Members of the military who are convicted by a court-martial have rights even after the conviction that can affect how much time they actually serve as well as the type of discharge they receive from the service. Clemency is generally defined as anything that reduces or minimizes a sentence while parole is a conditional release from confinement, usually under the supervision of a parole officer.

The first avenue for requesting clemency lies with the convening authority, the person who ordered the court-martial in the first place. In the past, the discretion of the convening-authority to grant clemency was unfettered. Recently, however, Congress has placed limitations on the authority of the convening authority to grant clemency, particularly if the case involves charges of a sexual nature (sexual assault or possession of child pornography). New laws also impose a mandatory punitive discharge for certain offenses. Chances of getting clemency at the convening authority are historically low, especially if the case was resolved through a pretrial plea agreement.

Clemency and Parole Boards

The next stop for requesting clemency or parole lies with the service clemency and parole boards acting under the authority of the service secretary. In the Navy and Marine Corps for example, individual cases are reviewed by the Navy Clemency and Parole Board (NCPB). The board is made up of a senior officer and four other voting members, including a JAG and medical representative, and is governed by SECNAVINST 5815.3J. Unless waived in writing, the board is required to conduct a clemency review of all cases whose approved sentence includes 12 months or more of confinement. As an act of clemency, the board has the authority to substitute an administrative discharge for an executed punitive discharge (BCD or DD) or dismissal. After the initial clemency review, reconsideration is granted every year thereafter for sentences less than 20 years and every 3 years thereafter for sentences great than 20 years.

To be eligible for parole, the member must have served at least one-third of the approved sentence but not less than 6 months. Once considered for parole, the member will be reconsidered annually.

The board meets in person periodically to review eligible cases. If the offender is in confinement, he or she is not entitled to personally appear before the board but may have a lawyer appear on his or her behalf. Prior to making a decision, the board reviews nature of the offense, the record of trial, the military record of the offender, post-trial conduct of the offender, any psychiatric or psychological records or evaluations, and any statement submitted by any victim. The board makes recommendations to the Secretary who has final approval authority.