Military Justice 101 - Part VII
The Court-Martial Process
(Page 5)
APPELLATE COURT REVIEW
Automatic Review and The Article 69 Process. If there is an approved sentence which includes a sentence of death, a punitive discharge (Dishonorable Discharge or Bad Conduct Discharge for enlisted personnel; Dismissal for officers), or confinement for one year or more, the Courts of Criminal Appeals of the accused’s branch of service will automatically review the case. The accused can waive this automatic review in all cases, except death penalty cases. An accused who waives his appellate rights will still have his case reviewed, pursuant to Article 69 of the Uniform Code of Military Justice, by the service Judge Advocate General for legal errors and possible referral to the appellate courts.
Review By the Court of Criminal Appeals. Each military service has established a Court of Criminal Appeals which is composed of one or more panels, and each panel has not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole. The court, sitting as a whole, may reconsider any decision of a panel. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a licensed attorney. The Judge Advocate General of each Service designates one of the appellate military judges of that Service’s Court of Criminal Appeals as chief judge. The chief judge assigns the appellate judges to the various court panels and determines which military judge will serve as the senior judge on each panel.
The Court of Criminal Appeals can correct any legal error it finds, and it can reduce what it considers to be an excessive sentence. Under Article 66©, UCMJ, the Court may only affirm findings of guilty and the sentence or such parts of the sentence that it finds correct in law and fact. In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine disputed questions of fact, recognizing that the trial court saw and heard the witnesses. Most civilian appellate courts can only consider issues of law, not questions of fact. They are bound by the findings of fact made by the civilian trial court. The power of the Court of Criminal Appeals to also consider questions of fact is a unique and important right afforded an accused under the UCMJ. Of course, similar to civilian appellate courts, the Court of Criminal Appeals cannot change a finding of "not guilty" to a finding of "guilty," nor can it increase the severity of the sentence approved by the court-martial convening authority.
Jurisdiction of the Courts of Criminal Appeals. Each Court of Criminal Appeals has jurisdiction to review courts-martial in which the sentence, as approved: extends to death; dismissal of a commissioned officer, cadet, or midshipman; dishonorable or bad-conduct discharge of enlisted personnel; or confinement for one year or more. These courts may also review cases referred to the Court by the Service’s Judge Advocate General. In addition, the Courts may, in their discretion, entertain petitions for extraordinary relief including, but not limited to, writs of habeas corpus, mandamus, and prohibition. Except in a death penalty case, the right to appellate review may be waived by the accused.
United States Court of Appeals for the Armed Forces. Five civilian judges, appointed by the President and confirmed by Congress, comprise the Court of Appeals for the Armed Forces (CAAF) and serve for a term of 15 years. CAAF is responsible for overseeing the military justice system. In all but death penalty cases, which it reviews automatically, and cases certified by the Judge Advocate General, CAAF chooses upon petitions for review which cases it will consider, similar to Federal courts of appeal.
United States Supreme Court. Military members convicted of crimes may petition the U.S. Supreme Court for a review of their case. Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari. However, the Supreme Court may not review a decision by the Court of Appeals for the Armed Forces which had refused to grant a petition for review. The military accused has a right, without cost, to the services of a military appellate defense counsel at all appellate review levels, including review by the Supreme Court. The military accused may petition the U. S. Supreme Court for a writ of certiorari without prepayment of fees and costs.
RELEASE OF INFORMATION
Congressional Inquiries. When a Member of Congress requests information related to a disciplinary case and such information may be protected by the Privacy Act (PA), the releasing authority must first determine the capacity in which the Member is requesting the information. If a Member of Congress is requesting information on behalf of either House, or a committee or subcommittee thereof, regarding a matter within its jurisdiction, then a statutory PA exception permits release of the information. DOD regulations govern the procedures for releasing information related to the official action of Congress.
If a Member of Congress requests information in a personal capacity or on behalf of a constituent, the statutory exception does not apply. The request for information must be treated in the same manner as a request from any other individual. If the information involves the privacy interest of the individual for whom the Member of Congress is making the request and such individual has provided the Member with written authorization and consent to release, then the information may be provided. However, other Freedom of Information Act (FOIA) exceptions to disclosure, such as the exception related to information collected for law enforcement purposes, may limit disclosure. If the information is requested personally by the Member of Congress or on behalf of a person other than the individual with the privacy interest (e.g. crime victim), then PA requirements must be balanced against FOIA concerns. If release of the information is not required by FOIA and such release will be an unwarranted invasion of privacy, then the information may not be released. Likewise, if a FOIA exception to disclosure applies, then disclosure will be limited. Service regulations provide procedures for responding to requests from Members of Congress that are personal or on behalf of a constituent.
Court-Martial, Nonjudicial Punishment, and Administrative Actions:
General. Release of information related to adverse personnel actions involves considerations of the relationship between the Freedom of Information Act (FOIA) and the Privacy Act (PA). Where the action is not final, the primary consideration must be the fairness of the proceedings. If the release of information may affect the impartiality of an adjudicator or reviewing authority, then such release should not occur. Where the action is final and privacy interests are involved, FOIA and PA concerns must be reconciled. If the FOIA requires disclosure of the information and such disclosure does not constitute a clearly unwarranted invasion of personal privacy, the PA does not bar disclosure. Thus, under certain circumstances, FOIA provides an exception to the general rule that an individual's consent is required to disclose PA protected information. Finally, FOIA exceptions to disclosure, such as the limitation on providing information collected for law enforcement purposes, may apply.
Court-Martial. Court-martial proceedings are generally open to the public and media. Thus, information concerning action taken in open court, the results of court proceedings, and subsequent actions, such as clemency and appellate review, are not generally protected by the PA. Accordingly, such information may usually be released. Additionally, a written FOIA request is not needed prior to release of such information. However, despite the public availability of court-martial information, a privacy interest may exist with respect to material that is "practically obscure." Such an interest may exist with respect to court-martial records from proceedings that occurred in the relatively distant past. Thus, information related to recent cases may be readily releasable, while information related to older cases may require detailed review in order to determine whether it may be released.
Nonjudicial Punishment. Unlike courts-martial, the imposition of nonjudicial punishment (NJP) and the hearings thereon are not open to the public. Accordingly, release of information concerning NJP is restricted. Under NJP procedures, the alleged offender may request that his or her personal hearing before the commander be "open to the public." Generally, this means to members of the command. For good cause, commanders may also open personal hearings to members of the command. When the NJP proceedings are open to members of the command imposing NJP, the results, including personal identifying information may be released to members of the command. The justification for this is under both the "routine use" exception and the concept that no "disclosure" occurs where the information is already available to those to whom it is provided.
If NJP results are to be disclosed outside of the command, then FOIA and PA concerns must be reconciled. In most cases, the privacy interest of the individual will outweigh the FOIA interest of informing the public about the functioning of its government. In such cases, NJP information should not be released. On the other hand, the circumstances of some cases may create a greater need to inform the public. Specifically, where the misconduct for which NJP was imposed involves a government official's violation of the public trust, disclosure can be justified by the need to inform the public and instill confidence in government operations and also by the benefit and deterrent effect that would result from public dissemination. The balance in favor of disclosure is even higher when the misconduct involves high-ranking government officials.
Administrative Action. Adverse administrative actions, such as administrative separation or non-punitive censure, are not matters of public record. In most cases, disclosure of the character of separation or other administrative action will be an unwarranted invasion of privacy and the balance will weigh against disclosure. On the other hand, as with NJP results, the circumstances of a given case may involve FOIA considerations that favor disclosure.
|Previous| |1| |2| |3| |4| |5| |Next|
Information Courtesy
of United States Marine Corps
