The period between conviction and the completion of appellate review is governed by rules that determine what pay, benefits, and rank the convicted service member retains during that time. A punitive discharge does not take effect while the case is under appellate review, and the service member technically remains in a military status during that period, though in a suspended and often restricted capacity. The pay and allowances available during this period are not the same as those available to an active duty member in good standing.
When an appellate court overturns a conviction, the question of what compensation the service member is owed for the period during which they were wrongly convicted and sentenced is answered by law and regulation. Back pay, allowances, and in some cases restoration of rank are available, though the specific amounts and the process for collecting them require careful attention. Veterans who succeed on appeal sometimes discover that navigating the benefits restoration process is nearly as complex as winning the appeal itself.
Pay and Benefits During the Pendency of Appeal
A service member who has been convicted and sentenced but whose case is under appellate review occupies a status that is neither that of an active duty service member in good standing nor that of a separated veteran. The punitive discharge adjudged by the court does not take effect until the conviction becomes final through the completion of appellate review. During that period, the service member remains in a military status, and certain pay and allowances continue, though typically at a reduced rate and subject to the forfeitures adjudged by the court.
The specific pay and allowances available during the post-trial and appellate period depend on the sentence imposed, the branch-specific regulations governing post-trial confinement, and whether the service member is in confinement or has been released pending appeal. Service members who are confined do not receive the same allowances as those who are not, and the forfeitures adjudged by the court-martial are typically implemented during this period. Counsel must be familiar with the specific provisions governing pay status during the appellate period to advise the client accurately about what financial resources will be available.
How a Punitive Discharge Is Held in Abeyance During Review
A punitive discharge adjudged by a court-martial does not take effect until the conviction becomes final through the completion of direct appellate review. This means the service member remains in a technical military status during the appellate period, which can last years in cases that involve full appellate review through the service court and the Court of Appeals for the Armed Forces. The discharge is held in abeyance, meaning it is suspended pending the appellate outcome.
While the discharge is held in abeyance, the service member does not have the full rights and benefits of an active duty service member in good standing. The forfeitures and reduction in grade adjudged by the court-martial are typically implemented during this period, and the service member may be in administrative confinement or under supervision requirements. But the full consequences of the discharge, including the loss of VA benefits tied to characterization, do not flow until the discharge takes effect.
What Back Pay and Allowances Are Owed After an Overturn
When an appellate court sets aside a finding of guilty, the service member is entitled to restoration of the pay and allowances they would have received during the period covered by the overturned conviction. This includes base pay, allowances for housing and subsistence if applicable, and any special pay or allowances that would have been received but for the erroneous conviction. The calculation of what is owed requires reconstruction of what the service member would have earned had the conviction not occurred.
Forfeitures that were adjudged by the court-martial and collected during the post-trial period must be restored if the conviction is overturned. Reductions in grade that occurred as part of or following the erroneous conviction may result in entitlement to back pay at the higher grade for the period of the reduction. The complexity of these calculations means that counsel pursuing back pay claims should work with a financial advisor or specialist familiar with military pay systems to ensure that all owed amounts are correctly identified and claimed.
The Process for Collecting Back Pay After a Successful Appeal
After a successful appeal, the service member or their counsel must submit a formal claim for back pay and restored benefits through the Defense Finance and Accounting Service, typically by submitting documentation of the appellate court’s order setting aside the conviction along with a computation of the amounts owed. DFAS reviews the claim, calculates the applicable amounts under the applicable pay regulations, and processes payment.
In some cases the calculation is straightforward. In others, particularly cases involving complex pay histories, periods of confinement at different rates, and multiple types of allowances, the calculation is disputed. Service members who receive back pay settlements that they believe are incorrect have the right to challenge the calculation through the appropriate administrative channels, and ultimately through the Court of Federal Claims if administrative remedies do not produce a correct result.
Rank Restoration and Its Effect on Retirement Calculations
A service member whose rank was reduced as a result of an erroneous conviction, and who is entitled to rank restoration following an appellate overturn, may have their retirement pay calculation affected by the restoration. Military retirement pay is based on the retired grade, and a restoration of grade to a higher rank after an erroneous reduction means that the service member’s retirement should be calculated at the restored grade, not the reduced one.
If the service member reached retirement eligibility during the period when they were reduced to a lower grade, and received or was denied retirement at the lower grade, the rank restoration may affect what they should have received in retirement pay from the date of retirement. These calculations can involve significant sums over a retirement period and warrant the attention of counsel familiar with both military retirement law and the specific provisions governing restoration of benefits following appellate relief.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.