Appellate Practice Areas
Daniel Conway & Associates is one of the most experienced firms in practice when it comes to court-martial appeals and federal litigation. Founding attorney Daniel Conway has published a book on military crimes and defenses. Likewise, attorney Brian Pristera teaches at The College of William and Mary. Scott Hockenberry has quickly become one of the leading advocates before the military criminal courts of appeal. We have argued and won cases before every military appellate court.
Court-Martial Appeals
|
Following a special or general court-martial conviction, the first step in the process is to request clemency. The Convening Authority in many cases, except for sexual assault, has the ability to set aside the findings or sentence. The Convening Authority can also reduce the sentence. The Convening Authority cannot increase the sentence.
Reviews of courts-martial are governed by the Uniform Code of Military Justice, 10 U.S.C. §§ 859-876, and the Manual for Courts-Martial. The next step is to appeal to the military court of appeals for your branch of service. You will have a right to a military appointed appellate attorney. You will also have a right to civilian counsel if you desire. There are five military courts of appeals: Court of Appeals for the Armed Forces Army Court of Criminal Appeals Navy-Marine Corps Court of Criminal Appeals Air Force Court of Criminal Appeals, and Coast Guard Court of Criminal Appeals. You are entitled to a review of your conviction if your sentence is a dishonorable discharge, bad conduct discharge, dismissal (if you are an officer), confinement for at least a year, or death. For other sentences, the courts of appeal have discretion about whether to hear your case or not. You can also petition the Judge Advocate General to order your case to be reviewed by the court of criminal appeals. If your appeal to the military appeals court in your branch is not successful, the next step is to consider an appeal to the Court of Appeals for the Armed Forces. Appealing to the U.S. Court of Appeals for the Armed Forces. The scope of review by the Court of Appeals is limited. All they will do is look for any legal errors made by the military appeals court. They will not look at the facts and identify any factual errors made. It will only look to see if the military appeals court made a mistake when applying the law to the facts of your situation. Filing a Writ of Habeus Corpus The Courts of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces can also hear petitions under the All Writs Act, 28 U.S.C. § 1651. These are called writs of habeus corpus and they are generally filed only in extraordinary circumstances when no other avenue of relief is available. This firm is well-experienced in writ practice. Appealing to the United States Supreme Court There is a path for appealing to the Supreme Court. The court rarely takes military cases. |
|
Federal Court Litigation
For informational purposes, military review boards - like all other federal agencies - are subject to review under the Administrative Procedure Act. The boards understand that the statute - 5 U.S.C. § 706 (2)(A) - permits reviewing courts to set aside agency actions, findings, and conclusions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
The difficulty is that courts are "unusually" deferential to the review boards because those boards are given expansive discretion in arriving at decisions. Courts are often reluctant to get involved in routine, day-to-day, administrative decisions. This is why experienced counsel is so important to the review board process.
It is also well-accepted that "government officials must follow their own regulations, even if they are not compelled to have them at all." (See Bond v. US, 47 Fed. Cl. 641, 648 (2000). Experienced counsel with assist you contesting unfavorable information with perspective as to how courts will analyze the issues.
The law requires that the review board "provide an explanation that will enable the court to evaluate the agency's rational at the time of the decision." Often, the boards are deficient in providing their rationale.
There are other common ways in which review boards are prone to make errors. For those reasons, our free consultation is advisable before applying to the boards for correction of military records.
The difficulty is that courts are "unusually" deferential to the review boards because those boards are given expansive discretion in arriving at decisions. Courts are often reluctant to get involved in routine, day-to-day, administrative decisions. This is why experienced counsel is so important to the review board process.
It is also well-accepted that "government officials must follow their own regulations, even if they are not compelled to have them at all." (See Bond v. US, 47 Fed. Cl. 641, 648 (2000). Experienced counsel with assist you contesting unfavorable information with perspective as to how courts will analyze the issues.
The law requires that the review board "provide an explanation that will enable the court to evaluate the agency's rational at the time of the decision." Often, the boards are deficient in providing their rationale.
There are other common ways in which review boards are prone to make errors. For those reasons, our free consultation is advisable before applying to the boards for correction of military records.
Boards for Correction of Military Records
Few firms have as much experience as we do involving the Board for Correction of Military Records. Over the last 5 decades, this firm has represented service members of all branches in all military matters before the Army Board for Correction of Military Records, Board for Correction of Naval Records, Air Force Board for Correction of Military Records, Coast Guard Board for Correction of Military Records, and service personnel command.
With the volume of experience we have, there is a good chance that we've dealt with an issue similar to one you may be facing.
The Boards all have fairly similar internal regulations and procedures. The Army regulations for instance are at AR 15-185. The Air Force instruction is at AFI 36-2603. Regulations pertaining to the Board for Correction of Naval Records can be found in the Code of Federal Regulations at 32 C.F.R. Part 723. There is also an instruction at SECNAVINST 5420.193. The Coast Guard directive is COMDTINST 1071.1.
More board resources are available on our Military Law Resources page.
The law basically permits the Secretary of a military department to correct any military record when necessary to correct an error or remove an injustice. The Secretary acts through the review boards.
The statute of limitations is ordinarily three years; however, the boards have the power to waive the statute of limitations. The boards can also authorize monetary payments where appropriate.
If you have already filed and are contemplating retaining counsel for a request for reconsideration, a free consultation is highly advisable. Ordinarily, the statute of limitations for requests for reconsideration is one year. The boards often demand new argument or new evidence.
Having experienced counsel can be extremely beneficial. The various boards receive thousands of applications a year. Some of the boards have significant backlogs that result in some cases taking over a year to resolve.
A Freedom of Information Act Request several years ago revealed that:
-Navy BCNR members devote an average of less than 2 minutes to deciding each application;
-Army BCMR members devote an average of less than 4 minutes to deciding each application;
-The boards do not require their members to actually review the evidence;
-The boards sometimes rely on summarized written recommendations from staff members before they vote;
-Board members do not necessarily undergo specialized or detailed training. They are not always experts in the law.
The implication, of course, is that experienced counsel must be able to distill your facts and arguments into a concise and simple to understand argument for relief.
When contesting unfavorable information before the boards for correction of military records, it is also important to understand their relationship to the federal courts. Some of the issues are discussed more in our page on federal litigation. Not all military lawyers are experiences in federal litigation.
With the volume of experience we have, there is a good chance that we've dealt with an issue similar to one you may be facing.
The Boards all have fairly similar internal regulations and procedures. The Army regulations for instance are at AR 15-185. The Air Force instruction is at AFI 36-2603. Regulations pertaining to the Board for Correction of Naval Records can be found in the Code of Federal Regulations at 32 C.F.R. Part 723. There is also an instruction at SECNAVINST 5420.193. The Coast Guard directive is COMDTINST 1071.1.
More board resources are available on our Military Law Resources page.
The law basically permits the Secretary of a military department to correct any military record when necessary to correct an error or remove an injustice. The Secretary acts through the review boards.
The statute of limitations is ordinarily three years; however, the boards have the power to waive the statute of limitations. The boards can also authorize monetary payments where appropriate.
If you have already filed and are contemplating retaining counsel for a request for reconsideration, a free consultation is highly advisable. Ordinarily, the statute of limitations for requests for reconsideration is one year. The boards often demand new argument or new evidence.
Having experienced counsel can be extremely beneficial. The various boards receive thousands of applications a year. Some of the boards have significant backlogs that result in some cases taking over a year to resolve.
A Freedom of Information Act Request several years ago revealed that:
-Navy BCNR members devote an average of less than 2 minutes to deciding each application;
-Army BCMR members devote an average of less than 4 minutes to deciding each application;
-The boards do not require their members to actually review the evidence;
-The boards sometimes rely on summarized written recommendations from staff members before they vote;
-Board members do not necessarily undergo specialized or detailed training. They are not always experts in the law.
The implication, of course, is that experienced counsel must be able to distill your facts and arguments into a concise and simple to understand argument for relief.
When contesting unfavorable information before the boards for correction of military records, it is also important to understand their relationship to the federal courts. Some of the issues are discussed more in our page on federal litigation. Not all military lawyers are experiences in federal litigation.
