Eric F. Kelly v. United States

Seventy years ago, Congress established a scope of appellate review of courts-martial that is significantly broader than direct review in the civil courts. A military Court of Criminal Appeals is commanded by statute to review the results of a court-martial in law and in fact, to determine the appropriateness of the adjudged sentence, and to affirm only that which “should be approved.” Yet the decision of a Court of Criminal Appeals is not final; it is subject to review by the Court of Appeals for the Armed Forces and thereafter by this Court. Petitioner’s court-martial was reviewed by the Army Court of Criminal Appeals, and the findings and sentence were affirmed. Then the Court of Appeals for the Armed Forces granted review, set aside the judgment of the Army Court, and remanded the case. But on remand the Army Court conducted only a limited review, concluding that it lacked jurisdiction to conduct what is otherwise ordinary review of a court-martial. The Question Presented is: Whether a military Court of Criminal Appeals must review the results of a court-- martial anew when the court previously reviewed the case but its judgment was set aside.