Avvo Rating Top Attorney
Avvo Rating badge
Federal Bar Association
Virginia State Bar
Department of the Army

UCMJ Court-Martial Appeals

Convicted at Court-Martial for a Military Sexual Assault and Need to Appeal

For the moment at least the Congress and others have not sought to take away the right to appeal a court-martial finding of guilt and sentence for a military sexual assault.

If you are convicted at court-martial there are two avenues of appeal, depending on the sentence that was given. Your military defense lawyer should have explained to you about post-trial actions to appeal or seek a reduction in sentence.

In 2021 the Congress has established a new system of court-martial appeals depending on the sentence; if you get confinement of two years at least and/or a discharge (Bad Conduct, Dishonorable, Dismissal). The Mandatory review under Article 66, UCMJ, starts first with the Air Force, or Army, or Coast Guard, or Navy-Marine Corps Court of Criminal Appeals (CCA). You have a military defense appellate lawyer appointed and you can hire a civilian attorney. 

The CCA:

may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it 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.

The CCA can review the legal and factual sufficiency of the evidence against you. The rule for doing that has changed and there have been some restrictions and further review added to the process. Frankly, this seems designed to make it harder for an accused to demonstrate their innocence on appeal. The CCA also looks at legal errors in the trial which individually or cumulatively show that you did not get a legally fair trial. Depending on what the error is, the court can dismiss charges, can set-aside the conviction and permit a retrial, or the court can reduce the sentence. Military defense lawyers with experience know what the issues are and how best to raise them. Experience also brings with the ability to identify new issues caused by a change in the law or a need to argue for a change in the law.

The appeal process is fairly straightforward.

1. Your military defense counsel will get a copy of the record of trial. This "document" can be quite thick with hundreds of pages. The lawyer then closely reviews and reads that record looking for errors.

2. Once the appeal lawyer is satisfied they have found all the errors, they should then talk to you about what you think was wrong with your case. They should outline for you the problems they have found and give you a general idea of success. They should also talk to you about Grostefon issues.

If you lose in the CCA, you have the right to petition the Court of Appeals for the Armed Forces, under Article 67, UCMJ. And from there is a limited possibility of an appeal to the Supreme Court of the United States. There have been occasional efforts in Congress to broaden and improve access to the Supreme Court for the military convicted, but without success so far.

If you did not get the "qualifying" confinement and/or discharge, then there is still a process to appeal; but the process is new, complex, and is having growing pains. 

Having reviewed more than a two-thousand records of trial and conducting appeals since 1991, I have the experience to review your record and recommend how best to appeal a conviction, and the likelihood of success.

Call or email me about a case review

Client Reviews
Many years after retiring from the USN, I suddenly found myself in a very unwelcome legal matter with the Navy. It was a total shock and I was very concerned as to the impact this would have on me and my family. Philip was so helpful, truly a calming force, and his legal help was invaluable to me, I am so thankful that I availed myself of his services! Rob
Phil Cave has helped me through NJP and restoration of my security clearance. He even came to visit me in Spain. I never thought I would work again and he certainly through with advise and guidance that we're exactly spot on. He is my hero and thanks to him I gave my life back... Bryan
Mr. Cave saved my military retirement! His promise to me from day one was that he would fight as hard as he could he right the wring that had been done to me. And he did! I am so very thankful and grateful to him. He genuinely cared about me and made my case his priority. He used all his experience and knowledge to put forth a good defense. I am very pleased with him and will recommend him to anyone in need of an attorney. Crystal