Pardons (Federal)

Air Force, Army, Coast Guard, Navy, Marine Corps?
Prosecuted under the UCMJ?
Convicted at court-martial?

Read on about Presidential Pardons.

Being convicted of a crime is a serious event in anyone’s life, but it does not define who that person is. The law recognizes that, no matter what someone may have done in the past, people can change and they can in some cases deserve a formal recognition of forgiveness by the Government. In the federal and military systems, this is called a “Pardon.”

As military defense counsel we are familiar with and have helped submit an application for a federal Pardon for those convicted at court-martial under the Uniform Code of Military Justice (UCMJ).

A pardon is an action taken by the President of the United States pursuant to the Constitution. A pardon has the effect of legally nullifying the conviction and any punishment for it. The President can grant pardons for any reason whatsoever, and there is no limit on the number he or she can grant. A pardon does not, however, erase any record of the conviction. A major reason many convicted servicemembers want a pardon is to restore rights that they lost as a result of their “felon” status. Depending on the state, these include the right to vote, to possess firearms, to serve on a jury, and to run for public office (among other things).

While less common, the President can also grant clemency, called commutation, by reducing the terms of confinement. In 2017, for example, President Obama granted clemency to a military prisoner–Chelsea Manning. Manning had been sentenced to 35 years confinement in 2013. The President commuted the confinement to time-served as of 2017.

The President has largely unfettered discretion to Pardon and there is no checklist of reasons why a pardon should be granted. However, the OPA does list some of the major topics to consider, listed in the “Standards for Considering Pardon Petitions” in the Department of Justice Justice Manual 9-140.112.

If you are interested in pursuing a pardon application with our military law attorney’s, there are a few basic features of the process that you should know. First, a minimum of five years should have elapsed since the date of your conviction and completion of any sentence. For example, a military prisoner sentenced to 10 years confinement might be paroled or released early because of “good time” credit. In each case, they are still a “sentenced” prisoner until the date they would have served in confinement day-for-day (this is usually called the full-time date (FTD). The military does not have probation. So it is normally five years from the FTD.

The five-year lapse is a requirement imposed by the Office of the Pardon Attorney (OPA), an office in the Justice Department that reviews applications and makes recommendations to the President. This, in the OPA guidelines allows the petitioner to demonstrate good behavior and conduct over a “substantial period of time.” As we know from recent pardons by President Trump this is not a hard and fast rule.

Next, you must submit an application to OPA, answering questions about the offense and, more importantly, your life since then. Pardons attempting to claim wrongful convictions or unfair treatment at trial are almost never successful; instead, OPA looks for evidence of contrition and sustained positive community contributions. OPA will also want to know why you want the pardon–are you hoping to own firearms or run for office, etc.? OPA will review the application, and if it is interested in a positive recommendation, may refer the case to an FBI agent for interviewing of the applicant and other relevant parties. This process may take one or more years, after which OPA will make its recommendation to the President. Unfavorable recommendations are almost never successful once they reach the President. In general, the odds of getting a pardon are always low, and you should never go into the process expecting a favorable outcome.

Preparing to apply and preparing the application is the most important step to get off to a good start and one where it is best to have an experienced military defense counsel team help.

If you are applying for the pardon of a military court-martial, the application will first go to the Secretary of the service that convicted you. The service Secretary will make his or her own recommendation to OPA, after which OPA will conduct its own review. Importantly, a pardon will have no effect on the nature of your discharge–so if you were adjudged a BCD, that stays.

If you engage the firm to work on your pardon application, we will interview you about the offense, and about your subsequent life. We will ask you to send over any and all documents you have relating to both of these things. We will then draft a substantive memorandum making the case for a pardon, with exhibits, and we will submit it. Generally, the entire process takes about six weeks. We believe that OPA will take a pardon application more seriously if it is submitted through counsel than if it is submitted “pro se.” We also know what OPA expects in a successful application, which may not be obvious to non-professionals.

Compared to an application to the Discharge Review Board for an upgrade in an administrative or bad conduct discharge, there is much more to be considered for a pardon. (Note, only a Board for Correction of Military Records can upgrade or change a Dishonorable Discharge or Dismissal–we also help clients with DBR petitions.)

One last point. There is a debate ongoing between legal scholars about what a pardon says in regard to guilt or innocence. Loosely based on a U.S. Supreme Court case from some years ago it was thought that acceptance of a pardon was an admission of guilt. However, developments are not suggesting that taking the pardon is neither an admission of guilt nor a statement of innocence–something still to be determined.

Before consulting with us as your military defense lawyer we recommend you gather documents and records about your case. Your military record can be obtained from the National Archives.

(https://www.archives.gov/research/military)

If you don’t have your record of trial from the UCMJ court-martrial, you will need to make a FOIA request for a copy, usually through Clerk of Court for the Court of Criminal Appeals that reviewed your appeal.

Getting records takes time–start early.