Last Updated: 5/27/22
CHAPTER 30
Corrections & Post-Conviction Consequences
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Introduction
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Corrections
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Clemency and Parole
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Resources
I. Introduction
A. MJA 2016 changed the basis for sentencing. Under the old rules, the five relevant factors were explicitly stated as rehabilitation, punishment, protection of society, preservation of good order and discipline, and deterrence. See R.C.M. 1001(g) (pre-MJA 2016). Now, look to R.C.M. 1002(f) and note that court-martials are directed to impose punishment "sufficient, but not greater than necessary, to promote justice and to maintain good order and discipline in the armed forces, taking into consideration" certain factors. See R.C.M. 1002(f) and Art. 56(c). See United States v. Irvin, 2021, No. 201800319, CCA LEXIS 273 (N-M. Ct. Crim. App. June 3, 2021) (unpublished) for one court's (non-binding) analysis of what "sufficient, but not greater than necessary" might mean.
The types of sentences that a court-martial panel member or military judge may impose were unchaged with MJA 2016 and include no action, reduction in rank, forfeitures, fine, hard labor without confinement, confinement, punitive discharge, or death.
II. Corrections
A. DoD policy states that the Military Services’ correction programs should strive to achieve uniformity, effectiveness, and efficiency in the administration of corrections functions. Additionally, the military departments shall administer the clemency and parole programs to foster safe and appropriate release of military offenders under such terms and conditions that are consistent with the needs of society, the rights of victims, and the rehabilitation of the prisoner. DoD Instruction 1325.7, Administration of Military Correctional Facilities and Clemency and Parole, March 11, 2013 (Incorporating Change 4, August 19, 2020).
B. Military corrections have three objectives:
1. Provide a safe and secure environment for the incarceration of military offenders;
2. Protect the community from offenders;
3. Prepare military prisoners for their release whether return to duty or civilian status with the prospect of becoming productive Soldier/citizens for conforming to military or civilian environments.
C. DoD Correctional Facilities include confinement facilities, Regional Corrections Facilities (RCFs), and a centralized, long-term corrections facility, the United States Disciplinary Barracks (USDB).
1. Confinement facilities (Level 1) provide pretrial and short-term post-trial confinement support. Each service will determine the time limit for confinement at each of its level one facilities. The current norm for the Army is up to 90 days; when necessary the Level 1 facility may confine prisoners more than 90 days, but may not exceed 1 year. A Level 1 facility provides custody and control, administrative support, and limited counseling support for military prisoners.
2. Regional Corrections Facilities (RCF) (Level 2) house prisoners sentenced to confinement of five (5) years or less. For sentences over five years, each Service must evaluate its prisoners to determine whether they can be appropriately confined at a RCF (Level 2 facility). A Level 2 facility provides multifaceted correctional treatment programs, vocational and military training, administrative support, basic educational opportunity, employment, selected mental health programs, custodial control, and training to prepare military prisoners for return to duty, if deemed suitable, or to civilian society as a productive citizen.
3. United States Disciplinary Barracks, Fort Leavenworth, KS (only DoD Level 3 facility).
D. Federal Bureau of Prisons (FBOP) Facilities. Prisoners with approved sentences to confinement may be transferred to a FBOP facility with the concurrence or by direction of the appropriate Secretary of Military Department or designee. Authority to transfer the prisoners to the FBOP confers no right on prisoners to request transfer. Once transferred to the FBOP, prisoners will not return to DoD custody unless the transfer was temporary for medical issues.
1. Factors considered when determining whether to transfer a prisoner to a FBOP include:
a) The prisoner’s demonstrated potential for return to military service or rehabilitation.
b) The nature and circumstances of the prisoner’s offenses.
c) The prisoner’s incarceration record, including participation in rehabilitation programs.
d) The status of the prisoner’s court-martial appeal and involvement in other legal proceedings.
e) The nature and circumstances of the prisoner’s sentence, including length of sentence to confinement.
f) The prisoner’s age.
g) Any other special circumstances relating to the prisoner, the needs of the Service, or the interests of national security.
2. Commitments based on lack of mental capacity to stand trial or acquittal because of lack of mental capacity at time of offense may be transferred to the FBOP. See AR 190-47, para 3-4.
E. The Department of the Army, Provost Marshal General determines the place of incarceration for prisoners who are sentenced to more than 30 days based on operational requirements and programs.
F. Prisoner Status.
1. Pretrial prisoner: a person subject to the UCMJ who is properly ordered to confinement pending preferral of charges, disposition of charges, or trial by court-martial, or a person properly ordered to confinement while awaiting trial by a foreign court is a pretrial prisoner. For pretrial confinement rules and guidance, see the Pre-Trial confinement chapter of this deskbook.
2. Adjudged prisoner: a person whose sentence to confinement has been announced in open court by not yet approved by the convening authority.
3. Sentenced prisoner: occurs when the convening authority takes action to approve the confinement portion of the sentence.
4. Discharged prisoner: occurs upon completion of appellate review and execution of the punitive discharge.
G. Abatement of Confinement.
1. Good conduct time (GCT) is a deduction from a prisoner’s release date for good conduct and faithful observance of all facility rules and regulations.
2. FOR SENTENCES ADJUDGED PRIOR TO 1 JANUARY 2005:
Sentence Rate
a) < 12 months 5 days per month
b) 1 < 3 years 6 days per month
c) 3 < 5 years 7 days per month
d) 5 < 10 years 8 days per month
e) 10 years or more 10 days per month
f) Life or death None
3. FOR SENTENCES ADJUDGED ON OR AFTER 1 JANUARY 2005:
a) Five days for each month of confinement, and 1 day for each 6-day portion of a month, regardless of sentence or multiple sentence length. For practical purposes, this means most inmates will receive 10 days of GCT credit per month.
b) Extra good conduct time (EGCT) or earned time (ET) is in addition to GCT and is a deduction from a prisoner’s release date earned for participation and graded effort in the areas of work, offense-related or other rehabilitation programs, education, self-improvement and personal growth, and support activities. This credit is awarded only when overall evaluations are average or higher.
c) New rule: Maximum of 8 days Earned Time may be awarded per month. Old rule: During first year of confinement, not to exceed 3 days per month; thereafter, not to exceed 5 days per month.
d) Special acts abatement (SAA) is a deduction from a prisoner’s release date earned for a specific act of heroism, humanitarianism, or extraordinary institutional or community support deemed appropriate by the correctional facility commander. Prisoner without a release date (e.g. life without parole, death) may earn SAA, but it shall be held in abeyance and only awarded if the sentence is reduced to a determinate sentence length.
e) Maximum award of 2 days of SAA per month for a period not to exceed 12 months for a single act. Additional special acts may only extend period of abatement, not the monthly rate of earning.
f) Total of GCT, ET, and SAA awarded for any one month shall not exceed 15 days.
g) Minimum release date is calculated upon arrival at facility based on good conduct time that could be earned for entire period of sentence. Inmate is released at minimum release date absent parole or forfeiture of good conduct time or extra good conduct time, if any.
h) Maximum release date
i) A reduction in confinement by clemency will adjust the minimum release date.
j) Inmates accepting parole waive all time abatements and remain on parole until maximum release date.
k) Prisoners who have an approved finding of guilty for an offense that occurred after 1 October 2004, the award of good conduct time, earned time, and special act abatement shall be conditioned on the prisoner submitting an acceptable release plan and fully cooperating in all other respects with the mandatory supervised release policy, if directed to do so.
l) Forfeiture and restoration of abatements. As a consequence of violations of institutional rules or the UCMJ, a facility commander may direct forfeiture of GCT, ET, and SAA. Discipline and Adjustment Boards are used to ensure due process. Forfeited time can be reinstated at the discretion of the facility commander.
H. Mandatory Supervised Release. Prisoners who are not granted parole prior to their MRD (minimum release date) can be ordered on a supervised release.
1. Policy of the DoD to use supervised release in all cases except where it is determined by the Service Clemency and Parole Boards to be inappropriate.
2. Terms and conditions are identified in the release plan. The prisoner acknowledges the receipt of the terms and conditions.
3. The Service Clemency and Parole Boards may modify or release any terms or conditions of supervision or may terminate supervision entirely.
4. A violation of the supervised release will be considered equivalent to a violation of the terms and conditions of parole and processed in the same manner.
5. United States v. Pena, 64 MJ 259 (2007) – The Air Force Clemency and Parole Board ordered Pena to participate in the Mandatory Supervised Release Program for seventy-two days –terminating on his maximum release date. The Board set forth twenty-five conditions to include participating in a community based sex offender treatment program and consent to periodic examinations of his computer. Prior to his release he submitted a declaration that noted a number of hardships his participation in the program created. CAAF looked to see if his participation in the program constituted cruel or unusual punishment or otherwise violated an express prohibition in the UCMJ; unlawfully increased his punishment; or rendered his guilty plea improvident. CAAF held that the program did not constitute cruel or unusual punishment, that Pena did not demonstrate that the collateral consequences actually imposed increased his punishment; and that the plea agreement was provident.
III. Clemency & parole
A. Service Clemency & Parole Boards
1. Senior civilian employees and field grade officers.
2. Act for Service Secretaries, except for parole considerations for prisoners in FBOP facilities which are decided by U.S. Parole Commission.
B. Clemency Eligibility.
1. Clemency is an action taken to remit or suspend the unexecuted part of a court-martial sentence, upgrade a discharge, or restore an individual convicted at CM. Death sentence cases are not eligible for review by boards, unless sentence commuted to a lesser punishment. See AR 15-130, para. 3-1d(6).
2. Review timelines are as follows:
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Initial Review
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Sentence is 12 months – 10 yrs
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NLT 9 months after confined
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Sentence is 10-20 years
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NLT 24 months after confined
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Sentence is 20-30 years
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NLT 3 years after confined
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Sentence greater than 30 years
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NLT 10 years after confined (for offenses after 16 Jan 2000)
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Life w/o parole
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NET 20 years after confined (requires Service Secretary Approval)
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After Initial Review
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12 months to 20 years
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Annually
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20-30 years
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After 3 years
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30 years to Life w/o parole
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After 10 years
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Life w/o parole
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Every 3 years after 20 years of confinement (requires Service Secretary Approval)
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C. Parole Eligibility.
1. Parole is the early release of a prisoner. Must have sentence of at least twelve (12) months confinement and a punitive discharge. Once considered, inmate will be considered annually by service board unless transferred to FBOP. Inmate may waive parole consideration.
Sentence Eligibility
a) 12 months - 30 years 1/3 of sentence, but NET < 6 mos.
b) 30 years to life 10 years
c) Life 20 years (if offense occurred after 16 Jan 2000)
d) Death or Life w/o parole Not eligible
D. Considerations.
1. Nature and circumstances of offenses.
2. Civilian and military history.
3. Confinement record.
4. Personal characteristics, such as age, education, marital and family status, and psychological profile.
5. Victim impact.
6. Protection and welfare of society.
7. Need for good order and discipline.
8. Other matters as appropriate.
E. Conditions for parole release.
1. Prisoner must submit a parole plan and agree to abide by the plan.
2. The plan must include:
a) A statement of where the prisoner plans to reside and with whom.
b) Guaranteed employment, an offer of effective assistance to obtain employment, or acceptance in a valid educational or vocational program.
c) A requirement that the prisoner shall comply with State and local registration requirements in the location the prisoner plans to reside.
d) Other requirements such as a restitution plan, completion of a substance abuse treatment, participation in counseling or therapy programs, etc.
3. The Board may establish and subsequently modify conditions or release as it considers reasonable or appropriate.
4. Prisoners who accept parole waive all GCT and EGCT and serve parole till the expiration of their full sentence.
F. Parole supervision: Individuals released on parole are under the direct supervision of Federal probation officers.
G. Parole revocation.
1. Standard—violation of condition that warrants revocation.
2. Suspension of parole.
3. Preliminary interview.
4. Parole revocation hearing.
5. Forfeiture of credit for service of sentence on parole.
H. Additional Opportunities for Clemency.
1. Discharge Review Boards can review discharges not given by general courts-martial.
2. Boards for Correction of Military Records may grant clemency after Clemency & Parole Boards lose review authority; however, may not overturn conviction.
3. Presidential Pardons.
IV. RESOURCES
Army Review Boards Agency (ARBA) Web page: http://arba.army.pentagon.mil.