From 1951 until 2013, Article 125 of the Uniform Code of Military Justice criminalized consensual sodomy between adults. The military pursued incidents of consensual same-sex sexual activity under this provision for decades. In 2003, the US Supreme Court issued an opinion in Lawrence v. Texas that struck down statutes criminalizing consensual sodomy between adults. The Court of Appeals for the Armed Forces applied this ruling to the military in United States v. Marcum in 2004.
President Biden has now issued a complete and unconditional pardon to all servicemembers convicted of unaggravated offenses under Article 125 based on consensual, private conduct between adults. This pardon extends to those convicted of attempts, conspiracies, and solicitations of this offense prosecuted under Articles 80, 81, and 82 of the UCMJ.
The pardon is clear that it does not cover offenses with aggravating factors, including: 1) instances where one of the parties was in a position of special trust over the other, such as between a drill instructor and a recruit or between a brig guard and a prisoner; 2) instances where one of the individuals was coerced or might not have felt able to refuse because of their status; 3) instances that would constitute fraternization under Article 134, UCMJ; 4) instances committed with the spouse of another servicemember; or 5) any other factors listed by the Court in United States v. Marcum as being outside the Lawrence v. Texas ruling in a military context.
A servicemember to whom this pardon applies can submit an application for a certificate of pardon to their individual service. This certificate of pardon can then be used to apply for an upgraded discharge to the service Discharge Review Boards.
If you or your loved one has been convicted for consensual conduct under Article 125 and needs assistance in obtaining a certificate of pardon and upgrading their discharge, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.