Part I. General Appellate Leave Questions
Appellate Leave Defined
Q. What is appellate leave?
A. The authorized absence of a service member (appellant) from the physical presence of the command, in a non-pay status, pending completion of the appellate review of their court-martial conviction where a dismissal or an unsuspended dishonorable or bad conduct discharge was adjudged.
When Appellate Leave is authorized
Q. When is appellate leave permitted?
A. Appellate leave takes on two forms – voluntary and involuntary. While both can occur following completion of any adjudged confinement and the court-martial sentence included a dismissal or unsuspended punitive discharge, there are some differences.
1. Voluntary appellate leave.
a. Appellate leave requested by the member when any confinement has been completed but the Convening Authority has not approved the court-martial sentence.
b. Voluntary appellate leave begins when a service member submits a written request pursuant to MILPERSMAN 1050-320 (Navy) or MCO 1050.16A (USMC). Although convening authority approval of the request is discretionary, most requests are approved. Approval of a request is only one of many steps that must be completed prior to a service member departing on voluntary appellate leave. For more information see (Navy):
http://www.npc.navy.mil/ReferenceLibrary/MILPERSMAN/1000MilitaryPersonnel/1000General/, scrolling down and clicking on 1050-320, and (Marines): http://www.marines.mil/news/publications/Documents/MCO%201050.16A.pdf .
c. Upon favorably completing this process the service member is permitted to depart on voluntary appellate leave. Voluntary appellate leave becomes involuntary following the convening authority’s action approving the sentence, where a dismissal or an unsuspended punitive discharge was adjudged, and the CA directs the service member to involuntary appellate leave.
2. Involuntary appellate leave.
a. A member’s voluntary appellate leave status changes when the convening authority takes action on their case. The member will receive a letter from the convening authority informing them of the change in their leave status. The letter will be mailed to the address provided by the member prior to starting voluntary appellate leave. This is why it is important for appellants to keep commands informed of changes in their mailing address. The letter will be forwarded pursuant to MILPERSMAN 1050-330 (page 3), 1050-380 and MCO 1050.16A . Navy use this link: http://www.npc.navy.mil/ReferenceLibrary/MILPERSMAN/1000MilitaryPersonnel/1000General/ , scroll down until each section has been located then click on them. Marines use this link: http://www.marines.mil/news/publications/Documents/MCO%201050.16A.pdf .
b. If action approving a dismissal or unsuspended punitive discharge occurs prior to a member completing adjudged confinement, the member will likely be placed on involuntary appellate leave upon completing adjudged confinement and satisfying the appropriate check-out procedures, i.e., physical, HIV test and DNA. For more detailed information, see MILPESMAN 1050-330 and 1050-340 (Navy) and MCO 1050.16A.
Q. When does appellate leave start?
A. If you elect to take voluntary appellate leave, and approval has been granted, it will begin when you have completed all of the procedures required to check out on voluntary appellate leave. These procedures are very similar to the steps taken when you leave active duty (e.g., EAOS, EAS or retire). If confinement was adjudged in your case, you may be able to start the check out process while in confinement. Your request to go on appellate leave does not have to be granted, but it is very unlikely to be denied. If you do not elect to take voluntary appellate leave, you can be put on involuntary appellate leave after the convening authority acts on your case (discussed above).
Requirements prior to beginning appellate leave
Q. Is the service member required to have a physical prior to being released on appellate leave?
A. Yes. Regulations require all service members to undergo a physical prior to commencing appellate leave. This physical will also satisfy the requirement for a final physical examination prior to release from active duty. In addition to a physical, the command is required to ensure an HIV test is conducted and documented in the service member’s medical record. See MILPERSMAN 1050-320 or MCO 1050.16A.
Q. If a member has been diagnosed as drug or alcohol dependent, is inpatient treatment available before a member is released to appellate leave?
A. Yes. The command is required to offer the member inpatient treatment prior to separation or release to appellate leave. If treatment is accepted, appellate leave will not occur until treatment is completed or terminated. The member’s treatment will be documented in their service record.
Q. What must be done if a member is convicted of a Qualifying Military Offense (QMO)?
A. A QMO is any offense under the Uniform Code of Military Justice (UCMJ) punishable by a sentence of confinement for more than a year (regardless of sentence imposed), see OPNAVINST 5800.9, 10 USC Sec. 1565 01/08/2008 Sec. 1565. DNA identification information: collection from certain of, and MILPERSMAN 1050-320 (page 2 of 5) - http://www.npc.navy.mil/ReferenceLibrary/MILPERSMAN/1000MilitaryPersonnel/1000General/ . So, by law, a DNA sample must be taken from any member convicted of a QMO. Commands, brigs, and TPUs will make every effort to determine whether an individual was convicted of a QMO (even if the convening authority has not yet approved the sentence), and if so convicted, take steps to ensure DNA samples are collected prior to releasing members from confinement (if applicable) or allowing members to depart on either voluntary or involuntary appellate leave or discharging members when appellate review is waived or the case is successfully withdrawn from appellate review. DNA samples must be received and accepted by the U.S. Army Criminal Investigation Laboratory (USACIL) for analysis prior to discharging or releasing members to appellate leave. Following USACIL’s analysis of the DNA sample, the results will be forwarded to the FBI for inclusion in the Combined DNA Index System (CODIS).
Transfer of members to NAMALA
Q. What happens to the service record books (SRB), medical and dental records after the convening authority (CA) acts on the sentence and the service member is sent to involuntary appellate leave?
A. MILPERSMAN 1050-330 and MCO 1050.16A clearly address this question. The SRB, medical and dental records are forwarded for tracking to the Navy and Marine Corps Appellate Leave Activity, 1325 10th St. SE, Washington Navy Yard, DC 20374.
Q. When does the court-martialing command relinquish authority of a Marine Corps appellant?
A. Once the member is joined to NAMALA on involuntary appellate leave the CO, NAMALA assumes GCM authority.
Q. When does the court-martialing command relinquish authority of a Navy appellant?
A. According to MILPERSMAN 1050-310 and paragraph 403 of BUPERSINST 1306.77B all prisoners assigned to the brig who have been sentenced to confinement for a period of 31 days or more or who have been awarded a punitive discharge as part of the court-martial sentence (regardless of length of confinement) are transferred to the TPU in a TEMDU status upon confinement. Such TEMDU transfers authorize COs of TPUs, Naval Stations, and Naval Air Stations to place members on voluntary or involuntary appellate leave upon completion of adjudged confinement. Because a member is only transferred to TPU under TEMDU orders, their CO remains ultimate authority over the member.
After the convening authority approves the sentence, to include dismissal or punitive discharge, and adjudged confinement is complete, commands will transfer the member pursuant to MILPERSMAN 1050-330. Upon completion of the preceding action, the member is transferred to Commanding Officer, Navy and Marine Corps Appellate Leave Activity (CO, NAMALA). CO, NAMALA becomes the member's new CO. The member is no longer required to report to their former CO, instead, they report directly to CO, NAMALA.
Q. How does a member on involuntary appellate leave contact NAMALA?
A. Every member joined to NAMALA will receive a welcome aboard letter containing pertinent information, to include command contact numbers (so long as the member’s address and contact information is current on NAMALA’s roll). If a member’s address and contact information needs to be updated they shall call NAMALA at (202) 685-0100.
Convening authority’s action
Q. What is a convening authority action?
A. The convening authority (CA) is the officer that sent your case to a court-martial. If you went to a special court-martial, it is likely your commanding officer, officer-in-charge, squadron or battalion commander. If you went to a general court-martial, it is likely the first flag officer in your chain of command. After your court-martial is complete, the convening authority must take action on the sentence. In taking this action the CA may, for any or no reason, disapprove a legal sentence in whole or in part, mitigate the sentence, or change a punishment to one of a different nature so long as the severity of the punishment is not increased. This is called convening authority’s action. Some court-martial punishments do not occur until the convening authority's action, i.e., punitive discharges (Note: dismissals and punitive discharges will not be effected until an appellant has waived or withdrawn his case from appellate review or appellate review has been completed pursuant to the Manual for Courts-Martial. Officer dismissals will not occur until approved by the Secretary of the Navy, pursuant to Article 71(b), UCMJ) or restriction when a part of the sentence, but most begin immediately after your court-martial, i.e., confinement. Pay grade reductions and forfeitures, subject to the terms of any pretrial agreement take effect on the earlier of the date that is 14 days after the date on which the sentence was adjudged; or the date on which the sentence was approved by the CA. Convening authority's action cannot take place until some administrative tasks are completed. One of these tasks is the preparation of the record of trial. This is the verbatim (word for word) transcription of all of the proceedings in your case. Because this can take several months to prepare (or even longer if your trial lasted several days), convening authority’s action will normally take place at least two months after your court adjourns.
Q. What happens if the CA doesn’t approve the punitive discharge?
A. If the CA disapproves/remits/suspends the punitive discharge and the enlisted member’s expiration of active obligated service (EAOS) has occurred, then the member is processed by reason of EAOS/EAS (MILPERSMAN 1910-104 and MCO 1900.16F refers). [See Expunging DNA]
Waiver of or withdrawal from appellate review
Q. What happens when an appellant waives or withdraws their case from appellate review?
A. In accordance with R.C.M. 1110 a member has the right to waive or withdraw their case from appellate review at any point following a conviction at court-martial and after the convening authority has acted. When this occurs, an approved punitive discharge must be reviewed under Article 64, UCMJ. When the Article 64 review is complete, the General Court-Martial Convening Authority (GCMCA) orders the punitive discharge executed. Members in this category are not authorized appellate leave.
Appellate leave v. Administrative separation
Q. Does appellate leave apply to administrative separation?
A. No. Appellate leave only applies to members awarded dismissal or punitive discharge at a court-martial. If you are administratively separated, you will be released from active duty once your discharge is approved by the separation authority (normally the first flag officer in your chain of command).
Status of previously earned leaved
Q. What happens to an appellant’s regular leave balance?
A. You do not lose leave you have on the books. Whenever you check out for appellate leave, you are technically in a regular leave status, i.e., receiving pay (if you don’t elect a lump sum payment when you sign your appellate leave statement of understanding). You will remain in this status until your regular leave is exhausted. You are then placed into an excess leave status, i.e., not receiving pay. However, the current Defense Finance and Accounting Service (DFAS) policy is to hold all of your pay once you check out on appellate leave. You will not receive this pay until your punitive discharge is approved by the appellate courts and you are issued a DD Form 214. The reason for this is because while you are on appellate leave you continue to receive Service Group Life Insurance (SGLI) coverage.
Travel entitlements
Q. Do appellants get paid for travel if they go on voluntary appellate leave?
A. No. Neither a mileage allowance nor transportation-in-kind is authorized for members departing on voluntary appellate leave. Transportation in-kind is authorized for members ordered on involuntary appellate leave.
Household goods shipment entitlements
Q. Do appellants get a household goods move if they go on voluntary appellate leave?
A. No. Members with dependents rate a household goods shipment for their dependents when departing on involuntary appellate leave.
Q. Are members required to go on appellate leave?
A. Appellate leave is voluntary until the convening authority takes action on your case. After the convening authority approves your conviction (to include dismissal or punitive discharge), you will most likely be placed on involuntary appellate leave. The convening authority normally takes action on your case within a few months of your court appearance. As discussed above, some administrative actions must be attended to prior to the convening authority taking action on your case (e.g., preparation of the record of trial). Delay until this happens varies from case to case. If you had a pretrial agreement in your case, you may have agreed to request voluntary appellate leave as a term of your agreement (check with your detailed defense counsel).
Appellate Process
Q. What happens if a punitive discharge is set aside or disapproved during the appellate review process?
A. A number of actions could take place should your discharge be set aside or disapproved. The following could apply:
a. Mandate. A mandate is a court directive requiring additional post-trial action on a case. The language in the mandate will direct the convening authority to take certain action which may result in the appellant’s recall from appellate leave.
b. Rehearing. If a rehearing is ordered by the convening authority, the appellant may be recalled for the purpose of the rehearing. The Joint Forces Travel Regulation (JFTR para U7506) states that, “If a rehearing is ordered following completion of travel or official travel is ordered for hospitalization, physical examination, discharge, or for other purposes of an official nature, the member is authorized TDY travel and transportation allowances (including per diem)”. The court-martialing command should make contact with the member and coordinate the return.
c. Final pay settlement. If in the event a dismissal or punitive discharge is set aside or disapproved the discharge of the member and final pay settlement are directly tied to the decision of the court setting aside the dismissal or punitive discharge.
d. Restoration to active duty. Restoration to active duty is only possible in such cases where the member’s findings and sentence have been completely set aside and the member has not reached their expiration of enlistment, period of induction, or other required period of service obligation. In such cases Commander, Navy Personnel Command or CMC (MMEA/MMOA) will be consulted for appropriate action.
e. Beyond EAOS. There is no requirement to terminate a Marine's appellate leave if the expiration of enlistment, period of induction, or other required period of service, has been reached, and the Marine's punitive discharge has been set aside with no rehearing. If the jurisdiction provisions of Article 2 of the UCMJ do not apply, the Sailor or Marine shall be discharged per the MILPERSMAN (Navy) or the Marine Corps Separations Manual. The character of discharge will be of a type warranted by the Sailor’s or Marine's service record.
Part II. Appellant Specific Questions
Joined to NAMALA
Q. Now that I am joined to NAMALA, what’s next?
A. Once a member is joined to NAMALA they should receive a “Welcome Aboard” letter explaining NAMALA’s role in supporting them throughout the appellate review process. If you are an appellant and you have not received a “Welcome Aboard” letter, you may request one by contacting NAMALA at (202) 685-0100.
Q. I have received a letter in the mail stating that I need to have my DNA taken for collection, what do I do?
A. Contact NAMALA as directed in the letter and a staff member will assist you in arranging a location and time for collection of the DNA sample.
Pay matters
Q. Do I get paid while on appellate leave?
A. No. Appellate leave is treated as excess leave and you will not rate pay.
Q. What do I do if I have a pay related issue?
A. Scenario:
a. SGLI premiums: If the member elects to continue SGLI coverage during the period of appellate leave the payments will be computed against the final pay settlement at the time of discharge and may result in a member’s indebtedness to the government.
b. Final pay settlement: A member’s final pay settlement will only be made after the member has been discharged. In most cases the Defense Finance and Accounting Service (DFAS) will effect such settlements, but in cases where the findings and sentence of the court-martial are set aside the local dispersing office may be held accountable.
c. Requests for W2 tax forms: W2 form requests can be made by contacting the Defense Finance and Accounting Service (DFAS) at 888-332-7411 Option 2.
Appellate process
Q. How long can I expect to be on appellate leave?
A. The average time from the date of court-martial until the DD form 214 is issued and the discharge could occur within two years or less. For options available to you concerning appellate review, contact your detailed defense counsel or detailed appellate defense counsel.
Q. How can I find out what is going on with my appeal?
A. When your case is assigned to an appellate defense counsel, counsel will attempt to contact you to discuss your case. If you are not sure your case has made it to the appellate court yet (happens after the convening authority acts on your case), contact Navy and Marine Corps Appellate Leave Activity (NAMALA). If they don’t have you in their system, the convening authority has probably not yet acted on your case or your case is in transit between your command and NAMALA. You can contact your detailed defense counsel. If you are unable to locate your detailed defense counsel, call the Region Legal Service Office (RLSO) (Navy) or review section (Marine) at the base or station where your case was tried. The RLSO or review section should be able to tell you where your case is in the process.
Q. How do I find out who my appellate defense counsel is?
A. If you are unable to locate your detailed defense counsel, call the RLSO (Navy) or the review section (Marine) at the base or station where your court-martial was tried. The RLSO or review section should be able to tell you where your case is in the process. You may also call the Navy-Marine Corps Appellate Review Activity, Appellate Defense Division (Code 45) directly at 202.685.7290 to identify your appellate defense counsel and speak with him or her.
Expunging DNA
Q. If my case is set aside how do I get my DNA expunged from the FBI Criminal database?
A. The Notification Card, presented to the member at the time of collection, reads, "If your qualifying military conviction is overturned and you have no other conviction for which the analysis was or could have been included in the FBI's Combined DNA Indexing System (CODIS), you may request that your sample be expunged. You must provide a certified copy of a final court order establishing that such conviction has been overturned and may request expungement through judicial, command, or law enforcement channels as appropriate in accordance with DOD guidance."
The DODINST 5505.14 states that, "Former service members from whom samples were taken but who were not convicted of any offense by general or special courts-martial may request in writing that their DNA records be expunged. Requests for expungement shall be submitted to the Military Department Clerk of Court (or similar appropriate official) and must include member's name, SSN, current contact information, date of offense, and contact information of the unit that the former member belonged to when the sample was collected."
If your qualifying military conviction is overturned and you have no other conviction under 10 U.S.C. 1565, 42 U.S.C. 14135a (Federal), or 42 U.S.C. 14135b (District of Columbia) for which the analysis was or could have been included in CODIS you may request that your DNA sample be expunged. Requests for expungement shall be submitted to the Military Department Clerk of Court and must include the member's name, SSN, current contract information, date of offense, and contact information of the unit that the former member belonged to when the sample was collected.
Administrative assistance available for appellants
Q. How do I get a statement of service for prospective employment?
A. Due to the Privacy Act of 1974, a request for a Statement of Service must be made in writing, signed by you, and mailed to NAMALA.
Educational benefits while on appellate leave
Q. Can I use the GI Bill that I contributed to?
A. If you are otherwise eligible to receive GI Bill benefits, you can use them while on appellate leave. Remember, you are on active duty in an excess leave status and rate nearly all active duty benefits. You can contact the VA (contact information below) or discuss this with a VA coordinator at the school where you would like to use your GI Bill benefits.
Q. Am I eligible for tuition assistance (TA)?
A. No. Members on appellate leave are not permitted to use tuition assistance in accordance with SECNAVINST 1560.4 (Series).
Travel OCONUS while in appellate leave status
Q. Can I travel outside the Continental United States (CONUS)?
A. No. Members on appellate leave are not permitted to travel outside of the Continental United States (CONUS).
Medical care for appellants and families
Q. Are my family and I eligible for medical treatment while I am on involuntary appellate leave?
A. Yes. The Assistant Secretary of Defense mandated in his memorandum of 8 November 2006 that members on appellate leave are eligible and must enroll in TRICARE Prime. The following guidance is provided to assist you:
How to update DEERS:
1) Go to your uniformed service personnel office or contact the Defense Manpower Data Center Support Office (DSO) at 1-800-538-9552. Your can find the nearest uniformed service personnel shop at www.dmdc.osd.mil/rsl/
2) Or, fax address changes to DEERS at 1-831-655-8317
3) Or, mail the address change to the Defense Manpower Data Center Support Office, ATTN: COQ, 400 Gigling Road, Seaside, CA 93955-6771
4) Or go online at www.tricare.osd.mil/DDERSAddres to update your information.
How to enroll in TRICARE:
1) Visit your local Health Benefits Advisor (HBA), Beneficiary Counseling and Assistance Coordinator (BCAC) or TRICARE Service Center (TS) or online at www.tricare.osd.mil. Find the region you are living in and call the toll free number for assistance with enrollment.
2) Or, visit any TRICARE Service Center and fill out an enrollment form.
3) Or, visit the TRICARE Home page, www.tricare.osd.mil to download enrollment forms and forward to TRICARE Service Center as directed.
4) Ensure to keep your enrollment updated by filling out a new application form upon command check-in.
Military ID entitlement
Q. Will I have a military ID while on appellate leave?
A. Yes. When you check out on appellate leave you will be issued an ID card that is valid for six months and then every ninety days thereafter until officially discharged. You will need to return to a military ID center in ninety days to renew your ID. The ID center will verify that you are still on appellate leave by contacting NAMALA and issue you another ID valid for ninety days. This process will continue until you have been officially discharged.
Clemency
Q. What is clemency?
A. An administrative review or action which results in mitigation, remission, or suspension of the whole or any part of the unexecuted portion of a court-martial sentence, restoration to duty, the voluntary retention on active duty beyond the obligated term or enlistment, or reenlistment. Also includes substitution for good cause of an administrative discharge for an executed punitive discharge or dismissal in select cases.
Q. If I request clemency, what next?
A. Requested clemency review is a written statement or signed form (DD Form 2715-3), or equivalent, whereby an offender whose sentence includes an approved unsuspended punitive discharge and less than 12 months confinement requests clemency from the Navy Clemency and Parole Board (NC&PB). Any case which includes an approved unsuspended discharge and more than 12 months confinement automatically rates clemency review. For more information, see section III of SECNAVINST 5815.3J.
Getting a copy of your DD-214
Q. Once discharged, how do I get a copy of my DD Form 214?
A. If you have not received or lost your DD Form 214 after your discharge, log on to the following web address http://www.archives.gov/veterans/evetrecs/. Once you have logged on, click the "Request Military Service Records or Proof of Service (DD Form 214)" tab and complete the requisite portions.