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Digitized from Box 5 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
TODAY'S DATE 10/28/75
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FORD
&
GERALD
1. Introduction
In the years before President Ford assumed office,
public opinion was sharply divided over what the government
policy should be toward those who had committed Vietnam-era
draft violations and military absence offenses. Many
believed that these actions could not be forgiven in light
of the sacrifices endured by others during the war. Yet,
many citizens believed that only unconditional amnesty was
appropriate for offenders who had acted in good conscience
to oppose a war they believed wrong and wasteful.
Something had to be done to bring Americans together
again. The rancor that had divided the country during the
Vietnam War still sapped its spirit and strength. The
national interest required that Americans put aside their
strong personal feelings. Six weeks after taking office,
President Ford announced a program of clemency, offering
forgiveness and reconciliation to Vietnam-era draft and
military absence offenders.
2. The President's Clemency Program
In his Proclamation of September 16, 1974, President
Ford created a program of conditional clemency for roughly
13,000 civilians and 100,000 servicemen who had committed
draft or military absence offenses between the adoption of
the Gulf of Tonkin Resolution (August 4, 1964) and the day
the last American combatant left Vietnam (March 28, 1973).
He authorized the Departments of Justice and Defense,
respectively, to review applications from the 4,522 draft
offenders and the 10,115 undischarged servicemen still at
large. He created the Presidential Clemency Board to
consider applications from the 8,700 convicted and punished
draft offenders and the estimated 90,000 servicemen given
bad discharges for absence offenses. He gave all eligible
persons 4-1/2 months (later extended to 6-1/2 months) to
apply. He promised that their cases would be reviewed
individually. He further indicated that applicants would be
asked to earn clemency where appropriate, by performing up
to 24 months of alternative service in the national
interest, under the supervision of the Selective Service
System.
Under the Justice Department program, unconvicted
draft offenders would have their prosecutions dropped,
enabling them to avoid imprisonment and the stigma of a
felony conviction. Under the Defense Department program,
fugitive servicemen were offered an immediate Undesirable
Discharge as a permanent end to their fugitive status,
similarly enabling them to avoid imprisonment and the stigma
of a Bad Conduct or Dishonorable Discharge. They were also
offered the chance to earn a Clemency Discharge. Under the
Clemency Board program, convicted draft offenders were
offered full and unconditional Presidential pardons for
their draft offenses. Former servicemen who had received
bad discharges were offered clemency discharges and full
Presidential pardons for their absence offenses.
By granting pardons to convicted or discharged
offenders, President Ford was exercising the most potent
constitutional form of executive clemency available to him.
The Presidential pardon connotes official forgiveness for
designated draft or military offenses, restoring all Federal
civil rights lost as a result of those specific offenses.
Likewise, a full and unconditional pardon indicates that
government agencies should disregard all pardoned offenses
in any subsequent actions they take involving clemeny
recipients.
By directing that the military services upgrade bad
discharges, substituting Clemency Discharges in their place,
the President was indicating to employers and creditors that
they should not discriminate against individuals who had
received clemency. As a "neutral" discharge, the Clemency
Discharge appears to be working: A recent survey of large
national employers and local (Pennsylvania) employers found
that they view it as almost identical to a General Discharge
under honorable conditions and much better than an
Undesirable Discharge under other-than-honorable conditions.
A Clemency Discharge does not confer veterans'
benefits, but it leaves an individual with the same appeal
rights that were available to him before. Indeed, the
receipt of a Presidential pardon and a Clemency Discharge
should improve an individual's chances for further upgrade.
Altogether, 21,729 eligible persons applied for
clemency.
2
TABLE 1: PERSONS ELIGIBLE FOR THE
PRESIDENT'S CLEMENCY PROGRAM
Number
Number
Percent
Agency
Applicants
Eligible
Applying
Applying
Defense Fugitive AWOL offenders 10,115
5,555
55%
Justice Unconvicted draft
offenders
4,522
706
16%
P.C.B.
Discharged AWOL
offenders
90,000
13,589
15%
P.C.B.
Convicted draft
offenders
8,700
1,879
22%
TOTAL
113,337
21,729
19%
Through the first the Clemency Boardek in January, we
had received only 850 applications, with the initial January
31 deadline just a few weeks away. At that time, the public
did not realize that the program included not only fugitives
but also punished offenders--including servicemen who had
served in Vietnam. Very few people realized that the
President's program included the following sort of
individual:
(Case 1)
While a medic in Vietnam, this military
applicant (an American Indian) received
the Bronze Star for Heroism because of his
actions during a night sweep operation.
When his platoon came under intense enemy
fire, he moved through a minefield under a
hail of fire to aid his wounded comrades.
While in Vietnam, he was made Squad Leader
of nine men, seven of whom (including
himself) were wounded in action. After
returning to the United States, he
experienced post-combat psychiatric
problems. He went AWOL several times to
seek psychiatric treatment. He received a
bad discharge for his absences.
Because of this widespread public misunderstanding, we
began public service announcements on thousands of radio and
television stations, held meetings and press conferences at
over two dozen cities, met with thousands of veterans'
counselors throughout the country, and circulated bulletins
to agencies in direct contact with eligible persons--such as
Veterans' Administration offices, employment offices, post
offices, and prisons. Given a limited budget of $24,000,
the results were dramatic. During the rest of January, we
GERALD
received over 4,000 new applications. Because of this
response, the President extended the application deadline
another month. We received 6,000 in February and, after a
final extension, another 10,000 before the March 31st final
deadline--for a total of about 21,500, of whom 15,468 turned
out to be eligible. This increase in applications was
directly attributable to our public information campaign.
3
By asking applicants when they learned they were eligible,
we discovered that over 95% did not realize they could apply
until after the January 8 start of the campaign; 90% applied
within days or even hours of their discovery they were
eligible. The Departments of Defense and Justice did not
experience a similar increase in applications, because it
was already widely understood that fugitive draft and
military absence (AWOL) offenders could apply for clemency.
Despite our information efforts, public understanding
of the program has not changed appreciably. An August, 1975
Gallup Poll found that only 15% of the American people
understood that convicted draft offenders and discharged
AWOL offenders could also apply for clemency. Virtually the
same percentage--16%--of eligible persons in those
categories actually did apply. We are convinced that most
of the remainder still do not know that they were eligible
for the program. Others may not have applied because their
lives are settled, with their draft offense convictions or
bad discharges of no present consequence to them. We
believe that very few failed to apply to the Clemency Board
because of their opposition to our program.
The press and the public were, and indeed still are,
preoccupied with anti-war fugitives who fled to Canada.
However, we found that only 6% of our civilian applicants
and 2% of our military applicants had ever gone to Canada.
Virtually all of them subsequently returned to the United
States long before they applied for clemency. of the 15,468
Clemency Board applicants, less than 400 (3%) ever went to
Canada. This stands in marked contrast to the 3,700 (24%)
who were Vietnam veterans. In recent years, many estimates
have been made of the number of fugitive draft and AWOL
offenders in Canada, usually on the basis of very limited
data. Based on our own data and our understanding of
applicants to the Justice and Defense programs, we estimate
that a maximum of 7,000 persons eligible for clemency were
ever Canadian exiles. We further estimate that only 4,000
(less than 5%) of the 91,500 who were eligible but did not
apply for clemency are still in Canada, contrary to the
usual public impression.
What happens next to those who did not apply? The
8,300 who are still fugitives should surrender to
authorities. While they will probably receive a bad
discharge or felony conviction, they will end their fugitive
status. The 90,000 who have already been punished can apply
to the Pardon Attorney in the Department of Justice or to
the appropriate military discharge review boards, avenues of
relief which are not related to the President's clemency
program and are not affected by the program's end.
3. Applicants to the Presidential Clemency Board
Chance and circumstance had much to do with the
sacrifices faced by each individual during the Vietnam War.
Conscription is selective. Only 9% of all draft-age men
4
served in Vietnam. Less than 2% ever faced charges for
draft or desertion offenses, and only 0.4%--less than one
out of two hundred--were convicted or remained charged with
these offenses at the start of the clemency program.
Many Clemency Board applicants fell into common
categories: The civilian war resister who had his
application for conscientious objector (CO) status denied
and who stood trial rather than leave the country; the
Jehovah's Witness who, although granted a CO exemption and
went to jail because his religious convictions prohibited
him from accepting an alternative service assignment from
Selective Service; the Vietnam veteran who went AWOL because
of his difficulties in adjusting to post-combat garrison
duty; the serviceman with a low aptitude score who could not
adjust to military life; the serviceman who went AWOL to
find a better-paying job to get his family off welfare.
The civilian applicants were not unlike most young men
of their age. They grew up in stable middle-class families.
Eleven percent were black, and 1.3% were Spanish-speaking.
Over three-quarters graduated from high school, and their
average IQ was 111. Roughly one in four was a Jehovah's
Witness or member of another religious sect opposed to war.
Almost half applied for conscientious objector exemptions,
which were usually denied. The typical draft offense was
failure to report for or submit to induction. Three-
quarters committed their offense because of their opposition
to war in general or the Vietnam War in particular. For
96%, it was their only felony offense, committed at an
average age of 21.
Most civilian applicants surrendered immediately, and
most who were ever fugitives lived openly at home. Only 6%
ever sought exile in Canada. After indictment, most pled
guilty. Two-thirds were sentenced to probation, usually on
the condition that they perform alternative service. The
other one-third went to prison, usually for periods of less
than one year. Less than 1% served prison terms of two
years or longer, but some were in prison for as long as five
years.
At the time of their applications for clemency, almost
all were either working full-time or in school. Only 2%
were unemployed, with another 2% in prison for unrelated
felony offenses. Approximately 100 were still imprisoned
for their draft offenses when the President announced his
clemency program. They were released upon the condition
that they apply for clemency.
Unlike the civilian applicants, the vast majority of
our military applicants were not articulate, well-educated,
or motivated explicitly by opposition to the war. Almost
none had applied for a conscientious objector exemption
before entering the service, and less than 5% committed
their AWOL offenses because of opposition to the war. Most
grew up in broken homes, with parents struggling to cope
with a low income. Roughly one in five were black, and 3.5%
were Spanish-speaking. Despite an average IQ of 98, over
three-quarters dropped out of high school before entering
military service at the age of 17 or 18. Almost one in
5
three were tested at below the 30th percentile of
intelligence (Category IV on the Armed Forces Qualifying
Test), making them only marginally qualified for military
service.
Most military applicants enlisted rather than be
drafted, usually joining the Army or the Marines. Slightly
over one-third were ordered to Vietnam. Seven percent
failed to report. The other 27% did serve in Vietnam and
half either volunteered for a Vietnam assignment,
volunteered for a combat mission, or re-enlisted while in
Vietnam. Very few went AWOL in Vietnam; only four percent
of all applicants went AWOL from an apparent combat
situation. However, almost one in four suffered from mental
stress caused by combat, and two in five have experienced
severe personal problems as a result of their Vietnam tour.
Two percent all military applicants returned from Vietnam
with disabling injuries.
AWOL offenses usually occurred after training and in
stateside bases. Over half committed their offenses because
of serious personal or family problems. Other common
reasons for AWOL offenses included resentment of some action
by a superior or a general dislike of military service.
Typically, they went AWOL two or three times. Most returned
to their home towns, where they lived openly. Only 2% of
the military applicants ever sought exile in Canada. Almost
half surrendered voluntarily after their last AWOL offense.
At the time of their last AWOL, they were typically 20 or 21
years old and had accumulated 14 months of creditable
service.
Upon their return to military control, about 15% were
given administrative Undesirable Discharges for Unfitness.
The other 85% faced court-martial charges, roughly half
accepting an Undesirable Discharge in lieu of court-martial.
This was a particularly frequent practice among applicants
discharged after 1970. The remaining 40% stood general or
special court-martial, were convicted, and received Bad
Conduct or Dishonorable Discharges. All court-martialed
applicants spent at least some time in confinement, with
their sentences averaging five months in length. About 170
were still confined when the clemency program started, and
they were released upon application.
The bad discharges have seriously affected the current
employment status of military applicants. Seventeen percent
were unemployed at the time of their clemency applications,
whereas only 8% were unemployed during their last AWOL
offenses. Another 7% were presently incarcerated for
civilian felony offenses. Altogether, 12% had been
convicted for at least one civilian felony offense at one
point in their lives.
6
4. Procedural and Substantive Rules
The Clemency Board was the only new entity created by
President Ford for the special purpose of reviewing the
cases of clemency applicants. Originally, the President
named nine members to the Board, designating former U.S.
Senator Charles E. Goodell as the Chairman. After the great
increase in applications, the President expanded the Board
to eighteen members. Both the original Board and the
expanded Board were representative of a cross-section of
views on the Vietnam War and on the issue of clemency. The
Board consisted of 13 veterans of military service, three
women, and two priests. The Board included five Vietnam
veterans, two of whom were severely disabled in combat.
Another member has a husband who still is listed as missing
in action. Our policies and case dispositions reflected a
synthesis of the different backgrounds and experiences of
our members.
The Board worked hard during the spring and summer to
fulfill the President's requirement that we give each case
individual attention before his September 15 deadline. The
consensus was remarkable, given the wide range of views
represented on the Board. What we sought to maintain was a
reasoned, middle ground. The President's goal of national
reconciliation found, expression in the spirit of compromise
and accommodation that guided the Board.
To assure the fairness and consistency of our case
dispositions, we developed a case-by-case review procedure
consistent with the President's goal of clemency. Because
this was a program of clemency, not law enforcement, we
unanimously decided not to seek the assistance of the FBI in
preparing our cases. We limited our file acquisition to the
official military or court records. Similarly, we kept case
files confidential to protect the rights of applicants and
to preserve the spirit of reconciliation. We promise strict
confidentiality to all who applied to the Board. For each
case, staff attorneys prepared narrative summaries which
were carefully checked for accuracy. Each applicant was
sent his summary and encouraged to identify errors and to
provide additional information. Staff attorneys presented
cases in oral hearings before panels consisting of three or
four Board members who had read the summaries in advance.
The attorneys' supervisors were present as panel counsels to
assure staff objectivity. They also served as legal
advisors to ensure that Board policy precedents were applied
correctly. Every Board member had the right to refer any
case to the full Board. This right was exercised in only
about 700 (5%) of our cases. The Chairman referred some
cases to the full Board with the assistance of a computer-
aided review which flagged case dispositions for being
either too harsh or too lenient.
Case dispositions varied little from week to week,
especially after our basic policy decisions had been made.
During our first six months, we decided 500 cases,
recommending outright pardons (without alternative service)
to 46% of all cases, denial of clemency to 3%, and
alternative service to the remainder. During our latter six
7
months, we decided 14,514 cases, recommending outright
pardons to 44%, denial of clemency to 6%, and alternative
service to the remainder.
Contributing to the fairness and consistency of our
process were the clear rules we established and published
for deciding cases. Our alternative service "baseline"
formula took account of the fact that all of our applicants
had been punished for their offenses. We started with 24
months, deducting three months for every one month spent in
confinement, and deducting one month for every month spent
in satisfactory performance of court-ordered alternative
service. In cases where military officials and Federal
judges had adjudged short sentences, we reduced the baseline
figure to match the sentence actually given. Our minimum
baseline was three months, and almost 98% of our applicants
had baselines of six months or less.
To determine whether an applicant deserved clemency--
and, if so, whether his assigned period of alternative
service should be different from his working baseline--we
applied 28 specific aggravating and mitigating factors. As
with our baseline formula, we developed our list of factors
by consensus. We were especially concerned about the
reasons for an applicant's offense and the circumstances
that had prompted it. Likewise, we considered his overall
record as a serviceman and as a member of his community.
Almost all of our designated factors were established very
early. Only two totally new aggravating factors were
established by the expanded Board, although all factors were
continually clarified as new fact situations arose. Each
factor was codified, with illustrative case precedents,
through publication of five issues of an in-house policy and
precedent journal called the Clemency Law Reporter.
Our final list of aggravating factors consisted of the
following:
1. Other adult convictions;
2. False statement to the board;
3. Use of physical force in comming offense;
4. AWOL in Vietnam;
5. Selfish motivation for offense;
6. Failure to do alternative service;
7. Violation of probation or parole;
8. Multiple AWOL offenses;
9. Extended AWOL offenses;
10. Missed overseas movement;
11. Non-AWOL offenses contributing to discharge for
unfitness; and
12. Apprehension by authorities.
8
Our final list of mitigating factors consisted of the
following:
1. Inability to understand obligations or remedies;
2. Personal or family problems;
3. Mental or physical condition;
4. Public service employment;
5. Service-connected disability;
6. Extended creditable military service;
7. Vietnam service;
8. Procedural unfairness;
9. Questionable denial of conscientious objector
status;
10. Conscientious motivation for offense;
11. Voluntary submission to authorities;
12. Mental stress from combat;
13. Combat volunteer;
14. Above average military performaning ratings;
15. Decorations for Valor; and
16. Wounds in Combat.
5. Case Dispositions
We did not apply each factor with equal weight. For
example, conscientious motivation or serious personal or
family problems often led to outright pardon
recommendations. The following two cases are typical:
(Case 2)
This civilian applicant had participated
in anti-war demonstrations before refusing
induction. He stated that he could not
fight a war which he could not support.
However, he does believe in the need for
national defense and would have served in
the war if there had been an attack on
United States territory. He stated that
"I know that what is happening now is
wrong, so I have to take a stand and hope
that it helps end it a little sooner."
(Case 3)
This military applicant's wife was
pregnant, in financial difficulties, and
faced with eviction; she suffered from an
emotional disorder and nervous problems;
his oldest child was asthmatic and an
epileptic, having seizures that sometimes
resulted in unconsciousness. Applicant
requested transfer and a hardship
discharge, both of which were denied.
Creditable Vietnam service was also a highly
mitigating factor, usually resulting in an outright pardon.
In particularly meritorious cases, we recommended to the
President that he direct the military to upgrade the
applicant's discharge to one under honorable conditions,
with full entitlement to veterans' benefits. We were
particularly concerned about the eligibility of wounded or
9
disabled veterans for medical benefits. Ne made upgrade
recommendations in the following two cases,
ABOUT Elevery CASES,
of WHICH THE fourmerns TWO ARE
(Case 4)
This applicant did not go AWOL until after
TYPICAL:
returning from two tours of duty in
Vietnam, when his beliefs concerning the
war changed. He came to believe that the
The The
U.S. was wrong in getting involved in the
war and that he "was wrong in killing
THAT EVERY WOUNDED SHORO of ,N
people in Vietnam." He had over three
years' creditable service, with 14
excellent conduct and efficiency ratings.
He re-enlisted to serve his second tour
within three months of ending his first.
He served as an infantry man in Vietnam,
was wounded, and received the Bronze Star
for Valor.
(Case 5)
During applicant's combat tour in Vietnam,
his platoon leader, with whom he shared a
brotherly relationship, was killed while
awakening applicant to start his guard
duty. The platoon leader was mistaken for
a Viet Cong and shot by one of his own
men. This event was extremely traumatic
to applicant, who subsequently experienced
nightmares. In an attempt to cope with
this experience, applicant turned to the
use of heroin. After becoming an addict,
he went AWOL. During his AWOL, he
overcame his drug addiction only to become
an alcoholic. After obtaining help and
curing his alcoholism, he turned himself
in.
On the other hand, some aggravating factors were
considered very grave, generally leading to "No Clemency"
decisions. There were a few applicants who clearly went
AWOL from combat situations.
(Case 6)
This military applicant would not go into
the field with his unit, because he felt
that the new commanding officer of his
company was incompetent. He was getting
nervous about going out on an operation;
there is evidence that everyone believed
that there was a good likelihood of enemy
contact. He asked to remain in the rear,
but his request was denied. Consequently,
he left the company area because, in the
words of his chaplain, "the threat of
death caused him to exercise his right to
self-preservation." His company was
subsequently dropped onto a hill, where it
engaged the enemy in combat. Applicant
was apprehended while traveling on a truck
away from his unit without any of his
combat gear.
FORD is 9ERALD LIBRARY
We denied clemency in the above case, but other cases
of AWOL in Vietnam involved strong mitigating factors.
10
Often, combat wounds or the psychological effects of combat
led to AWOL offenses. For example, we recommended an
outright pardon in the following case:
(Case 7)
Applicant was assigned to an infantry unit
in Vietnam. During his combat service, he
sustained an injury which caused his
vision to blur in one eye. His vision
steadily worsened, and he was referred to
an evacuation hospital in DaNang for
testing. An eye doctor's assistant told
him that the doctor was fully booked and
that he would have to report back to his
unit and come back to the hospital in a
couple of weeks. Frustrated by this
rejection and fearful of his inability to
function in an infantry unit, applicant
went AWOL.
Applicants who had been convicted of felony offenses
involving serious bodily harm were generally denied
clemency, as in the following case:
(Case 8)
This civilian applicant had three other
felony convictions in addition to his
draft offense. In 1970, he received a
one-year sentence for sale of drugs. In
1971, he received one year of imprisonment
and two years of probation for possession
of stolen property. In 1972, he was
convicted of failure to notify his local
board of his address. He was sentenced to
three years' imprisonment, but his
sentence was suspended and he was put on
probation. In 1974, he was convicted of
assault, abduction, and rape, for
which he received a 20-year sentence.
Perhaps our most difficult and disputed cases involved
applicants who had been convicted of a civilian felony
offense other than a draft violation, but who had strong
mitigating factors applicable to their case. Some Board
members argued that this was a program of clemency for
Vietnam-related offenses, and the Board should disregard
other, unrelated convictions. Others argued that granting
clemency to convicted felons would cheapen the clemency
grants. The majority of the Board took the middle view--
that a felony conviction would be viewed as a highly
aggravating factor, but each case sould be decided on its
total facts, in accordance with the President's policy of
case-by-case review. Even so, 42% of our applicants with
other convictions were denied clemency because of the
serious nature of their offense or because they did not
present strong mitigating factors.
Less serious felony convictions did not overshadow an
applicant's Vietnam service or other mitigating facts.
(Case 9)
This applicant volunteered for the Special
Forces after his first year in the Army.
He re-enlisted to effect a transfer to
11
Vietnam, where he served as a parachute
rigger and earned excellent conduct and
proficiency ratings. Altogether, he
served for 18 months in Vietnam and over
three years in the Army, with two
Honorable Discharges for re-enlishment
purposes. His AWOL offenses totalled 29
days, did not occur until after his return
from Vietnam, and were attributed to his
problems with alcohol. After his
Undesirable Discharge in lieu of court-
martial, he was convicted of stealing a
television set and served six months in
prison. He was recently paroled.
In a few cases, a clear connection existed between an
applicant's Vietnam service and his civilian conviction:
(Case 10)
This military applicant served eight
months in Vietnam as a supply specialist
before his reassignment back to the United
States. His conduct and proficiency
scores had been uniformly excellent during
his Vietnam service. However, while in
Vietnam he became addicted to heroin. He
could not break his habit after returning
stateside, and he began a series of seven
AWOL offenses as he "got into the local
drug scene." Eventually, he "ran out of
money" and "had a real bad habit," so he
"tried to break into a store with another
guy that was strung out." He was
arrested, convicted for burglary, and
given an Undesirable Discharge for AWOL
while on bail.
Others rehabilitated themselves after their offenses,
indicating their desire to be productive and law-abiding
members of their communities:
(Case 11)
Shortly after receiving a Bad Conduct
Discharge from the Navy for his AWOL
offenses, this military applicant was
convicted for transporting stolen checks
across state lines. He was sentenced to a
ten-year term, but was paroled after one
year and four months. During his
confinement, he underwent psychiatric
care. Since his parole, he has re-married
and established a successful
subcontracting business. Currently, he is
working with young people in his community
in connection with church groups, trying
to provide guidance for them. His parole
officer stated that applicant had
straightened out and is a responsible
member of the community.
In each of the above three cases, the Clemency Board
recommended that the President recommend an outright pardon.
12
Obviously, we had no jurisidiction to grant clemency for the
unrelated conviction.
Our case disposition tallies are listed below.
Civilian applicants received a greater proportion of
outright pardons because they involved a higher frequency of
conscientious reasons for the offense and a much smaller
number of other criminal convictions.
TABLE 2: CLEMENCY BOARD RECOMMENDATIONS: CIVILIAN CASES
Number
Percent
Outright pardons
1432
82%
Alternative Service:
3 months
140
8%
4-6 months
91
5%
7+ months
68
4%
No Clemency
26
1%
TOTAL:
1757
100%
TABLE 3: CLEMENCY BOARD RECOMMENDATIONS: MILITARY CASES
Number
Percent
Outright pardon
4620
36%
Alternative Service:
3 months
2555
20%
4-6 months
2941
23%
7+ months
1756
14%
No Clemency
885
7%
TOTAL:
12,757
100%
6. Management Process
During the first months of the Board's existence, we
experienced little difficulty in organizing our work and
reviewing our small number of cases. However, after our
late winter flood of applications, we were faced with a
seemingly impossible task. Through mid-April, the original
nine-member Board had heard 500 cases. To meet the
President's deadline of September 15, we had to experience a
40-fold increase in our case resolution rate. We met that
deadline--to the day--with the Board deciding every one of
the 14,514 cases for which we had enough information. After
September 15, 1975, 900 additional cases with partial or
recently arriving files were referred to the Department of
Justice for action in accordance with Board precedents.
Meeting the President's deadline would have been
impossible without a competent and dedicated staff. We and
our staff emerged from this process with an experience in
crisis management which we think may be useful to managers
of comparable entities in the future. The senior staff
13
developed solutions to management problems which enabled us
to act upon over a thousand cases per week. At the same
time, it maintained high standards of quality and integrity
in our legal process. All policy decisions were made by the
Board and implemented by the staff. Having to manage an
organization which mushroomed from 100 to 600 employees
during a six-week period, it is remarkable that our process
involved as little confusion as it did.
7. Historical Perspective
To place the President's clemency program in its
proper perspective, one must take note of the manner in
which Presidents Washington, Lincoln, and Truman applied
their powers of executive clemency in dealing with persons
who had committed war-related offenses. President Ford's
program is the most generous ever offered, when equal
consideration is given to the nature of the benefits
offered, the conditions attached, the number of individuals
benefitted and the speed with which the program followed the
war. Yet the President's program does not break precedent
in any fundamental way. The only new features of President
Ford's program are the condition of alternative service and
the use of a neutral Clemency Discharge.
8. Conclusions
We are proud of what the President has accomplished in
his clemency program. He implemented his program
courageously, in the face of criticism from those who
thought he did too much and those who though he did too
little.
When the program started, a Gallup Poll found that
only 19% of those polled approved of a conditional clemency
program. The overwhelming majority preferred either
unconditional amnesty or no program of any kind. By
contrast, an August 1975 Gallup Poll found that a majority
of those expressing an opinion are now in favor of
conditional clemency, with only a small minority equally
split on the extremes. The same poll found that almost nine
out of ten people would accept a clemency recipient as at
least an equal member of their community. Likewise, a
survey of employer attitudes has discovered that a Clemency
Discharge and Presidential Pardon would have real value when
a clemency recipient applies for a job. The clemency
program is in fact accomplishing the President's objective
of reconciling Americans.
While we are confident that history will regard this
program as a success, much of the work remains unfinished.
As of September 1975, only a very small percentage of our
applicants have as yet been required to contact Selective
14
Service to begin performing alternative service. of the 52%
of our applicants who received conditional clemency, three
quarters were assigned six months or less of alternative
service. We hope that most will complete this assignment
and receive clemency. The responsibility for implementing
the alternative service portion of the program in a fair and
flexible manner, fully in accord with the clemency spirit of
the President's program, rests with the Selective Service
System
Likewise, are pleased that the United States
Pardon
Attorney, entrusted with the carry-over
responsibility for our program, has applied the policies and
spirit of the Clemency Board. Finally, we hope that other
government agencies which will later come in contact with
clemency recipients--especially the Veterans Administration
and the discharge review boards of the Armed Forces--will
deal with them as clemently as their responsibilities
permit.
In conclusion, we consider ourselves to have been
partners in a mission of national reconcilation, wisely
conceived by the President. A less generous program would
have left old wounds festering; blanket, unconditional
amnesty would have opened new wounds. We are confident. that
the President's clemency program provides the cornerstone
for national reconciliation at the end of a turbulent and
divisive era. We are proud to have played a role in that
undertaking.
Accordingly, the Clemency Board has recommended to Selective
Service that applicants be permitted to work on a part-time,
vodunteer basis to complete short periods of alternative
service -- for example, by working sixteen hours per week for
a Boys' Club or church group. This way, they can earn clemency
within three or six months without losing steady jobs and without
taking jobs away from others in their communities.
FORD & LIBRARY GERALD
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Current problems often have parallels in history, and
modern solutions may reflect decisions of earlier leaders.
In studying President Ford's Clemency Program, one need only
look back a hundred years to observe a similar situation
confronting another President of the United States. Just
days after the Civil War ended, President Andrew Johnson
considered declaring an amnesty to heal the wounds of the
newly reunited nation. The President sought advice from
Attorney General James Speed, who counseled moderation:
The excellence of mercy and charity in a national
trouble like ours ought not to be undervalued.
Such feelings should be fondly cherished and
studiously cultivated. When brought into action
they should be generously but wisely indulged.
Like all the great, necessary, and useful powers in
nature or government, harm may come of their
improvident use, and perils which seem past may be
renewed, and other and new dangers be
precipitated.¹
Only six weeks after he become President, Johnson
followed Attorney General Speed's advice. He declared a
limited and conditional amnesty. To many it was inadequate,
while to others it was too generous. To the President, it
was a reasonable approach which citizens of all persuasions
could find acceptable. Had the President's program not
approached the middle ground, the perils and dangers
identified by Attorney General Speed might well have come to
pass.
Over a century later, President Gerald Ford was
concerned about the need to heal America's wounds following
another divisive war. Like President Andrew Johnson, he
announced a clemency program six weeks after succeeding to
office. Like Johnson, he pursued a course of moderation.
No program at all would have left old wounds festering.
Unconditional amnesty would have created more ill feeling
than it would have eased. Reconciliation was what was
needed, and reconciliation could only come from a reasoned
middle ground.
To the members of the Presidential Clemency Board, the
President's program assumed a greater meaning. We came to
the Board as men and women whose views reflected the full
spectrum of the public opinion. on the war and on the
question of amnesty. As we discussed the issues, a
consensus began to emerge. We all came to see the
President's program as more than mere compromise. It was an
appropriate and fair solution to a very difficult problem.
As we examined the President's program, it appeared to
us that it was anchored by six principles. Taken together,
they provide an excellent means of understanding the spirit
behind his clemency proclamation. These principles were
implicit in the exercise of our Board's responsibilities
under the President's program.
The first principle was one about which there should be
little disagreement: the need for a program. After almost
nine years of war and nineteen months of an acrimonious
debate about amnesty, President Ford decided it was time to
act. America needed a Presidential response to the issue of
amnesty for Vietnam era draft resisters and deserters. As
he created the program, the President authorized three
entities -- the Department of Justice, the Department of
Defense, and the Presidential Clemency Board -- to review
cases of different categories of draft and Military Absence
offenders. He appointed nine persons to the newly-created
Clemency Board, later expanding its membership to 18 (see
Appendix A). He designated a fourth entity, the Selective
Service System, to implement the alternative service aspect
of the program.
Second, this was to be a limited, not universal,
program. Had he included only those who could prove that
their offenses had resulted from opposition to war, he would
have been unfair to less educated persons. Had he included
all persons convicted of military or draft offenses, no
matter what the nature of the crime, he would have seriously
impaired respect for the law. Instead, the President listed
several draft and desertion offenses which automatically
made a person eligible to apply for clemency if committed
during the Vietnam era. On balance, our data on applicants
indicates that he drew the eligibility line generously; of
the 113,000 persons eligible, relatively few actually
committed their offenses because of a professed
conscientious opposition to war.
The third principle was that the program should offer
clemency, not amnesty. Too much had happened during the war
to permit Americans to forget. The President often stated
that he did not want to demean the sacrifice of those who
served or the conscientious feelings of those who chose not
to serve. But the desire not to forget does not preclude
the ability to forgive. President Ford declared that he was
placing "the weight of the Presidency in the scales of
justice on the side of mercy. #2 He requested that fugitive
draft offenders be relieved from further prosecutions, that
military absentees be discharged without court-martial, that
persons punished for draft offenses receive Presidential
pardons, and that servicemen discharged for absence offenses
receive Clemency Discharges and Presidential pardons.
His fourth principle was that he would offer
conditional, not unconditional, clemency. Eligible persons
had to apply to the program for their cases to be
considered. Also, most applicants would have to earn
clemency through performance of several months of
2
alternative service in the national interest. Regardless of
the motives behind their draft or desertion offenses, they
still owed a debt of service to their country. Performance
of that service was the prerequisite for clemency.
Fifth he decided that this was to be a program of
definite not indefinite, length. There would be an
application deadline, giving everyone more than four months'
time from the program's inception to apply (later extended
by two months). This would permit all cases to be decided
within one year, and -- even more important -- it would put
an end to the amnesty issue. He hoped that reconciliation
among draft resisters, deserters, and their neighbors would
take place as quickly as possible. Altogether, about 21,800
eligible persons applied for clemency.
His final principle was the cornerstone of the program:
All applicants would have their cases considered through a
case-by-case, not blanket, approach. Clemency would not be
dispensed or denied automatically, by category, or by any
rigid formula. The review of clemency applications would be
based upon the merits of each applicant's case, with full
respect given to his rights and interests. Case
dispositions had to be fair, consistent, and timely.
During our twelve months of existence, the Presidential
Clemency Board decided close to 14,500 cases. We tried to
apply the spirit of these principles to every case. In this
report, we explain what actions we took, what we learned
about our applicants, and what we think we accomplished.
Where possible, we also try to put the President's entire
clemency program in some perspective.
Chapter two consists of a discussion of how each of the
President's six principles was implemented. In Chapter
three, we describe what we learned about the experiences of
the civilian and military applicants to the Clemency Board.
We discuss our procedural and substantive rules in some
detail in Chapter four, followed by an analysis of our case
dispositions in Chapter five. In Chapter six we describe
how we managed what was often a "crisis" operation. In
Chapter seven we try to put the President's program into an
historical perspective through a comparative analysis of
other acts of executive clemency in American history. The
Report closes with Chapter eight with a discussion of what
we think the President's program accomplished. Illustrated
this discussion are excerpts from actual Clemency Board
cases, plus statistics from a comprehensive survey we
conducted from the case summaries of almost 1,500
applicants. Some particularly illustrative cases are
presented in more than one chapter.
3
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A. The Need for a Program--and Its Creation
Regardless of political or philosophical perspective,
all will agree that the war in Vietnam had a significant
impact on our country and on the lives of most American
citizens. The war resulted in the loss of hundreds of
thousands of lives, including the lives of fifty-six
thousand American servicemen. It forced many more people to
leave their homes and countries. Nightly, television
brought the war into American living rooms. For the first
time, the average citizen witnessed the reality of war,
almost at first hand. Conflict between pro-war and anti-war
advocates increased dramatically. Slogans such as "America,
Love It or Leave It," "Peace with Honor," and "Unconditional
Amnesty Now" came to be symbolic of the divisions in our
country. Patriotism meant different things to different
people. Many believed that love of country could best be
demonstrated by defending America's interest on the
battlefield. Others insisted that love of country required
a crucial reversal of national policy. They felt that by
opposing the war and resisting military induction, they
could serve America best by influencing changes in its
foreign policy.
Overshadowing the political consequences of the war were
the personal tragedies. Thousands of Americans lost their
lives, and thousands of American families lost their loved
ones. Untold hundreds of thousands must bear physical and
psychological scars for the remainder of their lives.
Nothing can ever be done to compensate for the supreme
sacrifice of those who die or lose their loved ones.
Nonetheless, this does not preclude a subsequent decision to
be merciful toward those who did not serve.
After the war ended, it remained clear that America had
suffered other casualties as well. The war affected the
lives of tens of thousands of young Americans who had chosen
not to serve. Their families and friends shared their
burden of exile, imprisonment, and separation.
Shortly after assuming office, President Ford sensed the
need to "bind the Nation's wounds and to heal the scars of
divisiveness. As one of his first initiatives as
President, he issued Proclamation 4313, creating the
Clemency Program. The President believed that "in
furtherance of our national commitment to justice and
mercy, it was time to achieve a national "reconciliation"
with the greatest degree of public cooperation and
understanding.² To outline how his program was to be
implemented, he issued Proclamation 4313 and an accompanying
Executive Order. (See Appendix B.) When the program began
on September 16, 1974, a year and a half had passed since
the last American combatant had left Vietnam.
President Ford recognized that desertion and draft
evasion and unauthorized military absence are serious
offenses which, if unpunished, might have an adverse effect
on military discipline and national defense. Nevertheless,
he recognized that "reconciliation among our people does not
require that these acts be condoned. 113 It did require,
however, that these offenders have an opportunity "to
contribute a share to the rebuilding of peace among
ourselves and with all nations, (and) to earn return to
their country. He entrusted the administration of the
Clemency program to three existing government agencies --
the Department of Justice, the Department of Defense, and
the Selective Service System -- and created the Clemency
Board within the Executive Office of the President to
consider applications from people not already under the
jurisdiction of the Departments of Justice and Defense.
These four governmental units were ordered to implement a
program offering forgiveness and reconciliation to
approximately 113,000 draft resisters and military
deserters.
Unconvicted draft evaders were made the responsibility
of the Justice Department. 5 Members of the Armed Forces who
had remained at large as unauthorized absentees came within
the purview of the Defense Department's program.6 The vast
majority who had already been convicted or otherwise
punished for Vietnam-era draft or military absence offenses
became the responsibility of the newly created Presidential
Clemency Board.
On September 16, 1974, the President appointed nine
persons to this Board. Former United States Senator Charles
E. Goodell was designated as Chairman.
Beginning in September, the Board met on a regular basis in
Washington, D.C. As the number of applications swelled from
860 in early January to 21,500 by the end of March, it
became apparent that the nine original Board members and the
initial staff of less than 100 could not complete the
Board's work within the twelve-month deadline set by the
President. In May 1975, the President expanded the Board to
eighteen members and authorized a staff of over 600 to
complete the work on time.
The original nine-member Board was broadly
representative of national feelings on the war and on the
issue of amnesty and clemency. The expanded Board of
eighteen was carefully selected to preserve this balance,
including members with widely ranging experiences and points
of view. Many had spoken out strongly against the war, some
having advocated unconditional amnesty. Others believed
that our mistake lay in not pursuing the war effort more
vigorously.
2
All Clemency Board members were aware that the
President's program had to be implemented carefully to avoid
having a serious impact on military discipline and to avoid
impairing our strength in a future military emergency. The
Board consisted of thirteen veterans of military service,
three women, and two priests. Five were Vietnam veterans,
two of whom were seriously disabled in combat. Another
commanded the Marine Corps in Vietnam. One Board member had
a husband listed among those missing in action. Two Black
men, one Black woman and one Puerto Rican woman were on the
Board. We also had a former local draft Board member, an
expert in military law, and others with special backgrounds
and perspectives which contributed to a well-balanced
Board.⁷ (See Appendix A.)
B. A Limited, Not Universal, Program
When the President announced his clemency program, he
had to draw a line between those who were eligible and those
who were not. That line was drawn in a generous manner. In
order to encompass Vietnam-era offenders who opposed the war
on conscientious grounds, the President enumerated a
sizeable list of offenses. He decided not to impose a test
of conscience. It would have been improper to regard those
who could articulate their opposition to the war as the only
persons with a legitimate claim to clemency. The complex
Selective Service procedures tended to favor the better-
educated and the sophisticated. Those who were not able to
express themselves may still have had strong feelings about
the war, but may not have been successful in pursuing their
legal opportunities. A fair program of clemency could not
be restricted to those already favored by education, income,
or background.
In a broader sense the atmosphere of division, debate,
and confusion about the war had an impact on all those
called upon to serve. If the war had been universally
regarded as critical to the survival of the United States,
it is unlikely that many of these Americans would have
placed their personal needs or problems above those of the
country. This war was not universally regarded as such, and
many of those who failed to serve did so, consciously or
not, because the needs of the country were not as evident to
them as were the personal sacrifices they or their families
faced.
For these reasons, the President's definition of those
eligible for clemency was phrased in terms of offenses
committed, not in terms of the reasons for the offense. The
President extended this clemency offer to veterans who went
AWOL (absent without official leave) to find medical
assistance to treat their combat wounds, to cope with
readjustment problems after returning from Vietnam, or to
support families forced to go on welfare. Likewise, he
extended it to civilians from disadvantaged backgrounds
whose ignorance and itinerancy led to their failure to keep
their draft boards informed of their whereabouts. In the
3
thousands of cases we have reviewed, we found that the list
of victims of the Vietnam War was of much greater variety
than we had originally thought.
Eligibility Criteria for the Program
The Presidential Proclamation established three criteria
for eligibility. First, the program applied only to
offenses that occurred during the war period. This was
defined as extending from the passage of the Gulf of Tonkin
Resolution (August 4, 1964) through the day the last
American combatant left Vietnam (March 28, 1973). Second,
an applicant must have committed one of the offenses
specifically listed in the Proclamation. Military
applicants must have violated Article 85 (desertion) of the
Uniform Code of Military Justice, Article 86 (absence
without leave), or Article 87, (missing movement). Civilian
draft offenders must have committed one of the following
violations of Section 12 of the Selective Service Act: (1)
failure to register for the draft or register on time; (2)
failure to keep the local draft board informed of his
current address; (3) failure to report for or submit to
preinduction or induction examination; (4) failure to report
for or submit to induction; or (5) failure to or complete
alternative service. Third, an applicant must not have been
an alien precluded by law from reentering the United
States.
The eligibility tests set by the President no doubt
excluded some fugitives, convicted offenders, and discharged
servicemen whose offenses were motivated by their opposition
to the war. For example, there were a few military
applicants who, out of conscientious objection to the war,
refused to report to Vietnam. Instead of going AWOL, these
men faced court-martial for willful disobedience of lawful
order. Had they gone AWOL, they could have applied
clemency; because they remained on their bases and accepted
the punishment for their actions, they still have their bad
discharges. Also, persons convicted of or charged with
other Selective Services offenses, such as draft card
mutilation or aiding and abetting draft evasion were
ineligible for clemency because these were not among the
offenses listed in the Executive Order.
Before the President announced his program, there had
been considerable debate in Congress and elsewhere about the
kinds of offenses that properly should be included in a
clemency or amnesty program. As with most disputes on the
subject, opinions varied greatly. There was general
agreement, however, that absence and induction offenses
should be included because the vast proportion of Vietnam-
related offenses were of this type. Had the President's
program included categories of offenses involving calculated
i
FORD
interference with the draft system or with military
discipline, or involving violence or destruction of
property, it would have had a far more serious impact on
GERALD
LIBRARY
respect for law and military discipline.
4
Eligibility for the Presidential Clemency Board
Applicants eligible to apply to our Board included only
those who had been convicted or punished for the above
offenses.' For a civilian to be eligible, he must have been
convicted of one of the Selective Service violations listed
above. For a former serviceman to be eligible, he must have
received an Undesirable, Bad Conduct, or Dishonorable
Discharge as a consequence of his absence offenses. Anyone
discharged with either an Honorable or a General Discharge
was not eligible.
The Proclamation prevented our Board from accepting
cases in which the underlying facts of the offense may have
supported a charge over which we had jurisdiction, but in
which the individual was in fact prosecuted for a
nonqualifying offense. The Executive Order clearly stated
that the discharge must have been based on unauthorized
absence. Thus, a conviction for failure to obey an order to
go to an appointed place must have also been charged as an
AWOL. 10 A serviceman discharged for a civilian conviction
could also have been discharged for unauthorized absence
while in civilian custody. 11 There were numerous gray areas
in which difficult jurisdictional determinations had to be
made.
The other agencies had accurate counts of individuals
eligible for their programs; 4,522 were eligible for the
Justice program, and 10,115 for the Defense program. We had
to rely entirely on estimates which these agencies gave us.
Our 8,700 total for civilian eligibles came directly from
Department of Justice records. Our 90,000 figure for
military eligibles is 80% of the 111,500 originally
estimated by the Department of Defense from their records of
AWOL-related discharges. We reduced that later figure by
20% because the Department of Defense found that its
original estimate of persons eligible for its own program
was 20% too high; they reduced it from 12,600 to 10,115
through a closer inspection of records. We expect that the
same attrition would result from a close inspection of our
own eligible persons' records.
We recognized that this was a clemency program,
requiring us to interpret our jurisdictional boundaries
broadly. To be narrow and unduly legalistic in determining
eligibility would have been contrary to the spirit of the
program.
The military cases presented difficult questions of
interpretation. For example: "The Board shall consider
the case of persons who have received punitive or
undesirable discharges as a consequence of violations of
Articles 85, 86, or 87 "12 The phrase "as a consequence
of" gave us particular difficulty. We decided that the
phrase did not mean "as a consequence of" an AWOL only. In
many cases, individuals had been administratively discharged
for unfitness or frequent involvement with authorities based
on a pattern of offenses, including AWOLS, none of which
warranted a court-martial. The AWOL had to be viewed as a
contributing factor, if not the sole cause of the discharge.
5
This occasionally meant that an individual might have been
administratively discharged for unfitness for a very short
AWOL, plus numerous other minor infractions. It was
impossible to devise any objective method to separate the
reasons for the discharge. The military services leave
administrative discharges for unfitness to the discretion of
commanders. They do not have binding rules on the character
of misconduct necessary to warrant an Undesirable Discharge.
We recognized the dual need to have clear and objective
jurisdictional rules, while at the same time retaining
flexibility to make correct dispositions in cases in which a
short AWOL was an insignificant factor in the discharge. We
decided that the need for clear and consistent
jurisdictional rules required us to accept these marginal
cases, since the right to have one's case heard should be
broadly granted. However, the fact that an applicant had
committed military offenses other than AWOL sometimes
resulted in a denial of clemency, a consequence perhaps more
detrimental than a denial of jurisdiction.
The court-martial cases presented similar difficulties
because sentences were not rendered separately when an
individual was convicted on several different charges, one
of which was an AWOL. Since an individual might well have
been court-martialed for a major felony together with a very
short AWOL, it was obvious that the discharge would have
been awarded regardless of the AWOL offense. In court-
martial cases, however, military regulations define the
maximum punishments for different offenses. Thus, we
consulted the Manual for Courts Martial, Table of Maximum
Punishments13 to formulate simple rules to determine when we
had jurisdiction in cases involving court-martial
discharges. We applied the same rules to administrative
discharges given in lieu of court-martial. As a general
rule, we determined that:
1. We had jurisdiction if the AWOL offenses that
commenced within the qualifying period standing
alone were sufficient to support the discharge that
the applicant received;
2. We had jurisdiction if neither the AWOL offenses
that commenced within the qualifying period nor the
non-AWOL offenses, considered independently, were
sufficient for the discharge that the applicant
received;
3. We did not have jurisdiction if the AWOL offenses
that commenced within the qualifying period were
insufficient and any one of his other offenses,
considered independently, was sufficient for the
discharge that the applicant received.
The exclusion from the program of persons who were
precluded by law from re-entering the United States also
posed difficult problems. If an order of a court or the
Immigration and Naturalization Service had already decided
GERALD R. FORD
the question, we were bound by that determination. But we
considered it not within our province to decide complex
questions of immigration and citizenship law. For that
6
reason, we provisionally accepted the cases of persons for
whom no such determination had yet been made. We made
tentative decisions on these cases, forwarding them to the
President with a recommendation that he not act until proper
judicial or administrative determinations had been made by
the Justice Department.
Altogether, we received approximately 6,000 applications
from ineligible persons. Many had committed offenses during
other wars, had received General Discharges, or had been
discharged for offenses not listed in the Proclamation.
While we could not help them directly, we informed each one
by letter of other legal and administrative remedies
available to them.
C. CLEMENCY, NOT AMNESTY
In the years before President Ford assumed office,
opinion was sharply divided over whether there should be any
restoration of the rights and benefits offered by the
government to Vietnam-era draft and AWOL offenders. Many
citizens believed that the offenders' rights and benefits,
including full veterans benefits, should be restored.
Others insisted that they be given nothing. President Ford
chose the middle course.
To unconvicted draft offenders, the President offered
the promise that they would not be punished for their
actions, enabling them to avoid the lifetime stigma of a
felony conviction. Their prosecutions would be dropped.
All others whose cases had not yet resulted in a decision to
prosecute were relieved of any future danger of prosecution.
To undischarged military absence offenders, the
President offered an immediate end to their fugitive status,
with the promise that they would not be court-martialed or
imprisoned for their offenses. They would receive an
immediate Undesirable Discharge and an opportunity to earn a
Clemency Discharge. To a small number of fugitive
servicemen with exceptionally good records or other special
circumstances, application to the program could also result
in reinstatement in the military or an immediate discharge
under honorable conditions through normal military channels.
To convicted draft offenders, the President offered
official forgiveness for their actions through the highest
constitutional act available to him. They would receive a
full Presidential pardon.
To military absence offenders who had received bad
discharges, the President offered official forgiveness in
the form of a full Presidential pardon, and an upgrade to a
Clemency Discharge.
To those who were still serving prison terms for
GERALD FORD LIBRARY
desertion or evasion, the President directed an immediate
furlough for each person who applied for clemency. With the
7
exception of one person who chose not to participate, each
of the roughly 100 incarcerated civilians and 170
incarcerated servicemen who applied to the Presidential
Clemency Board were released. Under the President's
direction, the Presidential Clemency Board gave priority to
those cases, and all had their sentences permanently
commuted.
In the remainder of this section, we describe in more
detail the dimensions of the President's program, and
compare it to the relief which might have been available
under an "amnesty" program. In doing so, we explore the
sources of the President's power to grant executive
clemency.
"Clemency"
Clemency can be defined as the tendency or willingness
to show forbearance, compassion, or forgiveness in judging
or punishing, or as an act of mercy or lenience. 14 The
President's authority to grant clemency is derived from a
number of powers given him by the Constitution. His
Constitutional authority to grant pardons¹⁵ permits him to
grant clemency to a particular person or group of persons.
In granting a pardon, a President is often prompted by the
desire to show compassion or leniency. It is not necessary
that the individual be convicted of, or even charged with,
an offense. 16 He may commute sentences and fines, but he may
not order the return of sums already paid. 17 Also he may
grant stays or relief from execution of sentence -- a
constitutional "reprieve" or commutation. Although only the
President can grant pardons, the Pardon Attorney in the
Department of Justice administers the process in his behalf.
The President, as Commander-in-Chief of the Armed
Forces; 18 may request any branch of military service to
upgrade a bad discharge. Through the executive power vested
in him, the President may request subordinate federal
officers not to enforce criminal statutes against an
individual to whom he wants to grant clemency. 19
The Constitution grants the President the sole
discretion to exercise his pardoning power. He is not
answerable to the judiciary or to the Congress for his
decision to grant or to refuse to grant a particular pardon.
He may not be ordered to grant pardons, nor may his pardons
be revoked. 20 Barring an impeachable abuse of his powers,
the President is answerable in his exercise of this power
only to his conscience, to his understanding of the national
welfare, and to the public -- whose acceptance is necessary
to give full meaning to his act of executive clemency.
The Presidential pardon is the supreme constitutional
act of forgiveness or mercy. It is an expression of
society, through the Chief Executive, signifying that it
will disregard the offense for which an individual was
originally prosecuted. It thus removes the social blot of a
criminal conviction and relieves any continuing impairment
BERALD FORD LIBRART
of federal civil rights. Because a pardon is an act of
8
executive grace, it may be given to right a wrong, to
correct an injustice, or to excuse a repentant wrongdoer.
It may be offered to ease the harshness of the law when
personal hardship or the public good is involved.
A Presidential pardon restores Federal civil rights lost
as a result of the conviction, such as the right to hold
federal office or to sit on a federal jury. Also, most
states recognize a Presidential pardon as a matter of
comity, restoring the right to vote, to hold office, and to
obtain licenses for trades and professions from which
convicted felons are often barred. A pardon does not change
history, and it does not compensate for any rights or
benefits, legal or economic, that the individual has already
lost before his pardon. It operates prospectively only. A
pardon is a Presidential expression that the stigma of
conviction has been removed, and that its recipient should
no longer be discriminated against when seeking jobs,
credit, housing, or any other opportunities. However, a
pardoned offender is not considered as though he never
committed the offense. 21 A full pardon removes most of the
legal disabilities of the offense, but it does not bring its
recipient treatment equal to that accorded a person who has
never committed an offense. 22
Although the Executive Order did not state explicitly
that a Presidential pardon was to be the form of clemency
offered to applicants to the Clemency Board, the President
soon made it clear to us that this was his intent. The
President confirmed the Board's understanding that he wished
a pardon to be the form of clemency offered to convicted
evaders and to military absentees, whether they had been
discharged by court-martial or by administrative action. No
other form of clemency action would have had meaning. The
grant of a pardon to a person who had been discharged
without a court-martial conviction was a generous gesture,
but not a break from precedent. A President pardons the
act, not merely the judicial consequences that may have
flowed from it. Previous Presidents granted pardons to
persons who had suffered administrative penalties for a
wrongful act, even though they had never been convicted of a
crime. President Ford therefore decided that he would offer
pardons to the persons who had been given Undesirable
Discharges for AWOL offenses but who had not been convicted
in a military court. This group comprised 60% of the
military applicants to the Presidential Clemency Board.
The penalties for violation of military discipline
differed from those for violation of civilian law. A
military offender not only could receive a conviction and a
sentence of imprisonment or a fine, but he also could be
released with a discharge which characterizes his military
service as unsatisfactory. While a pardon affects the
conviction, it has no impact on the type of discharge
granted. For that reason, the President provided that a
recipient of clemency should also have his discharge
recharacterized as a Clemency Discharge, a new designation
created specially for this program.
GERALD FORD LIBRARY
The Clemency Discharge was intended by the President to
be a "Neutral" discharge, to be considered neither under
9
"Honorable Conditions" nor under "Other than Honorable"
conditions. Military records are recharacterized with the
new Clemency Discharge, which is in substitution for the
earlier Bad Conduct or Undesirable Clemency Discharge (under
other than honorable conditions) or Dishonorable Discharge
(under dishonorable conditions). A Clemency Discharge is
neutral, better than the discharge it replaces but not as
good as a General Discharge, which is given affirmatively
under honorable conditions.²3 By express direction in the
Proclamation, a Clemency Discharge bestows no veterans'
benefits itself. Nor, however, does it adversely affect the
conditional availability of veterans' benefits to holders of
Undesirable or Bad Conduct Discharges. Otherwise, the
President's act of clemency would have had the effect of
impairing and not improving an applicant's status. Neither
common sense nor the language of the Proclamation supports
such a result.
The President's program was intended as a unique and
supplemental form of relief to certain classes of former
servicemen. It did not deny pre-existing statutory or
administratively granted avenues of relief that While
perhaps the relinquishment of those rights could have been
made a condition of the President's program, no such
condition was expressed in his Proclamation. For that
reason, all military applicants who receive a Clemency
Discharge can still apply for a further upgrade through the
appropriate military review boards. Likewise, they can
still appeal for benefits to the Veterans' Administration.²
Their chances for success should be much better with a
pardon and Clemency Discharge than with their original
discharge and record of unpardoned offenses.
While the Clemency Board recommended most applicants for
pardons and Clemency Discharges, the Department of Justice
and Department of Defense also provided applicants with
important benefits. Every person eligible to participate in
the Defense and Justice program was in jeopardy of a
conviction. The Department of Justice program had the
effect of dropping pending federal criminal prosecutions
against fugitive civilians who were indicted or had
investigations pending for a specific draft evasion offense.
The Department of Defense program gave relief from possible
court-martial proceedings against military absentees.
In some respects, the Department of Justice program
offered the greatest restoration of rights. Fugitive
civilians charged with draft evasion offenses faced the
possibility of a criminal conviction, a maximum of five
years in prison, and a $10,000 fine25. In return for up to
two years of alternative service, their prosecutions were
dropped. They were also freed from the enduring stigma of a
felony conviction. Therefore, applicants to the Justice
program could emerge with better records than their
counterparts in the Clemency Board program, since it is
better to have no felony conviction than to have one which
has been pardoned.
The Justice program also resulted in the closing of case
files of all civilians who may have committed specific
GERALD FORD LIBRARY
Vietnam-era draft offenses but who had not yet been
10
indicted. After the program began, the Department of
Justice directed all United States Attorneys to submit a
list of all persons against whom they either had or would
soon have indictments issued. Prior to this request, 6,239
prosecutions had been commenced by the United States
Attorney, and thousands of other investigations were
underway which could have resulted in indictments. As the
lists were submitted, 1,717 active prosecutions were
dismissed. The Attorney General declared that the
Department of Justice would not prosecute Vietnam-era draft
violators who were not on the final list of 4,522 persons,
except for persons who never registered for the draft. The
other 1,717 individuals with prosecutions pending had their
cases permanently dropped. If they were in exile and had
committed no other offenses, they were free to come home. 26
If they were in the United States, they could plan for the
future without worry. The same was true for an
indeterminant number of other individuals who had been cited
for a possible draft violation by Selective Service, and
whose cases had been referred to the Justice Department for
further action.
By participating in the Defense program, fugitive AWOL
offenders automatically ended their fugitive status and were
relieved of the prospect of up to five years imprisonment
and a Dishonorable or Bad Conduct Discharge. They spent one
to three days at Fort Benjamin Harrison and received an
Undesirable Discharge. They could then perform alternative
service in order to earn a Clemency Discharge. Even if they
subsequently fail to complete alternative service, no
changes can be brought against them unless it can be shown
that they did not intend to perform alternative service when
they received their Undesirable Discharge. At a minimum,
they re-enter society in vastly improved circumstances.
The Defense program provided a special form of clemency
to forty-eight applicants. Most of these individuals had
served meritoriously in Vietnam or had been the victims of
serious administrative errors which led to their offenses.
Forty-six received immediate discharges under honorable
conditions, thereby qualifying for full veterans' benefits.
Two were allowed to return to military service with no
penalty. They were much like the individuals whom the
Clemency Board had recommended to receive upgraded
discharges by the President for discharge upgrades to
honorable conditions.
Not "Amnesty"
The debate over the President's program was often framed
in terms of whether the President should have granted
"amnesty" and not merely "clemency." The word amnesty
derives from amnestia, the Greek word for forgetfulness. It
connotes full official forgetfulness, an obliteration of the
fact that a past offense ever existed. It restores rights
and benefits lost on account of the past offense to the
maximum effect possible under law.
GERALD FORD LIBRARY
11
"Its effect is to obliterate the past, to leave
no trace of the offense, and to place the offender
exactly in the position which he occupied before
the offense was committed -- or in which he would
have been if he had not committed the offense. 1127
The difference between amnesty and clemency is as much a
semantic dispute as anything else. The terms amnesty and
clemency have been used interchangeably in American history.
Indeed, there is no significant legal difference between a
pardon and an amnesty:
"some distinction has been made, or attempted to be
made, between pardon and amnesty. It is sometimes
said that the latter operates as an extinction of
the offense of which it is the object, causing it
to be forgotten, so far as the public interests are
concerned, whilst the former only operates to
remove the penalties of the offense. This
distinction is not, however, recognized in our law.
The Constitution does not use the word "amnesty,
and, except that the term is generally employed
where pardon is extended to whole classes of
communities instead of individuals, the distinction
between them is one rather of philological interest
than of legal importance. 1128
The differences between advocates of clemency and
advocates of amnesty do not involve exercise of the
President's pardon powers, but rather rights or
benefits that should be offered in a reconciliation
program. Under the President's program, civilian
participants who were not yet prosecuted could receive
as much as could be offered -- release from further
prosecution. Those who already been prosecuted and
convicted were offered a pardon, which is the most a
President could give to a convicted offender. Even
though the President may grant a particular group of
convicted individuals an "amnesty," each member of the
group would receive nothing more than a pardon. To
return any fines paid, compensate for time spent in
prison or expunge and erase all records of a
conviction, Congressional action would be required.
However, the President could have directed that
Executive Branch records of conviction be sealed.
Also, he legally could have offered more benefits to
military participants. Through his authority as
Commander-in-Chief, he could have directed that they
receive discharges under honorable conditions, with
full entitlement to veterans' benefits.
In effect, the President offered most, although not
all, of the benefits which the law and the Constitution
permitted him to dispense.
FORD i LIBRARY GERALD
12
D. Conditional, Not Unconditional, Clemency
The President extended his offer of clemency in a
spirit of reconciliation. He expected those to whom
his offer was made to accept it in the same spirit.
This meant two things: first, the individual had to
step forward and apply for clemency; second, he had to
be willing to perform a period of alternative service.
The conditional nature of the President's Program most
clearly distinguished it from proposals for
unconditional amnesty.
The constitutional power to pardon and grant
reprieves carries with it the power to condition these
forms of clemency upon the performance of certain
conditions before or after any grant. The Supreme
Court of the United States recently stated:
this Court has long read the Constitution as
authorizing the President to deal with individual
cases by granting conditional pardons. The very
essence of the pardoning power is to treat each
case individually.29
Condition of Application
The President could have directed the Board to review
the cases of all those eligible without the requirement of
an application. The condition of application required that
individuals had to take some initiative to show their
interest in reconciliation. Further, the grant of a pardon
must be accepted by the recipient to be effective. It would
have been a useless gesture to review the cases of persons
who would have later declined the President's offer.
The Executive Order gave the Board discretion to
determine acceptable applications, and we decided to make
the process as easy as possible. To make a timely initial
filing, the applicant or a person acting in his behalf had
to contact any agency of the Federal government not later
than the application deadline of March 31, 1975, and express
an interest in participating. Written inquiries were
acceptable if mailed not later than March 31.
Sparl
We accepted no applications submitted after the
President's deadline. We strictly construed this rule,
rejecting approximately 500 late applications.
Applications misdirected to consulates, probation
offices, and Congress were all considered acceptable,
because many applicants were confused about the division of
FORD i LIBRARY GERALD
responsibility among the four agencies implementing the
program. If this contact was in writing by the applicant
himself or his attorney, it was a valid application. If the
initial filing was made over the telephone or by someone
30
other than his attorney, the applicant was given until May
31, 1975, to confirm the contact in writing.29 Individual
FN
cases sometimes presented difficult questions of proof,
13
especially when persons made uncorroborated oral
applications to other federal officials.
Living in Canada at the time, applicant alleged
that he telephoned a U.S. Consulate prior to March
31 and had been told that the deadline did not
apply to his case. Unfortunately, the Consulate
kept no records of inquiries about the clemency
program. The applicant re-entered the United
States in early April after completing his Canadian
employment obligations. He immediately appeared at
a United States Attorney's office.
In the above case, the question of timeliness turned on
the credibility of the applicant. After a personal
appearance, the Board was persuaded of the applicant's
truthfulness, and the members voted unanimously to accept
his application.
Where the application contained insufficient information
for us to obtain the facts necessary for our case-by-case
determination, we tried to contact the applicant and obtain
these facts. We made repeated phone calls and mailings to
thousands of applicants who had submitted timely but
incomplete applications. Despite repeated efforts to obtain
more information, we ended our work on September 15, 1975,
with 900 applications for which we were unable to obtain the
facts necessary to make our decision. These cases were
returned to the Pardon Attorney for further investigation
and processing in accord with Clemency Board standards and
precedents.
The application requirements of the Justice and Defense
Programs of the Program were specified in the Executive
Order. Their applicants had to appear in person to
participate. Both the Departments of Justice and Defense
required that an individual return to the United States if
in another country, report to a Department office,
acknowledge allegiance to the United States, 31 and pledge to
perform alternative service. The Department of Justice
required that, upon entering the United States, a convicted
draft evader had fifteen days to present himself to the
United States Attorney in the judicial district in which his
draft evasion offense had occurred. This had to occur not
later than March 31, 1975. If an unconvicted evader failed
to comply, he remained subject to prosecution for his draft
evasion offense. In fact, no one was prosecuted during the
application period for failing to report within fifteen
days.
To receive clemency through the Department of Defense's
segment of the program, an undischarged AWOL offender had to
return to the United States, surrender to any military base
not later than March 31, 1975, and travel to the Joint
Clemency Processing Center in Indiana. When he affirmed his
allegiance and agreed to perform alternative service, he was
given an Undesirable Discharge. He then could perform his
GERALO, FORD LIBRARY
assigned alternative service to earn an upgrade to a
Clemency Discharge.
14
Condition of Alternative Service
Those who were required to perform alternative service
under any part of the President's program came under the
jurisdiction of the Selective Service System. Clemency
Board applicants had thirty days from the date that we
informed them of the President's clemency offer in which to
enroll with Selective Service. Department of Defense and
Department of Justice applicants had fifteen days in which
to enroll.
All individuals assigned to alternative service were
informed that under Selective Service rules they could work
anywhere in the United States. To enroll, they had to
travel to their desired area of residence and contact the
nearest office of Selective Service. There are now about
650 such offices throughout the United States. Initially,
the applicant had the opportunity of finding a job of his
own choosing. He was encouraged by Selective Service to
find work which utilized his special talents. If he found a
suitable job himself, his state Selective Service Director
had to determine if the job met the following criteria:
a. The job must be full-time (forty hours per week) and
must promote the national health, safety, or interest.
b. The enrollee cannot fill a job for which there were
more qualified applicants than there were spaces available.
C. The job must be with a non-profit organization.
d. Unless he obtains a waiver from his State Selective
Service Director, his pay must provide him with a standard
of living that was at least equivalent to that which he
would have enjoyed had he gone into or stayed in the
military. 32
If the enrollee did not find a suitable job, the State
Selective Service Director had to find one for him by the
end of the thirty day period.
Because of local economic situations, it has often been
difficult for enrollees to find their own jobs, and it has
not always been possible for Selective Service to place
every enrollee within the thirty day period. To be fair to
the enrollee, Selective Service rules specified that if
through no fault of his own the enrollee had not been placed
in a job within the thirty day period, time would begin to
be credited to his alternative service commitment on the
thirty-first day following his enrollment. While this
GERALD, FORD LIBRARY
provision has permitted some an individuals to earn clemency
without having a job, it has avoided penalizing a person
willing to serve but for whom no job has been available.
To avoid this problem, our Board recommended to
Selective Service that individuals in our program be able to
fulfill their alternative service by performing volunteer
work in the national interest for 16 hours per week for the
designated period--three or six months in most cases.
15
According to Selective Service, alternative service jobs
have offered some individuals the beginning of a new career:
A former Marine's alternative service consisted of
assisting a jailer. He adapted well to his job,
attended school on his own time, and is now a deputy
sheriff.
An Army veteran was assigned as a rodent and insect
control inspector for the city's health department. His
supervisor is so pleased with his work that he hopes to
retain him after his alternative service is over.
As of October 1, 1975, 128 enrollees completed their
periods of alternative service under the President's
program. As the table below indicates, the Department of
Defense program has the highest number of applicants in this
category. Others have begun their jobs, but --
unfortunately -- many others have not.
TABLE 4: INFORMATION ON ALTERNATIVE SERVICE PERFORMANCE
Status*
DoD
DOJ
PCB
Total
New Enrollees
66
46
212
324
Referred to Jobs
342
71
87
500
At Work
1269
480
102
1851
Job Interruption
135
30
4
169
Referred to Second
Job
56
21
1
78
Postponed
60
17
7
84
Completed
100
21
7
128
Terminated
2479
41
10
2530
Total*
4507
727
430
*Some applicants are classified in more than one category.
The success of the Department of Justice in having its
applicants do alternative service probably reflects the
threat of prosecution facing those terminated from the
program. Many Department of Defense applicants may have
applied for clemency just to end their fugitive status and
receive an Undesirable Discharge. This may explain the
FORD
large number of Defense applicants who either never enrolled
with Selective Service or were later terminated for failing
to accept the designated employment.
GERALD
LIBRARY
So far, very few of our applicants have had to enroll
with Selective Service. Since almost all of our applicants
16
were informed of the President's decision in their cases
after August 1975, we do not yet have adequate information
on the number of persons in our program who have begun
alternative service. Unlike the other two agencies
administering the programs, we were unable to counsel our
applicants in person. What contacts we had with them
suggest that many may not understand some basic facts about
their alternative service obligation. Others may not
appreciate their rights with respect to job selection or
termination. The generally low level of education and
sophistication of our applicants, and their previous
failures to abide by draft board or military rules,
underline this possibility. Also, the short alternative
service assignments of three to six months may make it
harder for Clemency Board applicants to find jobs.
According to Selective Service, many employers are unwilling
to offer jobs to individuals willing to work for only a few
months.
We believe that the true measure of our work lies not in
the number offered clemency, but rather in the number who
successfully fulfill the conditions we recommended and
actually earn their pardons.
E. A Program of Definite, not Indefinite, Length
When President Ford announced the establishment of his
clemency program, his Proclamation specifically limited the
period of time in which applications could be accepted.
Originally, he set January 31, 1975, as the application
deadline. Due to the publicity and press coverage that
heralded the announcement of the Clemency Program, we and
the others newly involved in its administration assumed that
all eligible people would quickly learn about the program
and understand what benefits could be derived from applying
for clemency. Therefore, we thought that four and one-half
months gave potential applicants ample opportunity to decide
if they wished to apply.
For the first three months of its existence, the
Presidential Clemency Board maintained a low profile. We
reasoned that people should not be pressured while making up
their minds whether to apply and that it would be improper
for us to solicit their applications. Because we assumed
that those covered by the program knew about their
eligibility, we decided to process our applications without
trying to encourage anyone to apply to us.
FORD
We soon learned, however, that our assumptions were
incorrect. After reviewing the first several hundred cases,
LIBRARY
we discovered that most of our applicants were not well-
educated, articulate persons, but rather were poorly-
educated, disadvantaged individuals who were not likely to
be informed about the President's program. Our military
applicants, in particular, did not fit the stereotype of the
knowledgeable, educated war resister. In the middle of
December, when only about 800 people had applied to the
17
Clemency Board, a limited survey of potential military
applicants took place in Seattle, Washington. A veterans'
counseling organization located twelve former servicemen
eligible for our segment of the program. All twelve knew
about the President's offer, but none of them knew that it
applied to former servicemen.
This misconception was reinforced by much of the early
media attention given the program, highlighting the
activities of those who fled to Canada. It was the self-
exiled draft evader and military deserter who formed the
basis of the stereotype which most Americans perceived as
eligible for the program. Because they had fled, they
generally knew that charges were pending against them and
that returning without applying for clemency meant
apprehension, trial, and possible conviction. In contrast,
the vast majority of our applicants had already completed
the punishment for their offense and were trying with
varying success to rehabilitate their lives. Many had heard
about the clemency program, mistakenly thinking that it was
only for those who had gone to Canada.
Once we realized that many of those eligible to apply to
the Clemency Board us knew nothing about their eligibility,
we began an extensive public information program. On
January 7, 1975, through the cooperation of the
Administrative Office of the U.S. Courts and U.S. Probation
and Parole Offices throughout the country, 7,000 information
kits were mailed to convicted draft evaders. Throughout the
month of January, similar kits were mailed to government
agencies that had some contact with the Board's applicants,
such as the Veteran's Administration, employment offices,
welfare offices, penal institutions, and post offices.
Clemency Board members Walt and Hesburgh taped public
service radio and television announcements explaining how
one could apply to the Clemency Board. On January 14, 1975,
these announcements were mailed to 2,500 radio and
television stations across the United States. During
January, seven members of our Board participated in one-day
"blitzes" in sixteen of the major cities across the country.
These visits consisted of a Board member going to a city for
one day, holding press conferences, participating in various
radio and television talk shows, and giving interviews to
reporters from the city's major newspapers. To keep
national media focused on the program, Chairman Goodell held
numerous press conferences in Washington, D.C., and
elsewhere during January.
The result of our public information campaign was a
dramatic increase in our application rate. Applications to
the Board increased from 870 on January 7, 1975, to 5,403
before expiration of the January 31st deadline. Due to this
increase, the President extended the application deadline to
March 1, 1975.
The public information campaign was continued in
earnest. On February 17, 1975, the Department of Defense
mailed 21,000 information kits to discharged military
CENALE FORD LIBRARY
personnel with punitive discharges who appeared eligible for
the program. Kits were not sent to the 75,000 eligible
persons with administrative discharges because of the
18
excessive costs of obtaining their addresses and the
difficulty of identifying which among hundreds of thousands
of administrative discharges during the Vietnam era had
resulted from AWOL-related offenses.
More information kits were sent to government agencies,
and radio and television announcements were distributed to
another 6,500 stations. Several Board members made
additional one-day visits to eight key cities, some of which
had previously been visited. Chairman Goodell continued to
hold press conferences in order to draw attention to prior
misunderstandings concerning our eligibility criteria.
Finally, the media began to recognize the difficulties we
were having in communicating with our potential applicants.
Again there was a dramatic increase in our application
rate. An additional 6,000 applications were received during
February, with our total exceeding 11,000. At our request,
the President extended the application deadline for one last
time. Knowing that March 31, 1975 was going to be the final
deadline, we intensified our efforts to reach our
applicants. We sent staff members across the country to
regional offices of the Veterans Administration. Workshops
in thirty-three cities were attended by over 3,000 veterans'
counselors -- most of whom, surprisingly, had not yet
learned that former servicemen with bad discharges were
eligible for clemency.
We received over 10,000 applications during March,
making a total of 21,500 by the time we finished counting.
We had ten or twenty times what we once thought possible.
Eventually, we determined that 15,468 of those 21,500 were
eligible for our program.
The administrators of the Departments' of Justice and
Defense Department programs also attempted to inform their
potential applicants. Letters were sent by the Department
of Justice to the last-known address of each person subject
to indictment, and many applicants used these letters to
facilitate their re-entry across the border. In December,
the Department of Defense mailed 7,000 letters to the
parents of known military absentees.
The final application tallies were 706 out of 4,522
eligible for the Justice program (a 16% response) ; 33 5,555
out of 10,115 eligible for the Defense program (a 55%
response) ; 34 1,879 out of 8,700 convicted civilians eligible
for the Clemency Board program (a 22% response) ; and 13,589
out of approximately 90,000 former servicemen also eligible
for the Clemency Board program (a 15% response)
Altogether, 21,729 applied to the President's program, 19%
of the 113,300 believed eligible to apply.
CERALO FORD LIBRARY
19
F. A Case-By-Case, Not Blanket, Approach
The President specifically requested that each agency
act upon clemency applications on a case-by-case basis. His
Proclamation declared that
"in prescribing the length of alternative service
in individual cases, the Attorney General, the
Secretary of the appropriate Department, and the
Clemency Board shall take into account such
honorable service as an invidual may have rendered
prior to his absence, penalties already paid under
law, and such other mitigating factors as may be
appropriate to seek equity among those who
participate in this program."
The very essence of the pardoning power is to treat each
case individually. The Supreme Court of the United States
has consistently read the Constitution to authorize the
President to exercise his pardon power on a case-by-case
basis34.
A case-by-case approach was more costly, requiring
greater time and staff to administer, but it was the heart
of the President's program. It permitted the Clemency Board
and the other agencies to distinguish among individuals with
differing backgrounds, offenses, and circumstances. While
more difficult to administer, the case-by-case approach
enabled the program to render justice by fashioning results
to fit the many differing people who applied to the program.
Advocates of a blanket approach often believed that the
stereotype of the articulate pacifist who acted on principle
was the only type of individual involved in the program. In
fact, only 13% of applicants to the Clemency Board committed
their offenses primarily because of opposition to war. (See
Chapter 3.)
Treating applicants by classes or groups, with automatic
dispositions for each category, would have demeaned the
value of a Presidential pardon; it would have treated the
individuals who applied as groups of objects, rather than as
human beings with whom reconciliation was the goal.
1. Clemency Board Procedures
The Clemency Board desired to make the procedure as
simple as possible, with a minimum of technical requirements
with which an individual had to comply. We wanted the
procedure to be open, so that the applicant would be aware
of how we were proceeding with his case and what we were
i
FORD
using as the basis for our actions. We encouraged the
fullest possible participation by applicants. Above all,
the Board and the staff wished to make the Presidential
GERALD
LIBRARY
Clemency Board a model of fair and open administration in
keeping with the Presidential nature of our responsibilities
and the importance of our task. The Board's procedural and
substantive rules are described in detail in Chapter 4; an
overview is presented below.
20
Clemency Board Procedures
In brief, our process began with a telephone call or
letter from an individual inquiring about clemency. We
accepted any affirmative expression of interest as a
provisional application, whether oral or written, and we
accepted applications made on an individual's behalf by
third parties. While these were sufficient to satisfy the
application deadline, we required a perfected application
before we would complete action on a case³⁵. Any
application could be withdrawn at any time, without penalty.
When an application was received, we mailed back a full
set of instructions explaining the program, the individual's
rights, and information on other avenues of relief he might
wish to pursue in addition to the clemency program. To make
the process as unthreatening as possible, we required from
the individual only the minimum amount of information
necessary for us to order pertinent government records. We
encouraged the applicant to send in as much additional
information as he wished, and we informed him of the
important factors which the Board would consider in
reviewing his case. We encouraged the applicant to seek
legal counseling, and we informed him of possible sources
for counseling. We assured him of the confidentiality of
our process.
We then began his case file and give him a case number.
Preliminary questions of jurisdiction were resolved by the
staff under Board guidance. The information-gathering
process then began. First, the staff ordered official
records and files. After they had been received, a case
attorney was assigned to prepare a case summary, which would
later be used as the basis of our case disposition. This
case summary was the key element of the entire case-by-case
approach. When the case summary had been prepared, the
quality control staff reviewed it carefully for fairness and
accuracy. The case was then ready for presentation to the
Board, and the summary was mailed to the applicant for his
comment. Because of this reliance on government files, we
counted heavily on the individual's review of his summary
for corrections and additions. We also wanted the
individual to know the exact materials the Board would
consider in reviewing his case. Finally, we used the
mailing of the summary as another opportunity to encourage
the applicant to send further information to us on his own
behalf.
A panel consisting of three or four Board members then
received copies of the applicant's case summary a few days
before the actual case presentation. Each panel member read
the case summary, making notes and tentative personal
evaluations. When the panel acted on the applicant's case,
the staff attorney who prepared the summary was present with
the entire file to answer questions and make additional
FORD LIBRART
comments on the case. Also present were a staff scribe to
keep records and a panel counsel (usually the case
attorney's supervisor) to advise the case attorney and panel
members on Clemency Board rules and precedents.
21
In deliberations, Board panels had to decide the
following: first, did the applicant deserve clemency of any
kind? If the answer was "yes," panel members determined the
applicant's baseline or starting point for the calculation
of his alternative service assignment, identifying which
aggravating and mitigating factors applied in his case.
(See Chapter 4.) Panel members then decided what period of
alternative service, if any, he had to perform to earn his
clemency. (See Chapter 5.) If he were a military applicant
with combat experience, the panel considered whether to
recommend him for an immediate discharge upgrade and
veterans' benefits. The staff attorney, scribe, and panel
counsel were present during all deliberations; Board
meetings were closed to the public to ensure privacy, unless
an applicant expressly waived his right to privacy. The
Board granted personal appearances when necessary for a full
understanding of the case.
To attain as much consistency in decisionmaking as
possible, any member of the Board could refer a case for
reconsideration by the Full Board. A computer-aided review
of panel dispositions identified cases which the Chairman
wished to be reconsidered by the full Board.
Our final disposition was sent to the President as a
recommendation. He then indicated his positions on a signed
warrant, which was returned to the Clemency Board so we
could notify the applicant of the President's decision. The
applicant had the right to ask for reconsideration within 30
days. If he did not file such a motion, he either accepted
or refused the President's offer of clemency. Because the
program was voluntary, a refusal left him no worse off than
before he applied.
Department of Justice Procedures
The Department of Justice program was implemented by the
Attorney General's directive of September 16, 1974, to all
United States Attorneys. 38 In addition to instructing the
U.S. Attorneys on how to calculate the length of alternative
service for their eligible applicants, the Attorney General
required them to follow certain procedures. Section V of
his directive stated:
"In the determination by the United States
Attorney of the length of service
an applicant
shall be permitted to: (1) have counsel present;
(2) present written information on his behalf; (3)
make an oral presentation; and (4) have counsel
make an oral presentation.
An applicant shall not have access to
investigatory records in the possession of the
United States Attorney except as provided by 32
FORD i LIBRARY CERALD
C.F.R. 160.32. The United States Attorney shall
make his decision on the basis of all relevant
information. No verbatim record of the proceeding
shall be required."
22
Each of the ninety-four United States Attorneys was
responsible for carrying out this directive. The Department
of Justice took several steps to ensure uniform
implementation of its program. All U.S. Attorneys were
instructed to apply four specific mitigating factors. They
received a model alternative service agreement and a model
letter to send to eligible draft evaders. In addition, the
Deputy Attorney General personally examined and reviewed the
first twenty-six alternative service agreements before
giving final approval.
The procedures followed by the Department of Justice
were discussed by Kevin T. Maroney in his testimony before a
Sub-committee of the House Committee on the Judiciary:
"
individuals who may have been located outside
the country when the President announced the
program were given a 15-day opportunity to re-enter
and report to United States Attorneys without fear
of arrest. Morever, upon reporting to the United
States Attorneys, no prospective enrollee was
expected to execute an agreement immediately
=
(In those instances where the individual was
without financial resources, the United States
Attorney assisted in making arrangements for legal
representation.)
"As a further demonstration of flexibility, not
every prospective enrollee has been required to
execute an agreement in the judicial district where
he was charged. In those cases where compelling
reasons were evident, such as an ensuing family or
financial hardship, exceptions were made and
individuals permitted to sign agreements in other
geographical areas. Likewise, with respect to
those individuals who were pursuing educational
endeavors either in or outside the country,
arrangements were made permitting them to execute
agreements with the understanding that the actual
performance of work would be delayed, pending the
completion of their studies
Following these procedures U.S. Attorneys dropped
prosecutions or discontinued investigations of eligible
draft evaders in return for the satisfactory completion of a
specific amount of alternative service.
Department of Defense Procedures
In response to the Presidential Proclamation, the
Secretary of Defense issued a memorandum on September 17,
1974, to the Secretaries of the Military Departments. 41 This
memorandum indicated that the period of alternate service
for servicemen who apply under the President's program would
GERALD FORD LIBRARY
be determined in individual cases by designees of the
various Military Departments. Pursuant to this grant of
authority, the Secretaries established a Joint Alternate
Service Board. Each of the four military services appointed
23
an officer in the grade of colonel or captain to serve on
the Board.
The Secretaries granted the Joint Alternate Service
Board broad authority to determine procedures for the
resolution of its cases, except that the Presidency of the
Board had to be shared in such a way as to be held by a
member of the same service as the applicant whose case was
being considered. The vote of the Board President was to
prevail in case of a tie.
The members of the Joint Alternate Service Board agreed
upon the following procedures for the processing of its
applications:
a. To comply with the above directives, each
individual participating in the President's program
is offered the opportunity during his processing to
submit to the Board additional documentation that
he desires the Board to consider on his behalf.
Conversely, he must so indicate that he does not
desire to make a statement if that is his decision.
This provides the individual an opportunity to
state his reasons for unauthorized absence, to
indicate the nature of his employment or service
while absent, and to provide any other statements
or matters he wishes considered by the Board.
b. The military services are required to
provide a summary of each individual's record to
highlight service related factors to be
considered
C. The total available service record,
statements submitted by the individual, and the
service provided summary sheet are reviewed and
evaluated independently by each member of the
Board. Records which contain conflicting or
questionable data are returned to the service for
verification of the information. Each Board member
considers all available information and makes an
independent judgment to determine if there is
appropriate justification for reducing required
alternative service below 24 months. He then
records the number of months which he considers
appropriate for the individual to serve. When all
Board members have reviewed a case and made an
independent determination of alternative service
time, Board member votes are compared. In the
event of a tie or split vote, the case is openly
discussed by the Board members to resolve
differences. In the event of a tie vote during
arbitration, the President of the Board votes to
break the tie. This decision on the number of
months of alternative service is considered the
final decision of the full Board.
FORD i LIBRARY GERALD
d. The decision is annotated on the summary
sheet, signed by a Board member and returned to the
applicable service for separation processing⁴⁰.
24
The Department of Defense program processed its
applicants through the Joint Clemency Processing Center at
Fort Benjamin Harrison, Indiana. In addition to being a
clemency program for military deserters, the Defense program
was also a discharge process. Applicants filled out a
series of administrative forms and participated in group
legal counseling sessions and could see a military lawyer
for individual counseling. They could apply for one of
three options concerning participation in the program.
Option 1 made him a participant in the Clemency program,
requiring him to sign a Reaffirmation of Allegiance, a
Pledge of Public Service, and accept an Undesirable
Discharge. Option 2 offered him an opportunity not to
participate in the President's clemency program and to have
his case decided under current military law. Option 3
represented a return to active duty for qualified Army
applicants. Only two of the four who chose Option 3 were
restored to active duty. Although not an explicit option,
46 applicants were diverted from the clemency program and
immediately discharged under honorable conditions. 43 All
applicants reserved the right to withdraw his selection of a
particular option before their cases were forwarded to the
Joint Alternate Service Board for disposition.
Those who applied for clemency could then submit a
"Statement to the Board for Alternative Service." Each
absentee had the opportunity to explain his reasons for
absence from military service, employment during his
absence, and other matters he wished the Board to consider.
Personal appearances were allowed only in exceptional
circumstances. The Board felt that the availability of
applicants' military records and the applicants' right to
supplement their records with further information made
appearances unnecessary. No opportunities for appeal were
provided. Altogether, most applicants generally spent no
more than three days at the Joint Clemency Processing
Center.
FORD & 070890 LIBRARY
25
END OF DOCUMENT Chapter 2
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FORD i LIBRARY SERVID
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"ocrText": "The original documents are located in Box 5, folder \"Final Report - Draft, 10/28/75 (1)\" of\nthe Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Charles Goodell donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 5 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library\nTODAY'S DATE 10/28/75\n1633\n07 lst111e\n222-001\nCUSTOMER a2220 OPERATOR 001 PCB\n222-001\nSummary\n001 executive summary\nDATE STORED 10/28/75\n1426\n3\nWIDTH 060 DEPTH 64\nt\nt\nt\nt\nt\n7\npj\nPRINT POSITION 07 LINE 03\nFORD\n&\nGERALD\n1. Introduction\nIn the years before President Ford assumed office,\npublic opinion was sharply divided over what the government\npolicy should be toward those who had committed Vietnam-era\ndraft violations and military absence offenses. Many\nbelieved that these actions could not be forgiven in light\nof the sacrifices endured by others during the war. Yet,\nmany citizens believed that only unconditional amnesty was\nappropriate for offenders who had acted in good conscience\nto oppose a war they believed wrong and wasteful.\nSomething had to be done to bring Americans together\nagain. The rancor that had divided the country during the\nVietnam War still sapped its spirit and strength. The\nnational interest required that Americans put aside their\nstrong personal feelings. Six weeks after taking office,\nPresident Ford announced a program of clemency, offering\nforgiveness and reconciliation to Vietnam-era draft and\nmilitary absence offenders.\n2. The President's Clemency Program\nIn his Proclamation of September 16, 1974, President\nFord created a program of conditional clemency for roughly\n13,000 civilians and 100,000 servicemen who had committed\ndraft or military absence offenses between the adoption of\nthe Gulf of Tonkin Resolution (August 4, 1964) and the day\nthe last American combatant left Vietnam (March 28, 1973).\nHe authorized the Departments of Justice and Defense,\nrespectively, to review applications from the 4,522 draft\noffenders and the 10,115 undischarged servicemen still at\nlarge. He created the Presidential Clemency Board to\nconsider applications from the 8,700 convicted and punished\ndraft offenders and the estimated 90,000 servicemen given\nbad discharges for absence offenses. He gave all eligible\npersons 4-1/2 months (later extended to 6-1/2 months) to\napply. He promised that their cases would be reviewed\nindividually. He further indicated that applicants would be\nasked to earn clemency where appropriate, by performing up\nto 24 months of alternative service in the national\ninterest, under the supervision of the Selective Service\nSystem.\nUnder the Justice Department program, unconvicted\ndraft offenders would have their prosecutions dropped,\nenabling them to avoid imprisonment and the stigma of a\nfelony conviction. Under the Defense Department program,\nfugitive servicemen were offered an immediate Undesirable\nDischarge as a permanent end to their fugitive status,\nsimilarly enabling them to avoid imprisonment and the stigma\nof a Bad Conduct or Dishonorable Discharge. They were also\noffered the chance to earn a Clemency Discharge. Under the\nClemency Board program, convicted draft offenders were\noffered full and unconditional Presidential pardons for\ntheir draft offenses. Former servicemen who had received\nbad discharges were offered clemency discharges and full\nPresidential pardons for their absence offenses.\nBy granting pardons to convicted or discharged\noffenders, President Ford was exercising the most potent\nconstitutional form of executive clemency available to him.\nThe Presidential pardon connotes official forgiveness for\ndesignated draft or military offenses, restoring all Federal\ncivil rights lost as a result of those specific offenses.\nLikewise, a full and unconditional pardon indicates that\ngovernment agencies should disregard all pardoned offenses\nin any subsequent actions they take involving clemeny\nrecipients.\nBy directing that the military services upgrade bad\ndischarges, substituting Clemency Discharges in their place,\nthe President was indicating to employers and creditors that\nthey should not discriminate against individuals who had\nreceived clemency. As a \"neutral\" discharge, the Clemency\nDischarge appears to be working: A recent survey of large\nnational employers and local (Pennsylvania) employers found\nthat they view it as almost identical to a General Discharge\nunder honorable conditions and much better than an\nUndesirable Discharge under other-than-honorable conditions.\nA Clemency Discharge does not confer veterans'\nbenefits, but it leaves an individual with the same appeal\nrights that were available to him before. Indeed, the\nreceipt of a Presidential pardon and a Clemency Discharge\nshould improve an individual's chances for further upgrade.\nAltogether, 21,729 eligible persons applied for\nclemency.\n2\nTABLE 1: PERSONS ELIGIBLE FOR THE\nPRESIDENT'S CLEMENCY PROGRAM\nNumber\nNumber\nPercent\nAgency\nApplicants\nEligible\nApplying\nApplying\nDefense Fugitive AWOL offenders 10,115\n5,555\n55%\nJustice Unconvicted draft\noffenders\n4,522\n706\n16%\nP.C.B.\nDischarged AWOL\noffenders\n90,000\n13,589\n15%\nP.C.B.\nConvicted draft\noffenders\n8,700\n1,879\n22%\nTOTAL\n113,337\n21,729\n19%\nThrough the first the Clemency Boardek in January, we\nhad received only 850 applications, with the initial January\n31 deadline just a few weeks away. At that time, the public\ndid not realize that the program included not only fugitives\nbut also punished offenders--including servicemen who had\nserved in Vietnam. Very few people realized that the\nPresident's program included the following sort of\nindividual:\n(Case 1)\nWhile a medic in Vietnam, this military\napplicant (an American Indian) received\nthe Bronze Star for Heroism because of his\nactions during a night sweep operation.\nWhen his platoon came under intense enemy\nfire, he moved through a minefield under a\nhail of fire to aid his wounded comrades.\nWhile in Vietnam, he was made Squad Leader\nof nine men, seven of whom (including\nhimself) were wounded in action. After\nreturning to the United States, he\nexperienced post-combat psychiatric\nproblems. He went AWOL several times to\nseek psychiatric treatment. He received a\nbad discharge for his absences.\nBecause of this widespread public misunderstanding, we\nbegan public service announcements on thousands of radio and\ntelevision stations, held meetings and press conferences at\nover two dozen cities, met with thousands of veterans'\ncounselors throughout the country, and circulated bulletins\nto agencies in direct contact with eligible persons--such as\nVeterans' Administration offices, employment offices, post\noffices, and prisons. Given a limited budget of $24,000,\nthe results were dramatic. During the rest of January, we\nGERALD\nreceived over 4,000 new applications. Because of this\nresponse, the President extended the application deadline\nanother month. We received 6,000 in February and, after a\nfinal extension, another 10,000 before the March 31st final\ndeadline--for a total of about 21,500, of whom 15,468 turned\nout to be eligible. This increase in applications was\ndirectly attributable to our public information campaign.\n3\nBy asking applicants when they learned they were eligible,\nwe discovered that over 95% did not realize they could apply\nuntil after the January 8 start of the campaign; 90% applied\nwithin days or even hours of their discovery they were\neligible. The Departments of Defense and Justice did not\nexperience a similar increase in applications, because it\nwas already widely understood that fugitive draft and\nmilitary absence (AWOL) offenders could apply for clemency.\nDespite our information efforts, public understanding\nof the program has not changed appreciably. An August, 1975\nGallup Poll found that only 15% of the American people\nunderstood that convicted draft offenders and discharged\nAWOL offenders could also apply for clemency. Virtually the\nsame percentage--16%--of eligible persons in those\ncategories actually did apply. We are convinced that most\nof the remainder still do not know that they were eligible\nfor the program. Others may not have applied because their\nlives are settled, with their draft offense convictions or\nbad discharges of no present consequence to them. We\nbelieve that very few failed to apply to the Clemency Board\nbecause of their opposition to our program.\nThe press and the public were, and indeed still are,\npreoccupied with anti-war fugitives who fled to Canada.\nHowever, we found that only 6% of our civilian applicants\nand 2% of our military applicants had ever gone to Canada.\nVirtually all of them subsequently returned to the United\nStates long before they applied for clemency. of the 15,468\nClemency Board applicants, less than 400 (3%) ever went to\nCanada. This stands in marked contrast to the 3,700 (24%)\nwho were Vietnam veterans. In recent years, many estimates\nhave been made of the number of fugitive draft and AWOL\noffenders in Canada, usually on the basis of very limited\ndata. Based on our own data and our understanding of\napplicants to the Justice and Defense programs, we estimate\nthat a maximum of 7,000 persons eligible for clemency were\never Canadian exiles. We further estimate that only 4,000\n(less than 5%) of the 91,500 who were eligible but did not\napply for clemency are still in Canada, contrary to the\nusual public impression.\nWhat happens next to those who did not apply? The\n8,300 who are still fugitives should surrender to\nauthorities. While they will probably receive a bad\ndischarge or felony conviction, they will end their fugitive\nstatus. The 90,000 who have already been punished can apply\nto the Pardon Attorney in the Department of Justice or to\nthe appropriate military discharge review boards, avenues of\nrelief which are not related to the President's clemency\nprogram and are not affected by the program's end.\n3. Applicants to the Presidential Clemency Board\nChance and circumstance had much to do with the\nsacrifices faced by each individual during the Vietnam War.\nConscription is selective. Only 9% of all draft-age men\n4\nserved in Vietnam. Less than 2% ever faced charges for\ndraft or desertion offenses, and only 0.4%--less than one\nout of two hundred--were convicted or remained charged with\nthese offenses at the start of the clemency program.\nMany Clemency Board applicants fell into common\ncategories: The civilian war resister who had his\napplication for conscientious objector (CO) status denied\nand who stood trial rather than leave the country; the\nJehovah's Witness who, although granted a CO exemption and\nwent to jail because his religious convictions prohibited\nhim from accepting an alternative service assignment from\nSelective Service; the Vietnam veteran who went AWOL because\nof his difficulties in adjusting to post-combat garrison\nduty; the serviceman with a low aptitude score who could not\nadjust to military life; the serviceman who went AWOL to\nfind a better-paying job to get his family off welfare.\nThe civilian applicants were not unlike most young men\nof their age. They grew up in stable middle-class families.\nEleven percent were black, and 1.3% were Spanish-speaking.\nOver three-quarters graduated from high school, and their\naverage IQ was 111. Roughly one in four was a Jehovah's\nWitness or member of another religious sect opposed to war.\nAlmost half applied for conscientious objector exemptions,\nwhich were usually denied. The typical draft offense was\nfailure to report for or submit to induction. Three-\nquarters committed their offense because of their opposition\nto war in general or the Vietnam War in particular. For\n96%, it was their only felony offense, committed at an\naverage age of 21.\nMost civilian applicants surrendered immediately, and\nmost who were ever fugitives lived openly at home. Only 6%\never sought exile in Canada. After indictment, most pled\nguilty. Two-thirds were sentenced to probation, usually on\nthe condition that they perform alternative service. The\nother one-third went to prison, usually for periods of less\nthan one year. Less than 1% served prison terms of two\nyears or longer, but some were in prison for as long as five\nyears.\nAt the time of their applications for clemency, almost\nall were either working full-time or in school. Only 2%\nwere unemployed, with another 2% in prison for unrelated\nfelony offenses. Approximately 100 were still imprisoned\nfor their draft offenses when the President announced his\nclemency program. They were released upon the condition\nthat they apply for clemency.\nUnlike the civilian applicants, the vast majority of\nour military applicants were not articulate, well-educated,\nor motivated explicitly by opposition to the war. Almost\nnone had applied for a conscientious objector exemption\nbefore entering the service, and less than 5% committed\ntheir AWOL offenses because of opposition to the war. Most\ngrew up in broken homes, with parents struggling to cope\nwith a low income. Roughly one in five were black, and 3.5%\nwere Spanish-speaking. Despite an average IQ of 98, over\nthree-quarters dropped out of high school before entering\nmilitary service at the age of 17 or 18. Almost one in\n5\nthree were tested at below the 30th percentile of\nintelligence (Category IV on the Armed Forces Qualifying\nTest), making them only marginally qualified for military\nservice.\nMost military applicants enlisted rather than be\ndrafted, usually joining the Army or the Marines. Slightly\nover one-third were ordered to Vietnam. Seven percent\nfailed to report. The other 27% did serve in Vietnam and\nhalf either volunteered for a Vietnam assignment,\nvolunteered for a combat mission, or re-enlisted while in\nVietnam. Very few went AWOL in Vietnam; only four percent\nof all applicants went AWOL from an apparent combat\nsituation. However, almost one in four suffered from mental\nstress caused by combat, and two in five have experienced\nsevere personal problems as a result of their Vietnam tour.\nTwo percent all military applicants returned from Vietnam\nwith disabling injuries.\nAWOL offenses usually occurred after training and in\nstateside bases. Over half committed their offenses because\nof serious personal or family problems. Other common\nreasons for AWOL offenses included resentment of some action\nby a superior or a general dislike of military service.\nTypically, they went AWOL two or three times. Most returned\nto their home towns, where they lived openly. Only 2% of\nthe military applicants ever sought exile in Canada. Almost\nhalf surrendered voluntarily after their last AWOL offense.\nAt the time of their last AWOL, they were typically 20 or 21\nyears old and had accumulated 14 months of creditable\nservice.\nUpon their return to military control, about 15% were\ngiven administrative Undesirable Discharges for Unfitness.\nThe other 85% faced court-martial charges, roughly half\naccepting an Undesirable Discharge in lieu of court-martial.\nThis was a particularly frequent practice among applicants\ndischarged after 1970. The remaining 40% stood general or\nspecial court-martial, were convicted, and received Bad\nConduct or Dishonorable Discharges. All court-martialed\napplicants spent at least some time in confinement, with\ntheir sentences averaging five months in length. About 170\nwere still confined when the clemency program started, and\nthey were released upon application.\nThe bad discharges have seriously affected the current\nemployment status of military applicants. Seventeen percent\nwere unemployed at the time of their clemency applications,\nwhereas only 8% were unemployed during their last AWOL\noffenses. Another 7% were presently incarcerated for\ncivilian felony offenses. Altogether, 12% had been\nconvicted for at least one civilian felony offense at one\npoint in their lives.\n6\n4. Procedural and Substantive Rules\nThe Clemency Board was the only new entity created by\nPresident Ford for the special purpose of reviewing the\ncases of clemency applicants. Originally, the President\nnamed nine members to the Board, designating former U.S.\nSenator Charles E. Goodell as the Chairman. After the great\nincrease in applications, the President expanded the Board\nto eighteen members. Both the original Board and the\nexpanded Board were representative of a cross-section of\nviews on the Vietnam War and on the issue of clemency. The\nBoard consisted of 13 veterans of military service, three\nwomen, and two priests. The Board included five Vietnam\nveterans, two of whom were severely disabled in combat.\nAnother member has a husband who still is listed as missing\nin action. Our policies and case dispositions reflected a\nsynthesis of the different backgrounds and experiences of\nour members.\nThe Board worked hard during the spring and summer to\nfulfill the President's requirement that we give each case\nindividual attention before his September 15 deadline. The\nconsensus was remarkable, given the wide range of views\nrepresented on the Board. What we sought to maintain was a\nreasoned, middle ground. The President's goal of national\nreconciliation found, expression in the spirit of compromise\nand accommodation that guided the Board.\nTo assure the fairness and consistency of our case\ndispositions, we developed a case-by-case review procedure\nconsistent with the President's goal of clemency. Because\nthis was a program of clemency, not law enforcement, we\nunanimously decided not to seek the assistance of the FBI in\npreparing our cases. We limited our file acquisition to the\nofficial military or court records. Similarly, we kept case\nfiles confidential to protect the rights of applicants and\nto preserve the spirit of reconciliation. We promise strict\nconfidentiality to all who applied to the Board. For each\ncase, staff attorneys prepared narrative summaries which\nwere carefully checked for accuracy. Each applicant was\nsent his summary and encouraged to identify errors and to\nprovide additional information. Staff attorneys presented\ncases in oral hearings before panels consisting of three or\nfour Board members who had read the summaries in advance.\nThe attorneys' supervisors were present as panel counsels to\nassure staff objectivity. They also served as legal\nadvisors to ensure that Board policy precedents were applied\ncorrectly. Every Board member had the right to refer any\ncase to the full Board. This right was exercised in only\nabout 700 (5%) of our cases. The Chairman referred some\ncases to the full Board with the assistance of a computer-\naided review which flagged case dispositions for being\neither too harsh or too lenient.\nCase dispositions varied little from week to week,\nespecially after our basic policy decisions had been made.\nDuring our first six months, we decided 500 cases,\nrecommending outright pardons (without alternative service)\nto 46% of all cases, denial of clemency to 3%, and\nalternative service to the remainder. During our latter six\n7\nmonths, we decided 14,514 cases, recommending outright\npardons to 44%, denial of clemency to 6%, and alternative\nservice to the remainder.\nContributing to the fairness and consistency of our\nprocess were the clear rules we established and published\nfor deciding cases. Our alternative service \"baseline\"\nformula took account of the fact that all of our applicants\nhad been punished for their offenses. We started with 24\nmonths, deducting three months for every one month spent in\nconfinement, and deducting one month for every month spent\nin satisfactory performance of court-ordered alternative\nservice. In cases where military officials and Federal\njudges had adjudged short sentences, we reduced the baseline\nfigure to match the sentence actually given. Our minimum\nbaseline was three months, and almost 98% of our applicants\nhad baselines of six months or less.\nTo determine whether an applicant deserved clemency--\nand, if so, whether his assigned period of alternative\nservice should be different from his working baseline--we\napplied 28 specific aggravating and mitigating factors. As\nwith our baseline formula, we developed our list of factors\nby consensus. We were especially concerned about the\nreasons for an applicant's offense and the circumstances\nthat had prompted it. Likewise, we considered his overall\nrecord as a serviceman and as a member of his community.\nAlmost all of our designated factors were established very\nearly. Only two totally new aggravating factors were\nestablished by the expanded Board, although all factors were\ncontinually clarified as new fact situations arose. Each\nfactor was codified, with illustrative case precedents,\nthrough publication of five issues of an in-house policy and\nprecedent journal called the Clemency Law Reporter.\nOur final list of aggravating factors consisted of the\nfollowing:\n1. Other adult convictions;\n2. False statement to the board;\n3. Use of physical force in comming offense;\n4. AWOL in Vietnam;\n5. Selfish motivation for offense;\n6. Failure to do alternative service;\n7. Violation of probation or parole;\n8. Multiple AWOL offenses;\n9. Extended AWOL offenses;\n10. Missed overseas movement;\n11. Non-AWOL offenses contributing to discharge for\nunfitness; and\n12. Apprehension by authorities.\n8\nOur final list of mitigating factors consisted of the\nfollowing:\n1. Inability to understand obligations or remedies;\n2. Personal or family problems;\n3. Mental or physical condition;\n4. Public service employment;\n5. Service-connected disability;\n6. Extended creditable military service;\n7. Vietnam service;\n8. Procedural unfairness;\n9. Questionable denial of conscientious objector\nstatus;\n10. Conscientious motivation for offense;\n11. Voluntary submission to authorities;\n12. Mental stress from combat;\n13. Combat volunteer;\n14. Above average military performaning ratings;\n15. Decorations for Valor; and\n16. Wounds in Combat.\n5. Case Dispositions\nWe did not apply each factor with equal weight. For\nexample, conscientious motivation or serious personal or\nfamily problems often led to outright pardon\nrecommendations. The following two cases are typical:\n(Case 2)\nThis civilian applicant had participated\nin anti-war demonstrations before refusing\ninduction. He stated that he could not\nfight a war which he could not support.\nHowever, he does believe in the need for\nnational defense and would have served in\nthe war if there had been an attack on\nUnited States territory. He stated that\n\"I know that what is happening now is\nwrong, so I have to take a stand and hope\nthat it helps end it a little sooner.\"\n(Case 3)\nThis military applicant's wife was\npregnant, in financial difficulties, and\nfaced with eviction; she suffered from an\nemotional disorder and nervous problems;\nhis oldest child was asthmatic and an\nepileptic, having seizures that sometimes\nresulted in unconsciousness. Applicant\nrequested transfer and a hardship\ndischarge, both of which were denied.\nCreditable Vietnam service was also a highly\nmitigating factor, usually resulting in an outright pardon.\nIn particularly meritorious cases, we recommended to the\nPresident that he direct the military to upgrade the\napplicant's discharge to one under honorable conditions,\nwith full entitlement to veterans' benefits. We were\nparticularly concerned about the eligibility of wounded or\n9\ndisabled veterans for medical benefits. Ne made upgrade\nrecommendations in the following two cases,\nABOUT Elevery CASES,\nof WHICH THE fourmerns TWO ARE\n(Case 4)\nThis applicant did not go AWOL until after\nTYPICAL:\nreturning from two tours of duty in\nVietnam, when his beliefs concerning the\nwar changed. He came to believe that the\nThe The\nU.S. was wrong in getting involved in the\nwar and that he \"was wrong in killing\nTHAT EVERY WOUNDED SHORO of ,N\npeople in Vietnam.\" He had over three\nyears' creditable service, with 14\nexcellent conduct and efficiency ratings.\nHe re-enlisted to serve his second tour\nwithin three months of ending his first.\nHe served as an infantry man in Vietnam,\nwas wounded, and received the Bronze Star\nfor Valor.\n(Case 5)\nDuring applicant's combat tour in Vietnam,\nhis platoon leader, with whom he shared a\nbrotherly relationship, was killed while\nawakening applicant to start his guard\nduty. The platoon leader was mistaken for\na Viet Cong and shot by one of his own\nmen. This event was extremely traumatic\nto applicant, who subsequently experienced\nnightmares. In an attempt to cope with\nthis experience, applicant turned to the\nuse of heroin. After becoming an addict,\nhe went AWOL. During his AWOL, he\novercame his drug addiction only to become\nan alcoholic. After obtaining help and\ncuring his alcoholism, he turned himself\nin.\nOn the other hand, some aggravating factors were\nconsidered very grave, generally leading to \"No Clemency\"\ndecisions. There were a few applicants who clearly went\nAWOL from combat situations.\n(Case 6)\nThis military applicant would not go into\nthe field with his unit, because he felt\nthat the new commanding officer of his\ncompany was incompetent. He was getting\nnervous about going out on an operation;\nthere is evidence that everyone believed\nthat there was a good likelihood of enemy\ncontact. He asked to remain in the rear,\nbut his request was denied. Consequently,\nhe left the company area because, in the\nwords of his chaplain, \"the threat of\ndeath caused him to exercise his right to\nself-preservation.\" His company was\nsubsequently dropped onto a hill, where it\nengaged the enemy in combat. Applicant\nwas apprehended while traveling on a truck\naway from his unit without any of his\ncombat gear.\nFORD is 9ERALD LIBRARY\nWe denied clemency in the above case, but other cases\nof AWOL in Vietnam involved strong mitigating factors.\n10\nOften, combat wounds or the psychological effects of combat\nled to AWOL offenses. For example, we recommended an\noutright pardon in the following case:\n(Case 7)\nApplicant was assigned to an infantry unit\nin Vietnam. During his combat service, he\nsustained an injury which caused his\nvision to blur in one eye. His vision\nsteadily worsened, and he was referred to\nan evacuation hospital in DaNang for\ntesting. An eye doctor's assistant told\nhim that the doctor was fully booked and\nthat he would have to report back to his\nunit and come back to the hospital in a\ncouple of weeks. Frustrated by this\nrejection and fearful of his inability to\nfunction in an infantry unit, applicant\nwent AWOL.\nApplicants who had been convicted of felony offenses\ninvolving serious bodily harm were generally denied\nclemency, as in the following case:\n(Case 8)\nThis civilian applicant had three other\nfelony convictions in addition to his\ndraft offense. In 1970, he received a\none-year sentence for sale of drugs. In\n1971, he received one year of imprisonment\nand two years of probation for possession\nof stolen property. In 1972, he was\nconvicted of failure to notify his local\nboard of his address. He was sentenced to\nthree years' imprisonment, but his\nsentence was suspended and he was put on\nprobation. In 1974, he was convicted of\nassault, abduction, and rape, for\nwhich he received a 20-year sentence.\nPerhaps our most difficult and disputed cases involved\napplicants who had been convicted of a civilian felony\noffense other than a draft violation, but who had strong\nmitigating factors applicable to their case. Some Board\nmembers argued that this was a program of clemency for\nVietnam-related offenses, and the Board should disregard\nother, unrelated convictions. Others argued that granting\nclemency to convicted felons would cheapen the clemency\ngrants. The majority of the Board took the middle view--\nthat a felony conviction would be viewed as a highly\naggravating factor, but each case sould be decided on its\ntotal facts, in accordance with the President's policy of\ncase-by-case review. Even so, 42% of our applicants with\nother convictions were denied clemency because of the\nserious nature of their offense or because they did not\npresent strong mitigating factors.\nLess serious felony convictions did not overshadow an\napplicant's Vietnam service or other mitigating facts.\n(Case 9)\nThis applicant volunteered for the Special\nForces after his first year in the Army.\nHe re-enlisted to effect a transfer to\n11\nVietnam, where he served as a parachute\nrigger and earned excellent conduct and\nproficiency ratings. Altogether, he\nserved for 18 months in Vietnam and over\nthree years in the Army, with two\nHonorable Discharges for re-enlishment\npurposes. His AWOL offenses totalled 29\ndays, did not occur until after his return\nfrom Vietnam, and were attributed to his\nproblems with alcohol. After his\nUndesirable Discharge in lieu of court-\nmartial, he was convicted of stealing a\ntelevision set and served six months in\nprison. He was recently paroled.\nIn a few cases, a clear connection existed between an\napplicant's Vietnam service and his civilian conviction:\n(Case 10)\nThis military applicant served eight\nmonths in Vietnam as a supply specialist\nbefore his reassignment back to the United\nStates. His conduct and proficiency\nscores had been uniformly excellent during\nhis Vietnam service. However, while in\nVietnam he became addicted to heroin. He\ncould not break his habit after returning\nstateside, and he began a series of seven\nAWOL offenses as he \"got into the local\ndrug scene.\" Eventually, he \"ran out of\nmoney\" and \"had a real bad habit,\" so he\n\"tried to break into a store with another\nguy that was strung out.\" He was\narrested, convicted for burglary, and\ngiven an Undesirable Discharge for AWOL\nwhile on bail.\nOthers rehabilitated themselves after their offenses,\nindicating their desire to be productive and law-abiding\nmembers of their communities:\n(Case 11)\nShortly after receiving a Bad Conduct\nDischarge from the Navy for his AWOL\noffenses, this military applicant was\nconvicted for transporting stolen checks\nacross state lines. He was sentenced to a\nten-year term, but was paroled after one\nyear and four months. During his\nconfinement, he underwent psychiatric\ncare. Since his parole, he has re-married\nand established a successful\nsubcontracting business. Currently, he is\nworking with young people in his community\nin connection with church groups, trying\nto provide guidance for them. His parole\nofficer stated that applicant had\nstraightened out and is a responsible\nmember of the community.\nIn each of the above three cases, the Clemency Board\nrecommended that the President recommend an outright pardon.\n12\nObviously, we had no jurisidiction to grant clemency for the\nunrelated conviction.\nOur case disposition tallies are listed below.\nCivilian applicants received a greater proportion of\noutright pardons because they involved a higher frequency of\nconscientious reasons for the offense and a much smaller\nnumber of other criminal convictions.\nTABLE 2: CLEMENCY BOARD RECOMMENDATIONS: CIVILIAN CASES\nNumber\nPercent\nOutright pardons\n1432\n82%\nAlternative Service:\n3 months\n140\n8%\n4-6 months\n91\n5%\n7+ months\n68\n4%\nNo Clemency\n26\n1%\nTOTAL:\n1757\n100%\nTABLE 3: CLEMENCY BOARD RECOMMENDATIONS: MILITARY CASES\nNumber\nPercent\nOutright pardon\n4620\n36%\nAlternative Service:\n3 months\n2555\n20%\n4-6 months\n2941\n23%\n7+ months\n1756\n14%\nNo Clemency\n885\n7%\nTOTAL:\n12,757\n100%\n6. Management Process\nDuring the first months of the Board's existence, we\nexperienced little difficulty in organizing our work and\nreviewing our small number of cases. However, after our\nlate winter flood of applications, we were faced with a\nseemingly impossible task. Through mid-April, the original\nnine-member Board had heard 500 cases. To meet the\nPresident's deadline of September 15, we had to experience a\n40-fold increase in our case resolution rate. We met that\ndeadline--to the day--with the Board deciding every one of\nthe 14,514 cases for which we had enough information. After\nSeptember 15, 1975, 900 additional cases with partial or\nrecently arriving files were referred to the Department of\nJustice for action in accordance with Board precedents.\nMeeting the President's deadline would have been\nimpossible without a competent and dedicated staff. We and\nour staff emerged from this process with an experience in\ncrisis management which we think may be useful to managers\nof comparable entities in the future. The senior staff\n13\ndeveloped solutions to management problems which enabled us\nto act upon over a thousand cases per week. At the same\ntime, it maintained high standards of quality and integrity\nin our legal process. All policy decisions were made by the\nBoard and implemented by the staff. Having to manage an\norganization which mushroomed from 100 to 600 employees\nduring a six-week period, it is remarkable that our process\ninvolved as little confusion as it did.\n7. Historical Perspective\nTo place the President's clemency program in its\nproper perspective, one must take note of the manner in\nwhich Presidents Washington, Lincoln, and Truman applied\ntheir powers of executive clemency in dealing with persons\nwho had committed war-related offenses. President Ford's\nprogram is the most generous ever offered, when equal\nconsideration is given to the nature of the benefits\noffered, the conditions attached, the number of individuals\nbenefitted and the speed with which the program followed the\nwar. Yet the President's program does not break precedent\nin any fundamental way. The only new features of President\nFord's program are the condition of alternative service and\nthe use of a neutral Clemency Discharge.\n8. Conclusions\nWe are proud of what the President has accomplished in\nhis clemency program. He implemented his program\ncourageously, in the face of criticism from those who\nthought he did too much and those who though he did too\nlittle.\nWhen the program started, a Gallup Poll found that\nonly 19% of those polled approved of a conditional clemency\nprogram. The overwhelming majority preferred either\nunconditional amnesty or no program of any kind. By\ncontrast, an August 1975 Gallup Poll found that a majority\nof those expressing an opinion are now in favor of\nconditional clemency, with only a small minority equally\nsplit on the extremes. The same poll found that almost nine\nout of ten people would accept a clemency recipient as at\nleast an equal member of their community. Likewise, a\nsurvey of employer attitudes has discovered that a Clemency\nDischarge and Presidential Pardon would have real value when\na clemency recipient applies for a job. The clemency\nprogram is in fact accomplishing the President's objective\nof reconciling Americans.\nWhile we are confident that history will regard this\nprogram as a success, much of the work remains unfinished.\nAs of September 1975, only a very small percentage of our\napplicants have as yet been required to contact Selective\n14\nService to begin performing alternative service. of the 52%\nof our applicants who received conditional clemency, three\nquarters were assigned six months or less of alternative\nservice. We hope that most will complete this assignment\nand receive clemency. The responsibility for implementing\nthe alternative service portion of the program in a fair and\nflexible manner, fully in accord with the clemency spirit of\nthe President's program, rests with the Selective Service\nSystem\nLikewise, are pleased that the United States\nPardon\nAttorney, entrusted with the carry-over\nresponsibility for our program, has applied the policies and\nspirit of the Clemency Board. Finally, we hope that other\ngovernment agencies which will later come in contact with\nclemency recipients--especially the Veterans Administration\nand the discharge review boards of the Armed Forces--will\ndeal with them as clemently as their responsibilities\npermit.\nIn conclusion, we consider ourselves to have been\npartners in a mission of national reconcilation, wisely\nconceived by the President. A less generous program would\nhave left old wounds festering; blanket, unconditional\namnesty would have opened new wounds. We are confident. that\nthe President's clemency program provides the cornerstone\nfor national reconciliation at the end of a turbulent and\ndivisive era. We are proud to have played a role in that\nundertaking.\nAccordingly, the Clemency Board has recommended to Selective\nService that applicants be permitted to work on a part-time,\nvodunteer basis to complete short periods of alternative\nservice -- for example, by working sixteen hours per week for\na Boys' Club or church group. This way, they can earn clemency\nwithin three or six months without losing steady jobs and without\ntaking jobs away from others in their communities.\nFORD & LIBRARY GERALD\n15\nEND OF DOCUMENT Summary\nLINES PRINTED 00819\nPAGES 0017\nCUSTOMER a2220 OPERATOR 001\n222 001 Summary\nTODAY'S DATE 10/28/75\n1632\n04 lstl11e\n222-001\nCUSTOMER a2220 OPERATOR 001 PCB\n222-001\nChapter I\n001 introduction\nDATE STORED 10/24/75\n1051\n3\nWIDTH 060 DEPTH 64\nt\nt\nt\nt\nt\npj\nPRINT POSITION 07 LINE 03\nCurrent problems often have parallels in history, and\nmodern solutions may reflect decisions of earlier leaders.\nIn studying President Ford's Clemency Program, one need only\nlook back a hundred years to observe a similar situation\nconfronting another President of the United States. Just\ndays after the Civil War ended, President Andrew Johnson\nconsidered declaring an amnesty to heal the wounds of the\nnewly reunited nation. The President sought advice from\nAttorney General James Speed, who counseled moderation:\nThe excellence of mercy and charity in a national\ntrouble like ours ought not to be undervalued.\nSuch feelings should be fondly cherished and\nstudiously cultivated. When brought into action\nthey should be generously but wisely indulged.\nLike all the great, necessary, and useful powers in\nnature or government, harm may come of their\nimprovident use, and perils which seem past may be\nrenewed, and other and new dangers be\nprecipitated.¹\nOnly six weeks after he become President, Johnson\nfollowed Attorney General Speed's advice. He declared a\nlimited and conditional amnesty. To many it was inadequate,\nwhile to others it was too generous. To the President, it\nwas a reasonable approach which citizens of all persuasions\ncould find acceptable. Had the President's program not\napproached the middle ground, the perils and dangers\nidentified by Attorney General Speed might well have come to\npass.\nOver a century later, President Gerald Ford was\nconcerned about the need to heal America's wounds following\nanother divisive war. Like President Andrew Johnson, he\nannounced a clemency program six weeks after succeeding to\noffice. Like Johnson, he pursued a course of moderation.\nNo program at all would have left old wounds festering.\nUnconditional amnesty would have created more ill feeling\nthan it would have eased. Reconciliation was what was\nneeded, and reconciliation could only come from a reasoned\nmiddle ground.\nTo the members of the Presidential Clemency Board, the\nPresident's program assumed a greater meaning. We came to\nthe Board as men and women whose views reflected the full\nspectrum of the public opinion. on the war and on the\nquestion of amnesty. As we discussed the issues, a\nconsensus began to emerge. We all came to see the\nPresident's program as more than mere compromise. It was an\nappropriate and fair solution to a very difficult problem.\nAs we examined the President's program, it appeared to\nus that it was anchored by six principles. Taken together,\nthey provide an excellent means of understanding the spirit\nbehind his clemency proclamation. These principles were\nimplicit in the exercise of our Board's responsibilities\nunder the President's program.\nThe first principle was one about which there should be\nlittle disagreement: the need for a program. After almost\nnine years of war and nineteen months of an acrimonious\ndebate about amnesty, President Ford decided it was time to\nact. America needed a Presidential response to the issue of\namnesty for Vietnam era draft resisters and deserters. As\nhe created the program, the President authorized three\nentities -- the Department of Justice, the Department of\nDefense, and the Presidential Clemency Board -- to review\ncases of different categories of draft and Military Absence\noffenders. He appointed nine persons to the newly-created\nClemency Board, later expanding its membership to 18 (see\nAppendix A). He designated a fourth entity, the Selective\nService System, to implement the alternative service aspect\nof the program.\nSecond, this was to be a limited, not universal,\nprogram. Had he included only those who could prove that\ntheir offenses had resulted from opposition to war, he would\nhave been unfair to less educated persons. Had he included\nall persons convicted of military or draft offenses, no\nmatter what the nature of the crime, he would have seriously\nimpaired respect for the law. Instead, the President listed\nseveral draft and desertion offenses which automatically\nmade a person eligible to apply for clemency if committed\nduring the Vietnam era. On balance, our data on applicants\nindicates that he drew the eligibility line generously; of\nthe 113,000 persons eligible, relatively few actually\ncommitted their offenses because of a professed\nconscientious opposition to war.\nThe third principle was that the program should offer\nclemency, not amnesty. Too much had happened during the war\nto permit Americans to forget. The President often stated\nthat he did not want to demean the sacrifice of those who\nserved or the conscientious feelings of those who chose not\nto serve. But the desire not to forget does not preclude\nthe ability to forgive. President Ford declared that he was\nplacing \"the weight of the Presidency in the scales of\njustice on the side of mercy. #2 He requested that fugitive\ndraft offenders be relieved from further prosecutions, that\nmilitary absentees be discharged without court-martial, that\npersons punished for draft offenses receive Presidential\npardons, and that servicemen discharged for absence offenses\nreceive Clemency Discharges and Presidential pardons.\nHis fourth principle was that he would offer\nconditional, not unconditional, clemency. Eligible persons\nhad to apply to the program for their cases to be\nconsidered. Also, most applicants would have to earn\nclemency through performance of several months of\n2\nalternative service in the national interest. Regardless of\nthe motives behind their draft or desertion offenses, they\nstill owed a debt of service to their country. Performance\nof that service was the prerequisite for clemency.\nFifth he decided that this was to be a program of\ndefinite not indefinite, length. There would be an\napplication deadline, giving everyone more than four months'\ntime from the program's inception to apply (later extended\nby two months). This would permit all cases to be decided\nwithin one year, and -- even more important -- it would put\nan end to the amnesty issue. He hoped that reconciliation\namong draft resisters, deserters, and their neighbors would\ntake place as quickly as possible. Altogether, about 21,800\neligible persons applied for clemency.\nHis final principle was the cornerstone of the program:\nAll applicants would have their cases considered through a\ncase-by-case, not blanket, approach. Clemency would not be\ndispensed or denied automatically, by category, or by any\nrigid formula. The review of clemency applications would be\nbased upon the merits of each applicant's case, with full\nrespect given to his rights and interests. Case\ndispositions had to be fair, consistent, and timely.\nDuring our twelve months of existence, the Presidential\nClemency Board decided close to 14,500 cases. We tried to\napply the spirit of these principles to every case. In this\nreport, we explain what actions we took, what we learned\nabout our applicants, and what we think we accomplished.\nWhere possible, we also try to put the President's entire\nclemency program in some perspective.\nChapter two consists of a discussion of how each of the\nPresident's six principles was implemented. In Chapter\nthree, we describe what we learned about the experiences of\nthe civilian and military applicants to the Clemency Board.\nWe discuss our procedural and substantive rules in some\ndetail in Chapter four, followed by an analysis of our case\ndispositions in Chapter five. In Chapter six we describe\nhow we managed what was often a \"crisis\" operation. In\nChapter seven we try to put the President's program into an\nhistorical perspective through a comparative analysis of\nother acts of executive clemency in American history. The\nReport closes with Chapter eight with a discussion of what\nwe think the President's program accomplished. Illustrated\nthis discussion are excerpts from actual Clemency Board\ncases, plus statistics from a comprehensive survey we\nconducted from the case summaries of almost 1,500\napplicants. Some particularly illustrative cases are\npresented in more than one chapter.\n3\nEND OF DOCUMENT Chapter I\nLINES PRINTED 00177\nPAGES 0005\nCUSTOMER a2220 OPERATOR 001\n222 001 Chapter I\nTODAY'S DATE 10/28/75\n1633\n05 1st111e\n222-001\nCUSTOMER a2220 OPERATOR 001 PCB\n222-001\nChapter 2\n001 clemency board\nDATE STORED 10/24/75\n1506\nw\nWIDTH 060 DEPTH 64\nt\nt\nt\nt\nt\npj\nPRINT POSITION 07 LINE 03\nA. The Need for a Program--and Its Creation\nRegardless of political or philosophical perspective,\nall will agree that the war in Vietnam had a significant\nimpact on our country and on the lives of most American\ncitizens. The war resulted in the loss of hundreds of\nthousands of lives, including the lives of fifty-six\nthousand American servicemen. It forced many more people to\nleave their homes and countries. Nightly, television\nbrought the war into American living rooms. For the first\ntime, the average citizen witnessed the reality of war,\nalmost at first hand. Conflict between pro-war and anti-war\nadvocates increased dramatically. Slogans such as \"America,\nLove It or Leave It,\" \"Peace with Honor,\" and \"Unconditional\nAmnesty Now\" came to be symbolic of the divisions in our\ncountry. Patriotism meant different things to different\npeople. Many believed that love of country could best be\ndemonstrated by defending America's interest on the\nbattlefield. Others insisted that love of country required\na crucial reversal of national policy. They felt that by\nopposing the war and resisting military induction, they\ncould serve America best by influencing changes in its\nforeign policy.\nOvershadowing the political consequences of the war were\nthe personal tragedies. Thousands of Americans lost their\nlives, and thousands of American families lost their loved\nones. Untold hundreds of thousands must bear physical and\npsychological scars for the remainder of their lives.\nNothing can ever be done to compensate for the supreme\nsacrifice of those who die or lose their loved ones.\nNonetheless, this does not preclude a subsequent decision to\nbe merciful toward those who did not serve.\nAfter the war ended, it remained clear that America had\nsuffered other casualties as well. The war affected the\nlives of tens of thousands of young Americans who had chosen\nnot to serve. Their families and friends shared their\nburden of exile, imprisonment, and separation.\nShortly after assuming office, President Ford sensed the\nneed to \"bind the Nation's wounds and to heal the scars of\ndivisiveness. As one of his first initiatives as\nPresident, he issued Proclamation 4313, creating the\nClemency Program. The President believed that \"in\nfurtherance of our national commitment to justice and\nmercy, it was time to achieve a national \"reconciliation\"\nwith the greatest degree of public cooperation and\nunderstanding.² To outline how his program was to be\nimplemented, he issued Proclamation 4313 and an accompanying\nExecutive Order. (See Appendix B.) When the program began\non September 16, 1974, a year and a half had passed since\nthe last American combatant had left Vietnam.\nPresident Ford recognized that desertion and draft\nevasion and unauthorized military absence are serious\noffenses which, if unpunished, might have an adverse effect\non military discipline and national defense. Nevertheless,\nhe recognized that \"reconciliation among our people does not\nrequire that these acts be condoned. 113 It did require,\nhowever, that these offenders have an opportunity \"to\ncontribute a share to the rebuilding of peace among\nourselves and with all nations, (and) to earn return to\ntheir country. He entrusted the administration of the\nClemency program to three existing government agencies --\nthe Department of Justice, the Department of Defense, and\nthe Selective Service System -- and created the Clemency\nBoard within the Executive Office of the President to\nconsider applications from people not already under the\njurisdiction of the Departments of Justice and Defense.\nThese four governmental units were ordered to implement a\nprogram offering forgiveness and reconciliation to\napproximately 113,000 draft resisters and military\ndeserters.\nUnconvicted draft evaders were made the responsibility\nof the Justice Department. 5 Members of the Armed Forces who\nhad remained at large as unauthorized absentees came within\nthe purview of the Defense Department's program.6 The vast\nmajority who had already been convicted or otherwise\npunished for Vietnam-era draft or military absence offenses\nbecame the responsibility of the newly created Presidential\nClemency Board.\nOn September 16, 1974, the President appointed nine\npersons to this Board. Former United States Senator Charles\nE. Goodell was designated as Chairman.\nBeginning in September, the Board met on a regular basis in\nWashington, D.C. As the number of applications swelled from\n860 in early January to 21,500 by the end of March, it\nbecame apparent that the nine original Board members and the\ninitial staff of less than 100 could not complete the\nBoard's work within the twelve-month deadline set by the\nPresident. In May 1975, the President expanded the Board to\neighteen members and authorized a staff of over 600 to\ncomplete the work on time.\nThe original nine-member Board was broadly\nrepresentative of national feelings on the war and on the\nissue of amnesty and clemency. The expanded Board of\neighteen was carefully selected to preserve this balance,\nincluding members with widely ranging experiences and points\nof view. Many had spoken out strongly against the war, some\nhaving advocated unconditional amnesty. Others believed\nthat our mistake lay in not pursuing the war effort more\nvigorously.\n2\nAll Clemency Board members were aware that the\nPresident's program had to be implemented carefully to avoid\nhaving a serious impact on military discipline and to avoid\nimpairing our strength in a future military emergency. The\nBoard consisted of thirteen veterans of military service,\nthree women, and two priests. Five were Vietnam veterans,\ntwo of whom were seriously disabled in combat. Another\ncommanded the Marine Corps in Vietnam. One Board member had\na husband listed among those missing in action. Two Black\nmen, one Black woman and one Puerto Rican woman were on the\nBoard. We also had a former local draft Board member, an\nexpert in military law, and others with special backgrounds\nand perspectives which contributed to a well-balanced\nBoard.⁷ (See Appendix A.)\nB. A Limited, Not Universal, Program\nWhen the President announced his clemency program, he\nhad to draw a line between those who were eligible and those\nwho were not. That line was drawn in a generous manner. In\norder to encompass Vietnam-era offenders who opposed the war\non conscientious grounds, the President enumerated a\nsizeable list of offenses. He decided not to impose a test\nof conscience. It would have been improper to regard those\nwho could articulate their opposition to the war as the only\npersons with a legitimate claim to clemency. The complex\nSelective Service procedures tended to favor the better-\neducated and the sophisticated. Those who were not able to\nexpress themselves may still have had strong feelings about\nthe war, but may not have been successful in pursuing their\nlegal opportunities. A fair program of clemency could not\nbe restricted to those already favored by education, income,\nor background.\nIn a broader sense the atmosphere of division, debate,\nand confusion about the war had an impact on all those\ncalled upon to serve. If the war had been universally\nregarded as critical to the survival of the United States,\nit is unlikely that many of these Americans would have\nplaced their personal needs or problems above those of the\ncountry. This war was not universally regarded as such, and\nmany of those who failed to serve did so, consciously or\nnot, because the needs of the country were not as evident to\nthem as were the personal sacrifices they or their families\nfaced.\nFor these reasons, the President's definition of those\neligible for clemency was phrased in terms of offenses\ncommitted, not in terms of the reasons for the offense. The\nPresident extended this clemency offer to veterans who went\nAWOL (absent without official leave) to find medical\nassistance to treat their combat wounds, to cope with\nreadjustment problems after returning from Vietnam, or to\nsupport families forced to go on welfare. Likewise, he\nextended it to civilians from disadvantaged backgrounds\nwhose ignorance and itinerancy led to their failure to keep\ntheir draft boards informed of their whereabouts. In the\n3\nthousands of cases we have reviewed, we found that the list\nof victims of the Vietnam War was of much greater variety\nthan we had originally thought.\nEligibility Criteria for the Program\nThe Presidential Proclamation established three criteria\nfor eligibility. First, the program applied only to\noffenses that occurred during the war period. This was\ndefined as extending from the passage of the Gulf of Tonkin\nResolution (August 4, 1964) through the day the last\nAmerican combatant left Vietnam (March 28, 1973). Second,\nan applicant must have committed one of the offenses\nspecifically listed in the Proclamation. Military\napplicants must have violated Article 85 (desertion) of the\nUniform Code of Military Justice, Article 86 (absence\nwithout leave), or Article 87, (missing movement). Civilian\ndraft offenders must have committed one of the following\nviolations of Section 12 of the Selective Service Act: (1)\nfailure to register for the draft or register on time; (2)\nfailure to keep the local draft board informed of his\ncurrent address; (3) failure to report for or submit to\npreinduction or induction examination; (4) failure to report\nfor or submit to induction; or (5) failure to or complete\nalternative service. Third, an applicant must not have been\nan alien precluded by law from reentering the United\nStates.\nThe eligibility tests set by the President no doubt\nexcluded some fugitives, convicted offenders, and discharged\nservicemen whose offenses were motivated by their opposition\nto the war. For example, there were a few military\napplicants who, out of conscientious objection to the war,\nrefused to report to Vietnam. Instead of going AWOL, these\nmen faced court-martial for willful disobedience of lawful\norder. Had they gone AWOL, they could have applied\nclemency; because they remained on their bases and accepted\nthe punishment for their actions, they still have their bad\ndischarges. Also, persons convicted of or charged with\nother Selective Services offenses, such as draft card\nmutilation or aiding and abetting draft evasion were\nineligible for clemency because these were not among the\noffenses listed in the Executive Order.\nBefore the President announced his program, there had\nbeen considerable debate in Congress and elsewhere about the\nkinds of offenses that properly should be included in a\nclemency or amnesty program. As with most disputes on the\nsubject, opinions varied greatly. There was general\nagreement, however, that absence and induction offenses\nshould be included because the vast proportion of Vietnam-\nrelated offenses were of this type. Had the President's\nprogram included categories of offenses involving calculated\ni\nFORD\ninterference with the draft system or with military\ndiscipline, or involving violence or destruction of\nproperty, it would have had a far more serious impact on\nGERALD\nLIBRARY\nrespect for law and military discipline.\n4\nEligibility for the Presidential Clemency Board\nApplicants eligible to apply to our Board included only\nthose who had been convicted or punished for the above\noffenses.' For a civilian to be eligible, he must have been\nconvicted of one of the Selective Service violations listed\nabove. For a former serviceman to be eligible, he must have\nreceived an Undesirable, Bad Conduct, or Dishonorable\nDischarge as a consequence of his absence offenses. Anyone\ndischarged with either an Honorable or a General Discharge\nwas not eligible.\nThe Proclamation prevented our Board from accepting\ncases in which the underlying facts of the offense may have\nsupported a charge over which we had jurisdiction, but in\nwhich the individual was in fact prosecuted for a\nnonqualifying offense. The Executive Order clearly stated\nthat the discharge must have been based on unauthorized\nabsence. Thus, a conviction for failure to obey an order to\ngo to an appointed place must have also been charged as an\nAWOL. 10 A serviceman discharged for a civilian conviction\ncould also have been discharged for unauthorized absence\nwhile in civilian custody. 11 There were numerous gray areas\nin which difficult jurisdictional determinations had to be\nmade.\nThe other agencies had accurate counts of individuals\neligible for their programs; 4,522 were eligible for the\nJustice program, and 10,115 for the Defense program. We had\nto rely entirely on estimates which these agencies gave us.\nOur 8,700 total for civilian eligibles came directly from\nDepartment of Justice records. Our 90,000 figure for\nmilitary eligibles is 80% of the 111,500 originally\nestimated by the Department of Defense from their records of\nAWOL-related discharges. We reduced that later figure by\n20% because the Department of Defense found that its\noriginal estimate of persons eligible for its own program\nwas 20% too high; they reduced it from 12,600 to 10,115\nthrough a closer inspection of records. We expect that the\nsame attrition would result from a close inspection of our\nown eligible persons' records.\nWe recognized that this was a clemency program,\nrequiring us to interpret our jurisdictional boundaries\nbroadly. To be narrow and unduly legalistic in determining\neligibility would have been contrary to the spirit of the\nprogram.\nThe military cases presented difficult questions of\ninterpretation. For example: \"The Board shall consider\nthe case of persons who have received punitive or\nundesirable discharges as a consequence of violations of\nArticles 85, 86, or 87 \"12 The phrase \"as a consequence\nof\" gave us particular difficulty. We decided that the\nphrase did not mean \"as a consequence of\" an AWOL only. In\nmany cases, individuals had been administratively discharged\nfor unfitness or frequent involvement with authorities based\non a pattern of offenses, including AWOLS, none of which\nwarranted a court-martial. The AWOL had to be viewed as a\ncontributing factor, if not the sole cause of the discharge.\n5\nThis occasionally meant that an individual might have been\nadministratively discharged for unfitness for a very short\nAWOL, plus numerous other minor infractions. It was\nimpossible to devise any objective method to separate the\nreasons for the discharge. The military services leave\nadministrative discharges for unfitness to the discretion of\ncommanders. They do not have binding rules on the character\nof misconduct necessary to warrant an Undesirable Discharge.\nWe recognized the dual need to have clear and objective\njurisdictional rules, while at the same time retaining\nflexibility to make correct dispositions in cases in which a\nshort AWOL was an insignificant factor in the discharge. We\ndecided that the need for clear and consistent\njurisdictional rules required us to accept these marginal\ncases, since the right to have one's case heard should be\nbroadly granted. However, the fact that an applicant had\ncommitted military offenses other than AWOL sometimes\nresulted in a denial of clemency, a consequence perhaps more\ndetrimental than a denial of jurisdiction.\nThe court-martial cases presented similar difficulties\nbecause sentences were not rendered separately when an\nindividual was convicted on several different charges, one\nof which was an AWOL. Since an individual might well have\nbeen court-martialed for a major felony together with a very\nshort AWOL, it was obvious that the discharge would have\nbeen awarded regardless of the AWOL offense. In court-\nmartial cases, however, military regulations define the\nmaximum punishments for different offenses. Thus, we\nconsulted the Manual for Courts Martial, Table of Maximum\nPunishments13 to formulate simple rules to determine when we\nhad jurisdiction in cases involving court-martial\ndischarges. We applied the same rules to administrative\ndischarges given in lieu of court-martial. As a general\nrule, we determined that:\n1. We had jurisdiction if the AWOL offenses that\ncommenced within the qualifying period standing\nalone were sufficient to support the discharge that\nthe applicant received;\n2. We had jurisdiction if neither the AWOL offenses\nthat commenced within the qualifying period nor the\nnon-AWOL offenses, considered independently, were\nsufficient for the discharge that the applicant\nreceived;\n3. We did not have jurisdiction if the AWOL offenses\nthat commenced within the qualifying period were\ninsufficient and any one of his other offenses,\nconsidered independently, was sufficient for the\ndischarge that the applicant received.\nThe exclusion from the program of persons who were\nprecluded by law from re-entering the United States also\nposed difficult problems. If an order of a court or the\nImmigration and Naturalization Service had already decided\nGERALD R. FORD\nthe question, we were bound by that determination. But we\nconsidered it not within our province to decide complex\nquestions of immigration and citizenship law. For that\n6\nreason, we provisionally accepted the cases of persons for\nwhom no such determination had yet been made. We made\ntentative decisions on these cases, forwarding them to the\nPresident with a recommendation that he not act until proper\njudicial or administrative determinations had been made by\nthe Justice Department.\nAltogether, we received approximately 6,000 applications\nfrom ineligible persons. Many had committed offenses during\nother wars, had received General Discharges, or had been\ndischarged for offenses not listed in the Proclamation.\nWhile we could not help them directly, we informed each one\nby letter of other legal and administrative remedies\navailable to them.\nC. CLEMENCY, NOT AMNESTY\nIn the years before President Ford assumed office,\nopinion was sharply divided over whether there should be any\nrestoration of the rights and benefits offered by the\ngovernment to Vietnam-era draft and AWOL offenders. Many\ncitizens believed that the offenders' rights and benefits,\nincluding full veterans benefits, should be restored.\nOthers insisted that they be given nothing. President Ford\nchose the middle course.\nTo unconvicted draft offenders, the President offered\nthe promise that they would not be punished for their\nactions, enabling them to avoid the lifetime stigma of a\nfelony conviction. Their prosecutions would be dropped.\nAll others whose cases had not yet resulted in a decision to\nprosecute were relieved of any future danger of prosecution.\nTo undischarged military absence offenders, the\nPresident offered an immediate end to their fugitive status,\nwith the promise that they would not be court-martialed or\nimprisoned for their offenses. They would receive an\nimmediate Undesirable Discharge and an opportunity to earn a\nClemency Discharge. To a small number of fugitive\nservicemen with exceptionally good records or other special\ncircumstances, application to the program could also result\nin reinstatement in the military or an immediate discharge\nunder honorable conditions through normal military channels.\nTo convicted draft offenders, the President offered\nofficial forgiveness for their actions through the highest\nconstitutional act available to him. They would receive a\nfull Presidential pardon.\nTo military absence offenders who had received bad\ndischarges, the President offered official forgiveness in\nthe form of a full Presidential pardon, and an upgrade to a\nClemency Discharge.\nTo those who were still serving prison terms for\nGERALD FORD LIBRARY\ndesertion or evasion, the President directed an immediate\nfurlough for each person who applied for clemency. With the\n7\nexception of one person who chose not to participate, each\nof the roughly 100 incarcerated civilians and 170\nincarcerated servicemen who applied to the Presidential\nClemency Board were released. Under the President's\ndirection, the Presidential Clemency Board gave priority to\nthose cases, and all had their sentences permanently\ncommuted.\nIn the remainder of this section, we describe in more\ndetail the dimensions of the President's program, and\ncompare it to the relief which might have been available\nunder an \"amnesty\" program. In doing so, we explore the\nsources of the President's power to grant executive\nclemency.\n\"Clemency\"\nClemency can be defined as the tendency or willingness\nto show forbearance, compassion, or forgiveness in judging\nor punishing, or as an act of mercy or lenience. 14 The\nPresident's authority to grant clemency is derived from a\nnumber of powers given him by the Constitution. His\nConstitutional authority to grant pardons¹⁵ permits him to\ngrant clemency to a particular person or group of persons.\nIn granting a pardon, a President is often prompted by the\ndesire to show compassion or leniency. It is not necessary\nthat the individual be convicted of, or even charged with,\nan offense. 16 He may commute sentences and fines, but he may\nnot order the return of sums already paid. 17 Also he may\ngrant stays or relief from execution of sentence -- a\nconstitutional \"reprieve\" or commutation. Although only the\nPresident can grant pardons, the Pardon Attorney in the\nDepartment of Justice administers the process in his behalf.\nThe President, as Commander-in-Chief of the Armed\nForces; 18 may request any branch of military service to\nupgrade a bad discharge. Through the executive power vested\nin him, the President may request subordinate federal\nofficers not to enforce criminal statutes against an\nindividual to whom he wants to grant clemency. 19\nThe Constitution grants the President the sole\ndiscretion to exercise his pardoning power. He is not\nanswerable to the judiciary or to the Congress for his\ndecision to grant or to refuse to grant a particular pardon.\nHe may not be ordered to grant pardons, nor may his pardons\nbe revoked. 20 Barring an impeachable abuse of his powers,\nthe President is answerable in his exercise of this power\nonly to his conscience, to his understanding of the national\nwelfare, and to the public -- whose acceptance is necessary\nto give full meaning to his act of executive clemency.\nThe Presidential pardon is the supreme constitutional\nact of forgiveness or mercy. It is an expression of\nsociety, through the Chief Executive, signifying that it\nwill disregard the offense for which an individual was\noriginally prosecuted. It thus removes the social blot of a\ncriminal conviction and relieves any continuing impairment\nBERALD FORD LIBRART\nof federal civil rights. Because a pardon is an act of\n8\nexecutive grace, it may be given to right a wrong, to\ncorrect an injustice, or to excuse a repentant wrongdoer.\nIt may be offered to ease the harshness of the law when\npersonal hardship or the public good is involved.\nA Presidential pardon restores Federal civil rights lost\nas a result of the conviction, such as the right to hold\nfederal office or to sit on a federal jury. Also, most\nstates recognize a Presidential pardon as a matter of\ncomity, restoring the right to vote, to hold office, and to\nobtain licenses for trades and professions from which\nconvicted felons are often barred. A pardon does not change\nhistory, and it does not compensate for any rights or\nbenefits, legal or economic, that the individual has already\nlost before his pardon. It operates prospectively only. A\npardon is a Presidential expression that the stigma of\nconviction has been removed, and that its recipient should\nno longer be discriminated against when seeking jobs,\ncredit, housing, or any other opportunities. However, a\npardoned offender is not considered as though he never\ncommitted the offense. 21 A full pardon removes most of the\nlegal disabilities of the offense, but it does not bring its\nrecipient treatment equal to that accorded a person who has\nnever committed an offense. 22\nAlthough the Executive Order did not state explicitly\nthat a Presidential pardon was to be the form of clemency\noffered to applicants to the Clemency Board, the President\nsoon made it clear to us that this was his intent. The\nPresident confirmed the Board's understanding that he wished\na pardon to be the form of clemency offered to convicted\nevaders and to military absentees, whether they had been\ndischarged by court-martial or by administrative action. No\nother form of clemency action would have had meaning. The\ngrant of a pardon to a person who had been discharged\nwithout a court-martial conviction was a generous gesture,\nbut not a break from precedent. A President pardons the\nact, not merely the judicial consequences that may have\nflowed from it. Previous Presidents granted pardons to\npersons who had suffered administrative penalties for a\nwrongful act, even though they had never been convicted of a\ncrime. President Ford therefore decided that he would offer\npardons to the persons who had been given Undesirable\nDischarges for AWOL offenses but who had not been convicted\nin a military court. This group comprised 60% of the\nmilitary applicants to the Presidential Clemency Board.\nThe penalties for violation of military discipline\ndiffered from those for violation of civilian law. A\nmilitary offender not only could receive a conviction and a\nsentence of imprisonment or a fine, but he also could be\nreleased with a discharge which characterizes his military\nservice as unsatisfactory. While a pardon affects the\nconviction, it has no impact on the type of discharge\ngranted. For that reason, the President provided that a\nrecipient of clemency should also have his discharge\nrecharacterized as a Clemency Discharge, a new designation\ncreated specially for this program.\nGERALD FORD LIBRARY\nThe Clemency Discharge was intended by the President to\nbe a \"Neutral\" discharge, to be considered neither under\n9\n\"Honorable Conditions\" nor under \"Other than Honorable\"\nconditions. Military records are recharacterized with the\nnew Clemency Discharge, which is in substitution for the\nearlier Bad Conduct or Undesirable Clemency Discharge (under\nother than honorable conditions) or Dishonorable Discharge\n(under dishonorable conditions). A Clemency Discharge is\nneutral, better than the discharge it replaces but not as\ngood as a General Discharge, which is given affirmatively\nunder honorable conditions.²3 By express direction in the\nProclamation, a Clemency Discharge bestows no veterans'\nbenefits itself. Nor, however, does it adversely affect the\nconditional availability of veterans' benefits to holders of\nUndesirable or Bad Conduct Discharges. Otherwise, the\nPresident's act of clemency would have had the effect of\nimpairing and not improving an applicant's status. Neither\ncommon sense nor the language of the Proclamation supports\nsuch a result.\nThe President's program was intended as a unique and\nsupplemental form of relief to certain classes of former\nservicemen. It did not deny pre-existing statutory or\nadministratively granted avenues of relief that While\nperhaps the relinquishment of those rights could have been\nmade a condition of the President's program, no such\ncondition was expressed in his Proclamation. For that\nreason, all military applicants who receive a Clemency\nDischarge can still apply for a further upgrade through the\nappropriate military review boards. Likewise, they can\nstill appeal for benefits to the Veterans' Administration.²\nTheir chances for success should be much better with a\npardon and Clemency Discharge than with their original\ndischarge and record of unpardoned offenses.\nWhile the Clemency Board recommended most applicants for\npardons and Clemency Discharges, the Department of Justice\nand Department of Defense also provided applicants with\nimportant benefits. Every person eligible to participate in\nthe Defense and Justice program was in jeopardy of a\nconviction. The Department of Justice program had the\neffect of dropping pending federal criminal prosecutions\nagainst fugitive civilians who were indicted or had\ninvestigations pending for a specific draft evasion offense.\nThe Department of Defense program gave relief from possible\ncourt-martial proceedings against military absentees.\nIn some respects, the Department of Justice program\noffered the greatest restoration of rights. Fugitive\ncivilians charged with draft evasion offenses faced the\npossibility of a criminal conviction, a maximum of five\nyears in prison, and a $10,000 fine25. In return for up to\ntwo years of alternative service, their prosecutions were\ndropped. They were also freed from the enduring stigma of a\nfelony conviction. Therefore, applicants to the Justice\nprogram could emerge with better records than their\ncounterparts in the Clemency Board program, since it is\nbetter to have no felony conviction than to have one which\nhas been pardoned.\nThe Justice program also resulted in the closing of case\nfiles of all civilians who may have committed specific\nGERALD FORD LIBRARY\nVietnam-era draft offenses but who had not yet been\n10\nindicted. After the program began, the Department of\nJustice directed all United States Attorneys to submit a\nlist of all persons against whom they either had or would\nsoon have indictments issued. Prior to this request, 6,239\nprosecutions had been commenced by the United States\nAttorney, and thousands of other investigations were\nunderway which could have resulted in indictments. As the\nlists were submitted, 1,717 active prosecutions were\ndismissed. The Attorney General declared that the\nDepartment of Justice would not prosecute Vietnam-era draft\nviolators who were not on the final list of 4,522 persons,\nexcept for persons who never registered for the draft. The\nother 1,717 individuals with prosecutions pending had their\ncases permanently dropped. If they were in exile and had\ncommitted no other offenses, they were free to come home. 26\nIf they were in the United States, they could plan for the\nfuture without worry. The same was true for an\nindeterminant number of other individuals who had been cited\nfor a possible draft violation by Selective Service, and\nwhose cases had been referred to the Justice Department for\nfurther action.\nBy participating in the Defense program, fugitive AWOL\noffenders automatically ended their fugitive status and were\nrelieved of the prospect of up to five years imprisonment\nand a Dishonorable or Bad Conduct Discharge. They spent one\nto three days at Fort Benjamin Harrison and received an\nUndesirable Discharge. They could then perform alternative\nservice in order to earn a Clemency Discharge. Even if they\nsubsequently fail to complete alternative service, no\nchanges can be brought against them unless it can be shown\nthat they did not intend to perform alternative service when\nthey received their Undesirable Discharge. At a minimum,\nthey re-enter society in vastly improved circumstances.\nThe Defense program provided a special form of clemency\nto forty-eight applicants. Most of these individuals had\nserved meritoriously in Vietnam or had been the victims of\nserious administrative errors which led to their offenses.\nForty-six received immediate discharges under honorable\nconditions, thereby qualifying for full veterans' benefits.\nTwo were allowed to return to military service with no\npenalty. They were much like the individuals whom the\nClemency Board had recommended to receive upgraded\ndischarges by the President for discharge upgrades to\nhonorable conditions.\nNot \"Amnesty\"\nThe debate over the President's program was often framed\nin terms of whether the President should have granted\n\"amnesty\" and not merely \"clemency.\" The word amnesty\nderives from amnestia, the Greek word for forgetfulness. It\nconnotes full official forgetfulness, an obliteration of the\nfact that a past offense ever existed. It restores rights\nand benefits lost on account of the past offense to the\nmaximum effect possible under law.\nGERALD FORD LIBRARY\n11\n\"Its effect is to obliterate the past, to leave\nno trace of the offense, and to place the offender\nexactly in the position which he occupied before\nthe offense was committed -- or in which he would\nhave been if he had not committed the offense. 1127\nThe difference between amnesty and clemency is as much a\nsemantic dispute as anything else. The terms amnesty and\nclemency have been used interchangeably in American history.\nIndeed, there is no significant legal difference between a\npardon and an amnesty:\n\"some distinction has been made, or attempted to be\nmade, between pardon and amnesty. It is sometimes\nsaid that the latter operates as an extinction of\nthe offense of which it is the object, causing it\nto be forgotten, so far as the public interests are\nconcerned, whilst the former only operates to\nremove the penalties of the offense. This\ndistinction is not, however, recognized in our law.\nThe Constitution does not use the word \"amnesty,\nand, except that the term is generally employed\nwhere pardon is extended to whole classes of\ncommunities instead of individuals, the distinction\nbetween them is one rather of philological interest\nthan of legal importance. 1128\nThe differences between advocates of clemency and\nadvocates of amnesty do not involve exercise of the\nPresident's pardon powers, but rather rights or\nbenefits that should be offered in a reconciliation\nprogram. Under the President's program, civilian\nparticipants who were not yet prosecuted could receive\nas much as could be offered -- release from further\nprosecution. Those who already been prosecuted and\nconvicted were offered a pardon, which is the most a\nPresident could give to a convicted offender. Even\nthough the President may grant a particular group of\nconvicted individuals an \"amnesty,\" each member of the\ngroup would receive nothing more than a pardon. To\nreturn any fines paid, compensate for time spent in\nprison or expunge and erase all records of a\nconviction, Congressional action would be required.\nHowever, the President could have directed that\nExecutive Branch records of conviction be sealed.\nAlso, he legally could have offered more benefits to\nmilitary participants. Through his authority as\nCommander-in-Chief, he could have directed that they\nreceive discharges under honorable conditions, with\nfull entitlement to veterans' benefits.\nIn effect, the President offered most, although not\nall, of the benefits which the law and the Constitution\npermitted him to dispense.\nFORD i LIBRARY GERALD\n12\nD. Conditional, Not Unconditional, Clemency\nThe President extended his offer of clemency in a\nspirit of reconciliation. He expected those to whom\nhis offer was made to accept it in the same spirit.\nThis meant two things: first, the individual had to\nstep forward and apply for clemency; second, he had to\nbe willing to perform a period of alternative service.\nThe conditional nature of the President's Program most\nclearly distinguished it from proposals for\nunconditional amnesty.\nThe constitutional power to pardon and grant\nreprieves carries with it the power to condition these\nforms of clemency upon the performance of certain\nconditions before or after any grant. The Supreme\nCourt of the United States recently stated:\nthis Court has long read the Constitution as\nauthorizing the President to deal with individual\ncases by granting conditional pardons. The very\nessence of the pardoning power is to treat each\ncase individually.29\nCondition of Application\nThe President could have directed the Board to review\nthe cases of all those eligible without the requirement of\nan application. The condition of application required that\nindividuals had to take some initiative to show their\ninterest in reconciliation. Further, the grant of a pardon\nmust be accepted by the recipient to be effective. It would\nhave been a useless gesture to review the cases of persons\nwho would have later declined the President's offer.\nThe Executive Order gave the Board discretion to\ndetermine acceptable applications, and we decided to make\nthe process as easy as possible. To make a timely initial\nfiling, the applicant or a person acting in his behalf had\nto contact any agency of the Federal government not later\nthan the application deadline of March 31, 1975, and express\nan interest in participating. Written inquiries were\nacceptable if mailed not later than March 31.\nSparl\nWe accepted no applications submitted after the\nPresident's deadline. We strictly construed this rule,\nrejecting approximately 500 late applications.\nApplications misdirected to consulates, probation\noffices, and Congress were all considered acceptable,\nbecause many applicants were confused about the division of\nFORD i LIBRARY GERALD\nresponsibility among the four agencies implementing the\nprogram. If this contact was in writing by the applicant\nhimself or his attorney, it was a valid application. If the\ninitial filing was made over the telephone or by someone\n30\nother than his attorney, the applicant was given until May\n31, 1975, to confirm the contact in writing.29 Individual\nFN\ncases sometimes presented difficult questions of proof,\n13\nespecially when persons made uncorroborated oral\napplications to other federal officials.\nLiving in Canada at the time, applicant alleged\nthat he telephoned a U.S. Consulate prior to March\n31 and had been told that the deadline did not\napply to his case. Unfortunately, the Consulate\nkept no records of inquiries about the clemency\nprogram. The applicant re-entered the United\nStates in early April after completing his Canadian\nemployment obligations. He immediately appeared at\na United States Attorney's office.\nIn the above case, the question of timeliness turned on\nthe credibility of the applicant. After a personal\nappearance, the Board was persuaded of the applicant's\ntruthfulness, and the members voted unanimously to accept\nhis application.\nWhere the application contained insufficient information\nfor us to obtain the facts necessary for our case-by-case\ndetermination, we tried to contact the applicant and obtain\nthese facts. We made repeated phone calls and mailings to\nthousands of applicants who had submitted timely but\nincomplete applications. Despite repeated efforts to obtain\nmore information, we ended our work on September 15, 1975,\nwith 900 applications for which we were unable to obtain the\nfacts necessary to make our decision. These cases were\nreturned to the Pardon Attorney for further investigation\nand processing in accord with Clemency Board standards and\nprecedents.\nThe application requirements of the Justice and Defense\nPrograms of the Program were specified in the Executive\nOrder. Their applicants had to appear in person to\nparticipate. Both the Departments of Justice and Defense\nrequired that an individual return to the United States if\nin another country, report to a Department office,\nacknowledge allegiance to the United States, 31 and pledge to\nperform alternative service. The Department of Justice\nrequired that, upon entering the United States, a convicted\ndraft evader had fifteen days to present himself to the\nUnited States Attorney in the judicial district in which his\ndraft evasion offense had occurred. This had to occur not\nlater than March 31, 1975. If an unconvicted evader failed\nto comply, he remained subject to prosecution for his draft\nevasion offense. In fact, no one was prosecuted during the\napplication period for failing to report within fifteen\ndays.\nTo receive clemency through the Department of Defense's\nsegment of the program, an undischarged AWOL offender had to\nreturn to the United States, surrender to any military base\nnot later than March 31, 1975, and travel to the Joint\nClemency Processing Center in Indiana. When he affirmed his\nallegiance and agreed to perform alternative service, he was\ngiven an Undesirable Discharge. He then could perform his\nGERALO, FORD LIBRARY\nassigned alternative service to earn an upgrade to a\nClemency Discharge.\n14\nCondition of Alternative Service\nThose who were required to perform alternative service\nunder any part of the President's program came under the\njurisdiction of the Selective Service System. Clemency\nBoard applicants had thirty days from the date that we\ninformed them of the President's clemency offer in which to\nenroll with Selective Service. Department of Defense and\nDepartment of Justice applicants had fifteen days in which\nto enroll.\nAll individuals assigned to alternative service were\ninformed that under Selective Service rules they could work\nanywhere in the United States. To enroll, they had to\ntravel to their desired area of residence and contact the\nnearest office of Selective Service. There are now about\n650 such offices throughout the United States. Initially,\nthe applicant had the opportunity of finding a job of his\nown choosing. He was encouraged by Selective Service to\nfind work which utilized his special talents. If he found a\nsuitable job himself, his state Selective Service Director\nhad to determine if the job met the following criteria:\na. The job must be full-time (forty hours per week) and\nmust promote the national health, safety, or interest.\nb. The enrollee cannot fill a job for which there were\nmore qualified applicants than there were spaces available.\nC. The job must be with a non-profit organization.\nd. Unless he obtains a waiver from his State Selective\nService Director, his pay must provide him with a standard\nof living that was at least equivalent to that which he\nwould have enjoyed had he gone into or stayed in the\nmilitary. 32\nIf the enrollee did not find a suitable job, the State\nSelective Service Director had to find one for him by the\nend of the thirty day period.\nBecause of local economic situations, it has often been\ndifficult for enrollees to find their own jobs, and it has\nnot always been possible for Selective Service to place\nevery enrollee within the thirty day period. To be fair to\nthe enrollee, Selective Service rules specified that if\nthrough no fault of his own the enrollee had not been placed\nin a job within the thirty day period, time would begin to\nbe credited to his alternative service commitment on the\nthirty-first day following his enrollment. While this\nGERALD, FORD LIBRARY\nprovision has permitted some an individuals to earn clemency\nwithout having a job, it has avoided penalizing a person\nwilling to serve but for whom no job has been available.\nTo avoid this problem, our Board recommended to\nSelective Service that individuals in our program be able to\nfulfill their alternative service by performing volunteer\nwork in the national interest for 16 hours per week for the\ndesignated period--three or six months in most cases.\n15\nAccording to Selective Service, alternative service jobs\nhave offered some individuals the beginning of a new career:\nA former Marine's alternative service consisted of\nassisting a jailer. He adapted well to his job,\nattended school on his own time, and is now a deputy\nsheriff.\nAn Army veteran was assigned as a rodent and insect\ncontrol inspector for the city's health department. His\nsupervisor is so pleased with his work that he hopes to\nretain him after his alternative service is over.\nAs of October 1, 1975, 128 enrollees completed their\nperiods of alternative service under the President's\nprogram. As the table below indicates, the Department of\nDefense program has the highest number of applicants in this\ncategory. Others have begun their jobs, but --\nunfortunately -- many others have not.\nTABLE 4: INFORMATION ON ALTERNATIVE SERVICE PERFORMANCE\nStatus*\nDoD\nDOJ\nPCB\nTotal\nNew Enrollees\n66\n46\n212\n324\nReferred to Jobs\n342\n71\n87\n500\nAt Work\n1269\n480\n102\n1851\nJob Interruption\n135\n30\n4\n169\nReferred to Second\nJob\n56\n21\n1\n78\nPostponed\n60\n17\n7\n84\nCompleted\n100\n21\n7\n128\nTerminated\n2479\n41\n10\n2530\nTotal*\n4507\n727\n430\n*Some applicants are classified in more than one category.\nThe success of the Department of Justice in having its\napplicants do alternative service probably reflects the\nthreat of prosecution facing those terminated from the\nprogram. Many Department of Defense applicants may have\napplied for clemency just to end their fugitive status and\nreceive an Undesirable Discharge. This may explain the\nFORD\nlarge number of Defense applicants who either never enrolled\nwith Selective Service or were later terminated for failing\nto accept the designated employment.\nGERALD\nLIBRARY\nSo far, very few of our applicants have had to enroll\nwith Selective Service. Since almost all of our applicants\n16\nwere informed of the President's decision in their cases\nafter August 1975, we do not yet have adequate information\non the number of persons in our program who have begun\nalternative service. Unlike the other two agencies\nadministering the programs, we were unable to counsel our\napplicants in person. What contacts we had with them\nsuggest that many may not understand some basic facts about\ntheir alternative service obligation. Others may not\nappreciate their rights with respect to job selection or\ntermination. The generally low level of education and\nsophistication of our applicants, and their previous\nfailures to abide by draft board or military rules,\nunderline this possibility. Also, the short alternative\nservice assignments of three to six months may make it\nharder for Clemency Board applicants to find jobs.\nAccording to Selective Service, many employers are unwilling\nto offer jobs to individuals willing to work for only a few\nmonths.\nWe believe that the true measure of our work lies not in\nthe number offered clemency, but rather in the number who\nsuccessfully fulfill the conditions we recommended and\nactually earn their pardons.\nE. A Program of Definite, not Indefinite, Length\nWhen President Ford announced the establishment of his\nclemency program, his Proclamation specifically limited the\nperiod of time in which applications could be accepted.\nOriginally, he set January 31, 1975, as the application\ndeadline. Due to the publicity and press coverage that\nheralded the announcement of the Clemency Program, we and\nthe others newly involved in its administration assumed that\nall eligible people would quickly learn about the program\nand understand what benefits could be derived from applying\nfor clemency. Therefore, we thought that four and one-half\nmonths gave potential applicants ample opportunity to decide\nif they wished to apply.\nFor the first three months of its existence, the\nPresidential Clemency Board maintained a low profile. We\nreasoned that people should not be pressured while making up\ntheir minds whether to apply and that it would be improper\nfor us to solicit their applications. Because we assumed\nthat those covered by the program knew about their\neligibility, we decided to process our applications without\ntrying to encourage anyone to apply to us.\nFORD\nWe soon learned, however, that our assumptions were\nincorrect. After reviewing the first several hundred cases,\nLIBRARY\nwe discovered that most of our applicants were not well-\neducated, articulate persons, but rather were poorly-\neducated, disadvantaged individuals who were not likely to\nbe informed about the President's program. Our military\napplicants, in particular, did not fit the stereotype of the\nknowledgeable, educated war resister. In the middle of\nDecember, when only about 800 people had applied to the\n17\nClemency Board, a limited survey of potential military\napplicants took place in Seattle, Washington. A veterans'\ncounseling organization located twelve former servicemen\neligible for our segment of the program. All twelve knew\nabout the President's offer, but none of them knew that it\napplied to former servicemen.\nThis misconception was reinforced by much of the early\nmedia attention given the program, highlighting the\nactivities of those who fled to Canada. It was the self-\nexiled draft evader and military deserter who formed the\nbasis of the stereotype which most Americans perceived as\neligible for the program. Because they had fled, they\ngenerally knew that charges were pending against them and\nthat returning without applying for clemency meant\napprehension, trial, and possible conviction. In contrast,\nthe vast majority of our applicants had already completed\nthe punishment for their offense and were trying with\nvarying success to rehabilitate their lives. Many had heard\nabout the clemency program, mistakenly thinking that it was\nonly for those who had gone to Canada.\nOnce we realized that many of those eligible to apply to\nthe Clemency Board us knew nothing about their eligibility,\nwe began an extensive public information program. On\nJanuary 7, 1975, through the cooperation of the\nAdministrative Office of the U.S. Courts and U.S. Probation\nand Parole Offices throughout the country, 7,000 information\nkits were mailed to convicted draft evaders. Throughout the\nmonth of January, similar kits were mailed to government\nagencies that had some contact with the Board's applicants,\nsuch as the Veteran's Administration, employment offices,\nwelfare offices, penal institutions, and post offices.\nClemency Board members Walt and Hesburgh taped public\nservice radio and television announcements explaining how\none could apply to the Clemency Board. On January 14, 1975,\nthese announcements were mailed to 2,500 radio and\ntelevision stations across the United States. During\nJanuary, seven members of our Board participated in one-day\n\"blitzes\" in sixteen of the major cities across the country.\nThese visits consisted of a Board member going to a city for\none day, holding press conferences, participating in various\nradio and television talk shows, and giving interviews to\nreporters from the city's major newspapers. To keep\nnational media focused on the program, Chairman Goodell held\nnumerous press conferences in Washington, D.C., and\nelsewhere during January.\nThe result of our public information campaign was a\ndramatic increase in our application rate. Applications to\nthe Board increased from 870 on January 7, 1975, to 5,403\nbefore expiration of the January 31st deadline. Due to this\nincrease, the President extended the application deadline to\nMarch 1, 1975.\nThe public information campaign was continued in\nearnest. On February 17, 1975, the Department of Defense\nmailed 21,000 information kits to discharged military\nCENALE FORD LIBRARY\npersonnel with punitive discharges who appeared eligible for\nthe program. Kits were not sent to the 75,000 eligible\npersons with administrative discharges because of the\n18\nexcessive costs of obtaining their addresses and the\ndifficulty of identifying which among hundreds of thousands\nof administrative discharges during the Vietnam era had\nresulted from AWOL-related offenses.\nMore information kits were sent to government agencies,\nand radio and television announcements were distributed to\nanother 6,500 stations. Several Board members made\nadditional one-day visits to eight key cities, some of which\nhad previously been visited. Chairman Goodell continued to\nhold press conferences in order to draw attention to prior\nmisunderstandings concerning our eligibility criteria.\nFinally, the media began to recognize the difficulties we\nwere having in communicating with our potential applicants.\nAgain there was a dramatic increase in our application\nrate. An additional 6,000 applications were received during\nFebruary, with our total exceeding 11,000. At our request,\nthe President extended the application deadline for one last\ntime. Knowing that March 31, 1975 was going to be the final\ndeadline, we intensified our efforts to reach our\napplicants. We sent staff members across the country to\nregional offices of the Veterans Administration. Workshops\nin thirty-three cities were attended by over 3,000 veterans'\ncounselors -- most of whom, surprisingly, had not yet\nlearned that former servicemen with bad discharges were\neligible for clemency.\nWe received over 10,000 applications during March,\nmaking a total of 21,500 by the time we finished counting.\nWe had ten or twenty times what we once thought possible.\nEventually, we determined that 15,468 of those 21,500 were\neligible for our program.\nThe administrators of the Departments' of Justice and\nDefense Department programs also attempted to inform their\npotential applicants. Letters were sent by the Department\nof Justice to the last-known address of each person subject\nto indictment, and many applicants used these letters to\nfacilitate their re-entry across the border. In December,\nthe Department of Defense mailed 7,000 letters to the\nparents of known military absentees.\nThe final application tallies were 706 out of 4,522\neligible for the Justice program (a 16% response) ; 33 5,555\nout of 10,115 eligible for the Defense program (a 55%\nresponse) ; 34 1,879 out of 8,700 convicted civilians eligible\nfor the Clemency Board program (a 22% response) ; and 13,589\nout of approximately 90,000 former servicemen also eligible\nfor the Clemency Board program (a 15% response)\nAltogether, 21,729 applied to the President's program, 19%\nof the 113,300 believed eligible to apply.\nCERALO FORD LIBRARY\n19\nF. A Case-By-Case, Not Blanket, Approach\nThe President specifically requested that each agency\nact upon clemency applications on a case-by-case basis. His\nProclamation declared that\n\"in prescribing the length of alternative service\nin individual cases, the Attorney General, the\nSecretary of the appropriate Department, and the\nClemency Board shall take into account such\nhonorable service as an invidual may have rendered\nprior to his absence, penalties already paid under\nlaw, and such other mitigating factors as may be\nappropriate to seek equity among those who\nparticipate in this program.\"\nThe very essence of the pardoning power is to treat each\ncase individually. The Supreme Court of the United States\nhas consistently read the Constitution to authorize the\nPresident to exercise his pardon power on a case-by-case\nbasis34.\nA case-by-case approach was more costly, requiring\ngreater time and staff to administer, but it was the heart\nof the President's program. It permitted the Clemency Board\nand the other agencies to distinguish among individuals with\ndiffering backgrounds, offenses, and circumstances. While\nmore difficult to administer, the case-by-case approach\nenabled the program to render justice by fashioning results\nto fit the many differing people who applied to the program.\nAdvocates of a blanket approach often believed that the\nstereotype of the articulate pacifist who acted on principle\nwas the only type of individual involved in the program. In\nfact, only 13% of applicants to the Clemency Board committed\ntheir offenses primarily because of opposition to war. (See\nChapter 3.)\nTreating applicants by classes or groups, with automatic\ndispositions for each category, would have demeaned the\nvalue of a Presidential pardon; it would have treated the\nindividuals who applied as groups of objects, rather than as\nhuman beings with whom reconciliation was the goal.\n1. Clemency Board Procedures\nThe Clemency Board desired to make the procedure as\nsimple as possible, with a minimum of technical requirements\nwith which an individual had to comply. We wanted the\nprocedure to be open, so that the applicant would be aware\nof how we were proceeding with his case and what we were\ni\nFORD\nusing as the basis for our actions. We encouraged the\nfullest possible participation by applicants. Above all,\nthe Board and the staff wished to make the Presidential\nGERALD\nLIBRARY\nClemency Board a model of fair and open administration in\nkeeping with the Presidential nature of our responsibilities\nand the importance of our task. The Board's procedural and\nsubstantive rules are described in detail in Chapter 4; an\noverview is presented below.\n20\nClemency Board Procedures\nIn brief, our process began with a telephone call or\nletter from an individual inquiring about clemency. We\naccepted any affirmative expression of interest as a\nprovisional application, whether oral or written, and we\naccepted applications made on an individual's behalf by\nthird parties. While these were sufficient to satisfy the\napplication deadline, we required a perfected application\nbefore we would complete action on a case³⁵. Any\napplication could be withdrawn at any time, without penalty.\nWhen an application was received, we mailed back a full\nset of instructions explaining the program, the individual's\nrights, and information on other avenues of relief he might\nwish to pursue in addition to the clemency program. To make\nthe process as unthreatening as possible, we required from\nthe individual only the minimum amount of information\nnecessary for us to order pertinent government records. We\nencouraged the applicant to send in as much additional\ninformation as he wished, and we informed him of the\nimportant factors which the Board would consider in\nreviewing his case. We encouraged the applicant to seek\nlegal counseling, and we informed him of possible sources\nfor counseling. We assured him of the confidentiality of\nour process.\nWe then began his case file and give him a case number.\nPreliminary questions of jurisdiction were resolved by the\nstaff under Board guidance. The information-gathering\nprocess then began. First, the staff ordered official\nrecords and files. After they had been received, a case\nattorney was assigned to prepare a case summary, which would\nlater be used as the basis of our case disposition. This\ncase summary was the key element of the entire case-by-case\napproach. When the case summary had been prepared, the\nquality control staff reviewed it carefully for fairness and\naccuracy. The case was then ready for presentation to the\nBoard, and the summary was mailed to the applicant for his\ncomment. Because of this reliance on government files, we\ncounted heavily on the individual's review of his summary\nfor corrections and additions. We also wanted the\nindividual to know the exact materials the Board would\nconsider in reviewing his case. Finally, we used the\nmailing of the summary as another opportunity to encourage\nthe applicant to send further information to us on his own\nbehalf.\nA panel consisting of three or four Board members then\nreceived copies of the applicant's case summary a few days\nbefore the actual case presentation. Each panel member read\nthe case summary, making notes and tentative personal\nevaluations. When the panel acted on the applicant's case,\nthe staff attorney who prepared the summary was present with\nthe entire file to answer questions and make additional\nFORD LIBRART\ncomments on the case. Also present were a staff scribe to\nkeep records and a panel counsel (usually the case\nattorney's supervisor) to advise the case attorney and panel\nmembers on Clemency Board rules and precedents.\n21\nIn deliberations, Board panels had to decide the\nfollowing: first, did the applicant deserve clemency of any\nkind? If the answer was \"yes,\" panel members determined the\napplicant's baseline or starting point for the calculation\nof his alternative service assignment, identifying which\naggravating and mitigating factors applied in his case.\n(See Chapter 4.) Panel members then decided what period of\nalternative service, if any, he had to perform to earn his\nclemency. (See Chapter 5.) If he were a military applicant\nwith combat experience, the panel considered whether to\nrecommend him for an immediate discharge upgrade and\nveterans' benefits. The staff attorney, scribe, and panel\ncounsel were present during all deliberations; Board\nmeetings were closed to the public to ensure privacy, unless\nan applicant expressly waived his right to privacy. The\nBoard granted personal appearances when necessary for a full\nunderstanding of the case.\nTo attain as much consistency in decisionmaking as\npossible, any member of the Board could refer a case for\nreconsideration by the Full Board. A computer-aided review\nof panel dispositions identified cases which the Chairman\nwished to be reconsidered by the full Board.\nOur final disposition was sent to the President as a\nrecommendation. He then indicated his positions on a signed\nwarrant, which was returned to the Clemency Board so we\ncould notify the applicant of the President's decision. The\napplicant had the right to ask for reconsideration within 30\ndays. If he did not file such a motion, he either accepted\nor refused the President's offer of clemency. Because the\nprogram was voluntary, a refusal left him no worse off than\nbefore he applied.\nDepartment of Justice Procedures\nThe Department of Justice program was implemented by the\nAttorney General's directive of September 16, 1974, to all\nUnited States Attorneys. 38 In addition to instructing the\nU.S. Attorneys on how to calculate the length of alternative\nservice for their eligible applicants, the Attorney General\nrequired them to follow certain procedures. Section V of\nhis directive stated:\n\"In the determination by the United States\nAttorney of the length of service\nan applicant\nshall be permitted to: (1) have counsel present;\n(2) present written information on his behalf; (3)\nmake an oral presentation; and (4) have counsel\nmake an oral presentation.\nAn applicant shall not have access to\ninvestigatory records in the possession of the\nUnited States Attorney except as provided by 32\nFORD i LIBRARY CERALD\nC.F.R. 160.32. The United States Attorney shall\nmake his decision on the basis of all relevant\ninformation. No verbatim record of the proceeding\nshall be required.\"\n22\nEach of the ninety-four United States Attorneys was\nresponsible for carrying out this directive. The Department\nof Justice took several steps to ensure uniform\nimplementation of its program. All U.S. Attorneys were\ninstructed to apply four specific mitigating factors. They\nreceived a model alternative service agreement and a model\nletter to send to eligible draft evaders. In addition, the\nDeputy Attorney General personally examined and reviewed the\nfirst twenty-six alternative service agreements before\ngiving final approval.\nThe procedures followed by the Department of Justice\nwere discussed by Kevin T. Maroney in his testimony before a\nSub-committee of the House Committee on the Judiciary:\n\"\nindividuals who may have been located outside\nthe country when the President announced the\nprogram were given a 15-day opportunity to re-enter\nand report to United States Attorneys without fear\nof arrest. Morever, upon reporting to the United\nStates Attorneys, no prospective enrollee was\nexpected to execute an agreement immediately\n=\n(In those instances where the individual was\nwithout financial resources, the United States\nAttorney assisted in making arrangements for legal\nrepresentation.)\n\"As a further demonstration of flexibility, not\nevery prospective enrollee has been required to\nexecute an agreement in the judicial district where\nhe was charged. In those cases where compelling\nreasons were evident, such as an ensuing family or\nfinancial hardship, exceptions were made and\nindividuals permitted to sign agreements in other\ngeographical areas. Likewise, with respect to\nthose individuals who were pursuing educational\nendeavors either in or outside the country,\narrangements were made permitting them to execute\nagreements with the understanding that the actual\nperformance of work would be delayed, pending the\ncompletion of their studies\nFollowing these procedures U.S. Attorneys dropped\nprosecutions or discontinued investigations of eligible\ndraft evaders in return for the satisfactory completion of a\nspecific amount of alternative service.\nDepartment of Defense Procedures\nIn response to the Presidential Proclamation, the\nSecretary of Defense issued a memorandum on September 17,\n1974, to the Secretaries of the Military Departments. 41 This\nmemorandum indicated that the period of alternate service\nfor servicemen who apply under the President's program would\nGERALD FORD LIBRARY\nbe determined in individual cases by designees of the\nvarious Military Departments. Pursuant to this grant of\nauthority, the Secretaries established a Joint Alternate\nService Board. Each of the four military services appointed\n23\nan officer in the grade of colonel or captain to serve on\nthe Board.\nThe Secretaries granted the Joint Alternate Service\nBoard broad authority to determine procedures for the\nresolution of its cases, except that the Presidency of the\nBoard had to be shared in such a way as to be held by a\nmember of the same service as the applicant whose case was\nbeing considered. The vote of the Board President was to\nprevail in case of a tie.\nThe members of the Joint Alternate Service Board agreed\nupon the following procedures for the processing of its\napplications:\na. To comply with the above directives, each\nindividual participating in the President's program\nis offered the opportunity during his processing to\nsubmit to the Board additional documentation that\nhe desires the Board to consider on his behalf.\nConversely, he must so indicate that he does not\ndesire to make a statement if that is his decision.\nThis provides the individual an opportunity to\nstate his reasons for unauthorized absence, to\nindicate the nature of his employment or service\nwhile absent, and to provide any other statements\nor matters he wishes considered by the Board.\nb. The military services are required to\nprovide a summary of each individual's record to\nhighlight service related factors to be\nconsidered\nC. The total available service record,\nstatements submitted by the individual, and the\nservice provided summary sheet are reviewed and\nevaluated independently by each member of the\nBoard. Records which contain conflicting or\nquestionable data are returned to the service for\nverification of the information. Each Board member\nconsiders all available information and makes an\nindependent judgment to determine if there is\nappropriate justification for reducing required\nalternative service below 24 months. He then\nrecords the number of months which he considers\nappropriate for the individual to serve. When all\nBoard members have reviewed a case and made an\nindependent determination of alternative service\ntime, Board member votes are compared. In the\nevent of a tie or split vote, the case is openly\ndiscussed by the Board members to resolve\ndifferences. In the event of a tie vote during\narbitration, the President of the Board votes to\nbreak the tie. This decision on the number of\nmonths of alternative service is considered the\nfinal decision of the full Board.\nFORD i LIBRARY GERALD\nd. The decision is annotated on the summary\nsheet, signed by a Board member and returned to the\napplicable service for separation processing⁴⁰.\n24\nThe Department of Defense program processed its\napplicants through the Joint Clemency Processing Center at\nFort Benjamin Harrison, Indiana. In addition to being a\nclemency program for military deserters, the Defense program\nwas also a discharge process. Applicants filled out a\nseries of administrative forms and participated in group\nlegal counseling sessions and could see a military lawyer\nfor individual counseling. They could apply for one of\nthree options concerning participation in the program.\nOption 1 made him a participant in the Clemency program,\nrequiring him to sign a Reaffirmation of Allegiance, a\nPledge of Public Service, and accept an Undesirable\nDischarge. Option 2 offered him an opportunity not to\nparticipate in the President's clemency program and to have\nhis case decided under current military law. Option 3\nrepresented a return to active duty for qualified Army\napplicants. Only two of the four who chose Option 3 were\nrestored to active duty. Although not an explicit option,\n46 applicants were diverted from the clemency program and\nimmediately discharged under honorable conditions. 43 All\napplicants reserved the right to withdraw his selection of a\nparticular option before their cases were forwarded to the\nJoint Alternate Service Board for disposition.\nThose who applied for clemency could then submit a\n\"Statement to the Board for Alternative Service.\" Each\nabsentee had the opportunity to explain his reasons for\nabsence from military service, employment during his\nabsence, and other matters he wished the Board to consider.\nPersonal appearances were allowed only in exceptional\ncircumstances. The Board felt that the availability of\napplicants' military records and the applicants' right to\nsupplement their records with further information made\nappearances unnecessary. No opportunities for appeal were\nprovided. Altogether, most applicants generally spent no\nmore than three days at the Joint Clemency Processing\nCenter.\nFORD & 070890 LIBRARY\n25\nEND OF DOCUMENT Chapter 2\nLINES PRINTED 01395\nPAGES 0027\nCUSTOMER a2220 OPERATOR 001\n222 001 Chapter 2\nFORD i LIBRARY SERVID"
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