"The appellate process is not complicated but it is often inexcusably delayed. We will do our best to make certain our soldiers' appeals do not sit and gather dust."
Military Appeals
Following a special or general court-martial, a soldier may be entitled to have the Army Court of Criminal Appeals review his record of trial. Gorecki & O'Callahan has handled many appeals and we are astutely aware of the ins-and-outs of the appellate process to include the problems with the process. Here, we provide answers to a few of the questions frequently asked by soldiers and we hope this information is helpful.
Will the Army Court of Criminal Appeals review my case?
If a soldier is court-martialed and receives a punitive discharge, i.e. a bad-conduct or dishonorable discharge for enlisted soldiers or a dismissal for officers, or confinement for one year or more, the Army Court will review the soldier's case.
Can I waive review by the Army Court of Criminal Appeals?
Yes, unless a soldier receives a sentence to death, the soldier may waive his right to an appellate review by the Army Court. If the soldier waives review by the Army Court, the appellate process is complete for the soldier and the soldier cannot seek review at a superior court.
How long will I have to wait for the Army Court of Criminal Appeals to review my case?
Unfortunately, the Army Court is extremely busy and haphazardly monitored cases have a tendency to move through the process slowly. Likewise, the appellate divisions, the Defense Appellate Division and the Government Appellate Division, are carrying heavy case loads and are more often than not short staffed. Therefore, if cases are not constantly monitored, the appellate process can drag on for a few years. These problems can be overcome if soldiers and their attorneys work together to track case progress and make certain the case is moving through the system as rapidly as possible.
What happens after the Army Court of Criminal Appeals completes its review of my case?
After the Army Court renders a decision in a soldier's case, the soldier can elect to appeal to the highest court for the military services, the Court of Appeals for the Armed Forces. Unlike the Army Court, the Court of Appeals for the Armed Forces does not have to review a soldiers' case regardless of the severity of the sentence, unless the sentence includes death. Rather, that court selects the cases it will review. Thus, when a soldier wants his record of trial reviewed by the Court of Appeals for the Armed Forces, he must take particular care in presenting his petition to that court and he must know the rules of that court as there are time limits within which a soldier must file his petition or it will not be considered at all.
If a soldier chooses not to petition the Court of Appeals for the Armed Forces for review, his case will be closed and he will receive his discharge from the service. This process can be lengthy and cumbersome. On many occasions, cases are neglected at this stage of the process and soldiers have to wait entirely too long to receive their discharge. The key to assuring that this delay is not unnecessarily extended is case monitoring. Even after a court has rendered a decision in a soldier's case, the soldier and his attorney should track the progress of the soldier's case.
Can I hire a civilian counsel to represent me on appeal? If I hire civilian counsel, do I lose my detailed military counsel?
A soldier can choose to hire civilian counsel to represent him on appeal. The soldier will also keep his detailed military counsel. Civilian counsel will take the lead on the case and will work with the soldier and detailed military counsel to make sure the soldier's appeal is processed properly.
To conclude, the appellate process is not complicated but it is often inexcusably delayed. The explanation offered for many unjustified delays is that "there are so many cases in the system, a soldier cannot expect his case to move quickly." Our firm believes that this explanation is nothing more than a hollow excuse that cracks upon stern scrutiny. We will jump start the appellate process by pushing a soldier's case through the system, by filing pleadings quickly, by insisting that government counsel respond quickly, and by continuously objecting to unjustified delays. We will do our best to make certain our soldiers' appeals do not sit and gather dust.
Contact us to learn more about what Gorecki & O'Callahan can do for you.
Copyright Gorecki & O'Callahan, 2007.