If a military member is convicted and sentenced in a General Court-Martial or Special Court-Martial trial, his/her first post-trial opportunity for relief is called court-martial clemency.
After the record of trial (ROT) is prepared in the case (the trial transcript), the court-martial Convening Authority will take action on the guilty findings and sentence in the case.
In some cases, depending on the outcome, instead of approving the findings/conviction and sentence as adjudged, the Convening Authority can:
- Approve only some of the findings of guilt and disapprove and set aside the remainder of the guilty findings; or,
- Disapprove and set aside the court-martial guilty findings completely; and,
- Approve only a portion of the court-martial sentence and disapprove and set aside the remainder of that sentence; or,
- Disapprove and set aside the court-martial sentence completely.
In recent years, the Convening Authority’s power to grant clemency has been severely restricted, and that authority is now based on the outcome of the case. Now, there are many military cases/outcomes in which the Convening Authority cannot grant any meaningful clemency at all.
The court-martial Convening Authority is not required to review the court-martial for legal errors, but the Convening Authority may choose to take action to correct legal errors. In short, when the Convening Authority is authorized to grant clemency, he/she can only approve the results of the court-martial trial or grant some relief and make the findings, sentence or both better – the Convening Authority cannot make the court-martial findings and/or sentence worse.
In military cases in which clemency is authorized, and prior to the Convening Authority taking action on the court-martial results, the convicted military member may submit a clemency request to the Convening Authority asking that:
- Some or all of the court-martial sentence be disapproved and set aside or reduced to some extent; and/or,
- Some or all of the court-martial guilty findings be disapproved and set aside.
Court-martial clemency is largely governed by RCM 1105 and 1107, and UCMJ Article 60. Specifically, the following post-trial rules govern the court-martial clemency process:
- Manual for Courts-Martial (MCM) Chapter XI: Post-Trial Procedure
- RCM 1105: Matters Submitted by the Accused
- RCM 1106: Recommendation of the Staff Judge Advocate or Legal Officer
- RCM 1107: Action by the Convening Authority
- RCM 1108: Suspension of Execution of Sentence; Remission
- UCMJ Article 60: Action by the Convening Authority
Although a military member may have been convicted and sentenced in a court-martial trial, there could still be opportunities for relief and/or appeal. A court-martial conviction and sentence can have devastating legal, professional, personal and family consequences. Experienced and aggressive defense representation is crucial in the post-trial phase of a military court-martial trial.
Defending military members in court-martial trials, court-martial clemency and court-martial appeal is what civilian court-martial defense lawyers do. The only type of law they handle is military law. Mr. Stevens and Mr. Spinner are civilian criminal defense attorneys and former military JAG lawyers who exclusively defend military members stationed around the world who are facing military trials, discipline and investigations.