Fine. I don't understand why he's singling out military veterans with military convictions not to receive this pardon. It's significant disparate treatment in a way that precludes a significant benefit from going to a group of people of whom 100% have served this country.
EDIT: And no, Parker v. Levy is not a valid justification for this, as the conduct was equally criminalized in both the military and the civilian world. Furthermore, Parker v. Levy and related cases are only relevant on what is lawful to make different in the military justice system, not what is good policy. Nobody is saying the President cannot exercise the pardon power in a way that discriminates against military members; the pardon power is plenary. I am saying he shouldn't.
It could be because it would prompt a huge pain in the ass process or question of, does their discharge status change? Granted, they dont (at least not during my service or my dad's, to give context I served 2013-2018 and dad 1995-2003) give our dishonorable discharged. But a general discharge or other than honorable (OTH). If these are pardoned UCMJ violations that lead to a discharge, does it prompt to change their discharge from OTH or General to Honorable?
My guess is also the UCMJ is like a separate court system out side of the usual court system. Since military are held. to a 'higher moral standard' and such. Even if it were made legal for citizens, it may not mean military rules are amended to allow use. An example could be Spice. While you could buy spice at a head shop and smoke it, not illegal, the military deemed it against the rules and you could get kicked out for smoking spice.
First, let me say that I think your comment is fantastic. Not that many people have the capacity to think through military justice issues in all their nuance. New convening authorities often have a more tenuous grasp of the interplay between courts-martial and discharge characterizations than you just demonstrated.
There's potentially some question as to whether the President has the power to pardon the conviction and impose an OTH, because an OTH implicates a liberty interest and requires a hearing unless waived. See, e.g., Vierrether v. United States, 27 Fed. Cl. 357, 364 (1992), aff'd without op., 6 F.3d 786 (Fed. Cir. 1993), cert. denied, 511 U.S. 1030 (1994).
However, I'd be hard pressed to find any objection to unilaterally imposing an administrative discharge with a General (Under Honorable Conditions) characterization. Alternatively, there is nothing preventing the President from making the pardon conditional.
> I don't understand why he's singling out military veterans with military convictions not to receive this pardon.
There's a fairly consistent throughline in the theory of the law (that gets to the reason there even is a UCMJ in the first place) that military discipline is categorically distinct from civilian criminal law, and under that theory possession of marijuana contrary to military regulations is meaningfully distinct from simple possession in the civilian context.
Its also, to be fair, pretty clear that, clear and crisp as the theory may be, in practice that's more of a statistical difference in significance than a categorical one. But even a statistical difference can, arguably, justify the normal case-by-case approach to clemency rather than a blanket approach.
EDIT: And no, Parker v. Levy is not a valid justification for this, as the conduct was equally criminalized in both the military and the civilian world. Furthermore, Parker v. Levy and related cases are only relevant on what is lawful to make different in the military justice system, not what is good policy. Nobody is saying the President cannot exercise the pardon power in a way that discriminates against military members; the pardon power is plenary. I am saying he shouldn't.