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Final Report - Draft, 11/11/75 (1)
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Final Report - Draft, 11/11/75 (1)
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Charles E. Goodell Papers
Presidential Clemency Board Subject Files
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
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The original documents are located in Box 6, folder "Final Report - Draft, 11/11/75 (1)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 6 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
The enclosed is the very-near-final version
of the executive summary and report, minus
appendices, figures, and full-page tables.
Chapters 5 and 8 and the summary have had
some errors corrected since this was prepared.
Let's hope that there are no further changes.
FORD i GERALD LIBRARY
TODAY'S DATE 11/11/75
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CUSTOMER a2220 OPERATOR 001 PCB
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Summary
001 Summary
DATE STORED 11/06/75
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FORD & LIBRARY
SUMMARY
1. Introduction
In the years before President Ford assumed office,
public opinion was sharply divided over what 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,
:
FORD
respectively, to review applications from the 4,522 draft
offenders and the 10,115 undischarged servicemen still at
GERALD
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 clemency
recipients.
By directing that the military services upgrade bad
discharges, substituting Clemency Discharges in their place,
the President wanted to insure equal employment
opportunities for those who 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.
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 week in January, the Clemency Board
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 information budget of
$24,000, the results were dramatic. During the rest of
January, we received over 4,000 new applications. Because
of this response, the President extended the application
GERALD FORD County
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. 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; ninety percent 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 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 the President's 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 six percent of our civilian
applicants and two percent 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 are likely to receive a bad
discharge or felony conviction, they will end their fugitive
status and will probably not be sentenced to imprisonment.
The 91,500 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 which 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 nine percent of all draft-
age men served in Vietnam. Less than two percent 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 was granted a CO exemption but 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 six
percent 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 one percent 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 two
percent were unemployed, with another two percent 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.
GERALD FORD LIBRARY
Unlike the civilian applicants, the vast majority of
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 five percent 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
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, with
half either volunteering for a Vietnam assignment,
volunteering for a combat mission, or re-enlisting while in
Vietnam. of Vietnam veteran applicants, 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 of all military
applicants returned from Vietnam with disabling injuries.
Very few went AWOL in Vietnam; only four percent of all
applicants went AWOL from apparent combat situations.
AWOL offenses usually occurred after training and in
stateside bases. Over half of all military applicants
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, applicants
went AWOL two or three times. Most returned to their home
towns, where they lived openly. Only two percent of the
military applicants ever sought exile in Canada. Almost
half surrendered voluntarily after their last AWOL offense.
At the time of their last AWOLs, 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,
RAID
whereas only eight percent were unemployed during their last
AWOL offenses. Another seven percent were incarcerated for
civilian felony offenses at the time the program started.
Twelve percent had been convicted for at least one civilian
felony offense sometime in their lives.
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. To preserve the spirit
of reconciliation, we promised 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
additional cases to the full Board, having had 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 three percent,
FORD is 938839 LIBRARY
and conditional clemency with alternative service to the
remainder. During our latter six months, we decided 14,000
more cases, recommending outright pardons to 44%, denial of
clemency to six percent, 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 probation or 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 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 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 committing 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 offense;
10. Missed overseas movement;
11. Non-AWOL offenses contributing to discharge for
unfitness; and
12. Apprehension by authorities.
FORD is 078030 LIBRARY
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 performance 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;
their oldest child was asthmatic and
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
LIBRARY GERALD FORD
applicant's discharge to one under honorable conditions,
with full entitlement to veterans' benefits. We were
particularly concerned about the eligibility of wounded or
disabled veterans for medical benefits. We made upgrade
recommendations in about eighty cases, of which the
following two are typical:
(Case 4)
This applicant did not go AWOL until after
returning from two tours of duty in
Vietnam, when his beliefs concerning the
war changed. He came to believe that the
United States was wrong in getting
involved in the war and that he "was wrong
in killing 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 infantryman 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"
recommendations. 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
FORD
away from his unit without any of his
combat gear.
We recommended that the President deny clemency in the above
case, but other cases of AWOL in Vietnam involved strong
mitigating factors. 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 unrelated civilian
felony offenses, 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,
requiring the Board to 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 the applicants with other
convictions were denied clemency because of the serious
nature of their offenses or because of the absence of strong
mitigating factors.
GERALD FORD
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
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-enlistment
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 has recently established a successful
subcontracting business. Currently, he is
working with young people in his community
in connection with church groups, trying
R.
to provide guidance for them. His parole
3)
officer stated that applicant had
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straightened out and is a responsible
member of the community.
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In each of the above three cases, the Clemency Board
recommended that the President recommend an outright pardon
for the absence offenses. Obviously, we had no
jurisidiction to recommend clemency for the unrelated
convictions.
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 the
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, about 1,000 additional cases with
partial or recently arriving files were referred to the
LISTARY GERALD GERALD R. FORD
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
developed solutions to management problems which enabled us
to act upon over a thousand cases per week. At the same
time, we 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 was 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 did not break
precedent in any fundamental way. The only new features of
President Ford's program were 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 both from those who
thought he did too much and from those who thought 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 a minority equally split on the
opposite ends of the issue. The same poll found that almost
R.
nine out of ten people would accept a clemency recipient as
FORD
at least an equal member of their community. Likewise, a
survey of employer attitudes has discovered that a Clemency
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Discharge and Presidential Pardon would have real value when
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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
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. The Clemency Board has recommended to Selective
Service that individuals in the Clemency Board program be
able to fulfill their alternative service by performing
unpaid work in the national interest for 16 hours per week
for the designated period--three or six months in most
cases. Selective Service has implemented part of this
recommendation, allowing alternative service to be completed
through 20 hours per week of unpaid work. This part-time
work must be stretched out for longer than the designated
three or six month period.
We 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. Likewise, 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.
&
FORD
GERALD
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GERALD R. FORD
1
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
FORD & GERALD LIBRARY
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 special meaning. We came to
the Board as men and women whose views reflected the full
spectrum of public opinion on the war and on the question of
amnesty. As we discussed the issues, a consensus began to
emerge. We 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 the Clemency 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, less articulate 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. 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 sacrifices 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. 112 He requested that fugitive
draft offenders be relieved from further prosecutions, that
military absentees be discharged without court-martial, that
GERALD FORD LISHART
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
alternative service in the national interest. They still
owed debts 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--a deadline 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 debate. He hoped that
reconciliation among draft resisters, deserters, and their
neighbors would take place as quickly as possible.
Altogether, 21,729 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 14,514 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
applicants, and what we think we accomplished. Where
possible, we also try to put the President's entire clemency
program in some perspective.
Chapter 2 consists of a discussion of how each of the
President's six principles was implemented. In Chapter 3,
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 4, followed by an analysis of our case
recommendations in Chapter 5. In Chapter 6, we describe how
we managed what was often a "crisis" operation. In Chapter
7, 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 a discussion in Chapter 8 of what we think the
President's program accomplished. Illustrating 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.
R.
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BERALD R. FORD
A. The Need for a Program--and Its Creation
Regardless of one's political or philosophical
perspective, there is little dispute that the war in Vietnam
had a significant impact on our country and on the lives of
millions of American citizens. The war resulted in the loss
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 only 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 American families lost
their loved ones. Untold hundreds of thousands will bear
physical and psychological scars for the remainder of their
lives. Nothing can ever be done to compensate for the
supreme sacrifices of those who died or lost their loved
ones.
After the war ended, however, it became 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 burdens of exile, imprisonment, and separation.
GENAL R. FORD
Shortly after assuming office, President Ford sensed the
LIBRARY
need to "bind the Nation's wounds and to heal the scars of
divisiveness. "1 As one of his first initiatives as
President, he created 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 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."3 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. 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. 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. Selective Service was put in charge of
supervising the performance of all assigned periods of
alternative service.
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 dramatic staff expansion
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
FORD & SERALD LIBRARY
of view. Many had spoken out strongly against the war, some
having advocated unconditional amnesty. Others believed
that America's mistake lay in not pursuing the war effort
more vigorously.
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 members 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. However, 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.
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 leave) to find medical assistance, to treat
FORD & GERALD LIBRARY
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 thousands of cases we
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, an applicant must have committed a
qualifying offense 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.8
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 for
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.
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
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
respect for law and military discipline.
FORD is GENALD LIBRARY
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.9 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 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 latter 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.
The Proclamation prevented the Clemency 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 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.
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
is
FORD
administrative discharges for unfitness to the discretion of
commanders. They do not have binding rules on the character
GERALD
of misconduct necessary to warrant an Undesirable Discharge.
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We recognized the dual need to have clear and objective
jurisdictional rules, while at the same time retaining
flexibility to make appropriate dispositions in cases in
which a short AWOL was an insignificant factor in the
discharge. We decided 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 in addition to a very brief 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
Punishments) 13 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 the other offenses,
considered independently, were 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
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
reason, we provisionally accepted the cases of persons for
whom no such determination had yet been made. We took
tentative action on these cases, forwarding them to the
President with the recommendation that he not act until
proper judicial or administrative determinations had been
made by the Justice Department.
FORD
Altogether, we received approximately 6,000 applications
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from ineligible persons. Many had committed offenses during
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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 immediate
Undesirable Discharges and the opportunity to earn Clemency
Discharges. To a small number of fugitive servicemen with
exceptionally gcod 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
full Presidential pardons.
To military absence offenders who had received bad
discharges, the President offered official forgiveness in
the form of full Presidential pardons, and upgrades to a
Clemency Discharge.
To those who were still serving prison terms for draft
or military absence offenses, the President directed
immediate furloughs upon application for clemency. Except
for 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.
FORD & 07V839 LIBRARY
"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 pardons, 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 The President 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 -- constitutional "reprieves" or commutations.
Only the President can grant pardons, but the Pardon
Attorney in the Department of Justice does the necessary
administrative work in his behalf.
The President, as Commander-in-Chief of the Armed
Forces, 18 may request any branch of military service to
upgrade bad discharges. Through the executive power vested
in him, the President may request subordinate federal
officers not to enforce criminal statutes against
individuals 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
of Federal civil rights, 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 had already lost. It
operates prospectively only. A pardon is a Presidential
expression that the stigma of conviction has been removed,
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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
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 Board
interpreted this as the President's intent. By approving
the Board's clemency recommendations, the President
confirmed our 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. 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. Pursuant
to our recommendation, President Ford offered 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
differ from those for violation of civilian law. A military
offender not only receives a conviction and a sentence of
imprisonment, but he also may 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. 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.
The Clemency Discharge was intended by the President to
be a "neutral" discharge, to be neither under "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 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 unintended effect of
impairing and not improving an applicant's status.
The President's program was a unique and supplemental
FOR
form of relief to certain classes of former servicemen. It
did not deny pre-existing statutory or administratively
granted avenues of relief available to individuals
regardless of their eligibility for clemency. 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.²4 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 benefits to applicants. Fugitive
civilians charged with draft evasion offenses faced the
possibility of criminal convictions, up to five years in
prison, and $10,000 fines.25 In return for alternative
service, their prosecutions were dropped. They were also
freed from the enduring stigma of a felony conviction.
Applicants to the Justice program 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
Vietnam-era draft offenses but who had not yet been
indicted. After the program began, the Department of
Justice directed all United States Attorneys to submit lists
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
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whose cases had been referred to the Justice Department for
further action.
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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 approximately 80
individuals for whom the Clemency Board recommended that
discharges be upgraded 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.
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.
The difference between amnesty and clemency is largely a
matter of semantics. 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
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than of legal importance.28
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 had
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.
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
FORD is LIBRARY GERALD
The President could have directed the Clemency 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. We accepted
no applications submitted after the President's deadline.
We strictly adhered to 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
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
other than his attorney, the applicant was given until May
31, 1975, to confirm the contact in writing. 30 Individual
cases sometimes presented difficult questions of proof,
especially when persons made oral applications to other
Federal officials.
(Case 2-1)
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. 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 about 1,000 applications for which we were unable to
FORD & LIBRARY GERALD
obtain the facts necessary to make case recommendations.
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 were specified in the Executive Order. Their
applicants had to appear in person to participate. Both
Departments 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
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 assigned
alternative service to earn an upgrade to a Clemency
Discharge.
Condition of Alternative Service
Those assigned to alternative service under any part of
the President's program come under the jurisdiction of the
Selective Service System. Clemency Board applicants have
thirty days from the date that they learn of the President's
clemency offer in which to enroll with Selective Service.
Department of Justice and Department of Defense applicants
had fifteen days in which to enroll.
All individuals assigned to alternative service are
informed that under Selective Service rules they may work
anywhere in the United States. To enroll, they have 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,
applicants have the opportunity of finding jobs of their own
choosing. They are encouraged by Selective Service to find
work which utilize their special talents. If they find
suitable jobs themselves, state Selective Service Directors
have to determine if the jobs meet the following criteria:
a. The job may be full-time (forty hours per week)
or part-time (twenty hours per week) and must
promote the national health, safety, or interest.
it
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b. The enrollee cannot fill a job for which there
GERALD
were more qualified applicants than there were
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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 enrollees cannot find suitable jobs by the end of the
twenty day period, state Selective Service Directors help
them look for jobs.
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 in suitable positions. Selective Service
rules specify that if through no fault of his own the
enrollee has not been placed in a job within the thirty day
period, time begins to be credited to his alternative
service commitment on the thirty-first day following his
enrollment. While this provision permits some individuals
to earn clemency without having jobs, it avoids penalizing
those willing to serve but for whom no jobs are available.
To avoid this problem, the Clemency Board has
recommended to Selective Service that individuals in the
Clemency Board program be able to fulfill their alternative
service by performing unpaid work in the national interest
for 16 hours per week for the designated period--three or
six months in most cases. Selective Service has implemented
part of this recommendation, allowing alternative service to
be completed through 20 hours per week of unpaid work. This
part-time work must be stretched out for longer than the
designated three or six month period.
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.
FORD & GERALD LIBRARY
TABLE 4: INFORMATION ON ALTERNATIVE SERVICE PERFORMANCE
(as of October 1, 1975)
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
5664
*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 unconvicted draft offenders
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 large number of Defense applicants who
either never enrolled with Selective Service or were later
terminated for failing to accept the designated employment.
So far, very few Clemency Board applicants have had to
enroll with Selective Service. Since almost all of our
applicants were informed of the President's decision in
their cases after August 1975, we do not yet have adequate
information on the number 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 low level
of education and sophistication of many 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.
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The Selective Service System is confident that these
difficulties can be overcome. This is important, because we
GERALD
believe that the true measure of our work lies not in the
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number offered clemency, but rather in the number who
successfully complete alternative service and actually earn
their pardons.
E. A Program of Definite, not Indefinite, Length
When President Ford established 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 whether to apply.
For the first three months of 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 applications without
trying to encourage anyone to apply to us.
We soon learned, however, that our assumptions were
incorrect. After reviewing the first several hundred cases,
we discovered that most 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. 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 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 which highlighted the activities of those
who fled to Canada. It was the self-exiled draft evader and
military deserter who formed the basis for the stereotyped
individual whom 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
persons eligible to apply to the Clemency Board 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
FORD & GERALD LIBRARY
the Clemency Board 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 eligible persons, such as the
Veteran's Administration, employment offices, welfare
offices, penal institutions, and post offices. Clemency
Board members Hesburgh and Walt taped public service radio
and television announcements explaining how one could apply.
On January 14, 1975, these announcements were mailed to
2,500 radio and television stations across the United
States. During January, seven members of the 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 during January.
The result of our public information campaign was a
dramatic increase in the Clemency Board application rate.
Applications increased from 870 on January 7, 1975, to a
total of 5,403 before expiration of the January 31st
deadline. Due to this increase, the President extended the
deadline to March 1, 1975.
The public information campaign was continued in
earnest. On February 17, 1975, at our request, the
Department of Defense mailed 21,000 information kits to
discharged military personnel with punitive discharges who
appeared eligible for the program. The Department was
unable to send kits to the 75,000 eligible persons with
administrative discharges because of the 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 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 eligible
persons. We sent staff members across the country to
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FORD
regional offices of the Veterans Administration. Workshops
in thirty-three cities were attended by over 3,000 veterans'
GERALD
counselors -- most of whom, surprisingly, had not yet
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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.
The administrators of the 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 eligible for
the Clemency Board program (a 15% response). Altogether,
21,729 persons applied to the President's program, 19% of
the 113,300 believed eligible to apply.
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. 35
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
basis. 36
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.
GERALD FORD LIBRARY
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.
Clemency Board Procedures
The Clemency Board desired to make all procedures as
simple as possible, with a minimum of technical requirements
with which an individual had to comply. We wanted the
process to be open, so that applicants would be aware of how
we were proceeding with their cases and what we were using
as the basis for case recommendations. We encouraged the
fullest possible participation by applicants. Above all,
the Board and the staff wished to make the Presidential
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; a
summary is presented below.
In brief, our process began with a telephone call or
letter from an individual inquiring about clemency. We
accepted any affirmative expression of interest, whether
oral or written, as a provisional application, 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 case. 37 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 applicant'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
GERALD FORD LIBRARY
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
gave the applicant an opportunity to review his case summary
and make suggestions 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
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.
When making case dispositions, 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, the
applicant had to perform to earn his clemency. (See Chapter
5.) If he were a military applicant with combat experience,
the panel considered whether to refer the case to a special
Board panel for a possible recommendation 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 a personal appearance
when necessary for a full understanding of the case.
To attain as much consistency in decision-making 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 decision on a signed
warrant, which was returned to the Clemency Board so we
P..
could notify the applicant of the President's decision. The
FORD
applicant had the right to ask for reconsideration within 30
days. If he did not file such a motion, he either accepted
GERALD
or refused the President's offer of clemency. Because the
LIBRARY
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
An applicant shall not have access to
investigatory records in the possession of the
United States Attorney except as provided by 32
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.³
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 persons. 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:
(I) ndividuals 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
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
FORD & LIBRARY GERALD
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. 40
Following these procedures, U.S. Attorneys dropped
prosecutions or discontinued investigations of draft
offenders in return for the satisfactory completion of
assigned of alternative service. In those instances where
the individual was without financial resources, the United
States Attorney assisted in making arrangements for legal
representation.
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
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
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
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
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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
alternate 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 alternate 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 alternate service is considered the final
decision of the full Board.
d. The decision is annotated on the summary
sheet, signed by a Board member and returned to the
applicable service for separation processing. 42
The Department of Defense program processed 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, participated in group legal counseling
sessions, and could see military lawyers for advice. Each
applicant could select 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, sign 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. Two of the
four who chose Option 3 were restored to active duty.
Although not an explicit option, 46 meritorious applicants
were diverted from the clemency program and immediately
discharged under honorable conditions. All applicants
reserved the right to withdraw 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
applicant 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
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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 spent no more than
three days at the Joint Clemency Processing Center. 43
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A. Introduction
Chance and circumstance had much to do with the
sacrifices faced by each individual during the Vietnam War.
Conscription is, by nature, selective. In a sense, Clemency
Board applicants were victims of misfortune as much as they
were guilty of willful offenses. Most other young Americans
did not have to face the same choices. Only nine percent of
all draft-age men served in Vietnam. Less than two percent
ever faced charges for draft or desertion offenses, and only
0.4%--less than one out of two hundred--were convicted or
still remain charged with these offenses. By contrast, 60%
of all draft-age men were never called upon to serve their
country. 1 For this reason alone, applicants to the
President's clemency program deserve the compassion of their
ccuntrymen.
As we decided cases, we came to understand better the
kinds of people who had applied for clemency. By the time
we had reviewed all cases, each of us had read approximately
3,000 case summaries for our respective Board panels. From
these case summaries, we learned what applicants' family
backgrounds were like, what experiences they had with the
draft and the military, why they committed their offenses,
and what punishments they endured.
Many applicants fell into common categories--the sincere
Vietnam war resister who was denied his application for
conscientious objector (CO) status and faced trial and
punishment as a matter of principle; the Jehovah's Witness
who, although granted a CO exemption, 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 young
serviceman, away from home for the first time, who could not
adjust to military life; the serviceman with his family on
welfare who went AWOL to find a better-paying job.
We also had a few less sympathetic cases: the civilian
FORD & LIBRARY GERALD
who dodged and manipulated the system not for conscientious
reasons, but simply to avoid fulfillment of any kind of
obligation of national service--or the soldier who deserted
his post under fire.
In this chapter, we describe civilian and military
applicants to the Clemency Board. Who were they? What did
they do? Why did they do it? Excerpts from actual cases
tell much of the story, supplemented by the results of a
comprehensive survey we conducted from the case summaries of
472 civilian applicants and 1,009 military applicants --
roughly 25% and 7% of the total number of our eligible
civilian and military applicants, respectively. (See
Appendix C.) At the chapter's end, we try to identify those
who did not apply, why they did not, and what happens to
them next.
The excerpts from our case summaries illustrate a broad
range of fact situations. Many of the applicants were
recommended for outright pardons, others for conditional
clemency with alternative service, and a few were denied
clemency. (See Chapter 5.) Information in these excerpts is
based upon the applicants' own allegations, sometimes
without corroboration.
As we describe the circumstances and experiences of the
applicants, we are doing so only from the perspective of the
14,500 cases we decided. These were individuals whom the
military, the draft system, and the judiciary had to judge
on the basis of more information and different standards
than we did. Our mission was clemency; theirs was the
enforcement of Federal law and military discipline.
The Board's recommendations for clemency should not be
used to infer any improper actions on the part of draft
boards, courts, or the military. These agencies did their
duty during the Vietnam era, as set forth by the President,
the Congress, and the Supreme Court. It was not the intent
of this program to undermine the effectiveness of those
institutions in carrying out their legitimate functions in
peace and war.
B. Civilian Applicants
In many ways, the civilian applicants were not unlike
most young men of their age throughout the United States.
Born largely between 1948 and 1950, they were part of the
"baby boom" which was later to face the draft during the
Vietnam War. Most grew up in cities (59%) and suburbs
(19%), with disproportionately many in the West and few in
the South.
They were predominantly white (87%) and came from
average American families. Twenty-nine percent came from
economically disadvantaged backgrounds. Over two-thirds
(69%) were raised by both natural parents, and evidence of
FORD & GERALD LIBRARY
severe family instability was rare. The proportion of
blacks (11%) and Spanish-speaking persons (1.3%) was about
the same as found in the general population. Over three-
quarters (79%) had high school diplomas, and 18% had
finished college. A very small percentage (4%) had felony
convictions other than for draft offenses.
Two things set the civilian applicants apart. First,
75% opposed the war in Vietnam strongly enough to face
punishment rather than be inducted. Many were Jehovah's
Witnesses (21%) or members of other religious sects opposed
to war (6%). Second, they -- unlike many of their friends
and classmates -- were unable or unwilling to evade the
draft by exemptions and deferments or escape prosecution
through dismissal and acquittal. They stayed within the
system and paid a penalty for their refusal to enter the
military.
In the discussion which follows, we trace the general
experiences of civilian applicants to the Clemency Board.
We look first at their experiences with the draft system.
After examining the circumstances of their draft offenses,
we focus on their experiences in the courts and prisons.
Finally, we describe the impact of their felony convictions.
With few exceptions, the statistics are based upon a
sample of 472 civilian applicants - roughly one-fourth of
our total number of civilian applications. (See Appendix
C.)
Selective Service Registration
Civilian applicants, like millions of other Americans,
came into contact with the Selective Service System when
they reached the age of eighteen -- usually between 1966 and
1968. They then were required by law to register for the
draft. Often, it was their first direct contact with a
government agency. A few (3%) of the applicants committed
draft offenses by failing to register with the draft -- or
failing to register on time. Ignorance or forgetfulness was
no defense, but draft boards rarely issued complaints for
failure to register unless an individual established a
pattern of evasion.
(Case 3-1)
Applicant was convicted for failing to
register for the draft. As a defense, he
stated that he was an Italian immigrant
who did not understand the English
language. However, there were numerous
false statements on his naturalization
papers, and he was able to comply with
state licensing laws as he developed
several business enterprises in this
country.
After registration, civilian applicants were required to
keep their local board informed of their current address.
Failure to do SO was a draft offense, for which ten percent
of them were convicted. These tended to be itinerant
individuals with little education, who by background were
unlikely to understand or pay due respect to their Selective
FORD & GERALD LIBRARY
Service responsibilities.
(Case 3-2)
Applicant's father, a chronic alcoholic,
abused applicant and his mother when
intoxicated. Applicant left his home to
seek work, without success. Because of
his unsteady employment, he was compelled
to live with friends and was constantly
changing his address. His parents were
unable to contact him regarding pertinent
Selective Service materials. After his
conviction for failing to keep his draft
board informed of his address, applicant
apologized for his "mental and emotional
confusion," acknowledging that his failure
to communicate with the local board was an
"error of judgment on my part."
The local board was under no obligation to find an
individual's current address, and it was his responsibility
to make certain that Selective Service mail reached him.
(Case 3-3)
Applicant registered for the draft and
subsequently moved to a new address. He
reported his change of address to the
local post office, but he did not notify
his local board. He mistakenly thought
this action fulfilled his obligation to
keep his local board informed of his
current address.
(Case 3-4)
Applicant's mother telephoned his new
address to the local board. Selective
Service mail still failed to reach him,
and he was convicted for failure to keep
his board informed of his whereabouts.
The last address his mother had given was
correct, but the court did not accept his
defense that mail did not reach him
because his name was not on the mailbox.
Selective Service Classification
Immediately after civilian applicants registered with
local boards, they were given Selective Service
classifications. There were a number of different kinds of
deferments and exemptions. Many of the forty-four percent
who attended college received student deferments. Some
applied for hardship deferments, occupational deferments,
physical or mental exemptions, or ministerial exemptions,
particularly the twenty-one percent who were Jehovah's
Witnesses. The greatest number applied for conscientious
objector exemptions. Some applied for numerous deferments
and exemptions, with draft boards offering procedural rights
even for claims that were obviously dilatory.
(Case 3-5)
Applicant had a student deferment from
1965 to 1969. He lost his deferment in
GERALD LIBRARY GERALDR. FORD
1969, apparently because of his slow
progress in school (he did not graduate
until 1973). His two appeals to keep his
student deferment were denied. After
passing his draft physical and having a
third appeal denied, he applied for a
conscientious objector exemption. This
was denied, and his appeal was denied
after a personal appearance before his
state's Selective Service Director. After
losing another appeal to his local board,
he was ordered to report for induction.
One day after his reporting date, he
applied for a hardship postponement
because of his wife's pregnancy. He was
granted a nine-month postponement. He
then requested to perform civilian work in
lieu of military service, but to no avail.
After his wife gave birth, he fled to
Canada with her and the child. He
returned to the United States a year
later, and was arrested.
Very few civilian applicants hired attorneys to help
them submit classification requests and appeals. Others
relied on the advice of local draft clerks. Others turned
to friends, family, and draft-counseling organizations.
However, it was their responsibility to make themselves
aware of the legal rights available to them.
(Case 3-6)
Applicant made no attempt to seek a
personal appearance before the local board
or appeal its decision, on the basis of
advice given by the clerk that the board
routinely denied such claims made by
persons like himself.
Some tried to interpret Selective Service forms without
help from either legal counsel or draft board clerks. At
times, this prevented them from filing legitimate claims.
(Case 3-7)
Applicant initially failed to fill out a
form to request conscientious objector
status because the religious orientation
of the form led him to believe he would
not qualify. After Welsh,2 he believed he
might qualify under the expanded "moral
and ethical" criteria, so he requested
another form. When his local board sent
him a form identical to the first one, he
again failed to complete it, believing
that he could not adequately express his
beliefs on a form designed for members of
organized religions.
Others relied only on their personal knowledge of
Selective Service rules, without making inquiry.
(Case 3-8)
Applicant failed to apply
for
conscientious objector status because he
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mistakenly believed that the Supreme Court
had ruled that a prerequisite for this
classification was an orthodox religious
belief in a supreme being.
Some civilian applicants' requests for deferments or
exemptions were granted; others were denied. In case of
denial, an individual could appeal his local board's
decision to the state appeals board. A few civilian
applicants claimed that local board procedures made appeals
difficult, but it was their own responsibility to learn
about their opportunities for appeal.
(Case 3-9)
Applicant claimed that he was given no
reasons for the denial of his claim for
conscientious objector status. As a
result, he said that he was unaware of how
or where to appeal his case to a higher
level.
Others lost their rights because of their failure to
file appeal papers within the time limits established by
law.
(Case 3-10)
Applicant, a Jehovah's Witness, was
unaware of the time limitations on filing
notices of appeal. He continued to gather
evidence for his appeal, but it was
ultimately denied on the procedural
grounds of his failure to make timely
application for appeal.
If a civilian applicant failed to appeal his local
board's denial of request for reclassification, he might
have been unable to raise a successful defense at trial.
(Case 3-11)
Applicant failed to appeal his local
board's denial of his conscientious
objector claim, which he claimed was done
without giving any reasons for the denial.
Although his trial judge indicated that
the local board's action was improper, he
nevertheless approved a conviction because
applicant had failed to exhaust his
administrative remedies by appealing his
local board's decision.
Even if an applicant had been unsuccessful in his
initial request for reclassification -- whether or not he
appealed his local board's decision -- he could request a
rehearing at any time prior to receiving his induction
notice. If a registrant could submit a prima facie case for
reclassification, his local board had to reopen his case.
When this happened, he regained his full appeal rights.
(Case 3-12)
Applicant's local board decided to give
him another hearing after he accumulated
additional evidence to support his claim
for reclassification. Despite this
rehearing, his local board found the
evidence insufficient to merit a reopening
FORD & GERALD LIBRARY
of his case. Without a formal reopening,
applicant could not appeal his board's
findings upon rehearing.
Many applicants exercised a variety of procedural rights
in their requests for all types of deferments and
exemptions. Some of their claims appeared to be contorted
efforts to avoid induction.
(Case 3-13)
Applicant claimed that his wife, who had
been under psychiatric care, began to
suffer hallucinations when he received his
induction notice. He requested a hardship
deferment, with two psychiatrists claiming
that he should not be separated from his
"borderline psychotic" wife. This request
was denied. Applicant later tried to get
a physical exemption by having braces
fitted on his teeth. However, he instead
was convicted of conspiring to avoid
induction. (His dentist also faced
charges, but fled to Mexico to escape
trial. The dentist applied to the
Clemency Board for clemency, but we did
not have jurisdiction over his case.)
(Case 3-14)
Applicant informed his draft board that he
had a weak back and weak knees. The
physician who examined his refused to
verify this. Applicant then forged the
physician's name and returned the document
to his draft board.
Other claims appeared to have more merit, but were
nonetheless denied by local boards. The local boards had
the benefit of the full record in these cases, and had to
weigh them against claims made by other registrants.
(Case 3-15)
Applicant's father was deceased, and his
mother was disabled and suffered from
sickle cell anemia. His request for a
hardship deferment was denied. Also,
applicant claimed that he suffered from a
back injury. This allegation was
supported by civilian doctors, but denied
by military doctors.
(Case 3-16)
Applicant's parents were divorced when he
was 16, with his father committed to a
mental institution. Applicant dropped out
of school to support his mother. A
psychiatrist found applicant to suffer
from claustrophobia, which would lead to
severe depression or paranoid psychosis if
he entered the military. However, he did
not receive a psychiatric exemption.
The classification of greatest concern to most civilian
FORD is LIBRARY 07V839
applicants was the conscientious objector exemption. Almost
half (44%) took some initiative to obtain a "CO" exemption.
Twelve percent were granted CO status, 17% applied but were
denied, and the remaining 15% never actually completed a CO
application.
of the 56% of the civilian applicants who took no
initiative to obtain CO status, roughly half (25%) committed
their draft offenses for reasons unrelated to their
opposition to war. Others may not have filed for a CO
exemption because they were unaware of the availability of
the exemption, knew that existing (pre-Welsh) CO criteria
excluded them, or simply refused to cooperate with the draft
system.
(Case 3-17)
Applicant, a Jehovah's Witness, had his
claim for a ministerial exemption denied.
Since he made no claim for conscientious
objector status, he was classified 1-A and
ordered to report for induction. (He
complied with his draft order, but he
later went AWOL and received an
Undesirable Discharge.)
(Case 3-18)
Applicant did not submit a CO application
because it was his understanding that
current (pre-Welsh) CO rules required that
he be associated with a widely recognized
pacifist religion. His refusal to
participate in war stemmed from his
personal beliefs and general religious
feelings.
(Case 3-19)
Applicant, a Jehovah's Witness, refused to
file for CO status because he felt that by
SO doing he would be compromising his
religious principles, since he would be
required by his draft board to perform
alternative service work.
Usually, those who took some initiative but failed to
follow through with their CO application were pessimistic
about their chances for success.
(Case 3-20)
Applicant filed a CO claim in 1969, after
he received his order to report for
induction. His draft board postponed his
induction date and offered him a hearing.
However, applicant did not come to his
hearing and advised his draft board that
he no longer desired CO status. He stated
at trial that he decided not to apply for
a CO exemption because the law excluded
political, sociological, or philosophical
views from the religious training and
beliefs necessary for CO status at the
time.
Some did not pursue a CO exemption because of their
inability to qualify under pre-Welsh rules. Occasionally,
applicants claimed that they had been discouraged from
FORD & LIBRARY GERALD
applying.
(Case 3-21)
In reply to applicant's request for a CO
application form, his local board included
a note stating that a CO classification
was given only to members of pacifist-
oriented religions. Accordingly, he did
not bother to return the form.
Some applicants failed to submit their CO applications
on time, because of inadvertence or lack of knowledge about
filing requirements.
(Case 3-22)
Applicant wished to apply for CO status,
but his form was submitted late and was
not accepted by his local board. His
lawyer had lost his application form in
the process of redecorating an office.
(Case 3-23)
Applicant applied for CO status after his
student deferment had expired. He did
hospital work to support his beliefs, but
he failed to comply with time requirements
for status changes under the Selective
Service Act. Consequently, his local
board refused to consider his CO
application.
In the midst of the Vietnam War, the substantive law
regarding conscientious objectors changed dramatically,
profoundly affecting the ability of many applicants to
submit CO claims with any reasonable chance of success. In
June 1970, the Supreme Court clarified conscientious
objection in Welsh V. United States, stating that this
exemption should be extended to those whose conscientious
objection stemmed from a secular belief--whose consciences,
spurred by deeply held moral, ethical or religious beliefs,
would give them no rest or peace if they allowed themselves
to become a part of an instrument of war. 3 In the later
case of Clay V. United States, the court stated the three
requirements for CO classification as: (1) there must be
opposition to war in any form; (2) the basis of opposition
to war must be moral, ethical, or religious; and (3) the
beliefs must be sincere.
Twenty-three percent of the civilian appliants claimed
that they committed their offense primarily because of
ethical or moral opposition to all war -- and thirty-three
percent said they committed their offense at least partly
because of such ethical or moral feelings. of these ethical
or moral objectors, only eleven percent took any initiative
to obtain a CO exemption, eight percent filing for CO
status. Only 0.2% were successful. Why did so few seek CO
status?
Ninety percent registered prior to Welsh, so their first
information about the CO exemption was that it applied
primarily, if not exclusively, to members of pacifist
religions. Many passed through the Selective Service System
before the middle of 1970, when Welsh was announced. Fifty-
FORD & GERALD LIBRARY
three percent of our applicants who applied for a CO
exemption did so before Welsh, and thirty-five percent
committed their draft offense before the decision. However,
only thirteen percent were actually convicted of their
offense before Welsh. Many of these individuals could have
raised Welsh defenses at trial, but most (74%) pled quilty
to their charges.
There are three persuasive reasons why more civilian
applicants did not apply for or, qualify for a CO exemption.
First, a great many apparently did not understand what
Selective Service rules were or what defenses could be
raised at trial.
(Case 3-24)
Applicant failed to submit a CO
application after allegedly being told by
his local board that only members of
certain religious sects were eligible.
This occurred after the Welsh decision.
Second, many others objected not to war in general, but
to the Vietnam War alone. These "specific war" objectors
could not qualify for CO exemptions even under the post-
Welsh guidelines.
(Case 3-25)
Applicant's claim for conscientious
objector status was denied by his local
board because he objected only to the
Vietnam War, rather than all wars.
Third, some applicants claimed that they were denied CO
status because their local boards applied pre-Welsh rules to
their post-Welsh CO claims. of the civilian applicants who
raised post-Welsh "moral and ethical" CO claims, only ten
percent were successful. By contrast, CO applicants who
claimed to be members of pacifist religions enjoyed a 56%
success rate before and after Welsh. of course, many of the
moral and ethnical objectors may have failed to meet the
post-Welsh requirement of sincere beliefs when they applied
to their local boards.
(Case 3-26)
Applicant's request for conscientious
objector status was denied, partially on
the basis that he had no particular
religious training or experience to
establish opposition to war. This
determination was made after Welsh ruled
that such formal religious training was
not a prerequisite to conscientious
objector status.
It did not appear that the CO application form
significantly discouraged CO applications; twenty-eight
percent of those with college degrees applied for CO status,
versus 19% of these with less education. The less-educated
applicants were successful in 53% of their CO claims, while
those with college degrees were successful in only 14% of
their CO claims. This may be attributable to the fact that
those with less education more often based their claims on
religious grounds.
FORD is GERALD LIBRARY
Alternative Service for Conscientious Objectors
Approximately one-eighth of our civilian applicants did
receive CO exemptions. In lieu of induction into the
military, they were assigned to twenty-four months of
alternative service in the national interest. However, they
refused to perform alternative service as required by law
and were subsequently convicted of that offense.
Some individuals had difficulty in performing
alternative service jobs because of the economic hardships
they imposed.
(Case 3-27)
Applicant was ordered to perform
alternative service work at a soldier's
home for less than the minimum wage. The
soldier's home was fifty miles away from
his residence, and he had no car.
Applicant claimed that it was impossible
to commute there without a car, and that
even if he could, he would be unable to
support his wife and child on that salary.
Not knowing what legal recourses were
available to him, he simply did not do the
work, although he was willing to perform
some other form of alternative service.
Others decided that they could not continue to cooperate
with the draft system because of their opposition to the
war.
(Case 3-28)
Applicant refused to perform alternative
service as a protest against the war in
Vietnam.
However, most civilian applicants assigned to
alternative service who refused to perform such work were
Jehovah's Witnesses or members of other pacifist religions.
Their religious beliefs forbade them from cooperating with
the orders of an institution like Selective Service which
they considered to be part of the war effort. They were
prepared to accept an alternative service assignment ordered
by a judge upon conviction for refusing to perform
alternative service. Many judges sent them to jail instead.
(Case 3-29)
Applicant, a Jehovah's Witness, refused to
perform alternative service ordered by the
Selective Service System on the grounds
that even this attenuated participation in
the war effort would violate his religious
beliefs. He did indicate that he would be
willing to perform similar services under
a court order of probation. Rather than
comply with his request, the judge
sentenced the applicant to prison for
failure to perform alternative service.
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Induction Orders
Those who were not granted CO exemptions were
reclassified I-A after their other deferments had expired.
Their induction orders may have been postponed by appeals or
short-term hardships, but eventually they -- like almost two
million other young men during the Vietnam War -- were
ordered to report for induction. Only four percent of our
applicants failed to report for their pre-induction physical
examination. It was not until the date of induction that
70% violated the Selective Service laws. In fact, of those
applicants who received orders to report for induction,
nearly one-third (32% of all civilian applicants) actually
appeared at the induction center. When the time came to
take the symbolic step forward, these applicants refused to
participate further in the induction process.
Once induction orders had been issued and all
postponements had been exhausted, applicants had a
continuing duty to report for induction. It was sometimes
the practice of local boards to give individuals several
opportunities to comply by issuing more than one induction
orders before filing a complaint with the United States
Attorney.
(Case 3-30)
Applicant was ordered to report for
induction, but he instead applied for CO
status. His local board refused to reopen
his classification, and he was again
ordered to report for induction. He again
failed to report, advising his draft board
after-the-fact that he had been ill. He
received a third order to report, but
again did not appear. Thereafter, he was
convicted.
On occasion, applicants claimed that they never received
induction orders until after Selective Service had issued
complaints. However, applicants were legally responsible to
make sure that mail from their draft boards reached them.
(Case 3-31)
While applicant was attending an out-of-
state university, his mother received some
letters from his draft board. Rather than
forward them, she returned them to the
board. Her husband had recently died, and
she feared losing her son to the service.
Subsequently, applicant was charged with a
draft offense.
(Case 3-32)
Having been classified 1-A, applicant
informed his draft board that he was
moving out of town to hold a job, giving
the Board his new address. He soon found
that his job was not to his liking. He
then returned home, and not long
thereafter he told his draft board that he
was back. However, in the interim an
induction order had been sent to his new
address, he had not appeared on his
induction date, and a complaint had been
issued.
Sometimes, personal problems hindered applicants from
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appearing as ordered at induction centers.
(Case 3-33)
Applicant failed to report to his pre-
induction physical because he was
hospitalized as a result of stab wounds.
He was again ordered to report, but he did
not appear because he was in jail. He was
ordered to report for a third time, but
applicant claimed he failed to report
because of his heroin addiction.
Therefore, he was convicted for his draft
offense.
Many applicants claimed that the realization that they
were conscientiously opposed to war came only after they
received induction notices. The notices may have acted as
catalysts which led to the late crystallization of their
beliefs.
(Case 3-34)
Applicant stated that "the induction order
forced me for the first time to make a
decision as to my views with regard to
war."
However, a registrant could not request a change in
status because of "late crystallization" after his induction
notice was mailed, unless he experienced a change in
circumstances beyond his control. In 1971, the Supreme
Court held in Ehlert V. United States that a post-induction-
notice claim for conscientious objector status did not
constitute a change in circumstances beyond the applicant's
control.5
Reasons for Draft Offenses
To be eligible for clemency, civilian applicants must
have committed at least one of six offenses enumerated in
the Executive Order. (See Chapter 2-B.) As described
earlier, three percent failed to register, ten percent
failed to keep their local boards informed of their address,
13% failed to perform alternative service as conscientious
objectors, four percent failed to report for pre-induction
physical exams, 38% failed to report for induction, and 32%
failed to submit to induction. At the time of most
applicants' draft violations, they were between the ages of
20 and 22, and the year was 1970 - 1972. For over 95% of
these applicants, their failure to comply with the Selective
Service law were their first criminal offenses.
Numerous reasons were given by civilian applicants for
their offenses. The most frequent of their reasons was
conscientious objection to war in either general or
particular form. Fifty-seven percent expressed either
religious, ethical or moral objection to all war, and an
additional 14% expressed specific objection to the Vietnam
War. When other related reasons were considered (such as
denial of CO status), 75% of the civilian applicants claimed
that they committed their offenses for reasons related to
their opposition to war. Likewise, expressions of
conscience were found by the Clemency Board to be valid
GERALD FORD LIBRARY
mitigating circumstances in 73% of our cases.
(Case 3-35)
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 3-36)
Applicant applied for conscientious
objector status on the ground that because
he was black he could not serve in the
Armed Forces of "a nation whose laws and
customs did not afford (him) the same
opportunities and protection afforded to
white citizens." His application was
denied, and he refused induction.
By contrast, less than one out of six of all our
civilian applicants were found by the Board to have
committed their offenses for selfish reasons.
Other major reasons for their offenses include medical
problems (6%) and family or personal problems (10%).
(Case 3-37)
When applicant was ordered to report for
induction, his wife was undergoing
numerous kidney operations, with a
terminal medical prognosis. She was
dependent upon him for support and care,
SO he failed to report for induction.
Experiences as Fugitives
At one time or another, all civilian applicants faced
the difficult decision whether to submit to the legal
process or become fugitives. Nearly two-thirds immediately
surrendered themselves to the authorities. of the remaining
one-third who did not immediately surrender, 82% never left
their hometowns. of the 18% who did leave to evade the
draft, slightly less than half (8%) ever left the United
States. Most at-large civilian applicants remained
fugitives for less than one year. Many reconsidered their
initial decision to flee, and about one-third surrendered.
Many of the rest were apprehended only because they lived
openly at home and made no efforts to avoid arrest. Over
two-thirds of our at-large applicants were employed full-
time; most others were employed part-time, and only one out
of ten was unemployed. Very few assumed false identities or
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took steps to hide from authorities.
Most fugitive applicants who chose to go abroad went to
Canada. Geographical proximity culture, history, and
language were two reasons why they chose Canada. However,
the major reason for the emigration of American draft
resisters to Canada was the openness of their immigration
laws. Some civilian applicants were either denied
immigrant status or deported by Canadian officials.
Otherwise, they might have remained there as fugitives.
(Case 3-38)
After receiving his order to report for
induction, applicant went to Canada. He
was denied immigrant status, SO he
returned to the United States and applied
for a hardship deferment. After a
hearing, his deferment was denied. He was
once again ordered to report for
induction, but he instead fled to the
British West Indies. He was apprehended
after returning to Florida to make
preparations to remain in the West Indies
permanently.
Most applicants who went to Canada (6%) stayed there
briefly, but some remained for years. A few severed all
American ties, with the apparent intention of starting a new
life there.
(Case 3-39)
In response to Selective Service
inquiries, applicant's parents notified
the local board that their son was in
Canada. However, they did not know his
address. Applicant lived and worked in
Canada for almost four years.
The only applicants to the Clemency Board who remained
permanently in Canada were those who fled after their
conviction to escape punishment.
(Case 3-40)
Applicant was convicted for refusing
induction, but remained free pending
appeal. When his appeal failed, he fled
to Canada. He remained in Canada until he
applied for Clemency.
Pre-Trial Actions
Civilian applicants began to face court action when
their local draft boards determined that sufficient evidence
of Selective Service violations existed to warrant the
forwarding of their files to United States Attorneys. After
complaints were issued and indictments or information
returned against them, the litigation fell within the
jurisdiction of the Federal district courts.
The courts dismissed many draft cases. From 1968
through 1973, the number of cases and the dismissal rate
continuously increased. Through 1968, only about 25% of all
cases resulted in dismissal. From 1969 through 1972, about
FORD i LIBRARY GERALD
55% were dismissed -- and in 1973, over two-thirds were
dismissed.6
One important element influencing the dismissal rate in
particular jurisdictions was the practice of forum shopping.
Many defendants searched for judges with a reputation for
leniency or a tendency to dismiss draft cases. For example,
in the Northern District of California since 1970, nearly
70% of the cases tried in that court resulted in dismissal
or acquittal.7 At that time, many young men transferred
their draft orders to the Oakland induction center before
refusing induction, thus enabling them to try their cases in
the Northern district. In 1970, its dismissal rate averaged
48.9 draft cases per 10,000 population, closely followed by
the Central District of California with 43.1. The national
average was 14.1. Some Clemency Board applicants apparently
"forum shopped" in California and other Western states; five
percent received their convictions in the Ninth Circuit even
though their homes were elsewere.
Jurisdictional inequities in the dismissal rate for
draft offenses within the same state were common during the
war era. For example, in contrast to the dismissal rate in
the Northern District of California (70%), the Eastern
District of California dismissed only 40% of its draft
cases. Similarly, in the Eastern District of Virginia 63%
of the draft cases were dismissed, versus 35% in the Western
District.8
Convictions and Acquittals
After civilian applicants were indicted and their
motions for dismissal refused, 26% pled not guilty, and they
next entered the trial stage. The rest pled either guilty
(68%) or nolo contendere (6%). Many of those who pled
quilty did SO as part of a "plea bargain," whereby other
charges against them were dismissed.
of the 21,400 draft law violators who stood trial during
the Vietnam era, 12,700 were acquitted.9 Assuming that all
those acquitted pled not guilty, and assuming, by
extrapolation, that 2,300 (26%) of convicted draft offenders
pled not guilty, it appears that an individual stood an 85%
chance of acquittal if he pled not guilty. Changing Supreme
Court standards occurring after the offense but before trial
may have led to acquittals. of special importance was the
1970 Welsh case which broadened the conscientious objector
exemption criteria to include ethical and moral objection to
war. 10
Of course, no Clemency Board applicants were among the
12,700 acquitted of draft charges. Typically, applicants
were convicted around the age of 23, nearly two years after
their initial offenses. Less than one out of ten appealed
their convictions.
Some applicants may have been convicted because of the
apparent poor quality of their legal counsel.
(Case 3-41)
Applicant joined the National Guard and
was released from active duty training
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eight months later. While in the National
Guard reserves thereafter, he was referred
to Selective Service for induction for
failure to perform his reserve duties
satisfactorily. He obeyed an order to
report for induction, but claimed that he
negotiated an agreement to settle his
National Guard misunderstandings at the
induction center. He pled not guilty of
refusing to submit to induction, but he
was convicted. Apparently, his trial
attorney failed to call several important
defense witnesses who had been present at
the induction center. Applicant's present
attorney believes that his trial attorney
represented him inadequately. After
conviction but before execution of his
sentence, applicant completed his National
Guard service and received a discharge
under honorable conditions.
On occasion, applicants were given the opportunity to
enlist or submit to induction up to the time of trial, as a
means of escaping conviction. Some applicants later claimed
that they were caught in "Catch-22" situations in which they
could neither be inducted nor escape conviction for failing
to be inducted.
(Case 3-42)
Ordered to report for induction, applicant
refused to appear at the induction center.
While charges were pending against him, he
was informed that he could seek an in-
service CO classification after entering
the military. With this knowledge, he
agreed to submit to induction, and the
court gave him a 30-day continuance. He
did seek induction, but ironically, he
could not be inducted because he failed to
pass his physical due to a hernia
condition. When his continuance expired,
he was convicted of failure to report for
induction.
However, others were convicted despite every possible
attempt by authorities to deal fairly and leniently with
them.
(Case 3-43)
An order to report for induction was
mailed to applicant's parents, but he
failed to report. Over one year later,
applicant's attorney contacted the United
States Attorney and indicated that
applicant had severe psychiatric and other
medical problems which could make him fail
his pre-induction physical. In response,
the United States Attorney offered
applicant an opportunity to apply for
enlistment and be disqualified. However,
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applicant could not be found, and a grand
jury subsequently issued an indictment.
An analysis of conviction rates for draft offenses shows
clear jurisdictional discrepancies. For instance, the
Southern States had the highest propensity for conviction,
with the eastern states and California having the lowest.
In 1972, there were twenty-seven draft cases tried in
Connecticut, with only one resulting in conviction. In the
Northern District of Alabama during the same period, sixteen
draft cases resulted in twelve convictions. 11 These
different conviction rates apparently occurred because of
wide differences in attitude toward the draft violators.
These differences in treatment may have encouraged forum-
shopping by our applicants. 12
The conviction rate itself varied considerably during
the war era. In 1968, the conviction rate for violators of
the Selective Service Act was 66%; by 1974, the conviction
rate was cut in half to 33%. Apparently, as time went by,
prosecutors, judges and juries had less inclination to
convict draft-law violators.
Sentences
Only about one-third of the civilian applicants ever
went to prison. The remainder were sentenced to probation
and, usually, alternative service. A majority of applicants
(56%) performed alternative service. Typically, they
performed twenty-four or thirty-six months of alternative
service, but a few served as many as five years. Some
applicants performed their alternative service on a part-
time basis. The jobs they performed were similar to those
filled by conscientious objectors. However, they had to
fulfill other conditions of probation.
(Case 3-44)
As a condition of probation, applicant
worked full-time for Goodwill Industries
and a non-profit organization which
provided jobs for disabled veterans. He
received only a token salary.
(Case 3-45)
Applicant worked for three years for a
local emergency housing committee as a
condition of probation. He worked full-
time as a volunteer.
A few (6%) failed to comply with the terms of their
probation, often by refusing to do alternative service work.
Some then fled and remained fugitives until they applied for
clemency.
(Case 3-46)
Convicted for a draft offense, applicant
was sentenced to three years probation,
with the condition that he perform
civilian work in the national interest.
About one year later, his sentence was
revoked for a parole violation (absconding
from supervision). He was again sentenced
to three years probation, doing
alternative service work. He did not seek
GERALD LIBRARY GERALDR. FORD
such work and left town. A bench warrant
was issued for his arrest. Applicant,
still a fugitive, now resides in Canada.
Some were required, as a condition of probation, to
enlist in military service. They suffered felony
convictions, served full enlistments in the military, and
sometimes remained on probation after discharge. One
percent of our civilian applicants became Vietnam veterans.
(Case 3-47)
Applicant refused induction because of his
moral beliefs. He was sentenced to three
years imprisonment, suspended on the
condition that he enlist in the military.
Applicant did enlist, serving a full tour
of duty. He served as a noncombatant in
Vietnam, earning a Bronze Star. Awarded
an Honorable Discharge, he still had one
year of probation to complete before his
sentence was served.
of civilian applicants sentenced to imprisonment, most
served less than one year. Only thirteen percent spent more
than one year in prison, and less than one percent were
incarcerated for more than two years. Approximately 100
civilian applicants were still serving their terms when the
President's clemency program was announced, at which time
they were released.
The sentencing provisions of the Military Selective
Service Act of 1967 provided for jail terms of up to five
years, giving judges sentencing discretion. 13 The
sentencing dispositions of the courts were inconsistent and
widely varying, dependent to a great extent upon year of
conviction, geography, race, and religion. In 1968, 74% of
all convicted draft offenders were sentenced to prison,
their average sentence was 37 months, and 13% received the
maximum five-year sentence. By 1974, only 22% were
sentenced to prison, their average sentence was just fifteen
months, and no one received the maximum. Geographic
variations were almost as striking, In 1968, almost one-
third of those convicted in the southern-states Fifth
Circuit received the maximum five-year prison sentence, but
only five percent received the maximum in the eastern-states
Second Circuit. of 33 convicted Selective Service violators
in Oregon during that same year, 18 were put on probation,
and only one was given a sentence over three years. In
Southern Texas, of 16 violators, none were put on probation,
15 out of 16 received at least three years, and 14 received
the maximum five-year sentence. 14
Other sentencing variations occurred on the basis of
race. In 1972, the average sentence for all incarcerated
Selective Service violators was thirty-four months, while
for blacks and other minorities the average sentence was
forty-five months. This disparity decreased to a difference
of slightly more than two months in 1974. 15 While we did
not perceive such a disparity as a general rule, some cases
appeared to involve racial questions.
&
FORD
(Case 3-48)
Applicant belongs to the Black Muslim
faith, whose religion principles
prohibited him from submitting
to
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LIBRARY
induction. He has been actively involved
in civil rights and other social movements
in his region of the country. He was
convicted for his draft offense and
sentenced to five years imprisonment.
Applicant stated that his case was tried
with extreme prejudice. He spent 25
months in prison before being paroled.
Some religious inequities may also have occurred. For
the years 1966 through 1969, incarcerated Jehovah's Witness
received sentences averaging about one month longer than the
average Selective Service violators. During this same
period, religious objectors other than Jehovah's Witnesses
received average sentences about six months shorter than the
average violator. 16
Although a variety of sentencing procedures were
available, the majority of convicted Selective Service
violators were sentenced under normal adult procedures. If
the offender were sentenced to jail, two types of sentence
were available: (1) a sentence of definite time during
which he might be paroled after serving one-third of his
term; or (2) an indeterminant sentence during which parole
eligibility might be determined by a judge on the Board of
Parole at a date before but not after one-third of the
sentence had expired. Offenders sentenced under the Federal
Youth Correction Act, could be unconditionally discharged
before the end of the period of probation or commitment.
This discharge automatically operated to set aside the
conviction. Additionally, because commitments and
probations under the Youth Corrections Act were
indeterminate, the period of supervision might have lasted
as long as six years. 17 Bureau of Prison statistics
indicate, however, that the Youth Corrections Act was used
as a sentencing procedure only in 10% of all violation
cases. When it was applied, the six year maximum period of
supervision was imposed in almost all cases. 18
Prison Experiences
One-third of the civilian applicants received prison
sentences and served time in Federal prison. Most served
their time without great difficulty.
(Case 3-49)
Applicant served eighteen months in
Federal prison. His prison report
indicated that he did good work as a cook
and had "a very good attitude. The
report noted no adjustment difficulties,
no health problems, and no complaints.
However, some experienced considerable difficulty in
adapting to prison life.
(Case 3-50)
Applicant, a member of Hare Krishna, was
sentenced to a two-year prison term for a
draft offense. Because of his religious
FORD & 070339 LIBRARY
convictions and dietary limitations, life
in prison became intolerable for him. He
escaped from Federal prison, surrendering
three years later.
Although very rare, instances of harsh treatment did
occur.
(Case 3-51)
Applicant was arrested in Arizona and
extradited to the Canal Zone for trial
(the location of his local board). Prior
to trial, he was confined for four months
in a four by six foot cell in a hot
jungle. Some evidence exists that he was
denied the full opportunity to post
reasonable bail. At his trial, applicant
was convicted and sentenced to an
additional two months confinement. By the
time of his release, his mental and
physical
health
substantially
deteriorated. He was then confined in a
mental hospital for several months. His
mental health is still a subject of
concern.
Some could not escape the effects of their prison
experience even after their relase.
(Case 3-52)
Applicant became addicted to heroin while
serving the prison sentence for his draft
conviction. He turned to criminal
activities to support his habit after he
was released. He was later convicted of
robbery and returned to prison.
Parole for Selective Service violators was determined
primarily by the nature of the offense. It was the policy
of many parole boards that draft violators serve a minimum
of two years for parity with military duty, but most were
released after the initial parole applications. Jehovah's
Witnesses received first releases in nearly all instances.
Most Selective Service violators were granted parole after
serving approximately half their prison sentences, but many
with prison sentences of less than one year served until
their expiration dates. In each year from 1965 to 1974,
Selective Service violators were granted parole more often
than other Federal criminals. 19
Consequences of Felony Convictions
Felony convictions had many grave ramifications for
civilian applicants. The overwhelming majority of states
construe a draft offense as a felony, denying applicants the
right to vote or, occasionally, just suspending it during
confinement. Felony convictions carry other serious legal
consequences. (See Chapter 2-c.)
A principal disability arising from a felony conviction
LIBRARY GERALD GERALD R. FORD
is its effect upon employment opportunities. Often, this
job discrimination is reinforced by statute. States license
many occupations, often requiring good moral character, so
applicants were often barred from such occupations as
attorney, accountant, architect, dry cleaner, and barber.
(Case 3-53)
Applicant, a third year law student, was
told he could not be admitted to the bar
because of his draft conviction.
Other severe restrictions exist in the public employment
sector.
(Case 3-54)
Applicant graduated from college, but was
unable to find work because of his draft
conviction. He qualified for a job with
the Post Office but was then informed that
his draft conviction rendered him
ineligible.
(Case 3-55)
Applicant qualified for a teaching
position, but the local board of education
refused to hire him on the basis of his
draft conviction. The board later
reversed its position at the urging of
applicant's attorney and the local Federal
judge.
Despite these handicaps, civilian applicants fared
reasonably well in the job market. Over three out of four
were employed either full time (70%) or part-time (7%) when
they applied for clemency. Only two percent were unemployed
at the time of their application. The remainder had
returned to school (14%), were presently incarcerated (2%),
or were furloughed by prison officials pending disposition
of their cases by our Board (5%) Almost half (45%) had
married, and many (20%) had children or other dependents.
C. Military Applicants
Despite the popular belief that Clemency Board
applicants were mostly war resisters, the vast proportion of
military applicants were not articulate, well-educated
opponents of the war. Less than one percent had applied for
a conscientious objector draft classification before
entering the military. Less than five percent attributed
their offenses to opposition to the Vietnam War. Their
average IQ (98) was very close to the national average.
Nonetheless, over three-quarters dropped out of high school
before joining the service, and less than one-half of one
percent graduated from college. They were raised in small
towns or on farms (40%). Generally, they came from
disadvantaged environments. Many grew up in broken homes
(60%), struggling to cope with low incomes (57%). A
disproportionate percentage were black (21%) or Spanish-
speaking (3.5%). A few (0.1%) were women.
In the discussion which follows, we trace the general
FORD LIBRART
experiences of military applicants. We look first at the
circumstances of their induction or enlistment and their
early experiences in the military. We then describe how 27%
of them served in Vietnam, many with distinction. After
considering the circumstances of their AWOL offenses, we
look at their experiences with the military justice system.
Finally, we describe the impact of their bad discharges.
Almost two-thirds were in the Army, so much of the
discussion about military procedures, especially the
military justice system, pertains to the Army, whose
procedures were not greatly different from those of the
other services.
Induction or Enlistment in the Military
Almost one-third of the military applicants enlisted at
age 17, and over three-quarters were in uniform by their
20th birthday. Most (84%) enlisted rather than be drafted.
Our applicants served in the Army (63%), the Marines (23%)
and to a lesser degree, the Navy (12%) and the Air Force
(3%).
Their reasons for enlistment ranged from draft pressure
to the desire to learn a trade, to the simple absence of
anything else to do. Others saw the military as an
opportunity to become more mature. 20
(Case 3-56)
Applicant enlisted after high school
because he did not want to go to college
or be inducted.
(Case 3-57)
Applicant enlisted to obtain specialized
training to become a microwave technician.
(Case 3-58)
Applicant enlisted at age 17 because he
wanted "a place to eat" and a "roof over
(his) head."
(Case 3-59)
Applicant enlisted because he was getting
into trouble all the time and felt that
service life might "settle (him) down."
As the Vietnam war expanded, America's military manpower
needs increased. Many recruiters helped arrange entry into
preferred military occupational specialties and geographic
areas of assignment. However, some military applicants
claimed, often without corroboration, that their
unauthorized absences were motivated by the services'
failure to assign them to the positions they themselves
wanted.
(Case 3-60)
Applicant enlisted at age 17 for motor
maintenance training, but instead was
trained as a cook. This action caused him
disappointment and frustration. His
grandmother contended that he was misled
by the recruiter.
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Before the Vietnam War, the military generally did not
accept persons for enlistment or induction if they had
Category IV (below the 30th percentile) scores on their
Armed Forces Qualifying Test for intelligence (AFQT) ; 21 some
who scored between the 15th and 30th percentiles were
brought into the service under special programs. 22 In August
1966, Secretary of Defense Robert McNamara announced Project
100,000 to use the training establishment of the Armed
Forces to help certain young men become more productive
citizens upon return to civilian life. Project 100,000
extended the opportunity and obligation of military service
to marginally qualified persons by reducing mental and
physical standards governing eligibility. Persons scoring
as low as the 10th percentile on AFQT tests became eligible
for military service. During its first year, 40,000
soldiers entered the military under this program. For two
years thereafter, it lived up to its name by enabling
100,000 marginally qualified soldiers to join the service
each year. 23
Military studies have indicated that the opportunity for
technical training was the principal motivation for the
enlistment of Category IV soldiers. However, over half
enlisted at least partly because of draft pressure. Other
reasons for enlistment were to travel, obtain time to find
out what to do with one's life, serve one's country, and
enjoy educational benefits after leaving the service. 24 Some
learned marketable skills, and 13% of our applicants
received a high school equivalency certificate while in the
service.
Almost one-third of our applicants (32%) were allowed to
join the military despite pre-enlistment AFQT scores at or
below the 30th percentile.
(Case 3-61)
Applicant had an AFQT of 11 and a GT (IQ
score) of 61 at enlistment. He
successfully completed basic training, but
went AWOL shortly thereafter.
(Case 3-62)
Applicant had an 8th grade education, an
AFQT of 11, and a GT of 62. Coming from a
broken home, he was enthusiastic about his
induction into the Army, believing that he
would gain technical training and
financial security. His lack of physical
ability and difficulties in reading and
writing caused him to fail basic training.
He was in basic training for nine months
before he was sent to Advanced Individual
Training (AIT) as a tank driver. He
continued to have learning problems in
advanced training. According to
applicant, this problem was compounded by
the ridicule of other soldiers upon their
discovery that he had required several
months to complete basic training.
Not all of our Category IV applicants joined the service
because of Project 100,000. Some had other test scores
qualifying them for enlistment under the earlier standards.
Nonetheless, many of our applicants would probably never
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have been in the service were it not for Project 100,000.
The Category IV applicants tended to be from
disadvantaged backgrounds. Compared to other applicants,
they were predominantly Black or Spanish-speaking (42% of
Category IV versus 18% of all other applicants) and grew up
in cities (55% versus 44%). Their families struggled with
low incomes (72% versus 49%), and they dropped out of high
school (75% versus 56%). The quality of their military
service was about the same as that of other military
applicants: they did not have significantly more punishments
for non-AWOL offenses (53% versus 52%) or non-AWOL charges
pending at time of discharge (13% versus 12%). Despite
this, a greater percentage received administrative
Undesirable Discharges (68% versus 57%).
of course, we saw only the Category IV soldiers who did
not succeed in service. The experiences of the 4,000-plus
Category IV applicants do not reflect the performance of all
Category IV soldiers, including the quarter-million men
brought into the service by Project 100,000. Many of our
Category IV applicants served well before committing their
qualifying AWOL offenses.
(Case 3-63)
Applicant, a Black male from a family of
12 children, dropped out of high school
before his induction into the Army. His
GT was 114 and his AFQT was 18 (Category
IV). Applicant spent 6 years on active
duty, including service as a military
policeman in Korea. Following a three
month stint in Germany, he served an 8
month tour in Vietnam as an assistant
platoon leader. On a second tour in
Vietnam, where he served as a squad leader
and chief of an armored car section, he
earned the Bronze Star for Heroism. He
went AWOL while on leave from his second
tour in Vietnam.
Early Experiences in the Military
The military applicant's first encounters with the
military were in basic training. 25 It was during these first
weeks that they had to learn the regimen and routine of
military life. For many, this was their first experience
away from home and the first time they faced such intense
personal responsibilities.
Although the applicants' general emotional problems--
homesickness and the trauma of separation or a different
life-style--were no different from those which other young
men have always faced upon entering the service, some did
not adjust well to the demands placed on them:
(Case 3-64)
Applicant went on aimless wanderings prior
to advanced training. He finally lost
control of himself and knocked out 20
windows in the barracks with his bare
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hands, suffering numerous wounds.
Social and cultural differences among recruits posed
problems for others who did not get along well in the close
quarters of the barracks environment.
(Case 3-65)
Applicant, of Spanish heritage, was
subjected to physical and verbal abuse
during boot camp. He recalls being called
"chili bean" and "Mexican chili." His
ineptness in boot camp also led to
ridicule. He wept at his court-martial
when he recalled his early experiences
that led to his AWOL.
(Case 3-66)
Applicant's version of his problems is
that he could no longer get along in the
Marine Corps. Other Marines picked on him
because he was Puerto Rican, wouldn't
permit him to speak Spanish to other
Puerto Ricans, and finally tried to get
him into trouble when he refused to let
them push him around.
(Case 3-67)
Applicant was a high school graduate with
a Category I AFQT score and GT (IQ test)
score of 145. She complained that other
soldiers harrassed her without cause and
accused her of homosexuality. She went
AWOL to avoid the pressure.
Incidents of AWOL during basic training usually resulted
in minor forms of punishment. Typically, a new recruit
would receive a Non-Judicial Punishment, resulting in
restriction, loss of pay, or extra duty. Seven percent of
the military applicants were discharged because of an AWOL
commencing during basic training.
Following basic training, those in the Army transferred
to another unit for advanced or on-the-job training.
Altogether, ten percent were discharged for an AWOL begun
during advanced training. Individual transfers resulted in
breaking up units and, frequently, the ending of personal
friendships. The AWOL rate tended to be higher for soldiers
in transit to new assignments. 26 Some underwent training in
jobs which they found unsatisfying, and others were given
details which made no use of their newly-learned skills. A
few applicants thought the service owed them an obligation
to meet their preferences; when the military used them in
other necessary functions, they went AWOL.
(Case 3-68)
Applicant enlisted in the Army for a term
of three years, specifying a job
preference for electronics. The recruiter
informed him that the electronics field
was full, but that if he accepted
assignment to the medical corps he could
change his job after commencement of
active duty. Once on active duty,
applicant was informed that his Military
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Occupational Speciality (MOS) could not be
changed. He claimed that he was
unsuccessful in obtaining the help of his
platoon sergeant, company commander, and
chaplain, so he went AWOL.
Military life, especially for those of low rank, requires
the performance of temporary, menial duties for which no
training is required, such as kitchen patrol (KP) and
cleanup work. Some of our applicants spurned these
responsibilities and went AWOL.
(Case 3-69)
Applicant found himself pulling details
and mowing grass rather than working in
his military occupational specialty. He
then went AWOL and did not return for over
three years.
After several months in the military, some were still
having difficulty adjusting to the many demands of military
life. They had difficulty reconciling themselves to a daily
routine which had to be followed, superiors who had to be
treated with respect, and orders which had to be obeyed.
Over half (53%) were punished for one or more military
offenses in addition to AWOL. Only three percent were
punished for military offenses comparable to civilian crimes
such as theft or vandalism.
(Case 3-70)
Applicant had difficulty adjusting to the
regimentation of Army life. While he was
in the service, he felt that he needed to
have freedom of action at all times. He
would not take guidance from anyone, was
repeatedly disrespectful, and disobeyed
numerous orders. His course of conduct
resulted in his receiving three
nonjudicial punishments and three Special
Court-Martials.
Altogether, almost half (47%) of the military applicants
were discharged for AWOL offenses occurring during stateside
duty, other than training, which did not follow a Vietnam
tour.
Requests for Leave, Reassignment, or Discharge
Many military applicants complained of personal or
family problems during their military careers. Parents
died, wives had miscarriages, children had illnesses, houses
were repossessed, families went on welfare, and engagements
were broken.
(Case 3-71)
During his 4-1/2 months of creditable
service, applicant was absent without
official leave on five occasions. He was
motivated in each instance by his concern
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for his grandmother who was living alone
and whom he believed needed his care and
support.
The military had remedies for soldiers with these
problems. They could request leave, reassignment, and, in
extreme cases, discharge due to a hardship. Unit officers,
chaplains, attorneys of the Judge Advocate General's Corps,
and Red Cross workers were available to render assistance
within their means. Despite the help applicants received,
some did not come back when their personal problems were
resolved.
(Case 3-72)
Applicant requested, and was granted, an
emergency leave due to his mother's death.
Applicant did not return from leave. He
was apprehended one year and eight months
later.
The Department of Defense discovered that 58% of its
clemency applicants sought help from at least one military
source before going AWOL. However, only 45% approached
their commanding officer, and fewer yet approached an
officer above the company level. 27 Many Clemency Board
applicants never tried to solve their problems through
military channels. Others indicated that, before going
AWOL, they tried some of these channels but failed to obtain
the desired relief.
(Case 3-73)
Applicant's wife was pregnant, in
financial difficulties, and facing
eviction. She suffered from an emotional
disorder and nervous problems.
Applicant's oldest child was asthmatic and
epileptic, having seizures that sometimes
resulted in unconsciousness. Applicant's
request for a transfer and a hardship
discharge which were denied. He then went
AWOL.
Requests for leave were matters within a commanding
officer's discretion. However, leave was earned at the rate
of 30 days per calendar year, and individuals often used
leave substantially in excess of the amount they had earned.
Commanding officers could not normally authorize advance
leave in excess of 30 days, so a soldier who had used up his
advance leave had to go AWOL to solve his problems. This
was especially true if the enormity of the problem made one
period of leave insufficient.
(Case 3-74)
While applicant was home on leave to get
married, a hurricane flooded his mother-
in-law's house, in which he and his wife
were staying. His belongings and almost
the entire property were lost. He
requested and was granted a 21-day leave
extension, which he spent trying to repair
the house. However, the house remained in
an unlivable condition, and his wife began
to suffer from a serious nervous
condition. Applicant went AWOL for four
days to ease the situation. He returned
voluntarily and requested a Hardship
Discharge or a six-month emergency leave,
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both of which were denied. He then went
AWOL.
of military applicants who requested leave or
reassignment, roughly 15% had their request approved.
Slightly over one percent were granted leave or reassignment
to help them solve the problem which later led to their
AWOL. By contrast, nine percent had their leave or
reassignment requests turned down. Their requests were
evaluated on the basis of information available to
commanding officers, who had to weigh the soldier's personal
needs against the needs of the military.
The hardship discharge offered a permanent solution to
the conflict between a soldier's problem and his military
obligations. To get a hardship discharge, he had to submit
a request in writing to his commanding officer, explaining
and documenting the nature of his problem and how only a
discharge would help him solve it. The Red Cross was often
asked for assistance in substantiating the request. Some
did not have the patience to proceed through channels.
(Case 3-75)
Applicant states that his father, who had
suffered for three years from cancer,
committed suicide by hanging. His
family's resources and morale had been
severely strained by the father's illness
and death. Applicant spent a period of
time on emergency leave to take care of
funeral arrangements and other matters.
At the time, his mother was paralyzed in
one arm and unable to work. Applicant
sought a hardship discharge, but after
three weeks of waiting, his inquiries into
the status of the application revealed
that the paperwork had been lost.
Applicant then went AWOL.
The soldier who was conscientiously opposed to war could
apply for in-service conscientious objector status. Very
few of our applicants did: only one percent took any
initiative to obtain this in-service status, and only one-
half of one percent made a formal application. However, the
Clemency Board found five percent to have committed their
offenses for conscientious reasons. Some applicants alleged
that they were unaware of what they had to do to get such
status, probably as a result of their misunderstanding of
military regulations.
(Case 3-76)
From the time of his arrival at his Navy
base, applicant consulted with medical,
legal, and other officers on how to obtain
a discharge for conscientious objection.
He was told that the initiative for such a
discharge would have to be taken by the
Navy, and that he would first have to
demonstrate that he was a conscientious
objector. He then went AWOL to prove his
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beliefs. Following his court-martial
conviction for that brief AWOL, he
requested a discharge as a conscientious
objector. His request was denied.
Military applicants could have submitted two types of
conscientious objector applications. One resulted in
reassignment to a noncombatant activity, while the other
provided for a discharge under honorable conditions. Each