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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States of America his copyrights in all of his unpublished writings in National Archives collections.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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Summary
001 Summary
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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
GERALD
straightened out and is a responsible
member of the community.
LIBRARY
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
GERALD
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
DECALD
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
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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
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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
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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
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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
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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
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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
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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.
GERALD FORD LIBRART
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
GERALD FORD LIBRARY
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,
FORD & LIBRARY GERALD
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
GERALD
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.
FORD & GERALD LIBRARY
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
GERALS FORD LIBRARY
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
FORD : LIBRARY 07V835
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
GERALD LIBRARY GERALDR. FORD
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
FORD & LIBRARY GERALD
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,
CERALE FORD LIBRARY
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
GERALD FORD LIBRARY
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

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"ocrText": "The original documents are located in Box 6, folder \"Final Report - Draft, 11/11/75 (1)\" of\nthe Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Charles Goodell donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 6 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library\nThe enclosed is the very-near-final version\nof the executive summary and report, minus\nappendices, figures, and full-page tables.\nChapters 5 and 8 and the summary have had\nsome errors corrected since this was prepared.\nLet's hope that there are no further changes.\nFORD i GERALD LIBRARY\nTODAY'S DATE 11/11/75\n1301\n11 lstl11e\n222-001\nCUSTOMER a2220 OPERATOR 001 PCB\n222-001\nSummary\n001 Summary\nDATE STORED 11/06/75\n1304\nW\nWIDTH 060 DEPTH 64\npj\nPRINT POSITION 12 LINE 03\nFORD & LIBRARY\nSUMMARY\n1. Introduction\nIn the years before President Ford assumed office,\npublic opinion was sharply divided over what government\npolicy should be toward those who had committed Vietnam-era\ndraft violations and military absence offenses. Many\nbelieved that these actions could not be forgiven in light\nof the sacrifices endured by others during the war. Yet\nmany citizens believed that only unconditional amnesty was\nappropriate for offenders who had acted in good conscience\nto oppose a war they believed wrong and wasteful.\nSomething had to be done to bring Americans together\nagain. The rancor that had divided the country during the\nVietnam War still sapped its spirit and strength. The\nnational interest required that Americans put aside their\nstrong personal feelings. Six weeks after taking office,\nPresident Ford announced a program of clemency, offering\nforgiveness and reconciliation to Vietnam-era draft and\nmilitary absence offenders.\n2. The President's Clemency Program\nIn his Proclamation of September 16, 1974, President\nFord created a program of conditional clemency for roughly\n13,000 civilians and 100,000 servicemen who had committed\ndraft or military absence offenses between the adoption of\nthe Gulf of Tonkin Resolution (August 4, 1964) and the day\nthe last American combatant left Vietnam (March 28, 1973).\nHe authorized the Departments of Justice and Defense,\n:\nFORD\nrespectively, to review applications from the 4,522 draft\noffenders and the 10,115 undischarged servicemen still at\nGERALD\nlarge. He created the Presidential Clemency Board to\nconsider applications from the 8,700 convicted and punished\ndraft offenders and the estimated 90,000 servicemen given\nbad discharges for absence offenses. He gave all eligible\npersons 4-1/2 months (later extended to 6-1/2 months) to\napply. He promised that their cases would be reviewed\nindividually. He further indicated that applicants would be\nasked to earn clemency where appropriate, by performing up\nto 24 months of alternative service in the national\ninterest, under the supervision of the Selective Service\nSystem.\nUnder the Justice Department program, unconvicted\ndraft offenders would have their prosecutions dropped,\nenabling them to avoid imprisonment and the stigma of a\nfelony conviction. Under the Defense Department program,\nfugitive servicemen were offered an immediate Undesirable\nDischarge as a permanent end to their fugitive status,\nsimilarly enabling them to avoid imprisonment and the stigma\nof a Bad Conduct or Dishonorable Discharge. They were also\noffered the chance to earn a Clemency Discharge. Under the\nClemency Board program, convicted draft offenders were\noffered full and unconditional Presidential pardons for\ntheir draft offenses. Former servicemen who had received\nbad discharges were offered Clemency Discharges and full\nPresidential pardons for their absence offenses.\nBy granting pardons to convicted or discharged\noffenders, President Ford was exercising the most potent\nconstitutional form of executive clemency available to him.\nThe Presidential pardon connotes official forgiveness for\ndesignated draft or military offenses, restoring all Federal\ncivil rights lost as a result of those specific offenses.\nLikewise, a full and unconditional pardon indicates that\ngovernment agencies should disregard all pardoned offenses\nin any subsequent actions they take involving clemency\nrecipients.\nBy directing that the military services upgrade bad\ndischarges, substituting Clemency Discharges in their place,\nthe President wanted to insure equal employment\nopportunities for those who received clemency. As a\n\"neutral\" discharge, the Clemency Discharge appears to be\nworking: a recent survey of large national employers and\nlocal (Pennsylvania) employers found that they view it as\nalmost identical to a General Discharge under honorable\nconditions and much better than an Undesirable Discharge\nunder other-than-honorable conditions.\nA Clemency Discharge does not confer veterans'\nbenefits, but it leaves an individual with the same appeal\nrights that were available to him before. Indeed, the\nreceipt of a Presidential pardon and a Clemency Discharge\nshould improve an individual's chances for further upgrade.\nAltogether, 21,729 eligible persons applied for\nclemency.\nTABLE 1: PERSONS ELIGIBLE FOR THE\nPRESIDENT'S CLEMENCY PROGRAM\nNumber\nNumber\nPercent\nAgency\nApplicants\nEligible\nApplying\nApplying\nDefense Fugitive AWOL offenders 10,115\n5,555\n55%\nJustice\nUnconvicted draft\noffenders\n4,522\n706\n16%\nP.C.B.\nDischarged AWOL\noffenders\n90,000\n13,589\n15%\nP.C.B.\nConvicted draft\noffenders\n8,700\n1,879\n22%\nTOTAL\n113,337\n21,729\n19%\nThrough the first week in January, the Clemency Board\nhad received only 850 applications, with the initial January\n31 deadline just a few weeks away. At that time, the public\ndid not realize that the program included not only fugitives\nbut also punished offenders--including servicemen who had\nserved in Vietnam. Very few people realized that the\nPresident's program included the following sort of\nindividual:\n(Case 1)\nWhile a medic in Vietnam, this military\napplicant (an American Indian) received\nthe Bronze Star for heroism because of his\nactions during a night sweep operation.\nWhen his platoon came under intense enemy\nfire, he moved through a minefield under a\nhail of fire to aid his wounded comrades.\nWhile in Vietnam, he was made Squad Leader\nof nine men, seven of whom (including\nhimself) were wounded in action. After\nreturning to the United States, he\nexperienced post-combat psychiatric\nproblems. He went AWOL several times to\nseek psychiatric treatment. He received a\nbad discharge for his absences.\nBecause of this widespread public misunderstanding, we\nbegan public service announcements on thousands of radio and\ntelevision stations, held meetings and press conferences at\nover two dozen cities, met with thousands of veterans'\ncounselors throughout the country, and circulated bulletins\nto agencies in direct contact with eligible persons--such as\nVeterans' Administration offices, employment offices, post\noffices, and prisons. Given a limited information budget of\n$24,000, the results were dramatic. During the rest of\nJanuary, we received over 4,000 new applications. Because\nof this response, the President extended the application\nGERALD FORD County\ndeadline another month. We received 6,000 in February and,\nafter a final extension, another 10,000 before the March\n31st final deadline--for a total of about 21,500, of whom\n15,468 turned out to be eligible. This increase in\napplications was directly attributable to our public\ninformation campaign. By asking applicants when they\nlearned they were eligible, we discovered that over 95% did\nnot realize they could apply until after the January 8 start\nof the campaign; ninety percent applied within days or even\nhours of their discovery they were eligible. The\nDepartments of Defense and Justice did not experience a\nsimilar increase in applications, because it was already\nwidely understood that fugitive draft and military absence\n(AWOL) offenders could apply for clemency.\nDespite our efforts, public understanding of the\nprogram has not changed appreciably. An August 1975 Gallup\nPoll found that only 15% of the American people understood\nthat convicted draft offenders and discharged AWOL offenders\ncould also apply for clemency. Virtually the same\npercentage--16%--of eligible persons in those categories\nactually did apply. We are convinced that most of the\nremainder still do not know that they were eligible for the\nprogram. Others may not have applied because their lives\nare settled, with their draft offense convictions or bad\ndischarges of no present consequence to them. We believe\nthat very few failed to apply to the Clemency Board because\nof their opposition to the President's program.\nThe press and the public were, and indeed still are,\npreoccupied with anti-war fugitives who fled to Canada.\nHowever, we found that only six percent of our civilian\napplicants and two percent of our military applicants had\never gone to Canada. Virtually all of them subsequently\nreturned to the United States long before they applied for\nclemency. of the 15,468 Clemency Board applicants, less\nthan 400 (3%) ever went to Canada. This stands in marked\ncontrast to the 3,700 (24%) who were Vietnam veterans. In\nrecent years, many estimates have been made of the number of\nfugitive draft and AWOL offenders in Canada, usually on the\nbasis of very limited data. Based on our own data and our\nunderstanding of applicants to the Justice and Defense\nprograms, we estimate that a maximum of 7,000 persons\neligible for clemency were ever Canadian exiles. We further\nestimate that only 4,000 (less than 5%) of the 91,500 who\nwere eligible but did not apply for clemency are still in\nCanada, contrary to the usual public impression.\nWhat happens next to those who did not apply? The\n8,300 who are still fugitives should surrender to\nauthorities. While they are likely to receive a bad\ndischarge or felony conviction, they will end their fugitive\nstatus and will probably not be sentenced to imprisonment.\nThe 91,500 who have already been punished can apply to the\nPardon Attorney in the Department of Justice or to the\nappropriate military discharge review boards, avenues of\nrelief which are not related to the President's clemency\nprogram and which are not affected by the program's end.\n3. Applicants to the Presidential Clemency Board\nChance and circumstance had much to do with the\nsacrifices faced by each individual during the Vietnam War.\nConscription is selective. Only nine percent of all draft-\nage men served in Vietnam. Less than two percent ever faced\ncharges for draft or desertion offenses, and only 0.4%--less\nthan one out of two hundred--were convicted or remained\ncharged with these offenses at the start of the clemency\nprogram.\nMany Clemency Board applicants fell into common\ncategories: the civilian war resister who had his\napplication for conscientious objector (CO) status denied\nand who stood trial rather than leave the country; the\nJehovah's Witness who was granted a CO exemption but went to\njail because his religious convictions prohibited him from\naccepting an alternative service assignment from Selective\nService; the Vietnam veteran who went AWOL because of his\ndifficulties in adjusting to post-combat garrison duty; the\nserviceman with a low aptitude score who could not adjust to\nmilitary life; the serviceman who went AWOL to find a\nbetter-paying job to get his family off welfare.\nThe civilian applicants were not unlike most young men\nof their age. They grew up in stable middle-class families.\nEleven percent were black, and 1.3% were Spanish-speaking.\nOver three-quarters graduated from high school, and their\naverage IQ was 111. Roughly one in four was a Jehovah's\nWitness or member of another religious sect opposed to war.\nAlmost half applied for conscientious objector exemptions,\nwhich were usually denied. The typical draft offense was\nfailure to report for or submit to induction. Three-\nquarters committed their offense because of their opposition\nto war in general or the Vietnam War in particular. For\n96%, it was their only felony offense, committed at an\naverage age of 21.\nMost civilian applicants surrendered immediately, and\nmost who were ever fugitives lived openly at home. Only six\npercent ever sought exile in Canada. After indictment, most\npled guilty. Two-thirds were sentenced to probation,\nusually on the condition that they perform alternative\nservice. The other one-third went to prison, usually for\nperiods of less than one year. Less than one percent served\nprison terms of two years or longer, but some were in prison\nfor as long as five years.\nAt the time of their applications for clemency, almost\nall were either working full-time or in school. Only two\npercent were unemployed, with another two percent in prison\nfor unrelated felony offenses. Approximately 100 were still\nimprisoned for their draft offenses when the President\nannounced his clemency program. They were released upon the\ncondition that they apply for clemency.\nGERALD FORD LIBRARY\nUnlike the civilian applicants, the vast majority of\nmilitary applicants were not articulate, well-educated, or\nmotivated explicitly by opposition to the war. Almost none\nhad applied for a conscientious objector exemption before\nentering the service, and less than five percent committed\ntheir AWOL offenses because of opposition to the war. Most\ngrew up in broken homes, with parents struggling to cope\nwith a low income. Roughly one in five were black, and 3.5%\nwere Spanish-speaking. Despite an average IQ of 98, over\nthree-quarters dropped out of high school before entering\nmilitary service at the age of 17 or 18. Almost one in\nthree were tested at below the 30th percentile of\nintelligence (Category IV on the Armed Forces Qualifying\nTest), making them only marginally qualified for military\nservice.\nMost military applicants enlisted rather than be\ndrafted, usually joining the Army or the Marines. Slightly\nover one-third were ordered to Vietnam. Seven percent\nfailed to report. The other 27% did serve in Vietnam, with\nhalf either volunteering for a Vietnam assignment,\nvolunteering for a combat mission, or re-enlisting while in\nVietnam. of Vietnam veteran applicants, almost one in four\nsuffered from mental stress caused by combat, and two in\nfive have experienced severe personal problems as a result\nof their Vietnam tour. Two percent of all military\napplicants returned from Vietnam with disabling injuries.\nVery few went AWOL in Vietnam; only four percent of all\napplicants went AWOL from apparent combat situations.\nAWOL offenses usually occurred after training and in\nstateside bases. Over half of all military applicants\ncommitted their offenses because of serious personal or\nfamily problems. Other common reasons for AWOL offenses\nincluded resentment of some action by a superior or a\ngeneral dislike of military service. Typically, applicants\nwent AWOL two or three times. Most returned to their home\ntowns, where they lived openly. Only two percent of the\nmilitary applicants ever sought exile in Canada. Almost\nhalf surrendered voluntarily after their last AWOL offense.\nAt the time of their last AWOLs, they were typically 20 or\n21 years old and had accumulated 14 months of creditable\nservice.\nUpon their return to military control, about 15% were\ngiven administrative Undesirable Discharges for Unfitness.\nThe other 85% faced court-martial charges, roughly half\naccepting an Undesirable Discharge in lieu of court-martial.\nThis was a particularly frequent practice among applicants\ndischarged after 1970. The remaining 40% stood General or\nSpecial Court-Martial, were convicted, and received Bad\nConduct or Dishonorable Discharges. All court-martialed\napplicants spent at least some time in confinement, with\ntheir sentences averaging five months in length. About 170\nwere still confined when the clemency program started, and\nthey were released upon application.\nThe bad discharges have seriously affected the current\nemployment status of military applicants. Seventeen percent\nwere unemployed at the time of their clemency applications,\nRAID\nwhereas only eight percent were unemployed during their last\nAWOL offenses. Another seven percent were incarcerated for\ncivilian felony offenses at the time the program started.\nTwelve percent had been convicted for at least one civilian\nfelony offense sometime in their lives.\n4. Procedural and Substantive Rules\nThe Clemency Board was the only new entity created by\nPresident Ford for the special purpose of reviewing the\ncases of clemency applicants. Originally, the President\nnamed nine members to the Board, designating former U.S.\nSenator Charles E. Goodell as the Chairman. After the great\nincrease in applications, the President expanded the Board\nto eighteen members. Both the original Board and the\nexpanded Board were representative of a cross-section of\nviews on the Vietnam War and on the issue of clemency. The\nBoard consisted of 13 veterans of military service, three\nwomen, and two priests. The Board included five Vietnam\nveterans, two of whom were severely disabled in combat.\nAnother member has a husband who still is listed as missing\nin action. Our policies and case dispositions reflected a\nsynthesis of the different backgrounds and experiences of\nour members.\nThe Board worked hard during the spring and summer to\nfulfill the President's requirement that we give each case\nindividual attention before his September 15 deadline. The\nconsensus was remarkable, given the wide range of views\nrepresented on the Board. What we sought to maintain was a\nreasoned, middle ground. The President's goal of national\nreconciliation found expression in the spirit of compromise\nand accommodation that guided the Board.\nTo assure the fairness and consistency of our case\ndispositions, we developed a case-by-case review procedure\nconsistent with the President's goal of clemency. Because\nthis was a program of clemency, not law enforcement, we\nunanimously decided not to seek the assistance of the FBI in\npreparing our cases. We limited our file acquisition to the\nofficial military or court records. To preserve the spirit\nof reconciliation, we promised strict confidentiality to all\nwho applied to the Board. For each case, staff attorneys\nprepared narrative summaries which were carefully checked\nfor accuracy. Each applicant was sent his summary and\nencouraged to identify errors and to provide additional\ninformation. Staff attorneys presented cases in oral\nhearings before panels consisting of three or four Board\nmembers who had read the summaries in advance. The\nattorneys' supervisors were present as panel counsels to\nassure staff objectivity. They also served as legal\nadvisors to ensure that Board policy precedents were applied\ncorrectly. Every Board member had the right to refer any\ncase to the full Board. This right was exercised in only\nabout 700 (5%) of our cases. The Chairman referred\nadditional cases to the full Board, having had the\nassistance of a computer-aided review which flagged case\ndispositions for being either too harsh or too lenient.\nCase dispositions varied little from week to week,\nespecially after our basic policy decisions had been made.\nDuring our first six months, we decided 500 cases,\nrecommending outright pardons (without alternative service)\nto 46% of all cases, denial of clemency to three percent,\nFORD is 938839 LIBRARY\nand conditional clemency with alternative service to the\nremainder. During our latter six months, we decided 14,000\nmore cases, recommending outright pardons to 44%, denial of\nclemency to six percent, and alternative service to the\nremainder.\nContributing to the fairness and consistency of our\nprocess were the clear rules we established and published\nfor deciding cases. Our alternative service \"baseline\"\nformula took account of the fact that all of our applicants\nhad been punished for their offenses. We started with 24\nmonths, deducting three months for every one month spent in\nconfinement, and deducting one month for every month spent\nin satisfactory performance of probation or court-ordered\nalternative service. In cases where military officials and\nFederal judges had adjudged short sentences, we reduced the\nbaseline figure to match the sentence actually given. Our\nminimum baseline was three months, and almost 98% of our\napplicants had baselines of six months or less.\nTo determine whether an applicant deserved clemency--\nand, if so, whether his assigned period of alternative\nservice should be different from his baseline--we applied 28\nspecific aggravating and mitigating factors. As with our\nbaseline formula, we developed our list of factors by\nconsensus. We were especially concerned about the reasons\nfor an applicant's offense and the circumstances that had\nprompted it. Likewise, we considered his overall record as\na serviceman and as a member of his community. Almost all\nof our designated factors were established very early. Only\ntwo totally new aggravating factors were established by the\nexpanded Board, although all factors were continually\nclarified as new fact situations arose. Each factor was\ncodified, with illustrative case precedents, through\npublication of five issues of an in-house policy precedent\njournal called the Clemency Law Reporter.\nOur final list of aggravating factors consisted of the\nfollowing:\n1. Other adult convictions;\n2. False statement to the board;\n3. Use of physical force in committing offense;\n4. AWOL in Vietnam;\n5. Selfish motivation for offense;\n6. Failure to do alternative service;\n7. Violation of probation or parole;\n8. Multiple AWOL offenses;\n9. Extended AWOL offense;\n10. Missed overseas movement;\n11. Non-AWOL offenses contributing to discharge for\nunfitness; and\n12. Apprehension by authorities.\nFORD is 078030 LIBRARY\nOur final list of mitigating factors consisted of the\nfollowing:\n1. Inability to understand obligations or remedies;\n2. Personal or family problems;\n3. Mental or physical condition;\n4. Public service employment;\n5. Service-connected disability;\n6. Extended creditable military service;\n7. Vietnam service;\n8. Procedural unfairness;\n9. Questionable denial of conscientious objector\nstatus;\n10. Conscientious motivation for offense;\n11. Voluntary submission to authorities;\n12. Mental stress from combat;\n13. Combat volunteer;\n14. Above average military performance ratings;\n15. Decorations for Valor; and\n16. Wounds in Combat.\n5. Case Dispositions\nWe did not apply each factor with equal weight. For\nexample, conscientious motivation or serious personal or\nfamily problems often led to outright pardon\nrecommendations. The following two cases are typical:\n(Case 2)\nThis civilian applicant had participated\nin anti-war demonstrations before refusing\ninduction. He stated that he could not\nfight a war which he could not support.\nHowever, he does believe in the need for\nnational defense and would have served in\nthe war if there had been an attack on\nUnited States territory. He stated that\n\"I know that what is happening now is\nwrong, SO I have to take a stand and hope\nthat it helps end it a little sooner.\"\n(Case 3)\nThis military applicant's wife was\npregnant, in financial difficulties, and\nfaced with eviction; she suffered from an\nemotional disorder and nervous problems;\ntheir oldest child was asthmatic and\nepileptic, having seizures that sometimes\nresulted in unconsciousness. Applicant\nrequested transfer and a hardship\ndischarge, both of which were denied.\nCreditable Vietnam service was also a highly\nmitigating factor, usually resulting in an outright pardon.\nIn particularly meritorious cases, we recommended to the\nPresident that he direct the military to upgrade the\nLIBRARY GERALD FORD\napplicant's discharge to one under honorable conditions,\nwith full entitlement to veterans' benefits. We were\nparticularly concerned about the eligibility of wounded or\ndisabled veterans for medical benefits. We made upgrade\nrecommendations in about eighty cases, of which the\nfollowing two are typical:\n(Case 4)\nThis applicant did not go AWOL until after\nreturning from two tours of duty in\nVietnam, when his beliefs concerning the\nwar changed. He came to believe that the\nUnited States was wrong in getting\ninvolved in the war and that he \"was wrong\nin killing people in Vietnam.\" He had\nover three years' creditable service, with\n14 excellent conduct and efficiency\nratings. He re-enlisted to serve his\nsecond tour within three months of ending\nhis first. He served as an infantryman in\nVietnam, was wounded, and received the\nBronze Star for Valor.\n(Case 5)\nDuring applicant's combat tour in Vietnam,\nhis platoon leader, with whom he shared a\nbrotherly relationship, was killed while\nawakening applicant to start his guard\nduty. The platoon leader was mistaken for\na Viet Cong and shot by one of his own\nmen. This event was extremely traumatic\nto applicant, who subsequently experienced\nnightmares. In an attempt to cope with\nthis experience, applicant turned to the\nuse of heroin. After becoming an addict,\nhe went AWOL. During his AWOL, he\novercame his drug addiction only to become\nan alcoholic. After obtaining help and\ncuring his alcoholism, he turned himself\nin.\nOn the other hand, some aggravating factors were\nconsidered very grave, generally leading to \"no clemency\"\nrecommendations. There were a few applicants who clearly\nwent AWOL from combat situations.\n(Case 6)\nThis military applicant would not go into\nthe field with his unit, because he felt\nthat the new commanding officer of his\ncompany was incompetent. He was getting\nnervous about going out on an operation;\nthere is evidence that everyone believed\nthat there was a good likelihood of enemy\ncontact. He asked to remain in the rear,\nbut his request was denied. Consequently,\nhe left the company area because, in the\nwords of his chaplain, \"the threat of\ndeath caused him to exercise his right to\nself-preservation.\" His company was\nsubsequently dropped onto a hill, where it\nengaged the enemy in combat. Applicant\nwas apprehended while traveling on a truck\nFORD\naway from his unit without any of his\ncombat gear.\nWe recommended that the President deny clemency in the above\ncase, but other cases of AWOL in Vietnam involved strong\nmitigating factors. Often, combat wounds or the\npsychological effects of combat led to AWOL offenses. For\nexample, we recommended an outright pardon in the following\ncase:\n(Case 7)\nApplicant was assigned to an infantry unit\nin Vietnam. During his combat service, he\nsustained an injury which caused his\nvision to blur in one eye. His vision\nsteadily worsened, and he was referred to\nan evacuation hospital in DaNang for\ntesting. An eye doctor's assistant told\nhim that the doctor was fully booked and\nthat he would have to report back to his\nunit and come back to the hospital in a\ncouple of weeks. Frustrated by this\nrejection and fearful of his inability to\nfunction in an infantry unit, applicant\nwent AWOL.\nApplicants who had been convicted of felony offenses\ninvolving serious bodily harm were generally denied\nclemency, as in the following case:\n(Case 8)\nThis civilian applicant had three other\nfelony convictions in addition to his\ndraft offense. In 1970, he received a\none-year sentence for sale of drugs. In\n1971, he received one year of imprisonment\nand two years of probation for possession\nof stolen property. In 1972, he was\nconvicted of failure to notify his local\nboard of his address. He was sentenced to\nthree years' imprisonment, but his\nsentence was suspended and he was put on\nprobation. In 1974, he was convicted of\nassault, abduction, and rape, for which he\nreceived a 20-year sentence.\nPerhaps our most difficult and disputed cases involved\napplicants who had been convicted of unrelated civilian\nfelony offenses, but who had strong mitigating factors\napplicable to their case. Some Board members argued that\nthis was a program of clemency for Vietnam-related offenses,\nrequiring the Board to disregard other, unrelated\nconvictions. Others argued that granting clemency to\nconvicted felons would cheapen the clemency grants. The\nmajority of the Board took the middle view--that a felony\nconviction would be viewed as a highly aggravating factor,\nbut each case sould be decided on its total facts, in\naccordance with the President's policy of case-by-case\nreview. Even so, 42% of the applicants with other\nconvictions were denied clemency because of the serious\nnature of their offenses or because of the absence of strong\nmitigating factors.\nGERALD FORD\nLess serious felony convictions did not overshadow an\napplicant's Vietnam service or other mitigating facts.\n(Case 9)\nThis applicant volunteered for the Special\nForces after his first year in the Army.\nHe re-enlisted to effect a transfer to\nVietnam, where he served as a parachute\nrigger and earned excellent conduct and\nproficiency ratings. Altogether, he\nserved for 18 months in Vietnam and over\nthree years in the Army, with two\nHonorable Discharges for re-enlistment\npurposes. His AWOL offenses totalled 29\ndays, did not occur until after his return\nfrom Vietnam, and were attributed to his\nproblems with alcohol. After his\nUndesirable Discharge in lieu of court-\nmartial, he was convicted of stealing a\ntelevision set and served six months in\nprison. He was recently paroled.\nIn a few cases, a clear connection existed between an\napplicant's Vietnam service and his civilian conviction:\n(Case 10)\nThis military applicant served eight\nmonths in Vietnam as a supply specialist\nbefore his reassignment back to the United\nStates. His conduct and proficiency\nscores had been uniformly excellent during\nhis Vietnam service. However, while in\nVietnam he became addicted to heroin. He\ncould not break his habit after returning\nstateside, and he began a series of seven\nAWOL offenses as he \"got into the local\ndrug scene.\" Eventually, he \"ran out of\nmoney\" and \"had a real bad habit, \" so he\n\"tried to break into a store with another\nguy that was strung out. He was\narrested, convicted for burglary, and\ngiven an Undesirable Discharge for AWOL\nwhile on bail.\nOthers rehabilitated themselves after their offenses,\nindicating their desire to be productive and law-abiding\nmembers of their communities:\n(Case 11)\nShortly after receiving a Bad Conduct\nDischarge from the Navy for his AWOL\noffenses, this military applicant was\nconvicted for transporting stolen checks\nacross state lines. He was sentenced to a\nten-year term, but was paroled after one\nyear and four months. During his\nconfinement, he underwent psychiatric\ncare. Since his parole, he has re-married\nand has recently established a successful\nsubcontracting business. Currently, he is\nworking with young people in his community\nin connection with church groups, trying\nR.\nto provide guidance for them. His parole\n3)\nofficer stated that applicant had\nGERALD\nstraightened out and is a responsible\nmember of the community.\nLIBRARY\nIn each of the above three cases, the Clemency Board\nrecommended that the President recommend an outright pardon\nfor the absence offenses. Obviously, we had no\njurisidiction to recommend clemency for the unrelated\nconvictions.\nOur case disposition tallies are listed below.\nCivilian applicants received a greater proportion of\noutright pardons because they involved a higher frequency of\nconscientious reasons for the offense and a much smaller\nnumber of other criminal convictions.\nTABLE 2: CLEMENCY BOARD RECOMMENDATIONS: CIVILIAN CASES\nNumber\nPercent\nOutright pardons\n1432\n82%\nAlternative Service:\n3 months\n140\n8%\n4-6 months\n91\n5%\n7+ months\n68\n4%\nNo Clemency\n26\n1%\nTOTAL:\n1757\n100%\nTABLE 3: CLEMENCY BOARD RECOMMENDATIONS: MILITARY CASES\nNumber\nPercent\nOutright pardon\n4620\n36%\nAlternative Service:\n3 months\n2555\n20%\n4-6 months\n2941\n23%\n7+ months\n1756\n14%\nNo Clemency\n885\n7%\nTOTAL:\n12,757\n100%\n6. Management Process\nDuring the first months of the Board's existence, we\nexperienced little difficulty in organizing our work and\nreviewing our small number of cases. However, after the\nlate winter flood of applications, we were faced with a\nseemingly impossible task. Through mid-April, the original\nnine-member Board had heard 500 cases. To meet the\nPresident's deadline of September 15, we had to experience a\n40-fold increase in our case resolution rate. We met that\ndeadline--to the day--with the Board deciding every one of\nthe 14,514 cases for which we had enough information. After\nSeptember 15, 1975, about 1,000 additional cases with\npartial or recently arriving files were referred to the\nLISTARY GERALD GERALD R. FORD\nDepartment of Justice for action in accordance with Board\nprecedents.\nMeeting the President's deadline would have been\nimpossible without a competent and dedicated staff. We and\nour staff emerged from this process with an experience in\ncrisis management which we think may be useful to managers\nof comparable entities in the future. The senior staff\ndeveloped solutions to management problems which enabled us\nto act upon over a thousand cases per week. At the same\ntime, we maintained high standards of quality and integrity\nin our legal process. All policy decisions were made by the\nBoard and implemented by the staff. Having to manage an\norganization which mushroomed from 100 to 600 employees\nduring a six-week period, it is remarkable that our process\ninvolved as little confusion as it did.\n7. Historical Perspective\nTo place the President's clemency program in its\nproper perspective, one must take note of the manner in\nwhich Presidents Washington, Lincoln, and Truman applied\ntheir powers of executive clemency in dealing with persons\nwho had committed war-related offenses. President Ford's\nprogram was the most generous ever offered, when equal\nconsideration is given to the nature of the benefits\noffered, the conditions attached, the number of individuals\nbenefitted, and the speed with which the program followed\nthe war. Yet the President's program did not break\nprecedent in any fundamental way. The only new features of\nPresident Ford's program were the condition of alternative\nservice and the use of a neutral Clemency Discharge.\n8. Conclusions\nWe are proud of what the President has accomplished in\nhis clemency program. He implemented his program\ncourageously, in the face of criticism both from those who\nthought he did too much and from those who thought he did\ntoo little.\nWhen the program started, a Gallup Poll found that\nonly 19% of those polled approved of a conditional clemency\nprogram. The overwhelming majority preferred either\nunconditional amnesty or no program of any kind. By\ncontrast, an August 1975 Gallup Poll found that a majority\nof those expressing an opinion are now in favor of\nconditional clemency, with a minority equally split on the\nopposite ends of the issue. The same poll found that almost\nR.\nnine out of ten people would accept a clemency recipient as\nFORD\nat least an equal member of their community. Likewise, a\nsurvey of employer attitudes has discovered that a Clemency\nGERALD\nDischarge and Presidential Pardon would have real value when\nLIBRARY\na clemency recipient applies for a job. The clemency\nprogram is in fact accomplishing the President's objective\nof reconciling Americans.\nWhile we are confident that history will regard this\nprogram as a success, much of the work remains unfinished.\nAs of September 1975, only a very small percentage of our\napplicants have as yet been required to contact Selective\nService to begin performing alternative service. of the 52%\nof our applicants who received conditional clemency, three\nquarters were assigned six months or less of alternative\nservice. We hope that most will complete this assignment\nand receive clemency. The responsibility for implementing\nthe alternative service portion of the program in a fair and\nflexible manner, fully in accord with the clemency spirit of\nthe President's program, rests with the Selective Service\nSystem. The Clemency Board has recommended to Selective\nService that individuals in the Clemency Board program be\nable to fulfill their alternative service by performing\nunpaid work in the national interest for 16 hours per week\nfor the designated period--three or six months in most\ncases. Selective Service has implemented part of this\nrecommendation, allowing alternative service to be completed\nthrough 20 hours per week of unpaid work. This part-time\nwork must be stretched out for longer than the designated\nthree or six month period.\nWe are pleased that the United States Pardon Attorney,\nentrusted with the carry-over responsibility for our\nprogram, has applied the policies and spirit of the Clemency\nBoard. Likewise, we hope that other government agencies\nwhich will later come in contact with clemency recipients--\nespecially the Veterans Administration and the discharge\nreview boards of the Armed Forces--will deal with them as\nclemently as their responsibilities permit.\nIn conclusion, we consider ourselves to have been\npartners in a mission of national reconcilation, wisely\nconceived by the President. A less generous program would\nhave left old wounds festering; blanket, unconditional\namnesty would have opened new wounds. We are confident that\nthe President's clemency program provides the cornerstone\nfor national reconciliation at the end of a turbulent and\ndivisive era. We are proud to have played a role in that\nundertaking.\n&\nFORD\nGERALD\nLIBRARY\nEND OF DOCUMENT Summary\nLINES PRINTED 00796\nPAGES 0017\nCUSTOMER a2220 OPERATOR 001\n222 001 Summar\nGERALD\n1460017\nTODAY'S DATE 11/11/75\n1301\n23 lstl11e\n222-001\nCUSTOMER a2220 OPERATOR 001 PCB\n222-001\nChapter 1\n001 Chapter 1\nDATE STORED 11/06/75 1445\nw\nWIDTH 060 DEPTH 64\nt\npj\nPRINT POSITION 12 LINE 03\nGERALD R. FORD\n1\nCurrent problems often have parallels in history, and\nmodern solutions may reflect decisions of earlier leaders.\nIn studying President Ford's Clemency Program, one need only\nlook back a hundred years to observe a similar situation\nconfronting another President of the United States. Just\ndays after the Civil War ended, President Andrew Johnson\nconsidered declaring an amnesty to heal the wounds of the\nnewly reunited nation. The President sought advice from\nAttorney General James Speed, who counseled moderation:\nThe excellence of mercy and charity in a national\ntrouble like ours ought not to be undervalued.\nSuch feelings should be fondly cherished and\nstudiously cultivated. When brought into action\nthey should be generously but wisely indulged.\nLike all the great, necessary, and useful powers in\nnature or government, harm may come of their\nimprovident use, and perils which seem past may be\nrenewed, and other and new dangers be\nprecipitated.1\nOnly six weeks after he become President, Johnson\nfollowed Attorney General Speed's advice. He declared a\nlimited and conditional amnesty. To many it was inadequate,\nwhile to others it was too generous. To the President, it\nwas a reasonable approach which citizens of all persuasions\ncould find acceptable. Had the President's program not\napproached the middle ground, the perils and dangers\nidentified by Attorney General Speed might well have come to\npass.\nOver a century later, President Gerald Ford was\nconcerned about the need to heal America's wounds following\nanother divisive war. Like President Andrew Johnson, he\nannounced a clemency program six weeks after succeeding to\noffice. Like Johnson, he pursued a course of moderation.\nNo program at all would have left old wounds festering.\nUnconditional amnesty would have created more ill feeling\nthan it would have eased. Reconciliation was what was\nFORD & GERALD LIBRARY\nneeded, and reconciliation could only come from a reasoned\nmiddle ground.\nTo the members of the Presidential Clemency Board, the\nPresident's program assumed a special meaning. We came to\nthe Board as men and women whose views reflected the full\nspectrum of public opinion on the war and on the question of\namnesty. As we discussed the issues, a consensus began to\nemerge. We came to see the President's program as more than\nmere compromise. It was an appropriate and fair solution to\na very difficult problem.\nAs we examined the President's program, it appeared to\nus that it was anchored by six principles. Taken together,\nthey provide an excellent means of understanding the spirit\nbehind his clemency proclamation. These principles were\nimplicit in the exercise of the Clemency Board's\nresponsibilities under the President's program.\nThe first principle was one about which there should be\nlittle disagreement: the need for a program. After almost\nnine years of war and nineteen months of an acrimonious\ndebate about amnesty, President Ford decided it was time to\nact. America needed a Presidential response to the issue of\namnesty for Vietnam era draft resisters and deserters. As\nhe created the program, the President authorized three\nentities -- the Department of Justice, the Department of\nDefense, and the Presidential Clemency Board -- to review\ncases of different categories of draft and military absence\noffenders. He appointed nine persons to the newly-created\nClemency Board, later expanding its membership to 18. (See\nAppendix A.) He designated a fourth entity, the Selective\nService System, to implement the alternative service aspect\nof the program.\nSecond, this was to be a limited, not universal,\nprogram. Had he included only those who could prove that\ntheir offenses had resulted from opposition to war, he would\nhave been unfair to less educated, less articulate persons.\nHad he included all persons convicted of military or draft\noffenses, no matter what the nature of the crime, he would\nhave seriously impaired respect for the law. Instead, the\nPresident listed several draft and desertion offenses which\nautomatically made a person eligible to apply for clemency\nif committed during the Vietnam era. Our data on applicants\nindicates that he drew the eligibility line generously; of\nthe 113,000 persons eligible, relatively few actually\ncommitted their offenses because of a professed\nconscientious opposition to war.\nThe third principle was that the program should offer\nclemency, not amnesty. Too much had happened during the war\nto permit Americans to forget the sacrifices of those who\nserved or the conscientious feelings of those who chose not\nto serve. But the desire not to forget does not preclude\nthe ability to forgive. President Ford declared that he was\nplacing \"the weight of the Presidency in the scales of\njustice on the side of mercy. 112 He requested that fugitive\ndraft offenders be relieved from further prosecutions, that\nmilitary absentees be discharged without court-martial, that\nGERALD FORD LISHART\npersons punished for draft offenses receive Presidential\npardons, and that servicemen discharged for absence offenses\nreceive Clemency Discharges and Presidential pardons.\nHis fourth principle was that he would offer\nconditional, not unconditional, clemency. Eligible persons\nhad to apply to the program for their cases to be\nconsidered. Also, most applicants would have to earn\nclemency through performance of several months of\nalternative service in the national interest. They still\nowed debts of service to their country. Performance of that\nservice was the prerequisite for clemency.\nFifth, he decided that this was to be a program of\ndefinite not indefinite, length. There would be an\napplication deadline, giving everyone more than four months'\ntime from the program's inception to apply--a deadline later\nextended by two months. This would permit all cases to be\ndecided within one year, and -- even more important -- it\nwould put an end to the amnesty debate. He hoped that\nreconciliation among draft resisters, deserters, and their\nneighbors would take place as quickly as possible.\nAltogether, 21,729 eligible persons applied for clemency.\nHis final principle was the cornerstone of the program:\nAll applicants would have their cases considered through a\ncase-by-case, not blanket, approach. Clemency would not be\ndispensed or denied automatically, by category, or by any\nrigid formula. The review of clemency applications would be\nbased upon the merits of each applicant's case, with full\nrespect given to his rights and interests. Case\ndispositions had to be fair, consistent, and timely.\nDuring our twelve months of existence, the Presidential\nClemency Board decided 14,514 cases. We tried to apply the\nspirit of these principles to every case. In this report,\nwe explain what actions we took, what we learned about\napplicants, and what we think we accomplished. Where\npossible, we also try to put the President's entire clemency\nprogram in some perspective.\nChapter 2 consists of a discussion of how each of the\nPresident's six principles was implemented. In Chapter 3,\nwe describe what we learned about the experiences of the\ncivilian and military applicants to the Clemency Board. We\ndiscuss our procedural and substantive rules in some detail\nin Chapter 4, followed by an analysis of our case\nrecommendations in Chapter 5. In Chapter 6, we describe how\nwe managed what was often a \"crisis\" operation. In Chapter\n7, we try to put the President's program into an historical\nperspective through a comparative analysis of other acts of\nexecutive clemency in American history. The report closes\nwith a discussion in Chapter 8 of what we think the\nPresident's program accomplished. Illustrating this\ndiscussion are excerpts from actual Clemency Board cases,\nplus statistics from a comprehensive survey we conducted\nfrom the case summaries of almost 1,500 applicants. Some\nparticularly illustrative cases are presented in more than\none chapter.\nR.\nFORD\nGERALD\nLUMBER\nEND OF DOCUMENT Chapter 1\nLINES PRINTED 00169\nPAGES 0005\nCUSTOMER a2220 OPERATOR 001\n222 001 Chapte\nLISTARY GERALD R. FORD\nTODAY'S DATE 11/11/75\n1732\n10 lst111e\n222-001\nCUSTOMER a2220 OPERATOR 001 PCB\n222-001\nChapter 2\n001 sfh\nDATE STORED 11/11/75\n1730\nW\nWIDTH 060 DEPTH 64\nt\nt\nt\nt\npj\nPRINT POSITION 07 LINE 03\nBERALD R. FORD\nA. The Need for a Program--and Its Creation\nRegardless of one's political or philosophical\nperspective, there is little dispute that the war in Vietnam\nhad a significant impact on our country and on the lives of\nmillions of American citizens. The war resulted in the loss\nof fifty-six thousand American servicemen. It forced many\nmore people to leave their homes and countries. Nightly,\ntelevision brought the war into American living rooms. For\nthe first time, the average citizen witnessed the reality of\nwar, almost at first hand. Conflict between pro-war and\nanti-war advocates increased dramatically. Slogans such as\n\"America, Love It or Leave It,\" \"Peace with Honor,\" and\n\"Unconditional Amnesty Now\" came to be symbolic of the\ndivisions in our country. Patriotism meant different things\nto different people. Many believed that love of country\ncould only be demonstrated by defending America's interest\non the battlefield. Others insisted that love of country\nrequired a crucial reversal of national policy. They felt\nthat by opposing the war and resisting military induction,\nthey could serve America best by influencing changes in its\nforeign policy.\nOvershadowing the political consequences of the war were\nthe personal tragedies. Thousands of American families lost\ntheir loved ones. Untold hundreds of thousands will bear\nphysical and psychological scars for the remainder of their\nlives. Nothing can ever be done to compensate for the\nsupreme sacrifices of those who died or lost their loved\nones.\nAfter the war ended, however, it became clear that\nAmerica had suffered other casualties as well. The war\naffected the lives of tens of thousands of young Americans\nwho had chosen not to serve. Their families and friends\nshared their burdens of exile, imprisonment, and separation.\nGENAL R. FORD\nShortly after assuming office, President Ford sensed the\nLIBRARY\nneed to \"bind the Nation's wounds and to heal the scars of\ndivisiveness. \"1 As one of his first initiatives as\nPresident, he created the clemency program. The President\nbelieved that \"in furtherance of our national commitment to\njustice and mercy,\" it was time to achieve a national\n\"reconciliation\" with the greatest degree of public\ncooperation and understanding.² To outline how his program\nwas to be implemented, he issued Proclamation 4313 and an\naccompanying Executive Order. (See Appendix B.) When the\nprogram began on September 16, 1974, a year and a half had\npassed since the last American combatant had left Vietnam.\nPresident Ford recognized that draft evasion and\nunauthorized military absence are serious offenses which, if\nunpunished, might have an adverse effect on military\ndiscipline and national defense. Nevertheless, he\nrecognized that \"reconciliation among our people does not\nrequire that these acts be condoned.\"3 It did require,\nhowever, that these offenders have an opportunity \"to\ncontribute a share to the rebuilding of peace among\nourselves and with all nations, (and) to earn return\nto\ntheir country.' He entrusted the administration of the\nClemency program to three existing government agencies --\nthe Department of Justice, the Department of Defense, and\nthe Selective Service System -- and created the Clemency\nBoard within the Executive Office of the President. These\nfour governmental units were ordered to implement a program\noffering forgiveness and reconciliation to approximately\n113,000 draft resisters and military deserters.\nUnconvicted draft evaders were made the responsibility\nof the Justice Department.5 Members of the Armed Forces who\nhad remained at large as unauthorized absentees came within\nthe purview of the Defense Department's program. The vast\nmajority who had already been convicted or otherwise\npunished for Vietnam-era draft or military absence offenses\nbecame the responsibility of the newly created Presidential\nClemency Board. Selective Service was put in charge of\nsupervising the performance of all assigned periods of\nalternative service.\nOn September 16, 1974, the President appointed nine\npersons to this Board. Former United States Senator Charles\nE. Goodell was designated as Chairman. Beginning in\nSeptember, the Board met on a regular basis in Washington,\nD.C. As the number of applications swelled from 860 in\nearly January to 21,500 by the end of March, it became\napparent that the nine original Board members and the\ninitial staff of less than 100 could not complete the\nBoard's work within the twelve-month deadline set by the\nPresident. In May 1975, the President expanded the Board to\neighteen members and authorized a dramatic staff expansion\nto complete the work on time.\nThe original nine-member Board was broadly\nrepresentative of national feelings on the war and on the\nissue of amnesty and clemency. The expanded Board of\neighteen was carefully selected to preserve this balance,\nincluding members with widely ranging experiences and points\nFORD & SERALD LIBRARY\nof view. Many had spoken out strongly against the war, some\nhaving advocated unconditional amnesty. Others believed\nthat America's mistake lay in not pursuing the war effort\nmore vigorously.\nAll Clemency Board members were aware that the\nPresident's program had to be implemented carefully to avoid\nhaving a serious impact on military discipline and to avoid\nimpairing our strength in a future military emergency. The\nBoard consisted of thirteen veterans of military service,\nthree women, and two priests. Five members were Vietnam\nveterans, two of whom were seriously disabled in combat.\nAnother commanded the Marine Corps in Vietnam. One Board\nmember had a husband listed among those missing in action.\nTwo Black men, one Black woman, and one Puerto Rican woman\nwere on the Board. We also had a former local draft Board\nmember, an expert in military law, and others with special\nbackgrounds and perspectives which contributed to a well-\nbalanced Board.⁷ (See Appendix A.)\nB. A Limited, Not Universal, Program\nWhen the President announced his clemency program, he\nhad to draw a line between those who were eligible and those\nwho were not. That line was drawn in a generous manner. In\norder to encompass Vietnam-era offenders who opposed the war\non conscientious grounds, the President enumerated a\nsizeable list of offenses. However, he decided not to\nimpose a test of conscience. It would have been improper to\nregard those who could articulate their opposition to the\nwar as the only persons with a legitimate claim to clemency.\nThe complex Selective Service procedures tended to favor the\nbetter-educated and the sophisticated. Those who were not\nable to express themselves may still have had strong\nfeelings about the war, but may not have been successful in\npursuing their legal opportunities. A fair program of\nclemency could not be restricted to those already favored by\neducation, income, or background.\nIn a broader sense, the atmosphere of division, debate,\nand confusion about the war had an impact on all those\ncalled upon to serve. If the war had been universally\nregarded as critical to the survival of the United States,\nit is unlikely that many of these Americans would have\nplaced their personal needs or problems above those of the\ncountry. This war was not universally regarded as such, and\nmany of those who failed to serve did so, consciously or\nnot, because the needs of the country were not as evident to\nthem as were the personal sacrifices they or their families\nfaced.\nThe President's definition of those eligible for\nclemency was phrased in terms of offenses committed, not in\nterms of the reasons for the offense. The President\nextended this clemency offer to veterans who went AWOL\n(absent without leave) to find medical assistance, to treat\nFORD & GERALD LIBRARY\ntheir combat wounds, to cope with readjustment problems\nafter returning from Vietnam, or to support families forced\nto go on welfare. Likewise, he extended it to civilians\nfrom disadvantaged backgrounds whose ignorance and\nitinerancy led to their failure to keep their draft boards\ninformed of their whereabouts. In the thousands of cases we\nreviewed, we found that the list of victims of the Vietnam\nWar was of much greater variety than we had originally\nthought.\nEligibility Criteria for the Program\nThe Presidential Proclamation established three criteria\nfor eligibility. First, an applicant must have committed a\nqualifying offense during the war period. This was defined\nas extending from the passage of the Gulf of Tonkin\nResolution (August 4, 1964) through the day the last\nAmerican combatant left Vietnam (March 28, 1973). Second,\nan applicant must have committed one of the offenses\nspecifically listed in the Proclamation. Military\napplicants must have violated Article 85 (desertion) of the\nUniform Code of Military Justice, Article 86 (absence\nwithout leave), or Article 87 (missing movement). Civilian\ndraft offenders must have committed one of the following\nviolations of Section 12 of the Selective Service Act: (1)\nfailure to register for the draft or register on time; (2)\nfailure to keep the local draft board informed of his\ncurrent address; (3) failure to report for or submit to\npreinduction or induction examination; (4) failure to report\nfor or submit to induction; or (5) failure to or complete\nalternative service. Third, an applicant must not have been\nan alien precluded by law from reentering the United\nStates.8\nThe eligibility tests set by the President no doubt\nexcluded some fugitives, convicted offenders, and discharged\nservicemen whose offenses were motivated by their opposition\nto the war. For example, there were a few military\napplicants who, out of conscientious objection to the war,\nrefused to report to Vietnam. Instead of going AWOL, these\nmen faced court-martial for willful disobedience of lawful\norder. Had they gone AWOL, they could have applied for\nclemency; because they remained on their bases and accepted\nthe punishment for their actions, they still have their bad\ndischarges. Also, persons convicted of or charged with\nother Selective Services offenses, such as draft card\nmutilation or aiding and abetting draft evasion, were\nineligible for clemency.\nBefore the President announced his program, there had\nbeen considerable debate in Congress and elsewhere about the\nkinds of offenses that properly should be included in a\nclemency or amnesty program. As with most disputes on the\nsubject, opinions varied greatly. There was general\nagreement, however, that absence and induction offenses\nshould be included because the vast proportion of Vietnam-\nrelated offenses were of this type. Had the President's\nprogram included categories of offenses involving calculated\ninterference with the draft system or with military\ndiscipline, or involving violence or destruction of\nproperty, it would have had a far more serious impact on\nrespect for law and military discipline.\nFORD is GENALD LIBRARY\nEligibility for the Presidential Clemency Board\nApplicants eligible to apply to our Board included only\nthose who had been convicted or punished for the above\noffenses.9 For a civilian to be eligible, he must have been\nconvicted of one of the Selective Service violations listed\nabove. For a former serviceman to be eligible, he must have\nreceived an Undesirable, Bad Conduct, or Dishonorable\nDischarge as a consequence of his absence offenses. Anyone\ndischarged with either an Honorable or a General Discharge\nwas not eligible.\nThe other agencies had accurate counts of individuals\neligible for their programs; 4,522 were eligible for the\nJustice program, and 10,115 for the Defense program. We had\nto rely entirely on estimates which these agencies gave us.\nOur 8,700 total for civilian eligibles came directly from\nDepartment of Justice records. Our 90,000 figure for\nmilitary eligibles is 80% of the 111,500 originally\nestimated by the Department of Defense from their records of\nAWOL-related discharges. We reduced that latter figure by\n20% because the Department of Defense found that its\noriginal estimate of persons eligible for its own program\nwas 20% too high; they reduced it from 12,600 to 10,115\nthrough a closer inspection of records. We expect that the\nsame attrition would result from a close inspection of our\nown eligible persons' records.\nThe Proclamation prevented the Clemency Board from\naccepting cases in which the underlying facts of the offense\nmay have supported a charge over which we had jurisdiction,\nbut in which the individual was in fact prosecuted for a\nnonqualifying offense. The Executive Order clearly stated\nthat the discharge must have been based on unauthorized\nabsence. Thus, a conviction for failure to obey an order to\ngo to an appointed place must have also been charged as an\nAWOL. 10 A serviceman discharged for a civilian conviction\ncould also have been discharged for unauthorized absence\nwhile in civilian custody. 11 There were numerous gray areas\nin which difficult jurisdictional determinations had to be\nmade.\nThe military cases presented difficult questions of\ninterpretation. For example: \"The Board shall consider\nthe case of persons who have received punitive or\nundesirable discharges as a consequence of violations of\nArticles 85, 86, or 87 #12 The phrase \"as a consequence\nof\" gave us particular difficulty. We decided that the\nphrase did not mean \"as a consequence of\" an AWOL only. In\nmany cases, individuals had been administratively discharged\nfor unfitness or frequent involvement with authorities based\non a pattern of offenses, including AWOLs, none of which\nwarranted a court-martial. The AWOL had to be viewed as a\ncontributing factor, if not the sole cause of the discharge.\nThis occasionally meant that an individual might have been\nadministratively discharged for unfitness for a very short\nAWOL, plus numerous other minor infractions. It was\nimpossible to devise any objective method to separate the\nreasons for the discharge. The military services leave\nis\nFORD\nadministrative discharges for unfitness to the discretion of\ncommanders. They do not have binding rules on the character\nGERALD\nof misconduct necessary to warrant an Undesirable Discharge.\nLIBRARY\nWe recognized the dual need to have clear and objective\njurisdictional rules, while at the same time retaining\nflexibility to make appropriate dispositions in cases in\nwhich a short AWOL was an insignificant factor in the\ndischarge. We decided to accept these marginal cases, since\nthe right to have one's case heard should be broadly\ngranted. However, the fact that an applicant had committed\nmilitary offenses in addition to a very brief AWOL sometimes\nresulted in a denial of clemency, a consequence perhaps more\ndetrimental than a denial of jurisdiction.\nThe court-martial cases presented similar difficulties\nbecause sentences were not rendered separately when an\nindividual was convicted on several different charges, one\nof which was an AWOL. Since an individual might well have\nbeen court-martialed for a major felony together with a very\nshort AWOL, it was obvious that the discharge would have\nbeen awarded regardless of the AWOL offense. In court-\nmartial cases, however, military regulations define the\nmaximum punishments for different offenses. Thus, we\nconsulted the Manual for Courts-Martial (Table of Maximum\nPunishments) 13 to formulate simple rules to determine when\nwe had jurisdiction in cases involving court-martial\ndischarges. We applied the same rules to administrative\ndischarges given in lieu of court-martial. As a general\nrule, we determined that:\n1. We had jurisdiction if the AWOL offenses that\ncommenced within the qualifying period standing\nalone were sufficient to support the discharge that\nthe applicant received;\n2. We had jurisdiction if neither the AWOL offenses\nthat commenced within the qualifying period nor the\nnon-AWOL offenses, considered independently, were\nsufficient for the discharge that the applicant\nreceived;\n3. We did not have jurisdiction if the AWOL offenses\nthat commenced within the qualifying period were\ninsufficient, and any one of the other offenses,\nconsidered independently, were sufficient for the\ndischarge that the applicant received.\nThe exclusion from the program of persons who were\nprecluded by law from re-entering the United States also\nposed difficult problems. If an order of a court or the\nImmigration and Naturalization Service had already decided\nthe question, we were bound by that determination. But we\nconsidered it not within our province to decide complex\nquestions of immigration and citizenship law. For that\nreason, we provisionally accepted the cases of persons for\nwhom no such determination had yet been made. We took\ntentative action on these cases, forwarding them to the\nPresident with the recommendation that he not act until\nproper judicial or administrative determinations had been\nmade by the Justice Department.\nFORD\nAltogether, we received approximately 6,000 applications\nDECALD\nfrom ineligible persons. Many had committed offenses during\nLIBRARY\nother wars, had received General Discharges, or had been\ndischarged for offenses not listed in the Proclamation.\nWhile we could not help them directly, we informed each one\nby letter of other legal and administrative remedies\navailable to them.\nC. Clemency, Not Amnesty\nIn the years before President Ford assumed office,\nopinion was sharply divided over whether there should be any\nrestoration of the rights and benefits offered by the\ngovernment to Vietnam-era draft and AWOL offenders. Many\ncitizens believed that the offenders' rights and benefits,\nincluding full veterans benefits, should be restored.\nOthers insisted that they be given nothing. President Ford\nchose the middle course.\nTo unconvicted draft offenders, the President offered\nthe promise that they would not be punished for their\nactions, enabling them to avoid the lifetime stigma of a\nfelony conviction. Their prosecutions would be dropped.\nAll others whose cases had not yet resulted in a decision to\nprosecute were relieved of any future danger of prosecution.\nTo undischarged military absence offenders, the\nPresident offered an immediate end to their fugitive status,\nwith the promise that they would not be court-martialed or\nimprisoned for their offenses. They would receive immediate\nUndesirable Discharges and the opportunity to earn Clemency\nDischarges. To a small number of fugitive servicemen with\nexceptionally gcod records or other special circumstances,\napplication to the program could also result in\nreinstatement in the military or an immediate discharge\nunder honorable conditions through normal military channels.\nTo convicted draft offenders, the President offered\nofficial forgiveness for their actions through the highest\nconstitutional act available to him. They would receive\nfull Presidential pardons.\nTo military absence offenders who had received bad\ndischarges, the President offered official forgiveness in\nthe form of full Presidential pardons, and upgrades to a\nClemency Discharge.\nTo those who were still serving prison terms for draft\nor military absence offenses, the President directed\nimmediate furloughs upon application for clemency. Except\nfor one person who chose not to participate, each of the\nroughly 100 incarcerated civilians and 170 incarcerated\nservicemen who applied to the Presidential Clemency Board\nwere released. Under the President's direction, the\nPresidential Clemency Board gave priority to those cases,\nand all had their sentences permanently commuted.\nFORD & 07V839 LIBRARY\n\"Clemency\"\nClemency can be defined as the tendency or willingness\nto show forbearance, compassion, or forgiveness in judging\nor punishing, or as an act of mercy or lenience. 14 The\nPresident's authority to grant clemency is derived from a\nnumber of powers given him by the Constitution. His\nConstitutional authority to grant pardons¹⁵ permits him to\ngrant clemency to a particular person or group of persons.\nIn granting pardons, a President is often prompted by the\ndesire to show compassion or leniency. It is not necessary\nthat the individual be convicted of, or even charged with,\nan offense. 16 The President may commute sentences and fines,\nbut he may not order the return of sums already paid. 17\nAlso, he may grant stays or relief from execution of\nsentence -- constitutional \"reprieves\" or commutations.\nOnly the President can grant pardons, but the Pardon\nAttorney in the Department of Justice does the necessary\nadministrative work in his behalf.\nThe President, as Commander-in-Chief of the Armed\nForces, 18 may request any branch of military service to\nupgrade bad discharges. Through the executive power vested\nin him, the President may request subordinate federal\nofficers not to enforce criminal statutes against\nindividuals to whom he wants to grant clemency. 19\nThe Constitution grants the President the sole\ndiscretion to exercise his pardoning power. He is not\nanswerable to the judiciary or to the Congress for his\ndecision to grant or to refuse to grant a particular pardon.\nHe may not be ordered to grant pardons, nor may his pardons\nbe revoked. 20 Barring an impeachable abuse of his powers,\nthe President is answerable in his exercise of this power\nonly to his conscience, to his understanding of the national\nwelfare, and to the public -- whose acceptance is necessary\nto give full meaning to his act of executive clemency.\nThe Presidential pardon is the supreme constitutional\nact of forgiveness or mercy. It is an expression of\nsociety, through the Chief Executive, signifying that it\nwill disregard the offense for which an individual was\noriginally prosecuted. It thus removes the social blot of a\ncriminal conviction and relieves any continuing impairment\nof Federal civil rights, such as the right to hold Federal\noffice or to sit on a Federal jury. Also, most states\nrecognize a Presidential pardon as a matter of comity,\nrestoring the right to vote, to hold office, and to obtain\nlicenses for trades and professions from which convicted\nfelons are often barred. A pardon does not change - history,\nand it does not compensate for any rights or benefits, legal\nor economic, that the individual had already lost. It\noperates prospectively only. A pardon is a Presidential\nexpression that the stigma of conviction has been removed,\nGERALE FORD LIBRARY\nand that its recipient should no longer be discriminated\nagainst when seeking jobs, credit, housing, or any other\nopportunities. However, a pardoned offender is not\nconsidered as though he never committed the offense. 21 A\npardon removes most of the legal disabilities of the\noffense, but it does not bring its recipient treatment equal\nto that accorded a person who has never committed an\noffense. 22\nAlthough the Executive Order did not state explicitly\nthat a Presidential pardon was to be the form of clemency\noffered to applicants to the Clemency Board, the Board\ninterpreted this as the President's intent. By approving\nthe Board's clemency recommendations, the President\nconfirmed our understanding that he wished a pardon to be\nthe form of clemency offered to convicted evaders and to\nmilitary absentees, whether they had been discharged by\ncourt-martial or by administrative action. The grant of a\npardon to a person who had been discharged without a court-\nmartial conviction was a generous gesture, but not a break\nfrom precedent. A President pardons the act, not merely the\njudicial consequences that may have flowed from it.\nPrevious Presidents granted pardons to persons who had\nsuffered administrative penalties for a wrongful act, even\nthough they had never been convicted of a crime. Pursuant\nto our recommendation, President Ford offered pardons to the\npersons who had been given Undesirable Discharges for AWOL\noffenses but who had not been convicted in a military court.\nThis group comprised 60% of the military applicants to the\nPresidential Clemency Board.\nThe penalties for violation of military discipline\ndiffer from those for violation of civilian law. A military\noffender not only receives a conviction and a sentence of\nimprisonment, but he also may be released with a discharge\nwhich characterizes his military service as unsatisfactory.\nWhile a pardon affects the conviction, it has no impact on\nthe type of discharge granted. The President provided that\na recipient of clemency should also have his discharge\nrecharacterized as a Clemency Discharge, a new designation\ncreated specially for this program.\nThe Clemency Discharge was intended by the President to\nbe a \"neutral\" discharge, to be neither under \"honorable\"\nconditions nor under \"other than honorable\" conditions.\nMilitary records are recharacterized with the new Clemency\nDischarge, which is in substitution for the earlier Bad\nConduct or Undesirable Discharge (under other than honorable\nconditions) or Dishonorable Discharge (under dishonorable\nconditions). A Clemency Discharge is neutral, better than\nthe discharge it replaces but not as good as a General\nDischarge, which is given affirmatively under honorable\nconditions. 23 By express direction in the Proclamation, a\nClemency Discharge bestows no veterans' benefits itself.\nNor, however, does it adversely affect the conditional\navailability of veterans' benefits to holders of Undesirable\nor Bad Conduct Discharges. Otherwise, the President's act\nof clemency would have had the unintended effect of\nimpairing and not improving an applicant's status.\nThe President's program was a unique and supplemental\nFOR\nform of relief to certain classes of former servicemen. It\ndid not deny pre-existing statutory or administratively\ngranted avenues of relief available to individuals\nregardless of their eligibility for clemency. While perhaps\nthe relinquishment of those rights could have been made a\ncondition of the President's program, no such condition was\nexpressed in his Proclamation. For that reason, all\nmilitary applicants who receive a Clemency Discharge can\nstill apply for a further upgrade through the appropriate\nmilitary review boards. Likewise, they can still appeal for\nbenefits to the Veterans' Administration.²4 Their chances\nfor success should be much better with a pardon and Clemency\nDischarge than with their original discharge and record of\nunpardoned offenses.\nWhile the Clemency Board recommended most applicants for\npardons and Clemency Discharges, the Department of Justice\nand Department of Defense also provided applicants with\nimportant benefits. Every person eligible to participate in\nthe Defense and Justice program was in jeopardy of a\nconviction. The Department of Justice program had the\neffect of dropping pending Federal criminal prosecutions\nagainst fugitive civilians who were indicted or had\ninvestigations pending for a specific draft evasion offense.\nThe Department of Defense program gave relief from possible\ncourt-martial proceedings against military absentees.\nIn some respects, the Department of Justice program\noffered the greatest benefits to applicants. Fugitive\ncivilians charged with draft evasion offenses faced the\npossibility of criminal convictions, up to five years in\nprison, and $10,000 fines.25 In return for alternative\nservice, their prosecutions were dropped. They were also\nfreed from the enduring stigma of a felony conviction.\nApplicants to the Justice program emerge with better records\nthan their counterparts in the Clemency Board program, since\nit is better to have no felony conviction than to have one\nwhich has been pardoned.\nThe Justice program also resulted in the closing of case\nfiles of all civilians who may have committed specific\nVietnam-era draft offenses but who had not yet been\nindicted. After the program began, the Department of\nJustice directed all United States Attorneys to submit lists\nof all persons against whom they either had or would soon\nhave indictments issued. Prior to this request, 6,239\nprosecutions had been commenced by the United States\nAttorney, and thousands of other investigations were\nunderway which could have resulted in indictments. As the\nlists were submitted, 1,717 active prosecutions were\ndismissed. The Attorney General declared that the\nDepartment of Justice would not prosecute Vietnam-era draft\nviolators who were not on the final list of 4,522 persons,\nexcept for persons who never registered for the draft. The\nother 1,717 individuals with prosecutions pending had their\ncases permanently dropped. If they were in exile and had\ncommitted no other offenses, they were free to come home. 26\nIf they were in the United States, they could plan for the\nfuture without worry. The same was true for an\nindeterminant number of other individuals who had been cited\nfor a possible draft violation by Selective Service, and\nFORD\nwhose cases had been referred to the Justice Department for\nfurther action.\nLIBRARY\nBy participating in the Defense program, fugitive AWOL\noffenders automatically ended their fugitive status and were\nrelieved of the prospect of up to five years imprisonment\nand a Dishonorable or Bad Conduct Discharge. They spent one\nto three days at Fort Benjamin Harrison and received an\nUndesirable Discharge. They could then perform alternative\nservice in order to earn a Clemency Discharge. Even if they\nsubsequently fail to complete alternative service, no\nchanges can be brought against them unless it can be shown\nthat they did not intend to perform alternative service when\nthey received their Undesirable Discharge. At a minimum,\nthey re-enter society in vastly improved circumstances.\nThe Defense program provided a special form of clemency\nto forty-eight applicants. Most of these individuals had\nserved meritoriously in Vietnam or had been the victims of\nserious administrative errors which led to their offenses.\nForty-six received immediate discharges under honorable\nconditions, thereby qualifying for full veterans' benefits.\nTwo were allowed to return to military service with no\npenalty. They were much like the approximately 80\nindividuals for whom the Clemency Board recommended that\ndischarges be upgraded to honorable conditions.\nNot \"Amnesty\"\nThe debate over the President's program was often framed\nin terms of whether the President should have granted\n\"amnesty\" and not merely \"clemency.\" The word amnesty\nderives from amnestia, the Greek word for forgetfulness. It\nconnotes full official forgetfulness, an obliteration of the\nfact that a past offense ever existed. It restores rights\nand benefits lost on account of the past offense to the\nmaximum effect possible under law.\nIts effect is to obliterate the past, to leave no\ntrace of the offense, and to place the offender\nexactly in the position which he occupied before\nthe offense was committed -- or in which he would\nhave been if he had not committed the offense.\nThe difference between amnesty and clemency is largely a\nmatter of semantics. The terms amnesty and clemency have\nbeen used interchangeably in American history. Indeed,\nthere is no significant legal difference between a pardon\nand an amnesty.\nSome distinction has been made, or attempted to be\nmade, between pardon and amnesty. It is sometimes\nsaid that the latter operates as an extinction of\nthe offense of which it is the object, causing it\nto be forgotten, so far as the public interests are\nconcerned, whilst the former only operates to\nremove the penalties of the offense. This\ndistinction is not, however, recognized in our law.\nThe Constitution does not use the word \"amnesty,\"\nand, except that the term is generally employed\nwhere pardon is extended to whole classes of\ncommunities instead of individuals, the distinction\nbetween them is one rather of philological interest\nGERALD FORD LIBRART\nthan of legal importance.28\nThe differences between advocates of clemency and\nadvocates of amnesty do not involve exercise of the\nPresident's pardon powers, but rather rights or benefits\nthat should be offered in a reconciliation program. Under\nthe President's program, civilian participants who were not\nyet prosecuted could receive as much as could be offered --\nrelease from further prosecution. Those who already had\nbeen prosecuted and convicted were offered a pardon, which\nis the most a President could give to a convicted offender.\nEven though the President may grant a particular group of\nconvicted individuals an \"amnesty,\" each member of the group\nwould receive nothing more than a pardon. To return any\nfines paid, compensate for time spent in prison or expunge\nand erase all records of a conviction, Congressional action\nwould be required. However, the President could have\ndirected that Executive Branch records of conviction be\nsealed. Also, he legally could have offered more benefits\nto military participants. Through his authority as\nCommander-in-Chief, he could have directed that they receive\ndischarges under honorable conditions, with full entitlement\nto veterans' benefits.\nIn effect, the President offered most, although not all,\nof the benefits which the law and the Constitution permitted\nhim to dispense.\nD. Conditional, Not Unconditional, Clemency\nThe President extended his offer of clemency in a spirit\nof reconciliation. He expected those to whom his offer was\nmade to accept it in the same spirit. This meant two\nthings: first, the individual had to step forward and apply\nfor clemency; second, he had to be willing to perform a\nperiod of alternative service. The conditional nature of\nthe President's Program most clearly distinguished it from\nproposals for unconditional amnesty.\nThe constitutional power to pardon and grant reprieves\ncarries with it the power to condition these forms of\nclemency upon the performance of certain conditions before\nor after any grant. The Supreme Court of the United States\nrecently stated:\nthis Court has long read the Constitution as\nauthorizing the President to deal with individual\ncases by granting conditional pardons. The very\nessence of the pardoning power is to treat each\ncase individually.29\nCondition of Application\nFORD is LIBRARY GERALD\nThe President could have directed the Clemency Board to\nreview the cases of all those eligible without the\nrequirement of an application. The condition of application\nrequired that individuals had to take some initiative to\nshow their interest in reconciliation. Further, the grant\nof a pardon must be accepted by the recipient to be\neffective. It would have been a useless gesture to review\nthe cases of persons who would have later declined the\nPresident's offer.\nThe Executive Order gave the Board discretion to\ndetermine acceptable applications, and we decided to make\nthe process as easy as possible. To make a timely initial\nfiling, the applicant or a person acting in his behalf had\nto contact any agency of the Federal government not later\nthan the application deadline of March 31, 1975, and express\nan interest in participating. Written inquiries were\nacceptable if mailed not later than March 31. We accepted\nno applications submitted after the President's deadline.\nWe strictly adhered to this rule, rejecting approximately\n500 late applications.\nApplications misdirected to consulates, probation\noffices, and Congress were all considered acceptable,\nbecause many applicants were confused about the division of\nresponsibility among the four agencies implementing the\nprogram. If this contact was in writing by the applicant\nhimself or his attorney, it was a valid application. If the\ninitial filing was made over the telephone or by someone\nother than his attorney, the applicant was given until May\n31, 1975, to confirm the contact in writing. 30 Individual\ncases sometimes presented difficult questions of proof,\nespecially when persons made oral applications to other\nFederal officials.\n(Case 2-1)\nLiving in Canada at the time, applicant\nalleged that he telephoned a U.S.\nConsulate prior to March 31 and had been\ntold that the deadline did not apply to\nhis case. Unfortunately, the Consulate\nkept no records of inquiries about the\nclemency program. Applicant re-entered\nthe United States in early April after\ncompleting his Canadian employment\nobligations. He immediately appeared at a\nUnited States Attorney's office.\nIn the above case, the question of timeliness turned on\nthe credibility of the applicant. After a personal\nappearance, the Board was persuaded of the applicant's\ntruthfulness, and the members voted unanimously to accept\nhis application.\nWhere the application contained insufficient information\nfor us to obtain the facts necessary for our case-by-case\ndetermination, we tried to contact the applicant and obtain\nthese facts. We made repeated phone calls and mailings to\nthousands of applicants who had submitted timely but\nincomplete applications. Despite repeated efforts to obtain\nmore information, we ended our work on September 15, 1975,\nwith about 1,000 applications for which we were unable to\nFORD & LIBRARY GERALD\nobtain the facts necessary to make case recommendations.\nThese cases were returned to the Pardon Attorney for further\ninvestigation and processing in accord with Clemency Board\nstandards and precedents.\nThe application requirements of the Justice and Defense\nprograms were specified in the Executive Order. Their\napplicants had to appear in person to participate. Both\nDepartments required that an individual return to the United\nStates if in another country, report to a Department office,\nacknowledge allegiance to the United States, 31 and pledge to\nperform alternative service. The Department of Justice\nrequired that, upon entering the United States, a convicted\ndraft evader had fifteen days to present himself to the\nUnited States Attorney in the judicial district in which his\ndraft evasion offense had occurred. This had to occur not\nlater than March 31, 1975. If an unconvicted evader failed\nto comply, he remained subject to prosecution for his draft\nevasion offense. In fact, no one was prosecuted during the\napplication period for failing to report within fifteen\ndays.\nTo receive clemency through the Department of Defense\nprogram, an undischarged AWOL offender had to return to the\nUnited States, surrender to any military base not later than\nMarch 31, 1975, and travel to the Joint Clemency Processing\nCenter in Indiana. When he affirmed his allegiance and\nagreed to perform alternative service, he was given an\nUndesirable Discharge. He then could perform his assigned\nalternative service to earn an upgrade to a Clemency\nDischarge.\nCondition of Alternative Service\nThose assigned to alternative service under any part of\nthe President's program come under the jurisdiction of the\nSelective Service System. Clemency Board applicants have\nthirty days from the date that they learn of the President's\nclemency offer in which to enroll with Selective Service.\nDepartment of Justice and Department of Defense applicants\nhad fifteen days in which to enroll.\nAll individuals assigned to alternative service are\ninformed that under Selective Service rules they may work\nanywhere in the United States. To enroll, they have to\ntravel to their desired area of residence and contact the\nnearest office of Selective Service. There are now about\n650 such offices throughout the United States. Initially,\napplicants have the opportunity of finding jobs of their own\nchoosing. They are encouraged by Selective Service to find\nwork which utilize their special talents. If they find\nsuitable jobs themselves, state Selective Service Directors\nhave to determine if the jobs meet the following criteria:\na. The job may be full-time (forty hours per week)\nor part-time (twenty hours per week) and must\npromote the national health, safety, or interest.\nit\nFORD\nb. The enrollee cannot fill a job for which there\nGERALD\nwere more qualified applicants than there were\nLIBRARY\nspaces available.\nC. The job must be with a non-profit organization.\nd. Unless he obtains a waiver from his State\nSelective Service Director, his pay must provide\nhim with a standard of living that was at least\nequivalent to that which he would have enjoyed had\nhe gone into or stayed in the military. 32\nIf enrollees cannot find suitable jobs by the end of the\ntwenty day period, state Selective Service Directors help\nthem look for jobs.\nBecause of local economic situations, it has often been\ndifficult for enrollees to find their own jobs, and it has\nnot always been possible for Selective Service to place\nevery enrollee in suitable positions. Selective Service\nrules specify that if through no fault of his own the\nenrollee has not been placed in a job within the thirty day\nperiod, time begins to be credited to his alternative\nservice commitment on the thirty-first day following his\nenrollment. While this provision permits some individuals\nto earn clemency without having jobs, it avoids penalizing\nthose willing to serve but for whom no jobs are available.\nTo avoid this problem, the Clemency Board has\nrecommended to Selective Service that individuals in the\nClemency Board program be able to fulfill their alternative\nservice by performing unpaid work in the national interest\nfor 16 hours per week for the designated period--three or\nsix months in most cases. Selective Service has implemented\npart of this recommendation, allowing alternative service to\nbe completed through 20 hours per week of unpaid work. This\npart-time work must be stretched out for longer than the\ndesignated three or six month period.\nAccording to Selective Service, alternative service jobs\nhave offered some individuals the beginning of a new career:\nA former Marine's alternative service consisted of\nassisting a jailer. He adapted well to his job,\nattended school on his own time, and is now a\ndeputy sheriff.\nAn Army veteran was assigned as a rodent and insect\ncontrol inspector for the city's health department.\nHis supervisor is so pleased with his work that he\nhopes to retain him after his alternative service\nis over.\nAs of October 1, 1975, 128 enrollees completed their\nperiods of alternative service under the President's\nprogram. As the table below indicates, the Department of\nDefense program has the highest number of applicants in this\ncategory. Others have begun their jobs, but --\nunfortunately -- many others have not.\nFORD & GERALD LIBRARY\nTABLE 4: INFORMATION ON ALTERNATIVE SERVICE PERFORMANCE\n(as of October 1, 1975)\nStatus*\nDoD\nDoJ\nPCB\nTotal\nNew Enrollees\n66\n46\n212\n324\nReferred to Jobs\n342\n71\n87\n500\nAt Work\n1269\n480\n102\n1851\nJob Interruption\n135\n30\n4\n169\nReferred to Second\nJob\n56\n21\n1\n78\nPostponed\n60\n17\n7\n84\nCompleted\n100\n21\n7\n128\nTerminated\n2479\n41\n10\n2530\nTotal*\n4507\n727\n430\n5664\n*Some applicants are classified in more than one category.\nThe success of the Department of Justice in having its\napplicants do alternative service probably reflects the\nthreat of prosecution facing unconvicted draft offenders\nterminated from the program. Many Department of Defense\napplicants may have applied for clemency just to end their\nfugitive status and receive an Undesirable Discharge. This\nmay explain the large number of Defense applicants who\neither never enrolled with Selective Service or were later\nterminated for failing to accept the designated employment.\nSo far, very few Clemency Board applicants have had to\nenroll with Selective Service. Since almost all of our\napplicants were informed of the President's decision in\ntheir cases after August 1975, we do not yet have adequate\ninformation on the number who have begun alternative\nservice. Unlike the other two agencies administering the\nprograms, we were unable to counsel our applicants in\nperson. What contacts we had with them suggest that many\nmay not understand some basic facts about their alternative\nservice obligation. Others may not appreciate their rights\nwith respect to job selection or termination. The low level\nof education and sophistication of many applicants, and\ntheir previous failures to abide by draft board or military\nrules, underline this possibility. Also, the short\nalternative service assignments of three to six months may\nmake it harder for Clemency Board applicants to find jobs.\nAccording to Selective Service, many employers are unwilling\nto offer jobs to individuals willing to work for only a few\nmonths.\n&\nFORD\nThe Selective Service System is confident that these\ndifficulties can be overcome. This is important, because we\nGERALD\nbelieve that the true measure of our work lies not in the\nLIBRARY\nnumber offered clemency, but rather in the number who\nsuccessfully complete alternative service and actually earn\ntheir pardons.\nE. A Program of Definite, not Indefinite, Length\nWhen President Ford established his clemency program,\nhis Proclamation specifically limited the period of time in\nwhich applications could be accepted. Originally, he set\nJanuary 31, 1975, as the application deadline. Due to the\npublicity and press coverage that heralded the announcement\nof the clemency program, we and the others newly involved in\nits administration assumed that all eligible people would\nquickly learn about the program and understand what benefits\ncould be derived from applying for clemency. Therefore, we\nthought that four and one-half months gave potential\napplicants ample opportunity to decide whether to apply.\nFor the first three months of existence, the\nPresidential Clemency Board maintained a low profile. We\nreasoned that people should not be pressured while making up\ntheir minds whether to apply and that it would be improper\nfor us to solicit their applications. Because we assumed\nthat those covered by the program knew about their\neligibility, we decided to process applications without\ntrying to encourage anyone to apply to us.\nWe soon learned, however, that our assumptions were\nincorrect. After reviewing the first several hundred cases,\nwe discovered that most applicants were not well-educated,\narticulate persons, but rather were poorly-educated,\ndisadvantaged individuals who were not likely to be informed\nabout the President's program. Military applicants, in\nparticular, did not fit the stereotype of the knowledgeable,\neducated war resister. In the middle of December, when only\nabout 800 people had applied to the Clemency Board, a\nlimited survey of potential military applicants took place\nin Seattle, Washington. A veterans' counseling organization\nlocated twelve former servicemen eligible for our segment of\nthe program. All twelve knew about the President's offer,\nbut none of them knew that it applied to former servicemen.\nThis misconception was reinforced by much of the early\nmedia attention which highlighted the activities of those\nwho fled to Canada. It was the self-exiled draft evader and\nmilitary deserter who formed the basis for the stereotyped\nindividual whom most Americans perceived as eligible for the\nprogram. Because they had fled, they generally knew that\ncharges were pending against them and that returning without\napplying for clemency meant apprehension, trial, and\npossible conviction. In contrast, the vast majority of\npersons eligible to apply to the Clemency Board had already\ncompleted the punishment for their offense and were trying\nwith varying success to rehabilitate their lives. Many had\nheard about the clemency program, mistakenly thinking that\nit was only for those who had gone to Canada.\nOnce we realized that many of those eligible to apply to\nFORD & GERALD LIBRARY\nthe Clemency Board knew nothing about their eligibility, we\nbegan an extensive public information program. On January\n7, 1975, through the cooperation of the Administrative\nOffice of the U.S. Courts and U.S. Probation and Parole\nOffices throughout the country, 7,000 information kits were\nmailed to convicted draft evaders. Throughout the month of\nJanuary, similar kits were mailed to government agencies\nthat had some contact with eligible persons, such as the\nVeteran's Administration, employment offices, welfare\noffices, penal institutions, and post offices. Clemency\nBoard members Hesburgh and Walt taped public service radio\nand television announcements explaining how one could apply.\nOn January 14, 1975, these announcements were mailed to\n2,500 radio and television stations across the United\nStates. During January, seven members of the Board\nparticipated in one-day \"blitzes\" in sixteen of the major\ncities across the country. These visits consisted of a\nBoard member going to a city for one day, holding press\nconferences, participating in various radio and television\ntalk shows, and giving interviews to reporters from the\ncity's major newspapers. To keep national media focused on\nthe program, Chairman Goodell held numerous press\nconferences during January.\nThe result of our public information campaign was a\ndramatic increase in the Clemency Board application rate.\nApplications increased from 870 on January 7, 1975, to a\ntotal of 5,403 before expiration of the January 31st\ndeadline. Due to this increase, the President extended the\ndeadline to March 1, 1975.\nThe public information campaign was continued in\nearnest. On February 17, 1975, at our request, the\nDepartment of Defense mailed 21,000 information kits to\ndischarged military personnel with punitive discharges who\nappeared eligible for the program. The Department was\nunable to send kits to the 75,000 eligible persons with\nadministrative discharges because of the excessive costs of\nobtaining their addresses and the difficulty of identifying\nwhich among hundreds of thousands of administrative\ndischarges during the Vietnam era had resulted from AWOL-\nrelated offenses.\nMore information kits were sent to government agencies,\nand radio and television announcements were distributed to\nanother 6,500 stations. Several Board members made\nadditional one-day visits to eight key cities, some of which\nhad previously been visited. Chairman Goodell continued to\nhold press conferences in order to draw attention to prior\nmisunderstandings concerning our eligibility criteria.\nFinally, the media began to recognize the difficulties we\nwere having in communicating with potential applicants.\nAgain, there was a dramatic increase in our application\nrate. An additional 6,000 applications were received during\nFebruary, with our total exceeding 11,000. At our request,\nthe President extended the application deadline for one last\ntime. Knowing that March 31, 1975 was going to be the final\ndeadline, we intensified our efforts to reach eligible\npersons. We sent staff members across the country to\nR.\nFORD\nregional offices of the Veterans Administration. Workshops\nin thirty-three cities were attended by over 3,000 veterans'\nGERALD\ncounselors -- most of whom, surprisingly, had not yet\nLISAARY\nlearned that former servicemen with bad discharges were\neligible for clemency.\nWe received over 10,000 applications during March, making a\ntotal of 21,500 by the time we finished counting. We had\nten or twenty times what we once thought possible.\nThe administrators of the Justice and Defense Department\nprograms also attempted to inform their potential\napplicants. Letters were sent by the Department of Justice\nto the last-known address of each person subject to\nindictment, and many applicants used these letters to\nfacilitate their re-entry across the border. In December,\nthe Department of Defense mailed 7,000 letters to the\nparents of known military absentees.\nThe final application tallies were 706 out of 4,522\neligible for the Justice program (a 16% response) ; 33 5,555\nout of 10,115 eligible for the Defense program (a 55%\nresponse) ; 34 1,879 out of 8,700 convicted civilians eligible\nfor the Clemency Board program (a 22% response) ; and 13,589\nout of approximately 90,000 former servicemen eligible for\nthe Clemency Board program (a 15% response). Altogether,\n21,729 persons applied to the President's program, 19% of\nthe 113,300 believed eligible to apply.\nF. A Case-By-Case, Not Blanket, Approach\nThe President specifically requested that each agency\nact upon clemency applications on a case-by-case basis. His\nProclamation declared that:\nin prescribing the length of alternative service\nin individual cases, the Attorney General, the\nSecretary of the appropriate Department, and the\nClemency Board shall take into account such\nhonorable service as an invidual may have rendered\nprior to his absence, penalties already paid under\nlaw, and such other mitigating factors as may be\nappropriate to seek equity among those who\nparticipate in this program. 35\nThe very essence of the pardoning power is to treat each\ncase individually. The Supreme Court of the United States\nhas consistently read the Constitution to authorize the\nPresident to exercise his pardon power on a case-by-case\nbasis. 36\nA case-by-case approach was more costly, requiring\ngreater time and staff to administer, but it was the heart\nof the President's program. It permitted the Clemency Board\nand the other agencies to distinguish among individuals with\ndiffering backgrounds, offenses, and circumstances. While\nmore difficult to administer, the case-by-case approach\nenabled the program to render justice by fashioning results\nto fit the many differing people who applied to the program.\nGERALD FORD LIBRARY\nAdvocates of a blanket approach often believed that the\nstereotype of the articulate pacifist who acted on principle\nwas the only type of individual involved in the program. In\nfact, only 13% of applicants to the Clemency Board committed\ntheir offenses primarily because of opposition to war. (See\nChapter 3.)\nTreating applicants by classes or groups, with automatic\ndispositions for each category, would have demeaned the\nvalue of a Presidential pardon; it would have treated the\nindividuals who applied as groups of objects, rather than as\nhuman beings with whom reconciliation was the goal.\nClemency Board Procedures\nThe Clemency Board desired to make all procedures as\nsimple as possible, with a minimum of technical requirements\nwith which an individual had to comply. We wanted the\nprocess to be open, so that applicants would be aware of how\nwe were proceeding with their cases and what we were using\nas the basis for case recommendations. We encouraged the\nfullest possible participation by applicants. Above all,\nthe Board and the staff wished to make the Presidential\nClemency Board a model of fair and open administration in\nkeeping with the Presidential nature of our responsibilities\nand the importance of our task. The Board's procedural and\nsubstantive rules are described in detail in Chapter 4; a\nsummary is presented below.\nIn brief, our process began with a telephone call or\nletter from an individual inquiring about clemency. We\naccepted any affirmative expression of interest, whether\noral or written, as a provisional application, and we\naccepted applications made on an individual's behalf by\nthird parties. While these were sufficient to satisfy the\napplication deadline, we required a perfected application\nbefore we would complete action on a case. 37 Any application\ncould be withdrawn at any time, without penalty.\nWhen an application was received, we mailed back a full\nset of instructions explaining the program, the applicant's\nrights, and information on other avenues of relief he might\nwish to pursue in addition to the clemency program. To make\nthe process as unthreatening as possible, we required from\nthe individual only the minimum amount of information\nnecessary for us to order pertinent government records. We\nencouraged the applicant to send in as much additional\ninformation as he wished, and we informed him of the\nimportant factors which the Board would consider in\nreviewing his case. We encouraged the applicant to seek\nlegal counseling, and we informed him of possible sources\nfor counseling. We assured him of the confidentiality of\nour process.\nWe then began his case file and give him a case number.\nPreliminary questions of jurisdiction were resolved by the\nstaff under Board guidance. The information-gathering\nprocess then began. First, the staff ordered official\nrecords and files. After they had been received, a case\nGERALD FORD LIBRARY\nattorney was assigned to prepare a case summary, which would\nlater be used as the basis of our case disposition. This\ncase summary was the key element of the entire case-by-case\napproach. When the case summary had been prepared, the\nquality control staff reviewed it carefully for fairness and\naccuracy. The case was then ready for presentation to the\nBoard, and the summary was mailed to the applicant for his\ncomment. Because of this reliance on government files, we\ngave the applicant an opportunity to review his case summary\nand make suggestions for corrections and additions. We also\nwanted the individual to know the exact materials the Board\nwould consider in reviewing his case. Finally, we used the\nmailing of the summary as another opportunity to encourage\nthe applicant to send further information to us on his own\nbehalf.\nA panel consisting of three or four Board members then\nreceived copies of the applicant's case summary a few days\nbefore the actual case presentation. Each panel member read\nthe case summary, making notes and tentative personal\nevaluations. When the panel acted on the applicant's case,\nthe staff attorney who prepared the summary was present with\nthe entire file to answer questions and make additional\ncomments on the case. Also present were a staff scribe to\nkeep records and a panel counsel (usually the case\nattorney's supervisor) to advise the case attorney and panel\nmembers on Clemency Board rules and precedents.\nWhen making case dispositions, Board panels had to\ndecide the following: first, did the applicant deserve\nclemency of any kind? If the answer was \"yes,\" panel\nmembers determined the applicant's baseline or starting\npoint for the calculation of his alternative service\nassignment, identifying which aggravating and mitigating\nfactors applied in his case. (See Chapter 4.) Panel members\nthen decided what period of alternative service, if any, the\napplicant had to perform to earn his clemency. (See Chapter\n5.) If he were a military applicant with combat experience,\nthe panel considered whether to refer the case to a special\nBoard panel for a possible recommendation for an immediate\ndischarge upgrade and veterans' benefits. The staff\nattorney, scribe, and panel counsel were present during all\ndeliberations; Board meetings were closed to the public to\nensure privacy, unless an applicant expressly waived his\nright to privacy. The Board granted a personal appearance\nwhen necessary for a full understanding of the case.\nTo attain as much consistency in decision-making as\npossible, any member of the Board could refer a case for\nreconsideration by the full Board. A computer-aided review\nof panel dispositions identified cases which the Chairman\nwished to be reconsidered by the full Board.\nOur final disposition was sent to the President as a\nrecommendation. He then indicated his decision on a signed\nwarrant, which was returned to the Clemency Board so we\nP..\ncould notify the applicant of the President's decision. The\nFORD\napplicant had the right to ask for reconsideration within 30\ndays. If he did not file such a motion, he either accepted\nGERALD\nor refused the President's offer of clemency. Because the\nLIBRARY\nprogram was voluntary, a refusal left him no worse off than\nbefore he applied.\nDepartment of Justice Procedures\nThe Department of Justice program was implemented by the\nAttorney General's directive of September 16, 1974, to all\nUnited States Attorneys. 38 In addition to instructing the\nU.S. Attorneys on how to calculate the length of alternative\nservice for their eligible applicants, the Attorney General\nrequired them to follow certain procedures. Section V of\nhis directive stated:\nIn the determination by the United States\nAttorney of the length of service an applicant\nshall be permitted to: (1) have counsel present;\n(2) present written information on his behalf; (3)\nmake an oral presentation; and (4) have counsel\nAn applicant shall not have access to\ninvestigatory records in the possession of the\nUnited States Attorney except as provided by 32\nC.F.R. 160.32. The United States Attorney shall\nmake his decision on the basis of all relevant\ninformation. No verbatim record of the proceeding\nshall be required.³\nEach of the ninety-four United States Attorneys was\nresponsible for carrying out this directive. The Department\nof Justice took several steps to ensure uniform\nimplementation of its program. All U.S. Attorneys were\ninstructed to apply four specific mitigating factors. They\nreceived a model alternative service agreement and a model\nletter to send to eligible persons. In addition, the Deputy\nAttorney General personally examined and reviewed the first\ntwenty-six alternative service agreements before giving\nfinal approval.\nThe procedures followed by the Department of Justice\nwere discussed by Kevin T. Maroney in his testimony before a\nSub-committee of the House Committee on the Judiciary:\n(I) ndividuals who may have been located outside\nthe country when the President announced the\nprogram were given a 15-day opportunity to re-enter\nand report to United States Attorneys without fear\nof arrest. Morever, upon reporting to the United\nStates Attorneys, no prospective enrollee was\nexpected to execute an agreement immediately\nAs a further demonstration of flexibility, not\nevery prospective enrollee has been required to\nexecute an agreement in the judicial district where\nhe was charged. In those cases where compelling\nreasons were evident, such as an ensuing family or\nFORD & LIBRARY GERALD\nfinancial hardship, exceptions were made and\nindividuals permitted to sign agreements in other\ngeographical areas. Likewise, with respect to\nthose individuals who were pursuing educational\nendeavors either in or outside the country,\narrangements were made permitting them to execute\nagreements with the understanding that the actual\nperformance of work would be delayed, pending the\ncompletion of their studies. 40\nFollowing these procedures, U.S. Attorneys dropped\nprosecutions or discontinued investigations of draft\noffenders in return for the satisfactory completion of\nassigned of alternative service. In those instances where\nthe individual was without financial resources, the United\nStates Attorney assisted in making arrangements for legal\nrepresentation.\nDepartment of Defense Procedures\nIn response to the Presidential Proclamation, the\nSecretary of Defense issued a memorandum on September 17,\n1974, to the Secretaries of the Military Departments. 41 This\nmemorandum indicated that the period of alternate service\nfor servicemen who apply under the President's program would\nbe determined in individual cases by designees of the\nvarious Military Departments. Pursuant to this grant of\nauthority, the Secretaries established a Joint Alternate\nService Board. Each of the four military services appointed\nan officer in the grade of colonel or captain to serve on\nthe Board.\nThe Secretaries granted the Joint Alternate Service\nBoard broad authority to determine procedures for the\nresolution of its cases, except that the Presidency of the\nBoard had to be shared in such a way as to be held by a\nmember of the same service as the applicant whose case was\nbeing considered. The vote of the Board President was to\nprevail in case of a tie.\nThe members of the Joint Alternate Service Board agreed\nupon the following procedures for the processing of\napplications:\na. To comply with the above directives, each\nindividual participating in the President's program\nis offered the opportunity during his processing to\nsubmit to the Board additional documentation that\nhe desires the Board to consider on his behalf.\nConversely, he must so indicate that he does not\ndesire to make a statement if that is his decision.\nThis provides the individual an opportunity to\nstate his reasons for unauthorized absence, to\nindicate the nature of his employment or service\nwhile absent, and to provide any other statements\nor matters he wishes considered by the Board.\nb. The military services are required to\nprovide a summary of each individual's record to\nhighlight service-related factors to be\nGERALD FORD LIBRARY\nconsidered\nC. The total available service record,\nstatements submitted by the individual, and the\nservice provided summary sheet are reviewed and\nevaluated independently by each member of the\nBoard. Records which contain conflicting or\nquestionable data are returned to the service for\nverification of the information. Each Board member\nconsiders all available information and makes an\nindependent judgment to determine if there is\nappropriate justification for reducing required\nalternate service below 24 months. He then records\nthe number of months which he considers appropriate\nfor the individual to serve. When all Board\nmembers have reviewed a case and made an\nindependent determination of alternate service\ntime, Board member votes are compared. In the\nevent of a tie or split vote, the case is openly\ndiscussed by the Board members to resolve\ndifferences. In the event of a tie vote during\narbitration, the President of the Board votes to\nbreak the tie. This decision on the number of\nmonths of alternate service is considered the final\ndecision of the full Board.\nd. The decision is annotated on the summary\nsheet, signed by a Board member and returned to the\napplicable service for separation processing. 42\nThe Department of Defense program processed applicants\nthrough the Joint Clemency Processing Center at Fort\nBenjamin Harrison, Indiana. In addition to being a clemency\nprogram for military deserters, the Defense program was also\na discharge process. Applicants filled out a series of\nadministrative forms, participated in group legal counseling\nsessions, and could see military lawyers for advice. Each\napplicant could select one of three options concerning\nparticipation in the program: Option 1 made him a\nparticipant in the clemency program, requiring him to sign a\nReaffirmation of Allegiance, sign a Pledge of Public\nService, and accept an Undesirable Discharge. Option 2\noffered him an opportunity not to participate in the\nPresident's clemency program and to have his case decided\nunder current military law. Option 3 represented a return\nto active duty for qualified Army applicants. Two of the\nfour who chose Option 3 were restored to active duty.\nAlthough not an explicit option, 46 meritorious applicants\nwere diverted from the clemency program and immediately\ndischarged under honorable conditions. All applicants\nreserved the right to withdraw selection of a particular\noption before their cases were forwarded to the Joint\nAlternate Service Board for disposition.\nThose who applied for clemency could then submit a\n\"Statement to the Board for Alternative Service.\" Each\napplicant had the opportunity to explain his reasons for\nabsence from military service, employment during his\nabsence, and other matters he wished the Board to consider.\nPersonal appearances were allowed only in exceptional\ncircumstances. The Board felt that the availability of\nFORD & LIBRARY\napplicants' military records and the applicants' right to\nsupplement their records with further information made\nappearances unnecessary. No opportunities for appeal were\nprovided. Altogether, most applicants spent no more than\nthree days at the Joint Clemency Processing Center. 43\nEND OF DOCUMENT Chapter 2\nLINES PRINTED 01318\nPAGES 0026\nCUSTOMER a2220 OPERATOR 001\n222 001 Chapter 2\nFORD is LIBRARY\nTODAY'S DATE 11/11/75\n1301\n03 lstl11e\n222-001\nCUSTOMER a2220 OPERATOR 001 PCB\n222-001\nChapter 3\n001 Chapter 3\nDATE STORED 11/07/75 1545\nW\nWIDTH 060 DEPTH 64\npj\nPRINT POSITION 12 LINE 03\nFORD & LIBRARY GERALD\nA. Introduction\nChance and circumstance had much to do with the\nsacrifices faced by each individual during the Vietnam War.\nConscription is, by nature, selective. In a sense, Clemency\nBoard applicants were victims of misfortune as much as they\nwere guilty of willful offenses. Most other young Americans\ndid not have to face the same choices. Only nine percent of\nall draft-age men served in Vietnam. Less than two percent\never faced charges for draft or desertion offenses, and only\n0.4%--less than one out of two hundred--were convicted or\nstill remain charged with these offenses. By contrast, 60%\nof all draft-age men were never called upon to serve their\ncountry. 1 For this reason alone, applicants to the\nPresident's clemency program deserve the compassion of their\nccuntrymen.\nAs we decided cases, we came to understand better the\nkinds of people who had applied for clemency. By the time\nwe had reviewed all cases, each of us had read approximately\n3,000 case summaries for our respective Board panels. From\nthese case summaries, we learned what applicants' family\nbackgrounds were like, what experiences they had with the\ndraft and the military, why they committed their offenses,\nand what punishments they endured.\nMany applicants fell into common categories--the sincere\nVietnam war resister who was denied his application for\nconscientious objector (CO) status and faced trial and\npunishment as a matter of principle; the Jehovah's Witness\nwho, although granted a CO exemption, went to jail because\nhis religious convictions prohibited him from accepting an\nalternative service assignment from Selective Service; the\nVietnam veteran who went AWOL because of his difficulties in\nadjusting to post-combat garrison duty; the young\nserviceman, away from home for the first time, who could not\nadjust to military life; the serviceman with his family on\nwelfare who went AWOL to find a better-paying job.\nWe also had a few less sympathetic cases: the civilian\nFORD & LIBRARY GERALD\nwho dodged and manipulated the system not for conscientious\nreasons, but simply to avoid fulfillment of any kind of\nobligation of national service--or the soldier who deserted\nhis post under fire.\nIn this chapter, we describe civilian and military\napplicants to the Clemency Board. Who were they? What did\nthey do? Why did they do it? Excerpts from actual cases\ntell much of the story, supplemented by the results of a\ncomprehensive survey we conducted from the case summaries of\n472 civilian applicants and 1,009 military applicants --\nroughly 25% and 7% of the total number of our eligible\ncivilian and military applicants, respectively. (See\nAppendix C.) At the chapter's end, we try to identify those\nwho did not apply, why they did not, and what happens to\nthem next.\nThe excerpts from our case summaries illustrate a broad\nrange of fact situations. Many of the applicants were\nrecommended for outright pardons, others for conditional\nclemency with alternative service, and a few were denied\nclemency. (See Chapter 5.) Information in these excerpts is\nbased upon the applicants' own allegations, sometimes\nwithout corroboration.\nAs we describe the circumstances and experiences of the\napplicants, we are doing so only from the perspective of the\n14,500 cases we decided. These were individuals whom the\nmilitary, the draft system, and the judiciary had to judge\non the basis of more information and different standards\nthan we did. Our mission was clemency; theirs was the\nenforcement of Federal law and military discipline.\nThe Board's recommendations for clemency should not be\nused to infer any improper actions on the part of draft\nboards, courts, or the military. These agencies did their\nduty during the Vietnam era, as set forth by the President,\nthe Congress, and the Supreme Court. It was not the intent\nof this program to undermine the effectiveness of those\ninstitutions in carrying out their legitimate functions in\npeace and war.\nB. Civilian Applicants\nIn many ways, the civilian applicants were not unlike\nmost young men of their age throughout the United States.\nBorn largely between 1948 and 1950, they were part of the\n\"baby boom\" which was later to face the draft during the\nVietnam War. Most grew up in cities (59%) and suburbs\n(19%), with disproportionately many in the West and few in\nthe South.\nThey were predominantly white (87%) and came from\naverage American families. Twenty-nine percent came from\neconomically disadvantaged backgrounds. Over two-thirds\n(69%) were raised by both natural parents, and evidence of\nFORD & GERALD LIBRARY\nsevere family instability was rare. The proportion of\nblacks (11%) and Spanish-speaking persons (1.3%) was about\nthe same as found in the general population. Over three-\nquarters (79%) had high school diplomas, and 18% had\nfinished college. A very small percentage (4%) had felony\nconvictions other than for draft offenses.\nTwo things set the civilian applicants apart. First,\n75% opposed the war in Vietnam strongly enough to face\npunishment rather than be inducted. Many were Jehovah's\nWitnesses (21%) or members of other religious sects opposed\nto war (6%). Second, they -- unlike many of their friends\nand classmates -- were unable or unwilling to evade the\ndraft by exemptions and deferments or escape prosecution\nthrough dismissal and acquittal. They stayed within the\nsystem and paid a penalty for their refusal to enter the\nmilitary.\nIn the discussion which follows, we trace the general\nexperiences of civilian applicants to the Clemency Board.\nWe look first at their experiences with the draft system.\nAfter examining the circumstances of their draft offenses,\nwe focus on their experiences in the courts and prisons.\nFinally, we describe the impact of their felony convictions.\nWith few exceptions, the statistics are based upon a\nsample of 472 civilian applicants - roughly one-fourth of\nour total number of civilian applications. (See Appendix\nC.)\nSelective Service Registration\nCivilian applicants, like millions of other Americans,\ncame into contact with the Selective Service System when\nthey reached the age of eighteen -- usually between 1966 and\n1968. They then were required by law to register for the\ndraft. Often, it was their first direct contact with a\ngovernment agency. A few (3%) of the applicants committed\ndraft offenses by failing to register with the draft -- or\nfailing to register on time. Ignorance or forgetfulness was\nno defense, but draft boards rarely issued complaints for\nfailure to register unless an individual established a\npattern of evasion.\n(Case 3-1)\nApplicant was convicted for failing to\nregister for the draft. As a defense, he\nstated that he was an Italian immigrant\nwho did not understand the English\nlanguage. However, there were numerous\nfalse statements on his naturalization\npapers, and he was able to comply with\nstate licensing laws as he developed\nseveral business enterprises in this\ncountry.\nAfter registration, civilian applicants were required to\nkeep their local board informed of their current address.\nFailure to do SO was a draft offense, for which ten percent\nof them were convicted. These tended to be itinerant\nindividuals with little education, who by background were\nunlikely to understand or pay due respect to their Selective\nFORD & GERALD LIBRARY\nService responsibilities.\n(Case 3-2)\nApplicant's father, a chronic alcoholic,\nabused applicant and his mother when\nintoxicated. Applicant left his home to\nseek work, without success. Because of\nhis unsteady employment, he was compelled\nto live with friends and was constantly\nchanging his address. His parents were\nunable to contact him regarding pertinent\nSelective Service materials. After his\nconviction for failing to keep his draft\nboard informed of his address, applicant\napologized for his \"mental and emotional\nconfusion,\" acknowledging that his failure\nto communicate with the local board was an\n\"error of judgment on my part.\"\nThe local board was under no obligation to find an\nindividual's current address, and it was his responsibility\nto make certain that Selective Service mail reached him.\n(Case 3-3)\nApplicant registered for the draft and\nsubsequently moved to a new address. He\nreported his change of address to the\nlocal post office, but he did not notify\nhis local board. He mistakenly thought\nthis action fulfilled his obligation to\nkeep his local board informed of his\ncurrent address.\n(Case 3-4)\nApplicant's mother telephoned his new\naddress to the local board. Selective\nService mail still failed to reach him,\nand he was convicted for failure to keep\nhis board informed of his whereabouts.\nThe last address his mother had given was\ncorrect, but the court did not accept his\ndefense that mail did not reach him\nbecause his name was not on the mailbox.\nSelective Service Classification\nImmediately after civilian applicants registered with\nlocal boards, they were given Selective Service\nclassifications. There were a number of different kinds of\ndeferments and exemptions. Many of the forty-four percent\nwho attended college received student deferments. Some\napplied for hardship deferments, occupational deferments,\nphysical or mental exemptions, or ministerial exemptions,\nparticularly the twenty-one percent who were Jehovah's\nWitnesses. The greatest number applied for conscientious\nobjector exemptions. Some applied for numerous deferments\nand exemptions, with draft boards offering procedural rights\neven for claims that were obviously dilatory.\n(Case 3-5)\nApplicant had a student deferment from\n1965 to 1969. He lost his deferment in\nGERALD LIBRARY GERALDR. FORD\n1969, apparently because of his slow\nprogress in school (he did not graduate\nuntil 1973). His two appeals to keep his\nstudent deferment were denied. After\npassing his draft physical and having a\nthird appeal denied, he applied for a\nconscientious objector exemption. This\nwas denied, and his appeal was denied\nafter a personal appearance before his\nstate's Selective Service Director. After\nlosing another appeal to his local board,\nhe was ordered to report for induction.\nOne day after his reporting date, he\napplied for a hardship postponement\nbecause of his wife's pregnancy. He was\ngranted a nine-month postponement. He\nthen requested to perform civilian work in\nlieu of military service, but to no avail.\nAfter his wife gave birth, he fled to\nCanada with her and the child. He\nreturned to the United States a year\nlater, and was arrested.\nVery few civilian applicants hired attorneys to help\nthem submit classification requests and appeals. Others\nrelied on the advice of local draft clerks. Others turned\nto friends, family, and draft-counseling organizations.\nHowever, it was their responsibility to make themselves\naware of the legal rights available to them.\n(Case 3-6)\nApplicant made no attempt to seek a\npersonal appearance before the local board\nor appeal its decision, on the basis of\nadvice given by the clerk that the board\nroutinely denied such claims made by\npersons like himself.\nSome tried to interpret Selective Service forms without\nhelp from either legal counsel or draft board clerks. At\ntimes, this prevented them from filing legitimate claims.\n(Case 3-7)\nApplicant initially failed to fill out a\nform to request conscientious objector\nstatus because the religious orientation\nof the form led him to believe he would\nnot qualify. After Welsh,2 he believed he\nmight qualify under the expanded \"moral\nand ethical\" criteria, so he requested\nanother form. When his local board sent\nhim a form identical to the first one, he\nagain failed to complete it, believing\nthat he could not adequately express his\nbeliefs on a form designed for members of\norganized religions.\nOthers relied only on their personal knowledge of\nSelective Service rules, without making inquiry.\n(Case 3-8)\nApplicant failed to apply\nfor\nconscientious objector status because he\nGERALD FORD LIBRARY\nmistakenly believed that the Supreme Court\nhad ruled that a prerequisite for this\nclassification was an orthodox religious\nbelief in a supreme being.\nSome civilian applicants' requests for deferments or\nexemptions were granted; others were denied. In case of\ndenial, an individual could appeal his local board's\ndecision to the state appeals board. A few civilian\napplicants claimed that local board procedures made appeals\ndifficult, but it was their own responsibility to learn\nabout their opportunities for appeal.\n(Case 3-9)\nApplicant claimed that he was given no\nreasons for the denial of his claim for\nconscientious objector status. As a\nresult, he said that he was unaware of how\nor where to appeal his case to a higher\nlevel.\nOthers lost their rights because of their failure to\nfile appeal papers within the time limits established by\nlaw.\n(Case 3-10)\nApplicant, a Jehovah's Witness, was\nunaware of the time limitations on filing\nnotices of appeal. He continued to gather\nevidence for his appeal, but it was\nultimately denied on the procedural\ngrounds of his failure to make timely\napplication for appeal.\nIf a civilian applicant failed to appeal his local\nboard's denial of request for reclassification, he might\nhave been unable to raise a successful defense at trial.\n(Case 3-11)\nApplicant failed to appeal his local\nboard's denial of his conscientious\nobjector claim, which he claimed was done\nwithout giving any reasons for the denial.\nAlthough his trial judge indicated that\nthe local board's action was improper, he\nnevertheless approved a conviction because\napplicant had failed to exhaust his\nadministrative remedies by appealing his\nlocal board's decision.\nEven if an applicant had been unsuccessful in his\ninitial request for reclassification -- whether or not he\nappealed his local board's decision -- he could request a\nrehearing at any time prior to receiving his induction\nnotice. If a registrant could submit a prima facie case for\nreclassification, his local board had to reopen his case.\nWhen this happened, he regained his full appeal rights.\n(Case 3-12)\nApplicant's local board decided to give\nhim another hearing after he accumulated\nadditional evidence to support his claim\nfor reclassification. Despite this\nrehearing, his local board found the\nevidence insufficient to merit a reopening\nFORD & GERALD LIBRARY\nof his case. Without a formal reopening,\napplicant could not appeal his board's\nfindings upon rehearing.\nMany applicants exercised a variety of procedural rights\nin their requests for all types of deferments and\nexemptions. Some of their claims appeared to be contorted\nefforts to avoid induction.\n(Case 3-13)\nApplicant claimed that his wife, who had\nbeen under psychiatric care, began to\nsuffer hallucinations when he received his\ninduction notice. He requested a hardship\ndeferment, with two psychiatrists claiming\nthat he should not be separated from his\n\"borderline psychotic\" wife. This request\nwas denied. Applicant later tried to get\na physical exemption by having braces\nfitted on his teeth. However, he instead\nwas convicted of conspiring to avoid\ninduction. (His dentist also faced\ncharges, but fled to Mexico to escape\ntrial. The dentist applied to the\nClemency Board for clemency, but we did\nnot have jurisdiction over his case.)\n(Case 3-14)\nApplicant informed his draft board that he\nhad a weak back and weak knees. The\nphysician who examined his refused to\nverify this. Applicant then forged the\nphysician's name and returned the document\nto his draft board.\nOther claims appeared to have more merit, but were\nnonetheless denied by local boards. The local boards had\nthe benefit of the full record in these cases, and had to\nweigh them against claims made by other registrants.\n(Case 3-15)\nApplicant's father was deceased, and his\nmother was disabled and suffered from\nsickle cell anemia. His request for a\nhardship deferment was denied. Also,\napplicant claimed that he suffered from a\nback injury. This allegation was\nsupported by civilian doctors, but denied\nby military doctors.\n(Case 3-16)\nApplicant's parents were divorced when he\nwas 16, with his father committed to a\nmental institution. Applicant dropped out\nof school to support his mother. A\npsychiatrist found applicant to suffer\nfrom claustrophobia, which would lead to\nsevere depression or paranoid psychosis if\nhe entered the military. However, he did\nnot receive a psychiatric exemption.\nThe classification of greatest concern to most civilian\nFORD is LIBRARY 07V839\napplicants was the conscientious objector exemption. Almost\nhalf (44%) took some initiative to obtain a \"CO\" exemption.\nTwelve percent were granted CO status, 17% applied but were\ndenied, and the remaining 15% never actually completed a CO\napplication.\nof the 56% of the civilian applicants who took no\ninitiative to obtain CO status, roughly half (25%) committed\ntheir draft offenses for reasons unrelated to their\nopposition to war. Others may not have filed for a CO\nexemption because they were unaware of the availability of\nthe exemption, knew that existing (pre-Welsh) CO criteria\nexcluded them, or simply refused to cooperate with the draft\nsystem.\n(Case 3-17)\nApplicant, a Jehovah's Witness, had his\nclaim for a ministerial exemption denied.\nSince he made no claim for conscientious\nobjector status, he was classified 1-A and\nordered to report for induction. (He\ncomplied with his draft order, but he\nlater went AWOL and received an\nUndesirable Discharge.)\n(Case 3-18)\nApplicant did not submit a CO application\nbecause it was his understanding that\ncurrent (pre-Welsh) CO rules required that\nhe be associated with a widely recognized\npacifist religion. His refusal to\nparticipate in war stemmed from his\npersonal beliefs and general religious\nfeelings.\n(Case 3-19)\nApplicant, a Jehovah's Witness, refused to\nfile for CO status because he felt that by\nSO doing he would be compromising his\nreligious principles, since he would be\nrequired by his draft board to perform\nalternative service work.\nUsually, those who took some initiative but failed to\nfollow through with their CO application were pessimistic\nabout their chances for success.\n(Case 3-20)\nApplicant filed a CO claim in 1969, after\nhe received his order to report for\ninduction. His draft board postponed his\ninduction date and offered him a hearing.\nHowever, applicant did not come to his\nhearing and advised his draft board that\nhe no longer desired CO status. He stated\nat trial that he decided not to apply for\na CO exemption because the law excluded\npolitical, sociological, or philosophical\nviews from the religious training and\nbeliefs necessary for CO status at the\ntime.\nSome did not pursue a CO exemption because of their\ninability to qualify under pre-Welsh rules. Occasionally,\napplicants claimed that they had been discouraged from\nFORD & LIBRARY GERALD\napplying.\n(Case 3-21)\nIn reply to applicant's request for a CO\napplication form, his local board included\na note stating that a CO classification\nwas given only to members of pacifist-\noriented religions. Accordingly, he did\nnot bother to return the form.\nSome applicants failed to submit their CO applications\non time, because of inadvertence or lack of knowledge about\nfiling requirements.\n(Case 3-22)\nApplicant wished to apply for CO status,\nbut his form was submitted late and was\nnot accepted by his local board. His\nlawyer had lost his application form in\nthe process of redecorating an office.\n(Case 3-23)\nApplicant applied for CO status after his\nstudent deferment had expired. He did\nhospital work to support his beliefs, but\nhe failed to comply with time requirements\nfor status changes under the Selective\nService Act. Consequently, his local\nboard refused to consider his CO\napplication.\nIn the midst of the Vietnam War, the substantive law\nregarding conscientious objectors changed dramatically,\nprofoundly affecting the ability of many applicants to\nsubmit CO claims with any reasonable chance of success. In\nJune 1970, the Supreme Court clarified conscientious\nobjection in Welsh V. United States, stating that this\nexemption should be extended to those whose conscientious\nobjection stemmed from a secular belief--whose consciences,\nspurred by deeply held moral, ethical or religious beliefs,\nwould give them no rest or peace if they allowed themselves\nto become a part of an instrument of war. 3 In the later\ncase of Clay V. United States, the court stated the three\nrequirements for CO classification as: (1) there must be\nopposition to war in any form; (2) the basis of opposition\nto war must be moral, ethical, or religious; and (3) the\nbeliefs must be sincere.\nTwenty-three percent of the civilian appliants claimed\nthat they committed their offense primarily because of\nethical or moral opposition to all war -- and thirty-three\npercent said they committed their offense at least partly\nbecause of such ethical or moral feelings. of these ethical\nor moral objectors, only eleven percent took any initiative\nto obtain a CO exemption, eight percent filing for CO\nstatus. Only 0.2% were successful. Why did so few seek CO\nstatus?\nNinety percent registered prior to Welsh, so their first\ninformation about the CO exemption was that it applied\nprimarily, if not exclusively, to members of pacifist\nreligions. Many passed through the Selective Service System\nbefore the middle of 1970, when Welsh was announced. Fifty-\nFORD & GERALD LIBRARY\nthree percent of our applicants who applied for a CO\nexemption did so before Welsh, and thirty-five percent\ncommitted their draft offense before the decision. However,\nonly thirteen percent were actually convicted of their\noffense before Welsh. Many of these individuals could have\nraised Welsh defenses at trial, but most (74%) pled quilty\nto their charges.\nThere are three persuasive reasons why more civilian\napplicants did not apply for or, qualify for a CO exemption.\nFirst, a great many apparently did not understand what\nSelective Service rules were or what defenses could be\nraised at trial.\n(Case 3-24)\nApplicant failed to submit a CO\napplication after allegedly being told by\nhis local board that only members of\ncertain religious sects were eligible.\nThis occurred after the Welsh decision.\nSecond, many others objected not to war in general, but\nto the Vietnam War alone. These \"specific war\" objectors\ncould not qualify for CO exemptions even under the post-\nWelsh guidelines.\n(Case 3-25)\nApplicant's claim for conscientious\nobjector status was denied by his local\nboard because he objected only to the\nVietnam War, rather than all wars.\nThird, some applicants claimed that they were denied CO\nstatus because their local boards applied pre-Welsh rules to\ntheir post-Welsh CO claims. of the civilian applicants who\nraised post-Welsh \"moral and ethical\" CO claims, only ten\npercent were successful. By contrast, CO applicants who\nclaimed to be members of pacifist religions enjoyed a 56%\nsuccess rate before and after Welsh. of course, many of the\nmoral and ethnical objectors may have failed to meet the\npost-Welsh requirement of sincere beliefs when they applied\nto their local boards.\n(Case 3-26)\nApplicant's request for conscientious\nobjector status was denied, partially on\nthe basis that he had no particular\nreligious training or experience to\nestablish opposition to war. This\ndetermination was made after Welsh ruled\nthat such formal religious training was\nnot a prerequisite to conscientious\nobjector status.\nIt did not appear that the CO application form\nsignificantly discouraged CO applications; twenty-eight\npercent of those with college degrees applied for CO status,\nversus 19% of these with less education. The less-educated\napplicants were successful in 53% of their CO claims, while\nthose with college degrees were successful in only 14% of\ntheir CO claims. This may be attributable to the fact that\nthose with less education more often based their claims on\nreligious grounds.\nFORD is GERALD LIBRARY\nAlternative Service for Conscientious Objectors\nApproximately one-eighth of our civilian applicants did\nreceive CO exemptions. In lieu of induction into the\nmilitary, they were assigned to twenty-four months of\nalternative service in the national interest. However, they\nrefused to perform alternative service as required by law\nand were subsequently convicted of that offense.\nSome individuals had difficulty in performing\nalternative service jobs because of the economic hardships\nthey imposed.\n(Case 3-27)\nApplicant was ordered to perform\nalternative service work at a soldier's\nhome for less than the minimum wage. The\nsoldier's home was fifty miles away from\nhis residence, and he had no car.\nApplicant claimed that it was impossible\nto commute there without a car, and that\neven if he could, he would be unable to\nsupport his wife and child on that salary.\nNot knowing what legal recourses were\navailable to him, he simply did not do the\nwork, although he was willing to perform\nsome other form of alternative service.\nOthers decided that they could not continue to cooperate\nwith the draft system because of their opposition to the\nwar.\n(Case 3-28)\nApplicant refused to perform alternative\nservice as a protest against the war in\nVietnam.\nHowever, most civilian applicants assigned to\nalternative service who refused to perform such work were\nJehovah's Witnesses or members of other pacifist religions.\nTheir religious beliefs forbade them from cooperating with\nthe orders of an institution like Selective Service which\nthey considered to be part of the war effort. They were\nprepared to accept an alternative service assignment ordered\nby a judge upon conviction for refusing to perform\nalternative service. Many judges sent them to jail instead.\n(Case 3-29)\nApplicant, a Jehovah's Witness, refused to\nperform alternative service ordered by the\nSelective Service System on the grounds\nthat even this attenuated participation in\nthe war effort would violate his religious\nbeliefs. He did indicate that he would be\nwilling to perform similar services under\na court order of probation. Rather than\ncomply with his request, the judge\nsentenced the applicant to prison for\nfailure to perform alternative service.\nGERALD FORD LIBRART\nInduction Orders\nThose who were not granted CO exemptions were\nreclassified I-A after their other deferments had expired.\nTheir induction orders may have been postponed by appeals or\nshort-term hardships, but eventually they -- like almost two\nmillion other young men during the Vietnam War -- were\nordered to report for induction. Only four percent of our\napplicants failed to report for their pre-induction physical\nexamination. It was not until the date of induction that\n70% violated the Selective Service laws. In fact, of those\napplicants who received orders to report for induction,\nnearly one-third (32% of all civilian applicants) actually\nappeared at the induction center. When the time came to\ntake the symbolic step forward, these applicants refused to\nparticipate further in the induction process.\nOnce induction orders had been issued and all\npostponements had been exhausted, applicants had a\ncontinuing duty to report for induction. It was sometimes\nthe practice of local boards to give individuals several\nopportunities to comply by issuing more than one induction\norders before filing a complaint with the United States\nAttorney.\n(Case 3-30)\nApplicant was ordered to report for\ninduction, but he instead applied for CO\nstatus. His local board refused to reopen\nhis classification, and he was again\nordered to report for induction. He again\nfailed to report, advising his draft board\nafter-the-fact that he had been ill. He\nreceived a third order to report, but\nagain did not appear. Thereafter, he was\nconvicted.\nOn occasion, applicants claimed that they never received\ninduction orders until after Selective Service had issued\ncomplaints. However, applicants were legally responsible to\nmake sure that mail from their draft boards reached them.\n(Case 3-31)\nWhile applicant was attending an out-of-\nstate university, his mother received some\nletters from his draft board. Rather than\nforward them, she returned them to the\nboard. Her husband had recently died, and\nshe feared losing her son to the service.\nSubsequently, applicant was charged with a\ndraft offense.\n(Case 3-32)\nHaving been classified 1-A, applicant\ninformed his draft board that he was\nmoving out of town to hold a job, giving\nthe Board his new address. He soon found\nthat his job was not to his liking. He\nthen returned home, and not long\nthereafter he told his draft board that he\nwas back. However, in the interim an\ninduction order had been sent to his new\naddress, he had not appeared on his\ninduction date, and a complaint had been\nissued.\nSometimes, personal problems hindered applicants from\nGERALD FORD LIBRART\nappearing as ordered at induction centers.\n(Case 3-33)\nApplicant failed to report to his pre-\ninduction physical because he was\nhospitalized as a result of stab wounds.\nHe was again ordered to report, but he did\nnot appear because he was in jail. He was\nordered to report for a third time, but\napplicant claimed he failed to report\nbecause of his heroin addiction.\nTherefore, he was convicted for his draft\noffense.\nMany applicants claimed that the realization that they\nwere conscientiously opposed to war came only after they\nreceived induction notices. The notices may have acted as\ncatalysts which led to the late crystallization of their\nbeliefs.\n(Case 3-34)\nApplicant stated that \"the induction order\nforced me for the first time to make a\ndecision as to my views with regard to\nwar.\"\nHowever, a registrant could not request a change in\nstatus because of \"late crystallization\" after his induction\nnotice was mailed, unless he experienced a change in\ncircumstances beyond his control. In 1971, the Supreme\nCourt held in Ehlert V. United States that a post-induction-\nnotice claim for conscientious objector status did not\nconstitute a change in circumstances beyond the applicant's\ncontrol.5\nReasons for Draft Offenses\nTo be eligible for clemency, civilian applicants must\nhave committed at least one of six offenses enumerated in\nthe Executive Order. (See Chapter 2-B.) As described\nearlier, three percent failed to register, ten percent\nfailed to keep their local boards informed of their address,\n13% failed to perform alternative service as conscientious\nobjectors, four percent failed to report for pre-induction\nphysical exams, 38% failed to report for induction, and 32%\nfailed to submit to induction. At the time of most\napplicants' draft violations, they were between the ages of\n20 and 22, and the year was 1970 - 1972. For over 95% of\nthese applicants, their failure to comply with the Selective\nService law were their first criminal offenses.\nNumerous reasons were given by civilian applicants for\ntheir offenses. The most frequent of their reasons was\nconscientious objection to war in either general or\nparticular form. Fifty-seven percent expressed either\nreligious, ethical or moral objection to all war, and an\nadditional 14% expressed specific objection to the Vietnam\nWar. When other related reasons were considered (such as\ndenial of CO status), 75% of the civilian applicants claimed\nthat they committed their offenses for reasons related to\ntheir opposition to war. Likewise, expressions of\nconscience were found by the Clemency Board to be valid\nGERALD FORD LIBRARY\nmitigating circumstances in 73% of our cases.\n(Case 3-35)\nApplicant had participated in anti-war\ndemonstrations before refusing induction.\nHe stated that he could not fight a war\nwhich he could not support. However, he\ndoes believe in the need for national\ndefense and would have served in the war\nif there had been an attack on United\nStates territory. He stated that \"I know\nthat what is happening now is wrong, so I\nhave to take a stand and hope that it\nhelps end it a little sooner.\"\n(Case 3-36)\nApplicant applied for conscientious\nobjector status on the ground that because\nhe was black he could not serve in the\nArmed Forces of \"a nation whose laws and\ncustoms did not afford (him) the same\nopportunities and protection afforded to\nwhite citizens.\" His application was\ndenied, and he refused induction.\nBy contrast, less than one out of six of all our\ncivilian applicants were found by the Board to have\ncommitted their offenses for selfish reasons.\nOther major reasons for their offenses include medical\nproblems (6%) and family or personal problems (10%).\n(Case 3-37)\nWhen applicant was ordered to report for\ninduction, his wife was undergoing\nnumerous kidney operations, with a\nterminal medical prognosis. She was\ndependent upon him for support and care,\nSO he failed to report for induction.\nExperiences as Fugitives\nAt one time or another, all civilian applicants faced\nthe difficult decision whether to submit to the legal\nprocess or become fugitives. Nearly two-thirds immediately\nsurrendered themselves to the authorities. of the remaining\none-third who did not immediately surrender, 82% never left\ntheir hometowns. of the 18% who did leave to evade the\ndraft, slightly less than half (8%) ever left the United\nStates. Most at-large civilian applicants remained\nfugitives for less than one year. Many reconsidered their\ninitial decision to flee, and about one-third surrendered.\nMany of the rest were apprehended only because they lived\nopenly at home and made no efforts to avoid arrest. Over\ntwo-thirds of our at-large applicants were employed full-\ntime; most others were employed part-time, and only one out\nof ten was unemployed. Very few assumed false identities or\nGERALD FORD LIBRARY\ntook steps to hide from authorities.\nMost fugitive applicants who chose to go abroad went to\nCanada. Geographical proximity culture, history, and\nlanguage were two reasons why they chose Canada. However,\nthe major reason for the emigration of American draft\nresisters to Canada was the openness of their immigration\nlaws. Some civilian applicants were either denied\nimmigrant status or deported by Canadian officials.\nOtherwise, they might have remained there as fugitives.\n(Case 3-38)\nAfter receiving his order to report for\ninduction, applicant went to Canada. He\nwas denied immigrant status, SO he\nreturned to the United States and applied\nfor a hardship deferment. After a\nhearing, his deferment was denied. He was\nonce again ordered to report for\ninduction, but he instead fled to the\nBritish West Indies. He was apprehended\nafter returning to Florida to make\npreparations to remain in the West Indies\npermanently.\nMost applicants who went to Canada (6%) stayed there\nbriefly, but some remained for years. A few severed all\nAmerican ties, with the apparent intention of starting a new\nlife there.\n(Case 3-39)\nIn response to Selective Service\ninquiries, applicant's parents notified\nthe local board that their son was in\nCanada. However, they did not know his\naddress. Applicant lived and worked in\nCanada for almost four years.\nThe only applicants to the Clemency Board who remained\npermanently in Canada were those who fled after their\nconviction to escape punishment.\n(Case 3-40)\nApplicant was convicted for refusing\ninduction, but remained free pending\nappeal. When his appeal failed, he fled\nto Canada. He remained in Canada until he\napplied for Clemency.\nPre-Trial Actions\nCivilian applicants began to face court action when\ntheir local draft boards determined that sufficient evidence\nof Selective Service violations existed to warrant the\nforwarding of their files to United States Attorneys. After\ncomplaints were issued and indictments or information\nreturned against them, the litigation fell within the\njurisdiction of the Federal district courts.\nThe courts dismissed many draft cases. From 1968\nthrough 1973, the number of cases and the dismissal rate\ncontinuously increased. Through 1968, only about 25% of all\ncases resulted in dismissal. From 1969 through 1972, about\nFORD i LIBRARY GERALD\n55% were dismissed -- and in 1973, over two-thirds were\ndismissed.6\nOne important element influencing the dismissal rate in\nparticular jurisdictions was the practice of forum shopping.\nMany defendants searched for judges with a reputation for\nleniency or a tendency to dismiss draft cases. For example,\nin the Northern District of California since 1970, nearly\n70% of the cases tried in that court resulted in dismissal\nor acquittal.7 At that time, many young men transferred\ntheir draft orders to the Oakland induction center before\nrefusing induction, thus enabling them to try their cases in\nthe Northern district. In 1970, its dismissal rate averaged\n48.9 draft cases per 10,000 population, closely followed by\nthe Central District of California with 43.1. The national\naverage was 14.1. Some Clemency Board applicants apparently\n\"forum shopped\" in California and other Western states; five\npercent received their convictions in the Ninth Circuit even\nthough their homes were elsewere.\nJurisdictional inequities in the dismissal rate for\ndraft offenses within the same state were common during the\nwar era. For example, in contrast to the dismissal rate in\nthe Northern District of California (70%), the Eastern\nDistrict of California dismissed only 40% of its draft\ncases. Similarly, in the Eastern District of Virginia 63%\nof the draft cases were dismissed, versus 35% in the Western\nDistrict.8\nConvictions and Acquittals\nAfter civilian applicants were indicted and their\nmotions for dismissal refused, 26% pled not guilty, and they\nnext entered the trial stage. The rest pled either guilty\n(68%) or nolo contendere (6%). Many of those who pled\nquilty did SO as part of a \"plea bargain,\" whereby other\ncharges against them were dismissed.\nof the 21,400 draft law violators who stood trial during\nthe Vietnam era, 12,700 were acquitted.9 Assuming that all\nthose acquitted pled not guilty, and assuming, by\nextrapolation, that 2,300 (26%) of convicted draft offenders\npled not guilty, it appears that an individual stood an 85%\nchance of acquittal if he pled not guilty. Changing Supreme\nCourt standards occurring after the offense but before trial\nmay have led to acquittals. of special importance was the\n1970 Welsh case which broadened the conscientious objector\nexemption criteria to include ethical and moral objection to\nwar. 10\nOf course, no Clemency Board applicants were among the\n12,700 acquitted of draft charges. Typically, applicants\nwere convicted around the age of 23, nearly two years after\ntheir initial offenses. Less than one out of ten appealed\ntheir convictions.\nSome applicants may have been convicted because of the\napparent poor quality of their legal counsel.\n(Case 3-41)\nApplicant joined the National Guard and\nwas released from active duty training\nGERALD FORD LIBRARY\neight months later. While in the National\nGuard reserves thereafter, he was referred\nto Selective Service for induction for\nfailure to perform his reserve duties\nsatisfactorily. He obeyed an order to\nreport for induction, but claimed that he\nnegotiated an agreement to settle his\nNational Guard misunderstandings at the\ninduction center. He pled not guilty of\nrefusing to submit to induction, but he\nwas convicted. Apparently, his trial\nattorney failed to call several important\ndefense witnesses who had been present at\nthe induction center. Applicant's present\nattorney believes that his trial attorney\nrepresented him inadequately. After\nconviction but before execution of his\nsentence, applicant completed his National\nGuard service and received a discharge\nunder honorable conditions.\nOn occasion, applicants were given the opportunity to\nenlist or submit to induction up to the time of trial, as a\nmeans of escaping conviction. Some applicants later claimed\nthat they were caught in \"Catch-22\" situations in which they\ncould neither be inducted nor escape conviction for failing\nto be inducted.\n(Case 3-42)\nOrdered to report for induction, applicant\nrefused to appear at the induction center.\nWhile charges were pending against him, he\nwas informed that he could seek an in-\nservice CO classification after entering\nthe military. With this knowledge, he\nagreed to submit to induction, and the\ncourt gave him a 30-day continuance. He\ndid seek induction, but ironically, he\ncould not be inducted because he failed to\npass his physical due to a hernia\ncondition. When his continuance expired,\nhe was convicted of failure to report for\ninduction.\nHowever, others were convicted despite every possible\nattempt by authorities to deal fairly and leniently with\nthem.\n(Case 3-43)\nAn order to report for induction was\nmailed to applicant's parents, but he\nfailed to report. Over one year later,\napplicant's attorney contacted the United\nStates Attorney and indicated that\napplicant had severe psychiatric and other\nmedical problems which could make him fail\nhis pre-induction physical. In response,\nthe United States Attorney offered\napplicant an opportunity to apply for\nenlistment and be disqualified. However,\nFORD & LIBRARY GERALD\napplicant could not be found, and a grand\njury subsequently issued an indictment.\nAn analysis of conviction rates for draft offenses shows\nclear jurisdictional discrepancies. For instance, the\nSouthern States had the highest propensity for conviction,\nwith the eastern states and California having the lowest.\nIn 1972, there were twenty-seven draft cases tried in\nConnecticut, with only one resulting in conviction. In the\nNorthern District of Alabama during the same period, sixteen\ndraft cases resulted in twelve convictions. 11 These\ndifferent conviction rates apparently occurred because of\nwide differences in attitude toward the draft violators.\nThese differences in treatment may have encouraged forum-\nshopping by our applicants. 12\nThe conviction rate itself varied considerably during\nthe war era. In 1968, the conviction rate for violators of\nthe Selective Service Act was 66%; by 1974, the conviction\nrate was cut in half to 33%. Apparently, as time went by,\nprosecutors, judges and juries had less inclination to\nconvict draft-law violators.\nSentences\nOnly about one-third of the civilian applicants ever\nwent to prison. The remainder were sentenced to probation\nand, usually, alternative service. A majority of applicants\n(56%) performed alternative service. Typically, they\nperformed twenty-four or thirty-six months of alternative\nservice, but a few served as many as five years. Some\napplicants performed their alternative service on a part-\ntime basis. The jobs they performed were similar to those\nfilled by conscientious objectors. However, they had to\nfulfill other conditions of probation.\n(Case 3-44)\nAs a condition of probation, applicant\nworked full-time for Goodwill Industries\nand a non-profit organization which\nprovided jobs for disabled veterans. He\nreceived only a token salary.\n(Case 3-45)\nApplicant worked for three years for a\nlocal emergency housing committee as a\ncondition of probation. He worked full-\ntime as a volunteer.\nA few (6%) failed to comply with the terms of their\nprobation, often by refusing to do alternative service work.\nSome then fled and remained fugitives until they applied for\nclemency.\n(Case 3-46)\nConvicted for a draft offense, applicant\nwas sentenced to three years probation,\nwith the condition that he perform\ncivilian work in the national interest.\nAbout one year later, his sentence was\nrevoked for a parole violation (absconding\nfrom supervision). He was again sentenced\nto three years probation, doing\nalternative service work. He did not seek\nGERALD LIBRARY GERALDR. FORD\nsuch work and left town. A bench warrant\nwas issued for his arrest. Applicant,\nstill a fugitive, now resides in Canada.\nSome were required, as a condition of probation, to\nenlist in military service. They suffered felony\nconvictions, served full enlistments in the military, and\nsometimes remained on probation after discharge. One\npercent of our civilian applicants became Vietnam veterans.\n(Case 3-47)\nApplicant refused induction because of his\nmoral beliefs. He was sentenced to three\nyears imprisonment, suspended on the\ncondition that he enlist in the military.\nApplicant did enlist, serving a full tour\nof duty. He served as a noncombatant in\nVietnam, earning a Bronze Star. Awarded\nan Honorable Discharge, he still had one\nyear of probation to complete before his\nsentence was served.\nof civilian applicants sentenced to imprisonment, most\nserved less than one year. Only thirteen percent spent more\nthan one year in prison, and less than one percent were\nincarcerated for more than two years. Approximately 100\ncivilian applicants were still serving their terms when the\nPresident's clemency program was announced, at which time\nthey were released.\nThe sentencing provisions of the Military Selective\nService Act of 1967 provided for jail terms of up to five\nyears, giving judges sentencing discretion. 13 The\nsentencing dispositions of the courts were inconsistent and\nwidely varying, dependent to a great extent upon year of\nconviction, geography, race, and religion. In 1968, 74% of\nall convicted draft offenders were sentenced to prison,\ntheir average sentence was 37 months, and 13% received the\nmaximum five-year sentence. By 1974, only 22% were\nsentenced to prison, their average sentence was just fifteen\nmonths, and no one received the maximum. Geographic\nvariations were almost as striking, In 1968, almost one-\nthird of those convicted in the southern-states Fifth\nCircuit received the maximum five-year prison sentence, but\nonly five percent received the maximum in the eastern-states\nSecond Circuit. of 33 convicted Selective Service violators\nin Oregon during that same year, 18 were put on probation,\nand only one was given a sentence over three years. In\nSouthern Texas, of 16 violators, none were put on probation,\n15 out of 16 received at least three years, and 14 received\nthe maximum five-year sentence. 14\nOther sentencing variations occurred on the basis of\nrace. In 1972, the average sentence for all incarcerated\nSelective Service violators was thirty-four months, while\nfor blacks and other minorities the average sentence was\nforty-five months. This disparity decreased to a difference\nof slightly more than two months in 1974. 15 While we did\nnot perceive such a disparity as a general rule, some cases\nappeared to involve racial questions.\n&\nFORD\n(Case 3-48)\nApplicant belongs to the Black Muslim\nfaith, whose religion principles\nprohibited him from submitting\nto\nGERALD\nLIBRARY\ninduction. He has been actively involved\nin civil rights and other social movements\nin his region of the country. He was\nconvicted for his draft offense and\nsentenced to five years imprisonment.\nApplicant stated that his case was tried\nwith extreme prejudice. He spent 25\nmonths in prison before being paroled.\nSome religious inequities may also have occurred. For\nthe years 1966 through 1969, incarcerated Jehovah's Witness\nreceived sentences averaging about one month longer than the\naverage Selective Service violators. During this same\nperiod, religious objectors other than Jehovah's Witnesses\nreceived average sentences about six months shorter than the\naverage violator. 16\nAlthough a variety of sentencing procedures were\navailable, the majority of convicted Selective Service\nviolators were sentenced under normal adult procedures. If\nthe offender were sentenced to jail, two types of sentence\nwere available: (1) a sentence of definite time during\nwhich he might be paroled after serving one-third of his\nterm; or (2) an indeterminant sentence during which parole\neligibility might be determined by a judge on the Board of\nParole at a date before but not after one-third of the\nsentence had expired. Offenders sentenced under the Federal\nYouth Correction Act, could be unconditionally discharged\nbefore the end of the period of probation or commitment.\nThis discharge automatically operated to set aside the\nconviction. Additionally, because commitments and\nprobations under the Youth Corrections Act were\nindeterminate, the period of supervision might have lasted\nas long as six years. 17 Bureau of Prison statistics\nindicate, however, that the Youth Corrections Act was used\nas a sentencing procedure only in 10% of all violation\ncases. When it was applied, the six year maximum period of\nsupervision was imposed in almost all cases. 18\nPrison Experiences\nOne-third of the civilian applicants received prison\nsentences and served time in Federal prison. Most served\ntheir time without great difficulty.\n(Case 3-49)\nApplicant served eighteen months in\nFederal prison. His prison report\nindicated that he did good work as a cook\nand had \"a very good attitude. The\nreport noted no adjustment difficulties,\nno health problems, and no complaints.\nHowever, some experienced considerable difficulty in\nadapting to prison life.\n(Case 3-50)\nApplicant, a member of Hare Krishna, was\nsentenced to a two-year prison term for a\ndraft offense. Because of his religious\nFORD & 070339 LIBRARY\nconvictions and dietary limitations, life\nin prison became intolerable for him. He\nescaped from Federal prison, surrendering\nthree years later.\nAlthough very rare, instances of harsh treatment did\noccur.\n(Case 3-51)\nApplicant was arrested in Arizona and\nextradited to the Canal Zone for trial\n(the location of his local board). Prior\nto trial, he was confined for four months\nin a four by six foot cell in a hot\njungle. Some evidence exists that he was\ndenied the full opportunity to post\nreasonable bail. At his trial, applicant\nwas convicted and sentenced to an\nadditional two months confinement. By the\ntime of his release, his mental and\nphysical\nhealth\nsubstantially\ndeteriorated. He was then confined in a\nmental hospital for several months. His\nmental health is still a subject of\nconcern.\nSome could not escape the effects of their prison\nexperience even after their relase.\n(Case 3-52)\nApplicant became addicted to heroin while\nserving the prison sentence for his draft\nconviction. He turned to criminal\nactivities to support his habit after he\nwas released. He was later convicted of\nrobbery and returned to prison.\nParole for Selective Service violators was determined\nprimarily by the nature of the offense. It was the policy\nof many parole boards that draft violators serve a minimum\nof two years for parity with military duty, but most were\nreleased after the initial parole applications. Jehovah's\nWitnesses received first releases in nearly all instances.\nMost Selective Service violators were granted parole after\nserving approximately half their prison sentences, but many\nwith prison sentences of less than one year served until\ntheir expiration dates. In each year from 1965 to 1974,\nSelective Service violators were granted parole more often\nthan other Federal criminals. 19\nConsequences of Felony Convictions\nFelony convictions had many grave ramifications for\ncivilian applicants. The overwhelming majority of states\nconstrue a draft offense as a felony, denying applicants the\nright to vote or, occasionally, just suspending it during\nconfinement. Felony convictions carry other serious legal\nconsequences. (See Chapter 2-c.)\nA principal disability arising from a felony conviction\nLIBRARY GERALD GERALD R. FORD\nis its effect upon employment opportunities. Often, this\njob discrimination is reinforced by statute. States license\nmany occupations, often requiring good moral character, so\napplicants were often barred from such occupations as\nattorney, accountant, architect, dry cleaner, and barber.\n(Case 3-53)\nApplicant, a third year law student, was\ntold he could not be admitted to the bar\nbecause of his draft conviction.\nOther severe restrictions exist in the public employment\nsector.\n(Case 3-54)\nApplicant graduated from college, but was\nunable to find work because of his draft\nconviction. He qualified for a job with\nthe Post Office but was then informed that\nhis draft conviction rendered him\nineligible.\n(Case 3-55)\nApplicant qualified for a teaching\nposition, but the local board of education\nrefused to hire him on the basis of his\ndraft conviction. The board later\nreversed its position at the urging of\napplicant's attorney and the local Federal\njudge.\nDespite these handicaps, civilian applicants fared\nreasonably well in the job market. Over three out of four\nwere employed either full time (70%) or part-time (7%) when\nthey applied for clemency. Only two percent were unemployed\nat the time of their application. The remainder had\nreturned to school (14%), were presently incarcerated (2%),\nor were furloughed by prison officials pending disposition\nof their cases by our Board (5%) Almost half (45%) had\nmarried, and many (20%) had children or other dependents.\nC. Military Applicants\nDespite the popular belief that Clemency Board\napplicants were mostly war resisters, the vast proportion of\nmilitary applicants were not articulate, well-educated\nopponents of the war. Less than one percent had applied for\na conscientious objector draft classification before\nentering the military. Less than five percent attributed\ntheir offenses to opposition to the Vietnam War. Their\naverage IQ (98) was very close to the national average.\nNonetheless, over three-quarters dropped out of high school\nbefore joining the service, and less than one-half of one\npercent graduated from college. They were raised in small\ntowns or on farms (40%). Generally, they came from\ndisadvantaged environments. Many grew up in broken homes\n(60%), struggling to cope with low incomes (57%). A\ndisproportionate percentage were black (21%) or Spanish-\nspeaking (3.5%). A few (0.1%) were women.\nIn the discussion which follows, we trace the general\nFORD LIBRART\nexperiences of military applicants. We look first at the\ncircumstances of their induction or enlistment and their\nearly experiences in the military. We then describe how 27%\nof them served in Vietnam, many with distinction. After\nconsidering the circumstances of their AWOL offenses, we\nlook at their experiences with the military justice system.\nFinally, we describe the impact of their bad discharges.\nAlmost two-thirds were in the Army, so much of the\ndiscussion about military procedures, especially the\nmilitary justice system, pertains to the Army, whose\nprocedures were not greatly different from those of the\nother services.\nInduction or Enlistment in the Military\nAlmost one-third of the military applicants enlisted at\nage 17, and over three-quarters were in uniform by their\n20th birthday. Most (84%) enlisted rather than be drafted.\nOur applicants served in the Army (63%), the Marines (23%)\nand to a lesser degree, the Navy (12%) and the Air Force\n(3%).\nTheir reasons for enlistment ranged from draft pressure\nto the desire to learn a trade, to the simple absence of\nanything else to do. Others saw the military as an\nopportunity to become more mature. 20\n(Case 3-56)\nApplicant enlisted after high school\nbecause he did not want to go to college\nor be inducted.\n(Case 3-57)\nApplicant enlisted to obtain specialized\ntraining to become a microwave technician.\n(Case 3-58)\nApplicant enlisted at age 17 because he\nwanted \"a place to eat\" and a \"roof over\n(his) head.\"\n(Case 3-59)\nApplicant enlisted because he was getting\ninto trouble all the time and felt that\nservice life might \"settle (him) down.\"\nAs the Vietnam war expanded, America's military manpower\nneeds increased. Many recruiters helped arrange entry into\npreferred military occupational specialties and geographic\nareas of assignment. However, some military applicants\nclaimed, often without corroboration, that their\nunauthorized absences were motivated by the services'\nfailure to assign them to the positions they themselves\nwanted.\n(Case 3-60)\nApplicant enlisted at age 17 for motor\nmaintenance training, but instead was\ntrained as a cook. This action caused him\ndisappointment and frustration. His\ngrandmother contended that he was misled\nby the recruiter.\nFORD & GERALD LIBRARY\nBefore the Vietnam War, the military generally did not\naccept persons for enlistment or induction if they had\nCategory IV (below the 30th percentile) scores on their\nArmed Forces Qualifying Test for intelligence (AFQT) ; 21 some\nwho scored between the 15th and 30th percentiles were\nbrought into the service under special programs. 22 In August\n1966, Secretary of Defense Robert McNamara announced Project\n100,000 to use the training establishment of the Armed\nForces to help certain young men become more productive\ncitizens upon return to civilian life. Project 100,000\nextended the opportunity and obligation of military service\nto marginally qualified persons by reducing mental and\nphysical standards governing eligibility. Persons scoring\nas low as the 10th percentile on AFQT tests became eligible\nfor military service. During its first year, 40,000\nsoldiers entered the military under this program. For two\nyears thereafter, it lived up to its name by enabling\n100,000 marginally qualified soldiers to join the service\neach year. 23\nMilitary studies have indicated that the opportunity for\ntechnical training was the principal motivation for the\nenlistment of Category IV soldiers. However, over half\nenlisted at least partly because of draft pressure. Other\nreasons for enlistment were to travel, obtain time to find\nout what to do with one's life, serve one's country, and\nenjoy educational benefits after leaving the service. 24 Some\nlearned marketable skills, and 13% of our applicants\nreceived a high school equivalency certificate while in the\nservice.\nAlmost one-third of our applicants (32%) were allowed to\njoin the military despite pre-enlistment AFQT scores at or\nbelow the 30th percentile.\n(Case 3-61)\nApplicant had an AFQT of 11 and a GT (IQ\nscore) of 61 at enlistment. He\nsuccessfully completed basic training, but\nwent AWOL shortly thereafter.\n(Case 3-62)\nApplicant had an 8th grade education, an\nAFQT of 11, and a GT of 62. Coming from a\nbroken home, he was enthusiastic about his\ninduction into the Army, believing that he\nwould gain technical training and\nfinancial security. His lack of physical\nability and difficulties in reading and\nwriting caused him to fail basic training.\nHe was in basic training for nine months\nbefore he was sent to Advanced Individual\nTraining (AIT) as a tank driver. He\ncontinued to have learning problems in\nadvanced training. According to\napplicant, this problem was compounded by\nthe ridicule of other soldiers upon their\ndiscovery that he had required several\nmonths to complete basic training.\nNot all of our Category IV applicants joined the service\nbecause of Project 100,000. Some had other test scores\nqualifying them for enlistment under the earlier standards.\nNonetheless, many of our applicants would probably never\nGERALS FORD LIBRARY\nhave been in the service were it not for Project 100,000.\nThe Category IV applicants tended to be from\ndisadvantaged backgrounds. Compared to other applicants,\nthey were predominantly Black or Spanish-speaking (42% of\nCategory IV versus 18% of all other applicants) and grew up\nin cities (55% versus 44%). Their families struggled with\nlow incomes (72% versus 49%), and they dropped out of high\nschool (75% versus 56%). The quality of their military\nservice was about the same as that of other military\napplicants: they did not have significantly more punishments\nfor non-AWOL offenses (53% versus 52%) or non-AWOL charges\npending at time of discharge (13% versus 12%). Despite\nthis, a greater percentage received administrative\nUndesirable Discharges (68% versus 57%).\nof course, we saw only the Category IV soldiers who did\nnot succeed in service. The experiences of the 4,000-plus\nCategory IV applicants do not reflect the performance of all\nCategory IV soldiers, including the quarter-million men\nbrought into the service by Project 100,000. Many of our\nCategory IV applicants served well before committing their\nqualifying AWOL offenses.\n(Case 3-63)\nApplicant, a Black male from a family of\n12 children, dropped out of high school\nbefore his induction into the Army. His\nGT was 114 and his AFQT was 18 (Category\nIV). Applicant spent 6 years on active\nduty, including service as a military\npoliceman in Korea. Following a three\nmonth stint in Germany, he served an 8\nmonth tour in Vietnam as an assistant\nplatoon leader. On a second tour in\nVietnam, where he served as a squad leader\nand chief of an armored car section, he\nearned the Bronze Star for Heroism. He\nwent AWOL while on leave from his second\ntour in Vietnam.\nEarly Experiences in the Military\nThe military applicant's first encounters with the\nmilitary were in basic training. 25 It was during these first\nweeks that they had to learn the regimen and routine of\nmilitary life. For many, this was their first experience\naway from home and the first time they faced such intense\npersonal responsibilities.\nAlthough the applicants' general emotional problems--\nhomesickness and the trauma of separation or a different\nlife-style--were no different from those which other young\nmen have always faced upon entering the service, some did\nnot adjust well to the demands placed on them:\n(Case 3-64)\nApplicant went on aimless wanderings prior\nto advanced training. He finally lost\ncontrol of himself and knocked out 20\nwindows in the barracks with his bare\nFORD : LIBRARY 07V835\nhands, suffering numerous wounds.\nSocial and cultural differences among recruits posed\nproblems for others who did not get along well in the close\nquarters of the barracks environment.\n(Case 3-65)\nApplicant, of Spanish heritage, was\nsubjected to physical and verbal abuse\nduring boot camp. He recalls being called\n\"chili bean\" and \"Mexican chili.\" His\nineptness in boot camp also led to\nridicule. He wept at his court-martial\nwhen he recalled his early experiences\nthat led to his AWOL.\n(Case 3-66)\nApplicant's version of his problems is\nthat he could no longer get along in the\nMarine Corps. Other Marines picked on him\nbecause he was Puerto Rican, wouldn't\npermit him to speak Spanish to other\nPuerto Ricans, and finally tried to get\nhim into trouble when he refused to let\nthem push him around.\n(Case 3-67)\nApplicant was a high school graduate with\na Category I AFQT score and GT (IQ test)\nscore of 145. She complained that other\nsoldiers harrassed her without cause and\naccused her of homosexuality. She went\nAWOL to avoid the pressure.\nIncidents of AWOL during basic training usually resulted\nin minor forms of punishment. Typically, a new recruit\nwould receive a Non-Judicial Punishment, resulting in\nrestriction, loss of pay, or extra duty. Seven percent of\nthe military applicants were discharged because of an AWOL\ncommencing during basic training.\nFollowing basic training, those in the Army transferred\nto another unit for advanced or on-the-job training.\nAltogether, ten percent were discharged for an AWOL begun\nduring advanced training. Individual transfers resulted in\nbreaking up units and, frequently, the ending of personal\nfriendships. The AWOL rate tended to be higher for soldiers\nin transit to new assignments. 26 Some underwent training in\njobs which they found unsatisfying, and others were given\ndetails which made no use of their newly-learned skills. A\nfew applicants thought the service owed them an obligation\nto meet their preferences; when the military used them in\nother necessary functions, they went AWOL.\n(Case 3-68)\nApplicant enlisted in the Army for a term\nof three years, specifying a job\npreference for electronics. The recruiter\ninformed him that the electronics field\nwas full, but that if he accepted\nassignment to the medical corps he could\nchange his job after commencement of\nactive duty. Once on active duty,\napplicant was informed that his Military\nGERALD LIBRARY GERALDR. FORD\nOccupational Speciality (MOS) could not be\nchanged. He claimed that he was\nunsuccessful in obtaining the help of his\nplatoon sergeant, company commander, and\nchaplain, so he went AWOL.\nMilitary life, especially for those of low rank, requires\nthe performance of temporary, menial duties for which no\ntraining is required, such as kitchen patrol (KP) and\ncleanup work. Some of our applicants spurned these\nresponsibilities and went AWOL.\n(Case 3-69)\nApplicant found himself pulling details\nand mowing grass rather than working in\nhis military occupational specialty. He\nthen went AWOL and did not return for over\nthree years.\nAfter several months in the military, some were still\nhaving difficulty adjusting to the many demands of military\nlife. They had difficulty reconciling themselves to a daily\nroutine which had to be followed, superiors who had to be\ntreated with respect, and orders which had to be obeyed.\nOver half (53%) were punished for one or more military\noffenses in addition to AWOL. Only three percent were\npunished for military offenses comparable to civilian crimes\nsuch as theft or vandalism.\n(Case 3-70)\nApplicant had difficulty adjusting to the\nregimentation of Army life. While he was\nin the service, he felt that he needed to\nhave freedom of action at all times. He\nwould not take guidance from anyone, was\nrepeatedly disrespectful, and disobeyed\nnumerous orders. His course of conduct\nresulted in his receiving three\nnonjudicial punishments and three Special\nCourt-Martials.\nAltogether, almost half (47%) of the military applicants\nwere discharged for AWOL offenses occurring during stateside\nduty, other than training, which did not follow a Vietnam\ntour.\nRequests for Leave, Reassignment, or Discharge\nMany military applicants complained of personal or\nfamily problems during their military careers. Parents\ndied, wives had miscarriages, children had illnesses, houses\nwere repossessed, families went on welfare, and engagements\nwere broken.\n(Case 3-71)\nDuring his 4-1/2 months of creditable\nservice, applicant was absent without\nofficial leave on five occasions. He was\nmotivated in each instance by his concern\nFORD & LIBRARY GERALD\nfor his grandmother who was living alone\nand whom he believed needed his care and\nsupport.\nThe military had remedies for soldiers with these\nproblems. They could request leave, reassignment, and, in\nextreme cases, discharge due to a hardship. Unit officers,\nchaplains, attorneys of the Judge Advocate General's Corps,\nand Red Cross workers were available to render assistance\nwithin their means. Despite the help applicants received,\nsome did not come back when their personal problems were\nresolved.\n(Case 3-72)\nApplicant requested, and was granted, an\nemergency leave due to his mother's death.\nApplicant did not return from leave. He\nwas apprehended one year and eight months\nlater.\nThe Department of Defense discovered that 58% of its\nclemency applicants sought help from at least one military\nsource before going AWOL. However, only 45% approached\ntheir commanding officer, and fewer yet approached an\nofficer above the company level. 27 Many Clemency Board\napplicants never tried to solve their problems through\nmilitary channels. Others indicated that, before going\nAWOL, they tried some of these channels but failed to obtain\nthe desired relief.\n(Case 3-73)\nApplicant's wife was pregnant, in\nfinancial difficulties, and facing\neviction. She suffered from an emotional\ndisorder and nervous problems.\nApplicant's oldest child was asthmatic and\nepileptic, having seizures that sometimes\nresulted in unconsciousness. Applicant's\nrequest for a transfer and a hardship\ndischarge which were denied. He then went\nAWOL.\nRequests for leave were matters within a commanding\nofficer's discretion. However, leave was earned at the rate\nof 30 days per calendar year, and individuals often used\nleave substantially in excess of the amount they had earned.\nCommanding officers could not normally authorize advance\nleave in excess of 30 days, so a soldier who had used up his\nadvance leave had to go AWOL to solve his problems. This\nwas especially true if the enormity of the problem made one\nperiod of leave insufficient.\n(Case 3-74)\nWhile applicant was home on leave to get\nmarried, a hurricane flooded his mother-\nin-law's house, in which he and his wife\nwere staying. His belongings and almost\nthe entire property were lost. He\nrequested and was granted a 21-day leave\nextension, which he spent trying to repair\nthe house. However, the house remained in\nan unlivable condition, and his wife began\nto suffer from a serious nervous\ncondition. Applicant went AWOL for four\ndays to ease the situation. He returned\nvoluntarily and requested a Hardship\nDischarge or a six-month emergency leave,\nCERALE FORD LIBRARY\nboth of which were denied. He then went\nAWOL.\nof military applicants who requested leave or\nreassignment, roughly 15% had their request approved.\nSlightly over one percent were granted leave or reassignment\nto help them solve the problem which later led to their\nAWOL. By contrast, nine percent had their leave or\nreassignment requests turned down. Their requests were\nevaluated on the basis of information available to\ncommanding officers, who had to weigh the soldier's personal\nneeds against the needs of the military.\nThe hardship discharge offered a permanent solution to\nthe conflict between a soldier's problem and his military\nobligations. To get a hardship discharge, he had to submit\na request in writing to his commanding officer, explaining\nand documenting the nature of his problem and how only a\ndischarge would help him solve it. The Red Cross was often\nasked for assistance in substantiating the request. Some\ndid not have the patience to proceed through channels.\n(Case 3-75)\nApplicant states that his father, who had\nsuffered for three years from cancer,\ncommitted suicide by hanging. His\nfamily's resources and morale had been\nseverely strained by the father's illness\nand death. Applicant spent a period of\ntime on emergency leave to take care of\nfuneral arrangements and other matters.\nAt the time, his mother was paralyzed in\none arm and unable to work. Applicant\nsought a hardship discharge, but after\nthree weeks of waiting, his inquiries into\nthe status of the application revealed\nthat the paperwork had been lost.\nApplicant then went AWOL.\nThe soldier who was conscientiously opposed to war could\napply for in-service conscientious objector status. Very\nfew of our applicants did: only one percent took any\ninitiative to obtain this in-service status, and only one-\nhalf of one percent made a formal application. However, the\nClemency Board found five percent to have committed their\noffenses for conscientious reasons. Some applicants alleged\nthat they were unaware of what they had to do to get such\nstatus, probably as a result of their misunderstanding of\nmilitary regulations.\n(Case 3-76)\nFrom the time of his arrival at his Navy\nbase, applicant consulted with medical,\nlegal, and other officers on how to obtain\na discharge for conscientious objection.\nHe was told that the initiative for such a\ndischarge would have to be taken by the\nNavy, and that he would first have to\ndemonstrate that he was a conscientious\nobjector. He then went AWOL to prove his\nGERALD FORD LIBRARY\nbeliefs. Following his court-martial\nconviction for that brief AWOL, he\nrequested a discharge as a conscientious\nobjector. His request was denied.\nMilitary applicants could have submitted two types of\nconscientious objector applications. One resulted in\nreassignment to a noncombatant activity, while the other\nprovided for a discharge under honorable conditions. Each"
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