Automatic Appeal Under UCMJ Article 66: Time for a Change

• Author: Major Jeffery D. Lippert
• Pages: 02

MILITARY LAW REVIEW

Volume 182 Winter 2004

AUTOMATIC APPEAL UNDER UCMJ ARTICLE 66: TIME FOR A CHANGE

MAJOR JEFFERY D. LIPPERT*

I. Introduction

Uniform Code of Military Justice (UCMJ) Article 66 (Art. 66) requires The Judge Advocate General (TJAG) to refer to a Court of Criminal Appeals, the record of each trial by court-martial in which the approved sentence extends to death, confinement for one year or more, or dismissal, dishonorable or bad conduct discharge (BCD) of a service member.1 In short, Art. 66 provides an automatic appeal for cases in

which an accused is sentenced to a punitive discharge or confinement for one year or more.2 Congress adopted the automatic appeal procedures set forth in Art. 66 in 1950 as a safety net to protect the rights of convicted service members in what was then considered a flawed and unfair military justice system.3 In the more than fifty years since Congress enacted the UCMJ, the circumstances that gave rise to Congress' requirement for an automatic appeal have changed drastically. The safeguards Congress established in Art. 66 are no longer needed in many cases because of improvements at the trial level and changes in society.

As the operational tempo and deployments increase for all branches of the Armed Forces, and demands on the personnel and resources of each service's Judge Advocate General's Corps increase, it is time to reassess the breadth of the safety net that Art. 66 casts. During fiscal years (FY) 1998-2002, the Army, Navy/Marine Corps, and Air Force Courts of Appeals (the service courts) reviewed almost 15,800 cases pursuant to Art. 66.4 For each of these cases, the federal government provided all of the resources for the appeal-from court reporting and transcription to highly qualified defense appellate counsel and, most importantly, the time and effort of a panel of service court judges to hear and decide each case. No other justice system in the country, state or federal, has such a liberal and generous appellate procedure.5

The burden on military units, staff judge advocate offices, government and defense appellate departments, and the service courts in

preparing, processing, hearing, and deciding these appeals is enormous.6

Many of these cases did not warrant full judicial appellate review. In most, the likelihood of reversible error was low and little probability existed that the conviction or discharge would have long-term stigmatizing effects on the convicted service member-especially for appeals from special courts-martial. For such cases, the potential benefits to the convicted service member do not warrant expenditure of the tremendous amount of resources required to provide a full appellate review. Other, less resource-intensive, methods of review would adequately protect the convicted service member.

To minimize the number of unnecessary automatic judicial appeals, this article proposes a change to Art. 66-eliminating the automatic judicial appeal for all special courts-martial, including those that adjudge a BCD.7 This article proposes that the Judge Advocates General, rather than an appellate court, review all special courts-martial under the provisions of UCMJ Article 698 (Art. 69). The reasons for this proposed change are threefold. First, recent developments in the UCMJ and military justice provide safeguards that ensure accused service members

receive high quality trials9 that are only infrequently set aside on appeal.10 Second, service members separated with a BCD from a special court-martial no longer suffer any serious disadvantages or societal stigma based on their receipt of a BCD.11 Civilian hiring practices and Veteran's Administration practices illustrate that receiving a BCD in today's world has little effect on a convicted service member's future employment, benefits, and lifestyle.12 Third, reviewing special courts-martial cases under Art. 69 saves significant post-trial resources because such review does not require the preparation of verbatim records of trial.13 This article includes specific recommendations for changes to the language of Art. 66, related Rules for Courts-Martial (RCM), service regulations, and for changing human resource allocations to accommodate the shift in workloads from the appellate courts to the offices of The Judge Advocates General.

II. History and Background of the BCD and UCMJ Art. 66

1. Separate Systems of Justice Before World War II

   First enacted in 1951, the UCMJ consolidated and revised the existing laws governing the separate branches of the service (the Articles of War (AOW)14 and the Articles for the Government of the Navy15) into

   one standard code. These systems of justice were similar in many ways. Both allowed for non-judicial punishment of enlisted service members,16

   and for three levels of courts-martial,17 roughly equivalent to the three levels set out in the current UCMJ. In the Navy, the three levels included the deck court-martial, the summary court-martial, and the general court-martial.18 The Army had a summary court-martial, a special court-martial, and a general court-martial.19

   The most significant difference between the two systems was that the punishment at a Navy summary court-martial could include a BCD.20

   Up until 1948, the AoW had no such discharge; the only discharges Army courts-martial could adjudge were dismissals for officers and Dishonorable Discharges (DD) for enlisted members.21 The Navy's preUCMJ BCD was not, however, considered serious punishment. Although authorized as part of a court-martial sentence, the BCD was akin to the administrative discharges used today.22 No apparent stigma attached to such a discharge.23 The Navy separated thousands of sailors

   with BCDs during World War II (WWII) with no procedure for judicial appellate review.24

2. Pre-UCMJ Military Justice and Early Reform Efforts

   Before enactment of the UCMJ, both the Naval and Army justice systems were seriously flawed. The systems were intended to secure obedience and to ensure Soldiers and Sailors served the commander's will.25 Although both systems provided for courts-martial, the courts looked nothing like today's courts. Courts-martial were merely a tool of the commander to carry out his intentions regarding discipline.26 There was little, if any, relation to civilian criminal justice. Protecting the rights of the individual was not a primary purpose of the system.27 As a result, great injustices were done in the name of discipline.28

   One such injustice in World War I (WWI) sparked interest in reforming the military justice system. In August of 1917 sixty-three soldiers were court-martialed on charges of mutiny and murder stemming from racially charged riots in Houston, Texas.29 Of the sixty-three soldiers tried, many were acquitted; however, others were sentenced to prison terms and thirteen, all black, were sentenced to death by hanging.30 The sentences were carried out the day after the trial.31 No report or message about the trials or the impending sentence was sent to any superior unit or to Washington, D.C.32 The soldiers were simply hung in compliance with the law in existence at the time.33 This incident

   and others, however, eventually received significant national attention leading to sweeping reform including review of the courts-martial system.34

   During WWII, over sixteen million men and women served in the armed forces.35 Commanders conducted over 2,000,000 courts-martial, resulting in many hundreds of thousands of convictions and stiff sentences. After the war, individuals and institutions lobbied Congress for changes to the system, highlighting its flaws-defense counsel (DC) were not lawyers, law officers who presided over trials were not lawyers, sentences were unable to be revised and trial mistakes could not be corrected.36 Some of the longstanding complaints were expressed to TJAG of the Army, Major General Crowder, in a letter from the Secretary of War following WWI.37 In response to these criticisms, Congress, in 1947, attempted its first large-scale effort to reform the military justice system.

   The 1947 revisions to the AoW included two important reforms. First, Congress created court-martial review boards within the office of

   TJAG.38 While not appellate courts, these review boards were responsible for reviewing serious court-martial cases, including cases in which the accused was sentenced to confinement for a year of more or to a punitive discharge.39

   Second, Congress created a new punitive discharge for the Army- the BCD-that a special or general court-martial could adjudge.40

   Congress specifically modeled the new Army BCD on the BCD the Navy had in place during WWII.41 While Congress intended this new discharge to be a less severe punishment than the DD, it recognized that some service members receiving this discharge might have difficulty gaining employment in a country where one in every eight people was a military veteran.42 To lessen the likelihood that a trial error would result in a soldier being sentenced to a BCD, Congress ensured the new review boards would review court-martial cases that adjudged BCDs.43 It must be remembered, however, that at that time, most other facets of the military justice system had not changed. There were still problems with command influence and a lack of trained DC or judges at most trials was still the norm.44

   In the next few years, the pace of military justice reform quickened. With the creation of the U.S. Air Force, the debate turned toward the need for a case review authority outside the office of TJAG, and for a more uniform system of military justice.45 As a result, Congress enacted the Uniform Code of Military Justice (UCMJ) in 1950. With the enactment of the UCMJ, Congress began to change the thrust of military justice from a command-dominated system to one more like the civilian criminal justice system with emphasis on due process and fairness.46 The UCMJ brought many notable changes to the system. It...