UCMJ Clemency and Parole

The Clemency and Parole Process is in Addition to Your Appeal Rights After a Conviction

First, clemency can be given by the convening authority who referred the charges to trial, and second the Service Clemency Parole Board can take action to reduce the sentence or place you on parole. Note that if you get to your minimum release date (MRD) and have good time, your release will be under the Mandatory Supervised Release Program (Navy example here). That is not parole, but it will sure feel like it. Challenges to the MSRP have been denied by both military and civilian courts. United States v. Pena, 64 M.J. 259 (2007); Banks v. United States, CASE NO. 09-3086-RDR (D.C. Kan. 25 November 2013).

There are a number of things you can and should do to prepare for the clemency and parole 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.

Post-Trial Convening Authority Action

This is the first step in the clemency and parole process. The convening authority has a lot of discretion. Note there are changes because of amendments to the UCMJ and Manual for Courts-Martial (MCM), in particular for cases of military sexual assault. This is something to discuss with your military defense lawyer before trial and immediately after trial.

Under UCMJ Article 60, the convening authority used to have 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. That has changed. You can see some discussion here.

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. That’s where an experienced military defense lawyer can help you post-trial.

Let me Give You Several big Points

The maximize the chance for clemency and/or parole the following needs to be reflected in the records considered by the Board.

He “has accepted responsibility for his confining offenses.”

He “has volunteered and successfully participated in all of the programs available to him beyond those mandated as part of his confinement plan.”

He “has a great deal of family and social support in the community upon release from confinement.”

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.

Retired grade. If you did not get a punitive discharge, are not administratively discharged prior to becoming retirement eligible, then you will be allowed to retire. But the rank you retire at may be lowered through a retirement grade determination board process. Here is a link to the Army board, which is an example of the process.