The United States Court of Appeals for the Armed Forces (CAAF) has presented its decision for United States v Kelly. The CAAF’s opinion has held that a Court of Criminal Appeals (CCA) has the legal ability to disapprove a mandatory minimum punitive discharge when the penalty would be “inappropriately severe.” The decision has creates the potential to reverse a previous Army CCA decision that had been established en banc, or by judges of the court before the entire bench instead of a panel of judges.


Sergeant Kelly was accused of and eventually convicted for sexual assault and sexual abuse. The sentencing approved for his case included one-year confinement, total forfeitures, a rank reduction, and a dishonorable discharge. As it is stated in Article 56(b) of the Uniform Code of Military Justice (UCMJ), dishonorable discharge was mandatory given the charges.

An appeal was filed by Kelly to the Army CCA, which included an argument stating the dishonorable discharge was too harsh given the allegations. The en banc Army CCA deliberated the use of mandatory minimum punitive discharges before ultimately affirming that Article 56(b) would not be challenged for this case. Kelly’s discharge was maintained and the decision was appealed further up to the CAAF.


In the CAAF’s opinion on the matter, it considered the apparent conflicts between Article 56(b) and Article 66(c), the latter being an article that calls for “each Judge Advocate General (JAG) [to] establish a Court of Military Review which shall be composed of one or more panels […]” Article 56(b) sets a mandatory expectation for minimum punitive discharges, but Article 66(c) seems to describe the need for a judge’s panel to reach that decision, not an en banc call. The CAAF concluded Article 56(b) could be used to limit the power of court-martial, which would end its contention with Article 66(c).

It referenced United States v Jefferson to back its decision. In that case, the mandatory minimum discharge penalty described by Article 118 was made more lenient by applying it solely to court-martial. In effect, an appellate court was given the freedom to decide if the minimum discharge penalty should be used, on a case-by-case basis at the time. The extent of this decision is that minimum mandatory penalties could be lessened or removed without actually challenging whether or not a guilty verdict was valid.

The CAAF opinion continued to discuss Congress’s power to alter the UCMJ, and how this could feasibly reinstate the necessity of mandatory minimum punitive discharges. There always exists the option for Congress to step in and place limitations on the CCA as it sees fit. However, as the opinion notes, this has not yet happened to a remarkable extent, perhaps out of an unspoken belief that court-martial and military criminal matters are best left in a separate legal theater for decision-making and rulings.

Attorney Joseph Jordan is a civilian military criminal defense attorney with extensive experience protecting the rights of U.S. Armed Forces members, retired veterans, and reservists who encounter legal challenges. From providing defense against the harshest military criminal charges to acting as a representative for court-martial, Attorney Jordan is the trusted name in advocacy for military service members stationed around the world. For more information about his legal services and law firm, or to retain Attorney Joseph Jordan for a case of your own, contact his law office now at (866) 624-7503.