After a court-martial conviction there are two types of clemency: clemency granted by the convening authority who referred the charges to trial, and clemency (or parole) granted under statute and determined by a clemency and parole board. The UCMJ clemency and parole process is separate from the post-trial clemency process. In addition to my years as an attorney involved with military justice I have served in the past as a voting member of the Navy Clemency & Parole Board. That means I have an insiders understanding of the clemency and parole process in addition to practice in front of those boards.
After a court-martial conviction the accused will have the opportunity to request clemency from the convening authority.
Under UCMJ Article 60, the convening authority has unfettered discretion as a matter of command prerogative to set aside a finding of guilty or modify a sentence, so long as a sentence is not increased. See United States v. Nerad, 69 M.J. 138 (CAAF 2010); United States v. Finster, 51 M.J. 185, 186 (CAAF 1999); United States v. Travis, 66 M.J. 301, 303 (CAAF 2008) ("Clemency is a highly discretionary command function of a convening authority.")
Except for some deferment and waivers of pay to family members, clemency post-trial is difficult to get from the convening authority. If you have a pretrial agreement most convening authorities believe they have given you your clemency up-front and won't give more. You should not give up the opportunity to seek clemency from the convening authority. There are times when something new and mitigating comes up during trial, even in contested cases. For example some time ago I had a client who contested a laundry list of sexual harassment, sexual assault, and fraternization charges involving several women personnel under his command. He was convicted of only one incident of indecent assault. During the post-trial phase the convening authority was convinced to disapprove the sexual assault conviction and substitute a finding of guilty to assault and battery. The punishment was not changed. But the effect of the CA's clemency action was to avoid a sex offender registration requirement.
Nonjudicial punishment under UCMJ Article 15.
The Manual for Courts-Martial sets out various procedures for the set-aside, remission or suspension of UCMJ Article 15 (NJP/Mast/Office Hours) punishments, as well as courts-martial punishments. See Para. 6., Part V, MCM (2008) as amended, UCMJ Article 15 clemency and appeals. Note: there is a very short deadline in which to submit an appeal under these rules. If you have a meritorious case which you have appealed and the appeal is denied you may be able to petition the board for correction of military records to have the item removed from your record. Each Service has a procedure on how you get to the board.
But let's take a closer look at the clemency and parole process administered by a Service secretary in accordance with UCMJ Article 74, (an appropriate authority "may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures") and 10 U. S. Code § 952; 10 U. S .Code § 953 (Remission or suspension of sentence; restoration to duty; reenlistment).
The clemency and parole process is separate from an appeal or review under UCMJ Articles 66 or 69. The overall process for operation of the clemency and parole process is found in each Services regulations and the Department of Defense instructions. As my resume indicates I served on the Navy Clemency & Parole Board while on active duty so have a lot of experience from both the petitioner viewpoint as well as how the boards look at a petition for clemency or parole. In addition I have experience with representation during parole revocation actions.
Here are the primary resources.
Department of Defense Instruction. DoDI Instruction 1325.7, Administration of Military Correctional Facilities and Clemency and Parole Authority.
Air Force Clemency & Parole Board. Chap. 10, AFI 31-205, The Air Force Corrections System; AFI 36-2023, Secretary of the Air Force Personnel Council. No personal appearances allowed! You may only submit a written petition to the board.
Navy Clemency & Parole Board (Navy, USMC, USCG): SECNAVINST 5815.3J, Department of the Navy Clemency & Parole System (2003). "Personal" appearance allowed by lawyer, family, friends, but not the prisoner. I'm aware of one Navy case where the petitioner had been released on parole and came to the hearing, but was required to wait outside. The Navy has allowed a petitioner to submit a short video statement from time to time.
Before I go any further, let me give you several big points.
"has accepted responsibility for his confining offenses."
"has volunteered and successfully participated in all of the programs available to him beyond those mandated as part of his confinement plan."
"has a great deal of family and social support in the community upon release from confinement."
"has made an [substantial] effort to make restitution to a victim."
What do they do?
Here is the Army Clemency & Parole Board mandate which gives a fair summary of what the boards are required to do. Whether they will do it or how to get them to do it are different questions, which is a reason to consult a lawyer experienced in these matters.
- Acts as an independent and professional Board, with the authority to make decisions, such as:
- Adjust significant disparities in approved sentences.
- Modify sentences when consistent with the maintenance of good order and discipline in the Army and in the best interest of society and the prisoner.
- Consider release of eligible prisoners from confinement under parole supervision consistent with the ends of justice and public safety.
- Restore to duty or re-enlist individuals who satisfactorily shall have demonstrated potential for military service.
- Place prisoners under the supervision of a U.S. Probation Officer according to Mandatory Supervised Release guidelines.
Some additional reading and resources.
U. S. Probation & Parole Service. Some military prisoners are transferred to federal confinement facilities. Military prisoners on parole will be assigned to a federal parole officer for supervision. They can be difficult.
AR 190-47, Army Corrections System. Useful for those confined at an Army facility or the U. S. Disciplinary Barracks, Fort Leavenworth, KS.
10 U. S. Code § 951. This provides for military confinement facilities.
The Secretary concerned may provide for persons who were subject to his authority at the time of commission of their offenses a system for retention of selected offenders beyond expiration of normal service obligation in order to voluntarily serve a period of probation with a view to honorable restoration to duty. The Secretary concerned may provide for persons who were subject to his authority at the time of commission of their offenses a system for retention of selected offenders beyond expiration of normal service obligation in order to voluntarily serve a period of probation with a view to honorable restoration to duty.