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Set Aside An Article 120 UCMJ Conviction

 In ARTICLE 120, Blog, court-martial

An Article 120 UCMJ conviction can be appealed within the military justice system. Having an experienced military appeals lawyer can make all the difference. The appeals process typically involves several levels of review. Here’s a general overview of where that review happens:

Levels of Article 120 UCMJ Conviction Appeal Review

  • Court Martial Convening Authority: After a court-martial, the convening authority, usually a high-ranking military officer, has the power to review the case. They can take various actions, including approving the findings and sentence, reducing the sentence, or even setting aside the conviction.
  • Court of Criminal Appeals: If the accused is not satisfied with the convening authority’s decision, they can appeal to the appropriate Court of Criminal Appeals for their branch of the military. Each military service has its appellate court. These courts review the case for legal errors, factual sufficiency, and procedural issues. These courts are the Army Courts of Criminal Appeals, ACCA, the Air Force Court of Criminal Appeals, AFCCA, the Navy Marine Corps Court of Criminal Appeals, NMCCA, and the Coast Guard Court of Criminal Appeals, CGCCA
  • Court of Appeals for the Armed Forces: If the accused is still dissatisfied with the decision of the Court of Criminal Appeals, they can petition the Court of Appeals for the Armed Forces (CAAF). The CAAF is an appellate court that reviews cases from all branches of the military. It focuses on legal issues and ensures consistency in the application of military justice.
  • United States Supreme Court: In some cases, an appeal to the United States Supreme Court may be possible, but the Supreme Court has discretion in choosing which cases to hear. Mr. Kageleiry, our experienced appellate attorney, is certified to practice at all levels of Courts of Appeals including the U.S. Supreme Court.

It’s important to note that the right to appeal to an Article 120 UCMJ conviction is a crucial aspect of the military justice system, ensuring a fair and thorough review of the legal proceedings. The accused is entitled to legal representation throughout the appeals process.

How do these entities decide whether to set aside a conviction?

In the court of appeals process, the service courts of appeals look for errors in the legal process in cases of Article 120 UCMJ. If there were significant legal errors during the court-martial proceedings, such as improper handling of evidence, procedural mistakes, or violations of the accused’s rights, an appeals court may set aside an Article 120 UCMJ conviction. If an appeal fails at the first level, the accused may decide to fight the case to the next level appeals court. 

Convening Authority dismissal of an Article 120 UCMJ conviction

Before a conviction appeal heading to the courts of appeal, the accused has an opportunity to appeal to the convening authority. The convening authority is generally the commanding general or flag officer who directs the court-martial. Although setting aside convictions are rare, the decision to set aside a conviction typically involves a thorough review of the case, including legal and factual considerations. Convening authorities may set aside an Article 120 UCMJ conviction for various reasons, including:

  • Errors in the Legal Process If there were significant legal errors during the court-martial proceedings, such as improper handling of evidence, procedural mistakes, or violations of the accused’s rights, a convening authority may set aside a conviction. 
  • New Evidence: If new and material evidence comes to light after the trial that could impact the outcome of the case, a convening authority may reconsider the conviction.
  • Clemency or Leniency: A convening authority may choose to exercise clemency or leniency in specific cases, particularly if there are mitigating circumstances that warrant a reduction in the severity of the punishment.

An example of a convening authority setting aside a conviction is the case of Lt. Col. James Wilkerson a fighter pilot and inspector general in Aviano in 2013. Lt. Gen. Craig Franklin dismissed the case against Lt. Col. James Wilkerson after a weeklong trial in November 2013 at Aviano Air Base, Italy. A court-martial found Wilkerson guilty of aggravated sexual assault and sentenced him to a year in jail, forfeiture of all pay, and dismissal from the service. Lt. Col. Wilkerson was reinstated and allowed to retire as a Major. A statement from the USAF said, “… after careful deliberation” Franklin had “concluded that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt.” According to an article in Stars & Stripes, “Convening authorities have unfettered discretion to reduce penalties in criminal case dispositions and do so frequently. Dismissing an entire case, however, is extremely rare.”

It’s essential to understand that each case is unique, and the decision to set aside a conviction is made based on specific facts and circumstances.

If you are facing Court Martial or have been convicted of an Article 120 UCMJ-associated offense, call us today at 757-504-2815 to consult on your case or write us here

Set Aside An Article 120 UCMJ Conviction
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Set Aside An Article 120 UCMJ Conviction
An Article 120 UCMJ conviction can be appealed within the military justice system. Having an experienced military appeals lawyer can make all the difference. This article explains how it happens.
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