As we enter 2021, a significant number of high profile newsworthy events have occurred including the Presidential administration of Donald Trump leaving office and the inauguration of President Joe Biden. Hidden under the radar of the viciously fast news cycle is a concerning provision of law that managed to slip its way into the final version of the National Defense Authorization Act of 2021 (NDAA of 2021).

A somewhat unique fixture of appellate review of convictions stemming from trials by courts-martial in military justice will be coming to an end thanks to the NDAA passed by Congress (which was vetoed by the President, but overridden). The ability of military appellate courts to conduct a complete and holistic review of all of the evidence at trial—known in legal circles as “factual sufficiency”—will no longer be allowed. Appeals will still go forward, but the strong protection of a factual sufficiency review formerly available to military appellate courts will no longer remain an avenue for appellate counsels to obtain relief. Under Article 66(c) of the Uniform Code of Military Justice (UCMJ), the military’s court of criminal appeals had the unusual appellate power to conduct a de novo review of a trial court’s findings of fact. Congress gave the military appellate courts their unique fact-finding powers in 1950 since under the UCMJ, most special and general courts-martials were very lax proceedings. This lead to them being extremely susceptible to command influence, thereby creating a risk of unjustly convicting and harshly sentencing service members.

This legislative enactment appears to be in response to the multiple sexual assault convictions being tossed by various military appellate courts due to the evidence being proven factually insufficient. One recent case involved a West Point Cadet who had a 21-year prison sentence vacated and completely overturned due to the nature of the evidence in that particular case being deemed factually unsatisfactory. Congress appears to be upset with military appellate court judges subverting their judgment and reasoning for that of the military juries in each case. However, regardless of the actual merits of the case, political advocacy organizations have presented newsworthy cases in a distorted light to try and lobby congress into making a middle of the night legislative change to this review. As a result of this, a new law was passed in the NDAA that revokes the ability of the Court of Appeals for each branch of service to vacate convictions based on factual insufficiency. Many are outraged at this piece of legislation since it undermines the due process protections afforded under the constitution and has harmed the military’s judicial integrity with a defamatory mischaracterization of the adjudication appeal process for most cases. Military courts had long wisely used their discretion to vacate unjust convictions based on long established jurisprudence concerning a factual sufficiency analysis. Now, courts will be unable to overturn erroneous decisions not supported by substantial or logically accurate evidence under the factual sufficiency standard of review. Congress, in removing this right, has just deprived service members of a key judicial protection against convictions based on insubstantial evidence.

With the increased congressional duress the military is facing when prosecuting factually insufficient cases, there is a potential that weaker accusations may result in unethical proceedings due to the loss of service member protections. Now that the safeguard of a factual sufficiency review on the merits after a conviction from a trial is gone, many wrongfully convicted service men and women will now serve potentially decades in prison for crimes not well-founded and backed by substantial evidence. The only hope for justice they would then have, relies exclusively on obtaining an acquittal at trial. The best thing to do for anyone facing allegations in the military criminal justice system is to push back hard from the initiation of the case all the way until the matter is concluded.