When a court-martial panel is improperly advised on the sentencing limitations for an offense, it is a significant legal error that can lead to the sentence being overturned on appeal. The military judge is responsible for providing the panel members with accurate instructions on the law. This includes instructing them on the maximum punishment that is authorized for the specific offenses of which the accused has been convicted.
If the judge gives an incorrect instruction—for example, telling the panel that the maximum authorized confinement is 10 years when it is actually only 5 years—it can be a fatal error. The panel may adjudge a much harsher sentence than they would have if they had been given the correct information. The defense counsel has a duty to object to any incorrect instruction on the record to preserve the issue for appeal.
If an improper sentence is adjudged based on this flawed advice, the appellate defense attorney will raise this as a primary issue in their appeal to the service’s Court of Criminal Appeals. The appellate court will review the instructional error. If they find that there is a reasonable possibility that the panel was misled by the incorrect instruction and that it resulted in a more severe sentence, they will grant relief. The court can either reassess the sentence themselves and approve a new, lesser sentence, or they can set aside the original sentence and order a complete sentence rehearing with a new panel and proper instructions.