. Freeburg aggressively litigated at trial unlawful command influence and defective referral arguments — national news case, retirement preserved.

Evidentiary Errors

Military judges make evidentiary rulings that are subject to appellate review for abuse of discretion. Common evidentiary grounds include:

• Improper exclusion of defense evidence (including MRE 412 rulings that excluded evidence probative of the accuser’s motive to fabricate)
• Admission of unreliable expert testimony (including forensic child interview expert testimony in Article 120b cases)
• Brady/discovery violations — the government’s failure to disclose material exculpatory or impeachment evidence
• Improper admission of other acts evidence under MRE 404(b)
• Confrontation Clause violations
• Digital evidence chain of custody failures

We routinely review trial records for evidentiary errors that defense counsel challenged and were denied by the judge or errors that the defense counsel failed to preserve — and litigate ineffective assistance alongside the underlying evidentiary issue when preservation was deficient.

Sentencing Errors and Sentence Appropriateness

The CCAs have unique authority to review not just the legality but the appropriateness of a sentence. Even where no legal error occurred, a sentence that is simply too severe for the offense and the offender can be reduced on appeal. This is a power that civilian appellate courts almost never have — and it is one of the most important tools in the military appellate defense arsenal.

Under the framework of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), CCAs conducting sentence reassessment consider: the dramatic change in penalty landscape when a conviction is set aside, whether the appellant chose judge or members for sentencing, whether the remaining offenses capture the gravamen of the criminal conduct, and whether significant aggravating circumstances remain relevant.

For offenses committed after December 27, 2023, the new judge-alone sentencing system with structured parameters creates additional appellate issues: whether the parameters were properly applied, whether departures were justified, and whether the judge properly considered mitigation evidence.

Winning a sentence reduction — even without overturning the conviction — can mean the difference between lengthy confinement and not, between a dishonorable discharge and a bad-conduct discharge, between losing retirement and keeping it.

Post-Conviction Relief Beyond the Direct Appeal

DuBay Evidentiary Hearings

When an appellate court determines that facts outside the trial record need to be developed before it can rule on an issue — typically an IAC claim — it may order a DuBay hearing (named for United States v. DuBay, 17 U.S.C.M.A. 147 (1967)). A military judge conducts the hearing and makes findings of fact, which the appellate court then adopts or reviews. DuBay hearings are not second trials — they are targeted fact-finding proceedings focused on the specific issues the appellate court has identified.

DuBay hearings can be decisive in IAC cases. If a DuBay record shows that trial counsel did not investigate critical witnesses, did not consult forensic experts, or did not pursue obvious pretrial motions, the appellate court has the factual predicate to find IAC and order a new trial or other relief.

Writs of Error Coram Nobis

A writ of coram nobis is available to former service members who have completed their sentence (including any confinement and probationary period) but continue to suffer the consequences of an erroneous conviction — sex offender registration, loss of veterans’ benefits, clearance bars, civilian employment restrictions.

After United States v. Denedo, 66 M.J. 114 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009), coram nobis petitions in the military are filed with the Court of Criminal Appeals that last reviewed the case. The petitioner must show: (1) the alleged error is of the most fundamental character; (2) no other remedy is available; (3) there are valid reasons the error was not raised earlier; (4) the petitioner continues to suffer from the consequences; and (5) the error is established by a sound basis in law and fact.

IAC that caused a wrongful conviction is the most common basis for a successful coram nobis petition in the military context.

Habeas Corpus

Former service members in federal civilian custody — or subject to collateral consequences that constitute “custody” under federal law — may petition for habeas corpus. In the military context, habeas after exhaustion of military appellate remedies can be filed in federal district court under 28 U.S.C. Section 2241, challenging the constitutionality of the conviction or the military court’s jurisdiction.

Habeas in the military context is narrow but not impossible. Constitutional claims — denial of effective assistance of counsel, denial of due process, violations of the right to confront witnesses — that were not, or could not have been, fully litigated in the military system can support federal habeas review.

New Trial Petitions

Under Article 73, UCMJ, a convicted service member may petition for a new trial on grounds of newly discovered evidence or fraud on the court-martial. New trial petitions must be filed within three years of the date the court-martial is final. As CAAF noted in United States v. Hull, 70 M.J. 145 (C.A.A.F. 2010), new trial petitions are disfavored and require showing a manifest injustice would result without relief — but when genuine newly discovered evidence exists (a recanting witness, DNA results, discovered digital evidence), the petition can succeed.

Clemency, Parole, and Appellate Leave

Even during the pendency of an appeal, a service member in confinement may be eligible for parole or appellate leave. Clemency petitions to the convening authority or the Service Secretary are available at multiple stages of the post-trial process. We advise on all of these avenues and coordinate clemency strategy with the appellate record.

Appeals After a Guilty Plea

Many service members believe that pleading guilty at a court-martial forecloses all appeals. This is not true. A guilty plea can be challenged on appeal on several grounds:

• The military judge failed to conduct an adequate guilty plea inquiry (the “Care” inquiry under United States v. Care, 18 U.S.C.M.A. 535 (1969))
• The accused was not adequately advised of the elements of the offense, defenses, or consequences
• The plea was not knowing and voluntary
• Trial counsel’s deficient performance induced the plea (IAC)
• The sentence imposed exceeded the terms of the pretrial agreement
• Newly discovered evidence that would have changed the plea decision

Guilty plea appeals have distinct procedural requirements and strategic considerations. The window for raising some issues may be different from a contested case. We evaluate guilty plea convictions as part of every appellate case review.

The OSTC’s Impact on Appeals

The creation of the OSTC has introduced new categories of appellate issues that did not previously exist:

• Whether the OSTC properly determined that an offense was a “covered offense” triggering its jurisdiction
• Whether the STC’s dual role as both accuser (preferral) and referral authority creates structural due process problems
• Whether the OSTC’s institutional pressure to prosecute constitutes a new form of unlawful command influence
• Whether the new sentencing parameters were properly applied and whether departures were adequately supported
• Whether the resource disparity between OSTC prosecution teams and military defense counsel constituted a systemic denial of effective assistance

These issues are being litigated now across every service. Early appellate decisions are beginning to define the landscape. We are at the forefront of these arguments.

Why Appellate Deadlines Are Unforgiving

Military appellate deadlines are statutory and, in most cases, jurisdictional. Miss the deadline and the right to appeal is gone — permanently. Key deadlines:

• CCA: After the convening authority takes action, the accused typically has 90 days to submit matters before the record is forwarded for appellate review. Briefs before the CCA have fixed filing schedules once the case is docketed.
• CAAF: A petition for grant of review must be filed within 60 days of the CCA’s decision.
• New trial: Must be filed within three years of final judgment under Article 73.
• Coram nobis: No rigid deadline, but delay weakens the petition.
• Article 69: Must be submitted within one year after the end of the 90-day post-conviction period (with good cause extension available).

Do not assume you have time. Contact us as soon as possible after your conviction or your CCA decision.

Call 800-401-1583 or 202.931.8509.

UCMJ Appeals — Frequently Asked Questions

Do I have a right to appeal a court-martial conviction?
Yes. Under the FY2023 NDAA’s expansion of Article 66, UCMJ, any conviction by court-martial — including summary court-martial — is now subject to judicial review. Before this change, automatic CCA review was limited to cases with punitive discharge or at least two years of confinement. For cases that do not qualify for CCA review, Article 69 review by the Judge Advocate General is available. After the CCA, a petition to CAAF is available. In rare cases, the U.S. Supreme Court.

How long do I have to file an appeal?
Military appellate deadlines are strict. After the convening authority’s action, you have 90 days to submit matters for consideration. Once the case is docketed at the CCA, briefing schedules begin running. After a CCA decision, you have 60 days to petition CAAF. New trial petitions must be filed within three years of final judgment. Do not wait — contact appellate counsel immediately after conviction.

What if I pleaded guilty? Can I still appeal?
Yes. A guilty plea does not bar appeal. Grounds include an inadequate plea inquiry by the military judge, failure to advise of elements or defenses, a plea that was not knowing and voluntary, ineffective assistance of counsel that induced the plea, or a sentence exceeding the pretrial agreement. Guilty plea appeals have distinct procedural requirements and should be evaluated immediately.

What is a DuBay hearing?
A DuBay hearing (from United States v. DuBay, 17 U.S.C.M.A. 147 (1967)) is an evidentiary hearing ordered by an appellate court to develop facts outside the trial record — most often to investigate an ineffective assistance of counsel claim. A military judge conducts the hearing and makes findings of fact that the appellate court then uses to rule on the underlying issue. DuBay hearings can be decisive: they allow the defense to put trial counsel’s failures on the record.

What is factual sufficiency review and how has it changed?
Factual sufficiency review allows the CCA to independently weigh the evidence and determine whether the government proved guilt beyond a reasonable doubt. The Military Justice Act of 2016 and subsequent NDAAs narrowed this review significantly: an appellant must now specifically request it, make a threshold showing of a deficiency in proof, and the CCA applies “appropriate deference” to the trial court. It is harder to win on factual sufficiency than it used to be — but it is not impossible, particularly in Article 120 cases with weak or uncorroborated evidence.

What is a writ of coram nobis?
Coram nobis is a post-conviction remedy available to former service members who have completed their sentence but continue to suffer from the consequences of an erroneous conviction. After United States v. Denedo (C.A.A.F. 2008), coram nobis petitions are filed with the Court of Criminal Appeals. The most common basis is ineffective assistance of counsel that caused the conviction. This is particularly important for service members still facing sex offender registration, clearance bars, or benefit loss years after their release from confinement.

Can the sentence be reduced on appeal even if the conviction stands?
Yes. CCAs have unique authority under Article 66 to review not just the legality but the appropriateness of sentences. Even without legal error, a sentence that is disproportionate to the offense and the offender can be reduced. Under the Sales/Winckelmann framework, CCAs also conduct sentence reassessment whenever a conviction on one specification is set aside — potentially reducing the overall sentence even when the remaining convictions stand.

How does the OSTC affect appeals?
The OSTC’s creation has introduced new appellate issues that are being litigated right now: whether the STC’s dual preferral/referral role is constitutionally sound, whether OSTC institutional pressure constitutes a new form of unlawful command influence, whether the new sentencing parameters were properly applied, and whether systemic resource disparities between OSTC prosecution teams and military defense counsel constitute structural ineffective assistance. These are active issues. Experienced appellate counsel who is tracking OSTC developments is essential.

What is the difference between the CCA, CAAF, and the Supreme Court?
The CCAs (Army, Navy-Marine Corps, Air Force, Coast Guard) are the first level of appellate review — they review facts and law and can set aside findings and reduce sentences. CAAF is the highest military appellate court — five civilian judges with discretionary jurisdiction, primarily reviewing questions of law whose decisions bind all military courts. The U.S. Supreme Court has jurisdiction under 28 U.S.C. Section 1259 to review CAAF decisions in certain cases, though military cases rarely reach that level.

Do I need a civilian appellate lawyer or will my military appellate counsel handle it?
Military appellate defense counsel (OJAG, OJAG-MC, Air Force Appellate Defense, etc.) are often competent but heavily caseloaded, less experienced than senior civilian practitioners, and institutionally limited in ways that civilian counsel are not. The most important military appellate cases — those involving novel OSTC issues, IAC claims against military trial counsel, UCI arguments, or factual sufficiency challenges in high-stakes cases — benefit significantly from experienced civilian co-counsel or lead counsel who has argued before these courts for decades.

By Philip Cave and Nathan Freeburg at www.court-martial.com. (Last reviewed, April 16, 2026.)