Here is a useful document for clients undergoing appellate review. Much of this was prepared by (then) Major Karen Hecker, an Air Force Appellate Defense Counsel.
1. I received a punitive discharge and/or confinement for one year or more. What are the appeal procedures?
If a client receives a punitive discharge or confinement for 12 months or more, his/her case is automatically appealed to the service Court of Criminal Appeals unless the client withdraws during this appellate process. The client will be assigned appellate defense counsel during the appellate process (and can hire a civilian counsel at his/her own expense). Under Article 66, UMCJ, the service Court must review the case to determine if the findings and sentence are correct in fact and in law, and that they should be approved. Once the CCA issues its opinion, the client has the option of petitioning his/her case to the Court of Appeals for the Armed forces (CAAF, http://www.armfor.uscourts.gov/). This is a discretionary review under Article 67, UMCJ. Thus, CAAF does not have to review the client’s case and can deny the petition. Per Article 67a, UMCJ, the United States Supreme Court only has the power to review military cases decided by CAAF (not those in which CAAF declines to grant review).
2. I did not receive a punitive discharge or confinement for one year or more or I am waiving my appellate review. What are the appeal procedures for my case?
For clients who do not receive a punitive discharge or at least 12 months confinement of if the client waives or withdraws his/her case from appellate review, there is no automatic appeal through the court system by there is a legal review done of the case. Clients
should consult with their trial defense counsel before or immediately after trial for questions on these procedures, as appellate defense counsel will not be appointed to represent the client. Some of the appeal procedures require timely action by the client and counsel. In general, the post-trial processing of this type of case depends on the type of court-martial and the sentence received. (See Article 64 and 69 of the UCMJ, R.C.M 1112 and 1202 for further guidance).
3. How long will my appeal take?
The answer to this question is not very helpful – “it depends.” It can take anywhere from several months to several years, depending on the case and the Court’s docket. However, a quick look at the processing of a record of trial on appeal will give an indication of what to expect. Typically, the service Court receives the record at the same time, usually within 1-2 months after action is taken by the convening authority. Usually, the Court will set a 90 day suspense for the appellant’s brief to be filed. That can usually be extended for 60 days and any delays thereafter are for 30 days at a time. Most cases are filed by our office within the first 150 days after receiving the record, though that can vary depending on the complexity of the case.
If the case is straightforward and no appellate issues are identified, the case moves forward “on the merits,” which means counsel asks the Court to conduct their Article 66, UMCJ, review but appellate counsel have not discovered any specific arguable errors. Appellate government will not respond to this type of case. Usually, the service Court will review the case (it may identify errors on its own) and publish its decision within several weeks of filing. At that point, the client will need to make a decision about whether to appeal to the Court of Appeals for the Armed Forces (CAAF). If issues are identified and briefed to the AFCCA, appellate government will typically respond within their allocated 30 days. We then have 7 days to respond to their brief, if necessary. These briefs will be mailed to the client.
Then comes the wait. It is hard to speculate how long the service Court will take to rule. A client’s case may be decided before cases filed which are older than his, since this is
dependent on the Court’s schedule and its own determination of what cases it works on first. However, clients should be aware that they may wait many months before the hearing the decision, especially if his/her case was filed with specific issues briefed.
Once the opinion comes out (whether on “merits” or “issues” case) and is served on appellate defense counsel, the client has 60 days to petition CAAF, if he/she wants to. This petition is essentially a request to file a brief with CAAF. Thirty days after the petition is filed, a “supplement” brief will be filed with CAAF, either as a “merits” brief (only at the client’s request) or raising some or all of the issues the service Court ruled on. (NOTE: CAAF cannot review issues regarding factual sufficiency and sentence severity.) CAAF typically makes its decision on whether to grant review of the case within several months of the filing of the “supplemental” brief. If review is denied, the appellate review process will end (see below for subsequent DD Form 214 procedures). If review is granted, another round of briefs will be filed, oral argument will be heard and an opinion from CAAF will be issued, a process that takes about a year. After that, in some limited circumstances, you may have the right to petition the U.S. Supreme Court for further review of your case.
4. What can I do to assist in my appeal?
The most important thing a client can do is to stay in touch with appellate counsel. Clients are informed of the (and how to do so) when they are given their post-trial and appellate rights advisement by trial defense counsel and the military judge. Also, when appellate counsel receive the record of trial and a counsel is assigned, an introductory letter and handout is typically sent to the client in confinement or at the address the client gave right after trial or when he/she was placed on appellate leave. This letter will give the client a suspense for contacting counsel, as well as information on how to keep that office advised of his/her whereabouts. There is often a toll free number. It is extremely rare for a client to disappear before the appellate brief is filed but it appears to become difficult for some clients to keep counsel updated as their case sits awaiting a decision and they get on with their lives. However, it is extremely important that clients tell where they are and how to reach them, so they can be
advised of the status of their appeal and any relief they may receive from it. Clients must also follow the instructions in their appellate leave letter. The appellate leave instructions need to be followed to ensure that the DD Form 214 and other paperwork is mailed to the proper address during and after the appeal.
5. Am I still in the military while my appeal is pending but I am out of confinement? What do I tell employers about my military status while I am on appellate leave? When and how will I receive my DD Form 214? What will my DD Form 214 say?
If the case is still being appealed through the court system and the member has a pending punitive discharge, a member who is released from confinement (due to parole or minimum/maximum release date) is put on appellate leave. This is an excess leave status (leave of absence without pay). This status continues until the appellate review of the court-martial is over and the punitive discharge is executed. During this time, the member is still subject to UCMJ action for any criminal difficulty encountered while on appellate leave. It also means that the client and his/her dependents retain their military ID cards and military benefits (medical, BX/PX, commissary, etc.) during that time. The ID cards may have an expiration date on them. However the cards will be renewable through the time period of appellate leave (clients should consult with their servicing MPF before trial about how to get the cards when the time comes).
Clients should contact Tricare and Delta Dental directly for information about the client’s access to those programs (rumor has it that appellate leave clients are not eligible for the dental program). Clients who live and work more than 50 miles from a military medical facility should ask about Tricare Prime Remote, a program that allows military members to receive free medical care from civilian providers in the area. (Dependents would use Tricare Prime or Standard). The office in charge of this program is the Military Medical Support Office (MMSO) in Minnesota (http://mmso.med.navy.mil or (888) 647-6676).
By not having a DD Form 214, some clients find it difficult to explain their status to prospective employers. They will also find it impossible to receive government benefits (i.e.- unemployment – though some states will deny unemployment anyway if you did not receive an honorable discharge – check with your state for details) and some loans. However, until the appeal is over, the DD Form 214 will not be issued. The larger confinement facilities have the capability, upon request of the inmate, to prepare a “Statement of Service,” a letter which summarizes your military record. It will list each period of honorable service, how it ended and whether any days were lost during that enlistment. It will also state that you have a punitive discharge which is unexecuted but which is still pending. The letter is completed by confinement personnel after they review your personal records. It is unclear who would complete these forms at a smaller facility, perhaps the servicing MPF at that base. In such a situation, inmates should inquire about getting such a statement of service and can discuss this issue with their appellate counsel if they encounter difficulty.
If the client is an enlisted member, after the appeal is over (either because he/she elected not to petition CAAF, because CAAF denied their petition, or after CAAF decided their case), the military justice division of the client’s military service will direct that final orders be cut in the case. (See question #9 below for procedures on how enlisted personnel can ask that their punitive discharge be changed to an administrative discharges, or that they will be allowed to retire.) The installation and convening authority who serviced the court-martial are responsible for processing these orders. The separations branch at the base/post will then prepare the DD Form 214. This process usually takes several months.
If the client is in confinement, the DD Form 214 will be mailed there.
If the client is on appellate leave, the DD Form 214 will be mailed to the address the client gave when he/she was put on appellate leave. Thus, it is very important that the clients follow the instructions on the appellate leave paperwork on keeping the address current, as changing the address with appellate counsel does not mean that the DD Form 214 will be sent to that address.
If the client will be somewhat transient, he/she should list a family member or members who will be at a stable address and who will know how to reach the client.
For information on how to obtain the DD Form 214 and other military records from St. Louis, see their website (http://www.archives.gov/facilities/mo/military_records.html).
Officer cases follow the same procedure as listed above. However, once the appeal is over, but before the final orders are cut, the Secretary of that service has to order the dismissal executed, based on federal law. As part of this process, the service’s clemency and corrections division may review the officer’s case (as well as any materials submitted by the client and/or his counsel and make a recommendation to the Secretary regarding the dismissal. This can include a recommendation that a retirement eligible be allowed to retire, or that an officer client receive an administrative discharge instead of a dismissal. (See question #9 below.) Once the Secretary elects to execute the dismissal, final orders will be cut and the DD Form 214 will be processed.
Once the DD Form 214 is prepared and mailed, a client is no longer subject to the UCMJ. However, a client in military confinement even with a DD Form 214 is still subject to UCMJ action as a military prisoner.
The DD Form 214 will reflect the punitive discharge, as well as other information about overall military service. Air Force members should consult AFI 36-3202 (available on-line through http://afpubs.hq.af.mil) for specific information.