Military Appeals: The CCAs, CAAF, and the Supreme Court

The military appellate ladder

Military appeals run through a dedicated three-tier system that exists nowhere in civilian law. After the post-trial process ends with entry of judgment, a qualifying case moves to the service Court of Criminal Appeals (CCA), then — if review is granted or required — to the Court of Appeals for the Armed Forces (CAAF), and finally, by certiorari, to the U.S. Supreme Court.

Each rung has its own entry rules and deadlines, and cases that never reach a CCA still get a legal review within the service. Separate tracks exist for extraordinary writs and Article 62 government appeals, which can put a case in front of an appellate court before — or long after — the ordinary appeal.

Article 66: automatic review and appeals of right

Article 66, UCMJ, defines the CCAs’ jurisdiction. Review is automatic — no filing required — when the sentence includes death, a punitive discharge, or confinement for two years or more. The National Defense Authorization Act for Fiscal Year 2023 then simplified everything below that line: an accused may now file an appeal with a CCA after any conviction at any special or general court-martial, regardless of the sentence.

That change matters because, before it, the adjudged sentence dictated whether a conviction could ever be appealed to a court at all — and whole categories of convictions never saw a judicial appeal. Cases still outside CCA jurisdiction — including summary courts-martial, which are reviewed under Article 64 — get a legal review within the service under Articles 64 and 65 rather than a judicial appeal.

Two features of Article 66 review distinguish it from anything in civilian practice. First, its scope: the CCA reviews both law and fact, and affirms only findings and sentences it determines should be affirmed. Second, its depth: the court independently examines whether the sentence is appropriate for this offense and this accused. What the CCA can do once it has your case — including the amended factual sufficiency standard and its limits — is covered in depth in Article 66 review and factual sufficiency.

Article 69: review by The Judge Advocate General

Cases that finish without CCA review may be examined by The Judge Advocate General (TJAG) under Article 69. The Military Justice Act of 2016 added a second layer: the CCA can now review TJAG’s action either when TJAG sends the case to the court or when the accused applies and demonstrates a “substantial basis” for concluding that the action constituted prejudicial error. Review of Article 69 cases at the CCA is limited to matters of law — the court does not reweigh facts in that posture.

Practitioners have long noted that TJAGs rarely refer Article 69 cases onward — a point Judge Baker pressed in his dissent in United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015), observing that as a practical matter most courts-martial were escaping judicial review entirely — which is why the accused’s own application right added by the MJA 2016 is significant. The service courts have also entertained challenges to TJAG’s Article 69 action through their supervisory writ authority: in Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998), the Army court heard — though it denied — a petition attacking a TJAG denial of relief.

Your appellate counsel rights

Every accused whose case is under appellate review is entitled to detailed military appellate defense counsel — at no cost — and may also retain civilian appellate counsel at personal expense. The same layered structure that applies at trial (your right to counsel) continues on appeal, with three practical features worth knowing:

• Counsel picks the issues — but you can add your own. The choice of which errors to brief rests with appellate counsel, and that choice is itself subject to later scrutiny for effectiveness. United States v. Quigley, 35 M.J. 345 (C.M.A. 1992). The accused also has the right to submit personal matters for the court’s consideration — a CCA erred when it refused an accused’s handwritten submission and accepted only counsel’s summary. United States v. Gunter, 34 M.J. 181 (C.M.A. 1992).
• The court need not write about everything. A CCA may dispose of assigned errors without individual discussion, so long as its opinion notes they were considered and found meritless. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
• Bad lawyering on appeal is itself appealable. Claims that trial or appellate counsel fell below constitutional standards are litigated through the framework described in ineffective assistance of counsel claims in military appeals.

Families weighing civilian appellate counsel should understand what each lawyer brings. Detailed military appellate counsel know their court and cost nothing. Retained civilian counsel add continuity — the same lawyer from the record review through a CAAF petition — and independence, which matters most when the appeal requires criticizing the military defense bar’s own trial work. Many strong appeals are run by both, together.

CAAF and the Supreme Court

The Court of Appeals for the Armed Forces — a five-judge civilian court — sits atop the service courts. Under Article 67, it reviews three categories of cases: every case in which the CCA-approved sentence extends to death; cases The Judge Advocate General certifies for review; and cases in which the accused petitions and shows good cause. The statute, as amended effective 1 January 2021, confines CAAF to matters of law:

“In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to— (A) the findings and sentence set forth in the entry of judgment, as affirmed or set aside as incorrect in law by the Court of Criminal Appeals; (B) a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by the Court of Criminal Appeals; or (C) the findings set forth in the entry of judgment, as affirmed, dismissed, set aside, or modified by the Court of Criminal Appeals as incorrect in fact under section 866(d)(1)(B) of this title (article 66(d)(1)(B)).”Art. 67(c)(1), UCMJ

CAAF has also held — by a 3-2 vote, over a dissent arguing no statute granted the authority — that its jurisdiction over “all cases reviewed by a Court of Criminal Appeals” reaches CCA decisions in Article 62 government appeals, reasoning that Congress intended uniform application of the Code across the services. United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).

Above CAAF sits the Supreme Court, by petition for writ of certiorari. Even that rung was recently contested: in Ortiz v. United States, 138 S. Ct. 2165 (2018), an amicus argued that because CAAF sits within the Executive Branch, the Supreme Court could not take “appellate jurisdiction” directly from it. The Court heard the case anyway — confirming that the military appellate ladder ends, like every other American criminal system, at the Supreme Court. Certiorari remains discretionary and rare. Decisions and rules for CAAF practice are published at the court’s official site.

What appellate courts can actually do

Military appellate relief is broader than most clients expect. Depending on the error, a CCA may:

• Set aside findings — for legal error, or for factual insufficiency after the accused makes the required showing under the amended Article 66;
• Grant sentence relief — the CCAs independently review sentence appropriateness based on individualized consideration of the offense and the offender, and may disapprove even a mandatory-minimum punitive discharge in that review, United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018);
• Reassess a sentence after knocking out findings, if the court can be confident what sentence would have been imposed — or order a rehearing on findings or sentence when it cannot, United States v. Sales, 22 M.J. 305 (C.M.A. 1986);
• Order fact-finding — affidavits or a hearing before a military judge — to resolve post-trial claims such as ineffective assistance.

Rehearings come with a built-in protection: under Article 63, a sentence on rehearing may not be more severe than the original, and CAAF measures severity strictly — a dishonorable discharge is categorically worse than a bad-conduct discharge, and no amount of reduced confinement can offset the upgrade in discharge. United States v. Mitchell, 58 M.J. 446 (C.A.A.F. 2003). Reassessment carries its own discipline: if the error was of constitutional magnitude, the court must be persuaded beyond a reasonable doubt that its reassessment rendered the error harmless, or a rehearing must be ordered.

What appellate courts cannot do is grant mercy: clemency is the convening authority’s function, not the courts’. United States v. Ragard, 56 M.J. 852 (A. Ct. Crim. App. 2002). Requests for compassion belong in clemency matters and, later, before the discharge upgrade and clemency boards. And when the appellate process itself drags, excessive post-trial and appellate delay can become an issue in its own right.

The deadlines that control the appeal

Appellate rights in the military are governed by short, unforgiving windows. The ones every convicted accused — and every family — should know:

Byrd illustrates why the windows matter in both directions: the government executed a punitive discharge on the assumption the accused’s CAAF petition was late, and CAAF vacated the lower court’s decision because the government never established untimeliness — noting it retained authority under the All Writs Act notwithstanding the executed discharge. Deadlines discipline the government as much as the accused, but only a defense team that is counting can enforce them.

Waiving or withdrawing appellate review

Waiver usually surfaces as a bargaining chip — a term the government wants in a negotiated resolution — or as a way to accelerate finality for an accused who wants the case over. Under Article 61 and R.C.M. 1110/1115, an accused may waive appellate review in any general court-martial except one with an approved death sentence, and in special courts-martial where the sentence includes a bad-conduct discharge or confinement for more than six months; sentences below those lines are not eligible for CCA review anyway, so there is nothing to waive. The rules are strict because the consequence is severe:

• Timing. Under the MJA 2016 the waiver may be signed any time after entry of judgment, and must be filed within 10 days after the accused or defense counsel is served with the action — extendable by the convening authority for good cause, up to 30 days. A withdrawal of an appeal already underway may be filed any time before review is complete.
• Counsel first. The accused has the right to consult counsel — trial defense, associate, substitute, or appellate counsel, including civilian counsel — before waiving or withdrawing.
• Irrevocable. Once filed in substantial compliance with the rules, a waiver or withdrawal cannot be taken back — though even a valid waiver cannot eliminate TJAG’s review under R.C.M. 1201(a)(2)(A).
• Premature or induced waivers are void. A waiver signed before the convening authority acted was invalid, United States v. Smith, 44 M.J. 387 (C.A.A.F. 1996), and a waiver extracted with a promise of clemency was null and void, Clay v. Woodmansee, 29 M.J. 663 (A.C.M.R. 1989).

Frequently asked questions

Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.