Article 66, Uniform Code of Military Justice (10 U.S.C. 866), establishes the Courts of Criminal Appeals and defines when a court-martial judgment is reviewed by those courts. Some cases receive review automatically, without any action by the accused, while others reach the court only if the accused affirmatively appeals. The 2016 Military Justice Act, which took effect on January 1, 2019, reshaped these thresholds, so it is important to apply the current version of the article rather than the rules that governed before 2019.
The current automatic-review thresholds
Under the present version of Article 66, a Court of Criminal Appeals has jurisdiction over a court-martial in which the judgment includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, a dishonorable discharge or a bad-conduct discharge, or confinement for two years or more. When a sentence reaches any one of these levels, the case is referred to the appropriate service Court of Criminal Appeals as a matter of course. The accused does not have to request review, and the review proceeds regardless of whether the accused wants it.
These categories reflect a judgment that the most serious outcomes warrant mandatory appellate scrutiny. A death sentence is the gravest punishment the system can impose. A dismissal is the officer equivalent of a punitive discharge and permanently ends a commissioned career. A dishonorable or bad-conduct discharge carries lasting stigma and collateral consequences. And confinement of two years or more represents a substantial deprivation of liberty. Each of these triggers automatic review.
What changed in 2019
The two-year confinement threshold is a product of the 2016 reforms. Before they took effect, automatic review under Article 66 extended to cases with confinement of one year or more, in addition to the death, dismissal, and punitive-discharge categories. The reforms raised the confinement threshold from one year to two years, which narrowed the set of cases that receive mandatory review. A case decided under the older rule, with confinement between one and two years, would have qualified for automatic review then but would not qualify under the current standard. This is why identifying which version of Article 66 applies to a given court-martial is essential.
Cases reviewed only on the accused’s appeal
The 2016 reforms also created a separate avenue for cases that fall below the automatic-review thresholds. In addition to the mandatory categories, the current framework allows an accused to appeal a court-martial judgment that includes a finding of guilty even when the sentence does not reach the level that triggers automatic review, subject to the conditions and time limits set out in the statute and the governing rules. Review in those cases is not automatic; it depends on the accused filing a timely appeal. This preserves an appellate path for less severe sentences while reserving mandatory review for the most serious judgments.
Factual sufficiency review
A further change worth noting concerns the scope of review once a case is before the court. Historically, the Courts of Criminal Appeals conducted a broad review of factual sufficiency on their own initiative. Under the amended Article 66, the appellant must specifically request factual sufficiency review and make a threshold showing of a deficiency in proof before the court will undertake that analysis. This change does not affect which cases receive automatic review, but it does affect what the court examines once review begins, and it places a greater burden on the appellant to frame the issue.
How a case moves through review
For a case that meets an automatic-review threshold, the process begins without any filing by the accused once the judgment is entered. The record is forwarded to the appropriate service Court of Criminal Appeals, which reviews the case as provided by Article 66. The accused is represented by appellate defense counsel and may raise assignments of error, including a properly framed factual sufficiency claim. For a case below the thresholds, the accused must take the affirmative step of filing a timely appeal to invoke the court’s jurisdiction; absent that filing, there is no Article 66 review at the Court of Criminal Appeals.
Practical takeaways
Automatic appellate review under Article 66 is triggered when a court-martial judgment includes a sentence of death, dismissal of an officer, cadet, or midshipman, a dishonorable or bad-conduct discharge, or confinement of two years or more. These thresholds reflect the current version of the article as amended by the 2016 Military Justice Act, effective January 1, 2019, which raised the confinement trigger from one year to two. Cases that fall short of these thresholds are not reviewed automatically but may still reach the Court of Criminal Appeals if the accused files a timely appeal. Because the rules changed in 2019, anyone assessing appellate rights must confirm which version of Article 66 governs the particular court-martial.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.