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1506010
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Memoranda - Internal (1)
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1506010
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Memoranda - Internal (1)
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Charles E. Goodell Papers
Presidential Clemency Board Subject Files
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
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The original documents are located in Box 7, folder "Memoranda - Internal (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 Charles Goodell donated to the United States of America his copyrights in all of his unpublished writings in National Archives collections.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 7 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library To: CEG From: RAK Pursuant to a request from Lee Robinson of the Second floor, I today had Lee Beck share with a Mr. Frakes of the second floor compies of the following: 1. the Codebook for the Demographic study 2. the Program for the Demographic study 3. the System Documentation for the NASA programming. FORD & CERALD LIBRARY The Board has had the Codebook for some time; the other materials only tell what the computer is doing, not the results or the uses to which the results are put. I had a fruitful meeting with Captain Robinson today about lowering the level of controversy bewteen the two staffs for the final report. He brought with him Mr. Frakes, who is another reservist, with the Michigan arm y National Guard, who is the head data processor the for the National Guard in Michigan. I further asked X Captain Robinson for information about the addl staff that he and Genl Wals expected to arrive from outside the PCB. He promised a response by COB today, Thursday. FORD is LIBRARY 076839 3:30PM THE WHITE HOUSE WASHINGTON CoG: Y Pleas read, phone in changes The agenda the a draft. to me, and we Uget it out with stuff this afternoon Please advice re demency discharge memo. D 3 A I'm having production problems caused by Trady a being the only secretary outside. the has to type, answer phones, and key a stram of visitors out of my huir. Please telk to mott he getting Kinghly and Pat the secretary) out of here fast RT THE WHITE HOUSE WASHINGTON Senstor 2 LIBRARY GERALD R. FORD should we - send this out at it, or - name retype to under the Board my Car your name), or - niether ? It responds expicially to Bof F inch 'R quention R. FORD LIBRARY is SENALD Dear General Walt: It is my view that the Presidential Clemency Board should spend the first day of our meeting next week discussing major policy issues that will enable us to begin disposing of cases. I have, therefore, asked the Defense Department to postpone its briefing of the Board until Tuesday. We hope to have the personnel files and records of were the 103 individuals who are in federal prisons and the 195 in individuals who were/military stockades at the time of the President's procl@mation. This will be our first priority. At last report the military had released 155 men on furlough, and the Bureau of Prisons had released 84 prisoners pending review by the Clemency Board. Since we are going to be dealing with detailed personnel to records, our twetday medting will be closed to the public and the press. I shall open the meeting Monday with a discussion of our proposed two-day agenda so that the Board can make any changes it wishes. Depending on our progress on Monday, we may schedule a press briefing Tuesday morning. It's my suggestion that we schedule a fifteem minute coffee break mid-morning and mid-afternoon of each day. In addition we will leave about 30 minutes after lunch for Board members to take a walk or whatever else they desire. Please count on the Board meetings starting promptly at 9 a.m. and extending until 6 p.m. each day. I am enclosing some material which you may wish to look over before the meeting. Enclosed are: You will note that the first item is a list of possible issues for the Board to confront in our meeting. It is by no means exhaustive, but I thought it might be helpful in giving you some idea of the agenda for the two-day meeting. I look forward to seeing you next week and working with you on this matter which is of such critical importance to our nation. With sincere regard, I am Very truly yours, 2 7n 3, PRESIDENTIAL CLEMENCY BOARD APPLICATION & The undersigned does hereby apply to the Presidential Clemency Board for consideration. I. CANADA Applicant Name: Last First Middle Social Security No. Date of Birth Place of Birth Mailing Address No. Street City State Zip Phone D. Military Applicant IF IF you WERE COURT MARTALED OK DISCHARGED FROM A MILITARY SERVICE PLEASE COMPLETE THE FOLLOWING) Branch of Service Military Service No. (if applicable) (if same as Social Security No. so indicate) Year Entered Military Service Date of Discharge Type of Discharge How Discharge Awarded: (check one) Court Martial ( ) Admin. Discharge Board ( ) Own Request to avoid trial ( ) Offenses on which Discharge Based (Describe specifically and as accurately as possible. Include dates of offenses & conviction and type of court or non-judicial punishment. ) ding III. Applicant Selective dates was of offense Service convicted and Applicant of annu conviction.) (Describe as specifically SIGNATURE as possible, inclu- -2- Location of Federal District Court where convicted. Location of Prison where confined. Any alternate service performed on probation. IV. In addition to your official record, which the Board will obtain and consider, you have the right to submit additional material to the Board which may affect its consideration of your case, including, but not limited to, a written statement, and character references. Such additional materials: ( ) are attached. ( ) will be forwarded by the applicant within 21 days. ( ) I do not desire to submit additional material to the Board. Date Signature of Applicant Mail to: The Presidential Clemency Board Room 460 Old Executive Office Building Washington, D.C. 20500 INSTRUCTIONS FOR APPLICATION FOR CLEMENCY PRESIDENTIAL CLEMENCY BOARD I The following persons may be eligible for clemency: 1) All persons who have been convicted of draft evasion offenses, such as failure to register or register on time; failure to keep the local board informed of current address; failure to report for or submit to pre-induction or induction examination; failure to report for or submit to or complete service, during the period from August 4, 1964 to March 28, 1973. 2) All persons who have received undesirable, bad conduct, or dishonorable discharges for desertion, absence without leave, or missing movement, and for offenses directly related thereto, be- tween August 4, 1964 to March 28, 1973. If you believe you fit the above categories, but are not certain of your status, make application to the Board. Your case will be reviewed and you will be considered. II The Board will obtain your official files, and will consider any additional information you may wish to submit, as described in the application form. III Each person who believes he is eligible should apply regardless of the present status of his case on appeal. IV It is believed that the application form is self-explanatory. If you have any questions please contact your attorney or call or write the Presidential Clemency Board, Old Executive Office Building, Washington, D.C. 20500. (202) 456-6476. V This application should be completed and mailed to the Board no later than midnight, January 31, 1975. FORD & 078880 LIBRARY CEG: 5:00 PM Bob Horn and Jay have had some words over phone, triggered by Jay's telling Bob that Phil Buchen has signed FORD memo to you on 3 points, all xxi generated by General Walt The points are-- Total kt time Pardens LIBRARY 1. Buchen is worried about the Board's having brought some cases up a second time before a different panel (panel- Vo explain this shopping), and wants those cases separated out by name in the warrants. Our last 3 packages have been returned by Jay for this purpose, and Illentiations 2. in order to separate outby name all felony cases. General Walt has a letter, which he has given Jay, allegedly from you or a staff member, soliciting applications from 2 Federal penitentiaries in June. Unpertanted 6000 3. He is also asking that all late application cases be segregated out in the warrants. Jay believes there are many. Mayl There apparently was a letter to penitentiaries sent out by either Larry or Gretchen in June; Bob is getting a copy now. Precisely what that letter says--whether it was actually solicitation of applications--: in doubt. Jay has the text, however, and at least he is not in doubt. The Buchen memo, notwithstanding Jay's claim to Bob, has not yet been received by Marilyn. She was trying to get a copy. In order to try to avoid this series of problems before it becomes formalized on paper, I have called Buchen's secretary, asked her whether he actually has signed the memo yet, and asked her to intercept it prior to signing if he has not--in order to make it possible for the two of you to talk first on these points, if you so choose. Her impression is that it is on his desk, with signing imminent. He has people in his office now, but when they leave, she will put a hold on it until you call Buchen or I call her back. You may want to think about calling Buchen immediately after the Board breaks, or perhaps even before that. Although Eva is willing, I am not sure that she can stop the memo--and it is much better handled informally, by speaking to the erroneous facts on all 3 points, rather than formally after a memo has and leaves the office before you brenk. been signed off on. also would Mr R. pitz if he segns off Jay wants to know which case board members expensed from the panels to the board, which cases the computer system referred back and which neferrals resalled from foram shopping Rth 27 Cares foul douller dos bereggins 10 nigiout pardens (8 more suche) 6 AS to lades 5 1 6 1-2-10 Chargein AS about to AHys Bnnance 5 New info PRESIDENTIAL CLEMENCY BOARD THE WHITE HOUSE WASHINGTON, D.C. 20500 Senator, I peeved at you for always asking me if the applicant has a prior felony conviction. I know you think that I would have failed to make the board members cognizant of that fact on one of my cases at Camp David, but the felony conviction was mentioned in the summary and I was addressing your question about the instant felony convictions in the case. I'd appreciate it if you demonstrate a kinder judgment to me at the time of presentation. Thanks, Lyman Goon FORD i GERALD LIBRARY Memos To Cob FORD & LIBRARY Fin LNB Ri: Jouble lanel Submissions hand on our "verification" $ procedure, we have identified 39 lases submited to two pamela. of the total, 14 received failure. /a seven cares, the also recond result was a a parder) 6 the received 3 months, ad the last, 9 months. One of there 14 has been fnwarded to the Pres. Dat. All are listed G their carzinal decision of the Lemaining 25, 15 resulted Ib u less severe recommendation the seend time, In 3 of there, the difference was mue than 3 mos change. A total of 7 of the cases resultad in falms at the sund famel. of the 25, three cares received the same to paition the second has, and 3 others a more serve disposition. In to me case, the hist panel unult Th not murked, at we can not tell whether in fast the lare was decided, n whether it we tabled for mue information In wither lane, the send fund tabled the love, and in a Third, it was the full Band because of a split decision, three 18 of add the loves not receiving a pader on the first submission, the sant to the Pres recommendation in two f then was the anyoal decision In als me lase was the seend result Chan 6 months to 3 menths) sent to the Present. This was came # 7021, which was a Housed are be have the for investigated 29 of the yo double - decisions Mine renetal pm the reseipt of new information subsquent to the hist dearing Nine thus were presented S a New a Hurung unaw are f the put product in. Le H other, the same atorag re-presented the lane, but the bist cleanion was a panden. In oly Z cans did the game the case without any appart the organd act being n pardon. Leaser (ase # 1st Dec 2d Am Pearc 9125 7AS 4MOS Into 7021 6 M Play 1074 3 P 3593 3 P 1904 9 P 5137 W P 5959 6 3 6254 6 P / 4200 6 e , 12294 3 P 10232 6 3 14712 9 6 6595 Y 3 ito 4006 6 3 7573 9 6 Into 1904 Presented to the 1st time. Sant to Full Bo 6254 Run into 10232 Same othy no up landing 10283 Sure ally New into 10306 Summe atty, seal into 14712 Same ath, New info 3543 Zatty, poer summary. Playged computer m 1st result (AS also Ayg). 7744 Two othy in ignorame 8906 Same aty, new into, wase mult 9125 Two altys, new info. 10182 The attag, gnorance, both P 31/56 Two atep Tynerames, P Ther ats. 6595 YAS, letter of felong, 305, 1757 Two attys, Ignarame both P 1/332 Same altey, both 'p 4867 2 attys, the same result, ne into. 16658 2 attay, Successing deep, same 3TS, 4006 Alty game to another, didn't know f panel hearing. 7573 1st decision appearly tentestive for more 1070. 654 Same day, but aplit. Paul lane to remalt 1444 Same alty, cl days, Urginally ltug. 6682 lat by substitute heal AA cenaware, 12294 Same atty no eas / 15124 Now info on filay 963 No 1070 in 1st . Atty eern. 772 New info. 11200 265 lut Same. decision P. AK each 376 1074 1st decision 385.2d B. he explands. Case almody sent to Ones before 2d decision, More n Game 3456 P 664 6 6 772 6 9 661.2 3 9 15124 6 w/L 10283 3 3 B086 9 9 So V 4867 3 3* 3 x G/s) - / agree with Nia. Originally we Though we would send Pot A periodic reputs; but the Final Report will do as well. / will handle J you like. be PRESIDENTIAL CLEMENCY BOARD MEMORANDUM Lany like CEGAMINED TO: SENATOR GOODELL cc: Larry Baskir FROM: Nia Nickolas SUBJECT: Professor William Anthony of Texas A&M Concerning Information he requires for the book he is writing on the Clemency Program On Tuesday, August 20th, Professor Anthony expects to be in Washington, D.C. During his earlier visit here, he had chatted with Larry Baskir and indicates to me that Larry had consented to forward to him weekly reports of the Board's decisions. He has been calling from Texas regularly both to Larry's office and to me concerning this type of background information. It would seem to me that these decisions are still a private matter and not for distribution to the outside -- however, that is yours and Larry's decision. He would like to have an interview with you Senator --- and if Larry is back --- with Larry also. I have been trying to channel all this information thru the Press Office simply to be sure we have some record of what is being given to him. Actually, I feel it is best to wait until the Final Report comes out and then decide what we want him to have -- since a book on the Clemency Program would be a lasting and historical snapshot of what we have done and should be dealt with as correctly and factually as possibly. Please advise what your thoughts are and if you agree. Thank you. P.S. He had also talked with Lee Beck and Bill Strauss who both indicated he could have their computer print-out information and statistical date. Do you agree? FORD & GERALD LIBRARY TEXAS A&M UNIVERSITY COLLEGE OF LIBERAL ARTS COLLEGE STATION, TEXAS 77843 Department of POLITICAL SCIENCE Mr Counselor Baskir, and Clemency Board members et al. It would be of great interest to obtain the views on the following questions; 1. What is the organizational "lashup" to/at the "White House? 2 Sequence of event leading up to the Presidents initial decision? 3 The relationship of Clemency decision with the Nixon Pardon -if any? 4 What sort of information was presented to President Ford during decision process? 5 What roles did the DOD: Selective Service: and The Justice Dep artment have in the decision making? 6 What do various organizations think should be done now? 7 How is/was the administrative processing handled by; The White House Exec branch; The Clemency board; The Military; The Department of justice, and the Selective Service Bureau? 8 Were any public opinion polls taken on the Clemency issue: Before initial decision/ after initial decision? 9 Is there any evidence of dissatisfaction by the Presidential Clemency Board on the administration of the Program by DOD: Selective Service; Dept of Justice, and any other? 10 What are the considered views of knowledgeable people about revisions in stand-by selective service laws to ease problems in future wars? 11 How did administrators put out the word to deserters/evaders about the Presidents Clemency Program offer? 12 What private groups have become involved in this Program; pro groups? con groups? In what manner did they help or hinder the program operation, administration, processing and reviews? 13 Is the issue solved for the near-term; for the long term?? ( 14 What is the operational procesing, policy, and functions that are carried out by the offcie in the over-all administration of the Presidents Clemency Program what documents and data are avail- able for research data.) To he asked of TIERRVING all group M&A but SAXET Senater Bookell has Lest 10 respit to president & semove 64895 BAXST HOLTATS supportion азиво? .is is etedmem biso8 bns Tolesnuo) Ill ontwollor gdd no ewelv gdf nisido of Jastein} Issig to ed bloow JI tensidesup YeavoH stidw" odd JB\03 "qudes!" grit el tsHW .1 incleiseb Isitini eineblasm grif of qu gnibsel Ineve to sonsupe2 S 92- nobIsq nox10 sitt ddiw noteloob yoneme10 to qidenolisism grlT w Syne onliub biol inebiest9 of befaseerq BEW notisment to Jroe Jariw A notelosb 980 soffeul sdT bns :000 edj bib esfor JedW a Spoixem nolelosb grit ni eved Insmits Swon enob ed bluode >Inidd evoltsv ob Jarly a offim edT and beloned svijenjeinimbs add esw\ei waH Y GMT adT :bisod voneme13 edT prionsed 08x3 sauch PUBBIUB arts bns ,ssideut 90 Inemissqe0 Tousel grit no nexts elloq noinigo aliduq YOB steW 8 incleiseb Isitial Istis \noteloob Isitini STOTES Isitnsbiest9 add vd notiostalisseib 90 sonshive yns stadt aI e 1000 vd ESTOOT9 edd to nolissjeinimbs gdf no biso8 vonemeis Tredito yns bns 10 tood evijosie2 Juods elqueq To swelv bezeblenes grit 976 or emeldong 9888 of ewsI solvies evitosies vd-bnsie ni enolaiver TSTSW STUJUT nt Juads of brow add tuo sud bib well " 978790 msagor9 yoneme13 ejnebise19 arlt 019 aid# nl bevievel smoked svsd equote sisving sr BAG Isbnid TO gied yedd bib Tonnam $ sriw nI fequore noo fequoze Tewsiver bns .noltsmieinimbs gnol add TOT add TOP bevine sueel sitt al Er STS tarit anoitonut bns ,voiloq Isnolisteqo edj al fed AT ) orit to Ile-T9VO orig ni B10790 grit vd two belines -Iisvs BTS sisb bns adnemusab fedw MSTDOT9 (.6jsb 109 elds Senator, This is all d have of PCB. filer re SSS. l've heard that it went up and we lost; d sort of expected that I'll call you tommorrow The 686-3803 GERALD FORD RECOMMENDATIONS ON PROBLEMS RELATED TO BAD DISCHARGES I. Tim Craig's recommendations. 1. Legislate the regionalization of Discharge Review Boards in all services, and require that Vietnam Veteran enlisted persons be on each board. 2. Amend the definition of "Veteran" so that a disabled veteran with a bad discharge becomes eligible for V.A. medical benefits. 3. Review automatically each of the 500,000 Vietnam era "bad paper" discharges. Either keep PCB in existence to do that or have the President require the services to do it. 4. Designate one person on the White House staff to have full- time responsibility for veterans' affairs. 5. Get a commitment from the NAB and other business organiza- tions to communicate to employers that holders of a Clemency Discharge should not be discriminated against. 6. Request Roudebush, or have the President direct Roudebush, that the V.A. be generous in construing holders of Clemency Discharges to be eligible for veterans benefits. 7. Remove the 10-year elimiting date on use of educational benefits. 8. Organizationally shift the Veterans Employment Service (VES), in accordance with Thurmond bill, so that the Director of the VES reports directly to the Secretary of Labor. 9. Continue the VCIP program in HEW after it runs out next year. Full funding ($300 per capita). 10. Restore GI education benefits, which have been ended by an Executive Order marking the legal end of the Vietnam-era. 11. Set up a meeting between the President and heads of Vietnam Veterans organizations to talk about Vietnam Veteran pro- blems. II. Jim Maye's recommendations: 1. In summary, Mr. Mayeproposes that apparently mentally restricted individuals be given an enlistment contract for a year or less with an option to re-enlist. If the person cannot perform satisfactorily because of his mental restriction, he would receive an administrative honorable discharge. Staff personnel should receive special training on working with such inductees (our Category 4 people). BERALD FORD LIBRARY Page 2 III. Recommendations of Admiral James Wilson, (Chief of Naval Education and Training, and former Commander of Naval Forces in Vietnam) 1. Change the curriculum in all military services' basic training to incorporate an orientation on the legal remedies (hardship discharge, compassionate reassignment, etc.) available to a recruit with family hardship or mental stress, and to include information on the resources available to help that recruit. 2. Employ voluntary agencies on every military base to help young recruits with family hardship or emotional problems. Red Cross people, for instance, would-unlike the first sergeant, the military chaplain or the JAG officer--be perceived by the recruit in trouble as outside the chain of command, and therefore possible trustworthy sources of help in stress. There is precedent for this, since the Red Cross and other voluntary agencies already help base commanders to verify alledged recruit family problems on some bases. IV. General Consensus of Veterans Service Organization Staff, and Capitol Hill Veterans Committee Staffs 1. Direct automatic review by the military of all bad discharges. 2. Create a direct link between the VES and the Secretary of Labor. 3. Educate sergeants and platoon and company level officers on the legal remedies and the counseling resources available to help kids with sudden family problems or sudden mental stress. 4. Through OMB, or through the Federal Regional Council direct the VA, HEW, and the Labor Department (DOL) to cross-train their local and regional people so that each office knows the benefits available to veterans in each other office. For instance, every VA local person ought to be aware--and most seem not to be--that HEW-funded vocational rehabilitation programs and DOL-funded on-the-job-training programs are preferentially available to veterans. A GAO study published last month shows that there are tens of thousands of OJT slots which have been developed by the VA and are not filled because local Employment Service people have no contact with their VA counterparts. 5. Notify all veterans with "bad paper" of the upgrading options legally available to them. page 3 IV. 6. Establish national VA standards as to which types of UD offenses make a person ineligible for benefits and which do not. Currently, the VA turns down 98% of the requests for benefits by holders of UD's on the basis of standards no more specific than "moral turpitude." 7. Consder folding General Discharge and UD's into one, neutral, "Certificate of Discharge." (Endorsed by the Chairman of the House Armed Services Committee and nearly a hundred of his colleagues.) Alternatively, bring procedural due process into the administrative discharge system. 8. Per the Steiger-Bennett bill, restrict the release of information by the services, to other agencies and to employers, about veterans with bad discharges. 9. Require the services to adhere to their own regulations by refering a physically and mentally apparently disabled individual to a "medical board", and then to a Physical Evaluation Board, when he displays erratic behavior. If those regulations were adhered to, allegedly a number of Vietnam Veterans would have received a medical discharge disability rather than "bad paper", and would be eligible for "disability retirement benefits. 10. Require the VA, HEW, DOL, and HUD to implement far greater out-reach for veterans eligible for benefits administered by those agencies. For instance, use public assistance and unemployment compensation offices and mailings to get the word out. 11. Ensure that the President gets briefed by the Vietnam Veterans organizations on the problems of the Vietnam eterans. 12. Revise the services basic training in order to ensure that recruits understand why it is that they may be fighting in a war, and what their objectives are in defending the country. The hypothesis is that there would have been far less battlefield stress in Vietnam, and far fewer AWOL$ and desertions, fighting. if the war had had some psychological meaning to the people 13. Issue a Presidential Bicenntenial statement praising the sacrifices of Vietnam Veterans and proposing several new remedies to assist them. 14. Re-examine the services' selection-out procedure for recruits who display mental problems during basic training and who ask for discharges. 15. Direct the military to re-examine whether JAG officers 15. and chaplains are too susceptible to command influence to be sympathetic to a recruit who claims a hardship, at a time when the commander is under pressure to send large numbers of troops into the field. page 4 IV. 16. Direct DOD to re-examine trade-offs between calling up the reserves in a Vietnam-type situation and sending draftees into the field. 17. Direct the Department of Defense to establish an automatic discharge review mechanism so that all bad discharges are reviewed after a specified period of time (5 years?) after issuance. 18. Direct DOL to evaluate the utility of its Examplary Rehabilitation Certificate, and of the need for a three-year waiting period after discharge before eligibility for it. Recommendations For Future Military Enlistment Program One of the most pronounced problems uncovered by the work of the Presidential Clemency Board is the inordinate number of less than honorable discharges given to men with a significantly defecient intellecutial capacity. Various Defense Department statistics indicate that men with such mental deficienties, classified as categories IV or V, were inducted at a rate of 12% to 18% annually. The rate of category IV and V personnel processed through the Presidential Clemency Program shall surly exceed twice the Defense Department annual rate of induction. The philosophy set forth by the military in permitting men of Lan limited mental capacity to serve in the Armed Services is not with merit. Many persons who are handicapped by organic organs mental limitationsor for anvironmental emotional or social reasons are functional retarded, preform very well That in highly structured and well supervised position$ or can be offered by the armed services. Unfortunately only superficial research and prepera- tion was conducted before instilating a program to induct or to allow the enlistment of men will limited mental capacity. One such program and the most popular being "Project 100,000". The Defense Department utilizes the Armed Services Qualification me To determine both mental Achivement And Test designed specifically educational achivement of persons entering the military service. This particular test has a recognized weakness in attempting to MEASURE meerace intellectual levels outside the normal range or to accuratly determine the mental capacity of persons with very limited or very highly educated. In other words the person with less than a eighth grade education or with limited mental resourceses will not have an accurate indication of his capacity indicated in his test profile. The AFQT is a very useful tool in determining the general classification of military applicants but upon the indication of a possible mental And limitation futher testing evaluation should be made by a qualified psychologist, F from this evaluation can be developed an accurate profile TO in determining of the individual be utilized to determine the applicants eligibility for military service, possible military occupation status, and assist staff personnel work with the applicant in his tour of service. The 1/8 A second weakness of most recent Defense Department Program for FOR military service of persons with restricted mental capacity was not ¿but unsluke making provisions for handling those accept the ones unable to function Sustisfactorily. For the retarded individual accepted into military service, the level of expection of his performance was the same as all other inductees. by No New prograph Fortunatly most were able to perform to the minimal requirements and still allow Theys distinquished themselves and the military. For those who could not function to the minimal standards the only resource was to give them an administrative discharge. Because of their poor per- formance combined with their inability to cope with discipline and follow orders the usual form of administrative discharge was was under less than honorable conditions. The results of the lack of preparation to deal administratively with those retarded individuals who are obviously WAS A a greater risk for failure is discharge that scare the recipient&s and further handicap Ph11 him in civilian life. In order to prevent this injustice a special category of discharge should be instituted for the mentally handicapped man who fails to perform as required. It should be under honorable conditions so as not to prejudice his military record. Eligibility for such a discharge should be noted in his permenant file from the day of induction, and to be determined by a qualified psychologist under the supervision of appropriate administrative personnel. Third, many times recruiting offices enlist men with limited mental with No AS to the abilities to excessively long tours of service will not regard to the individuals potential to fulfill such an enlistment. Many enlistees become disenchanted when they fail to accomplish goals elaborated by lover anxious recruiters. A better method to evaluate individualswith Aw individuaL's AbiLity with mental restrictions abricklety to serve in the military would be to limit his initial enlistment contact to a period not to exceed one year. This would allow him to complie basic and advance training schools and become acclimated to military routine. Upon successful completion of the first year of service he then exercises the option of second enlistment. If he cannot perform to the satisfaction of the military se service his contract would not be renewed and he would receive a honorable discharge and have compléted his obligation to his country. Finally it is highly recommended that staff personnel receive orientation as to how to work with persons who for varied reasons have marked restrictions in mental abilities. The results of such training will be a higher level of performance from the described individuals. In summary the recommended changes are as follows: 1: More intensive evaluation of mental capabilities of persons suspected to be mentally retarded. 2: The formulation of an administrative discharge non prejudicial to the applicant who because of his limited abilities fails to perform satisfactorily. 3: A first enlistment period of no more than one year. 4: A basic orientation course to staff personnel that may work with the new inductees. Futher results The cost of such administrative change would be mininal. Compared would be to-the increased efficient of personnel acceptable for military service V through fewer lost man hours and greater retention of qualified men for a second tour of service the cost then becomes less-a factor But of greater importance is the contribution to the general public to be made by the military's recognition and appropriate training of these men who limitations may restrict but need not destroy their capability to contribute to the good of all.. MEMORANDUM GERALD From: J. Schulz Sept. 25, 1974 To: R. Tropp Re: Questions for Mr. Goodell regarding handling of unconvicted draft evaders by the Dep't of Justice (DOJ) The following questions are designed to establish that a large but indeterminate number of registrants reasonably believe that they violated §12 of the selective service act, while in fact they did not; and that the DOJ's current program does not adequately screen such men from unwarranted participation in "earned" reentry. All but one of the questions are for the Attorney General; the exception is no. 10, which might be addressed both to Mr. Saxbe and to Mr. Pepitone. Henry Petersen Q1: Assistant Attorney General/this spring informed a congressional committee that between 1963 and 1974 the Selective Service System (SSS) reported a total of 206,775 delinquent draft registrants to the Justice Department for prosecution under §12. How many of these were in fact prosecuted? A: 19,271. [Tell him if necessary.] Q2: Why were over 90% of these men not prosecuted? A: [He will probably answer that many agreed to submit to induction in exchange for dismissal of charges, and that the others' violations were "not willful."] Q3: Can you give us a rough breakdown of these dispositions? What fraction, approximately, submitted to induction, and whatfraction were found not to be willful offenders? A: . Were there any other reasons for non-prosection? A: [He may admit that some cases were worthless due to faulty SSS processing; if so, use his answer later (Q7 &8).] -2- Q4: The Administrative Office of the U.S. Courts reported this spring that the conviction rate in selective service cases, which has lagged well below 50% for several years, dropped in fiscal 1973 to a new low of 28%. This is rather striking given the fact that you chose to prosecute one-tenth of the cases, and that the conviction rate in federal court is usually on the order of 90%, To what do you attribute your low rate of success? A: [Saxbe will probably attribute it to the same factors he used to explain his non-prosecutions.]- ]- Q5: Again, break down won the totals, please. Agreement to accept induction? * Non-willful violations? . SSS errors? . Q6: What exactly do you mean by non-willful violations [or whatever term he has used]? A: [There is no good answer. In criminal law generally, one is presumed to intend one's acts; in S.S. law, there is no requirement of specific intent, and until this year registrants were conclusively presumed (under 32 CFR $1641.2) to have received any notice mailed to them by their local boards. Pressure Saxbe on this, then:] Q7: Is it not the law that induction (or other) orders issued by S.S. local boards may be invalidated by procedural errors and arbitrary decisions of those boards. A: Yes. Q8: So, in fact, is it not the case that your refusals to prosecute and the courts' dismissals of prosecutions, both of which you attributed to non-willful violations, were in fact due to selective service errors which made it impossible to convict the men in question? A: # -3- Q9: In FY 1974, the conviction rate in S.S. cases was 33%. Again, why so low? A: [Same as above, or ] [If Saxbe claims dismissals were due to acceptance of induction or enlistment, you've got him, since there were no inductions and DOD refused to let draft evaders enlist. In any event, you can perhaps force him to concede, retroactively, that only 5% (28-33) of the dismissals in prior years were given for agreements to submit to inductions.] Q10: [For Pepitone, too] What was done to inform those you decided not to prosecute and those whose indictments were dismissed of this fact? A: - [It seems little has been done, if anything]. Q11: So there may be some 190,000-odd young men who are in fact innocent but don't know it. How will you screen them from participating, in ignorance, in the earned return program? [A: They can ask if prosecution is intended, according to the DOJ prosecutive policy.] Q12: Are U.S. Atty's aware of this policy? A: Yes. Are registrants? Should this matter not receive full publicity and since to decide whether or not the S.S. law was violated is quite complicated, should you not establish some public adversary mechanism and supply defense counsel to evaluate these cases? Should you not at least publicize the list of the 4350 men currently under indictment and, since probably -4- only about 1/3 of these are in fact guilty, should you not take steps to dispose of such cases, even of those of absent defendants, along the lines of U.S. v. Lockwood, currently pending before Judge Weinstein in Brooklyn? [This week, I have learned, D.O.J. has refused to supply the list of inducted S.S. "violators" to both the National Council of Churches and Senator Hart. On Sept. 20, Judge Weinstein denied a government motion to vacate his order appointing Prof. Louis Lusky as special magistrate to review files of 25 indicted but absent registrants. In his opinion, he observed (pp.7-8) that the White House fact sheet reads the term "unconvicted draft evaders" more narrowly than the D.O.J. prosecutive policy, which is cited and quoted there.] JESCHAL Memo to:: Larry Baskir December 2, 1974 Rick Tropp From: Bill Strauss FORD Subject: PCB Research Requirements GERALD The small number of clemency applications indicates that the program has not yet reached many eligible persons for whom it presumably was intended. In the case of the PCB's own prospective applicants, this may be attributable to a widespread unawareness of eligibility standards. It may also be due to a misunderstanding about how an applicant has nothing to lose by applying. For the clemency program as a whole, the problem may be that the needs or circumstances of some categories of possible applicants are inadequately considered. Right now, one could conjecture about what could be done to deal with these problems. Eligibility ânnouncements could be mailed to persons on lists provided by DOD and DOJ, for example. A new baseline approach, possibly with additional mitigating factors, could be applied to unconvicted draft resisters. However, we know so little about the problem that we cannot be sure that our responses would work, and we have nothing with which to substantiate the need for any deadline extensions or liberalized terms. With data in hand, even if imperfect, we can have both a justification for not acting sooner (if we need one) and a basis for taking appropriate action at a chosen time. I suggest that we undertake three research efforts -- two to provide the basis for new policy actions and one to evaluate actions after-the-fact. (1) Of special importance to the PCB itself would be data explaining how many prospective PCB applicants understand their eligibility for the program, the fact that they have nothing to lose by applying, the criteria being applied in clemency decisions, the outcome of the first announced dispositions, and the benefits which executive clemency can bring to them. Certain categories of prospective applicants may know less than others, and the best way to reach them may not be a general mailing. It is likely that those with less education know less about the program; if so, the documentation of that fact could help us extend the deadline for applications. We also need to learn what one or two pieces of information to stress in any public infor- mation effort. We might also learn which other public and private agencies are best suited to help in any such effort. This would require a survey of prospective applicants, probably through in-person interviews. Probably 300 - 500 interviews would be sufficient, supplemented by discussions 2 : : with community spokesmen and experts on the subject who might help us interpret our results. The interviews should be conducted in eight or ten sites across the country. My best guess for a cost is about $25,000, which would pay for a contractor to assemble and analyze the data without a formal report (which might cost another $10,000). The cost could be reduced by conducting telephone rather than in-person interviews, but this would produce less reliable data and might cause suspicions among interviewees. If a contractor could begin work shortly, we should have at least preliminary results before the January 31 deadline. (2) We need cross-sectional data to learn what kinds of people the overall clemency program is and is not reaching. The data we have already from PCB applicants is more than sufficient, but we need comparable data about DOD and DOJ applicants -- and especially from eligible persons who have so far not applied. We should probe every factor which would either reflect an inequity (race, education, socio- economic background, ability of one's family to visit), a possible mitigating characteristic (years in exile, number of dependents, years in military service, Vietnam combat experience, and perhaps evidence of sincerity), or any other characteristic which might account for a failure to apply for clemency (age, marital status, job status, and citizenship status). If we can identify any major differences between applicants and non-applicants, we might learn more about how the clemency program could be tailored to reach more of the latter. The problem is finding the data; I dannot see how we can learn about Canadian non-applicants without the help of exile organizations, for example. The data itself is of a simple, yes/no nature and can be obtained via telephone interviews better than the subjective data needed for the first research proposal. Again, 300 - 500 interviews should be sufficient for a wide-ranging inquiry (not counting data extracted from applicants' files). The number could be smaller if the data search were focused to include only convicted-and-released draft resisters, Canadian exiles, or any other discrete group. Before we contact anyone about doing the interviews, we should learn what data is available. I suggest we do this ourselves; $2000 in travel and miscellaneous funds should be enough. Once we learn what research can be done and obtain the cooperation of those who must help us identify non-applicants, another $15,000 should be sufficient for a contractor to assemble and analyze the raw data (again without a report). If we are to learn anything before the January 31 deadline, we should begin looking for data at the soonest possible moment. If we are to look at persons other than convicted draft resisters and punished military absentees (as I think we should), we might consider a cooperative research enterprise with DOD and DOJ. They would soon be aware of our research in any event, and they would be correct in interpreting it as a PCB effort to second-quess their dispositions. 3 -- (3) A less urgent research need is an oncoing evaluation of the impact of PCB actions. We should monitor the alternate service program, through data obtained with Selective Service's help, to learn how the applicants are finding jobs, what the jobs are, what they pay, and how many clemency recipients change jobs or quit the program. We should track the progress of individuals who have received pardons or clemency discharges to learn what the benefits of clemency can be to an individual (in the short-run, at least). We might also try to gauge the views of applicants and elicible non-applicants about the fairness of our procedures, criteria, and dispositions. Our findings from these evaluations would enable us to reassess the clemency program within the next few months, and they might substantiate any actions we might take to improve the status of veterans with clemency discharges. While much of what we might learn would come too late for remedy, it still would be useful for us (and perhaps, via a formal report, the public) to learn what went right and what went wrong. This evaluation would be so closely attuned to our actual policies that it should not be done by contract, but it may be helpful to hire individual consultants to conduct special assignments. Instead, we should seek the detail of an imaginative evaluation professional in the human resources field. That one person, with acconsultant budget of no more than $5,000, should get the job done. There probably would be little to evaluate until another month or two has passed, however. These research efforts would be in addition to our ongoing assessment of the consistency and pattern of PCB dispositions -- a task which requires much less staff time and no money, assuming computer time is at our disposal. My dollar estimates for the three are $47,000 without reports and $67,000 with reports. These figures are quite conservative, but I have a hunch that we can convince contractors to work at an unusually rapid pace for less money than they ordinarily would receive. Some might perceive it as an exciting, high prestige assignment, and they would recognize our inability to pay more if we do in fact raise the funds from private sources. Recommendations: (a) We should immediately obtain $2,000 to do preliminary work on the cross-sectional research effort. We should contact **ile groups and others who might help us find data, and I should plan on spending several days out of town in the search. (b) We should begin looking for the needed $45,000+ while 'pproaching contractors to see if my estimates are realistic. -- 4 -- - (c) We should develop a working relationship with the policy planning staffs of DOD and DOJ. We shall need at least their cooperation (and maybe their active participation) in all three research efforts. (d) We should locate a willing evaluation specialist in HUD, HEW, DOL, or elsewhere for a 90 - 120 day detail beginning January 1st for the impact evaluation effort. (e) We should continue our ongoing assessment of PCB dispositions without any additional resources. * * * Agenda 11/28/74 1. Demographic Characteristics of prospective applicants: age, educational background, SES. What media do they watch/listen to/read? Does DoD have this info? Psycho logists such as Lifton, or others who have written about military returnees or about military justice? (Job for Harry Scarr? Ford Foundation contract?) 2. Survey research: What do prospective applicants think about the clemency program? What percentage of them, defined by what characteristics, are really "potential applicatits", versus those who fall into the ostensible universe described by the Proc lamation but who in reality will never apply? What do we have to do to get them H to apply? 3. Statistics on related offenses: If the parameters of the Proclamation were to be broadaned in scope so as to incorporate all civilian offenses related to conscientious opposition to the war, and to incorporate further all military offenses (including those subject to administrative discharge) so related, specificallyncki which offenses would we be including which are not now included? What would the program's (the Board's? ) potential universe of applicants then become? What demographic breakouts? ) 4. Clemency discharge: What do se want to do either to maximize the utility of the clemency discharge or to replace it? How to go about doing that? 5. Employment and other reintegration for all recipients of clemency: What to do, through which Departments/agencies and how, to maximize employment and reintegration among those to whom the President proffers clemency? Which steps require that we do the same for all, or certain classes of, veterans? What about sealing of criminal records? /J.R.?/ What should be added in order to maximize the Board's fulfillment of the Proclamation's objectives? December 7, 1974 MEMO FOR: CHARLES E. GOODELL FORD is LIBRARY CIVE FROM: LARRY BASKIR SUBJECT: Clemency for Military Cases Summary (insut) Background The Proclamation and the Executive Order do not define the nature of the clemency to be offered civilians. It has been confirmed by the President that a full parden is the nature of the elemency he contem- plated, and that is now the PCB's practice. The Proclamation and Executive Order are not any more precise when addressing the nature of the elemency available in military cases. It states only that a Clemency Discharge may be offered, and that a Clemency Discharge confers no automatic rights to Veterans Adminis- tration benefits. The Proclamation and Executive Order do not state that a Clemency Discharge is the exclusive remedy for PCB military cases. In our discussions with the Department of Defense, other government agencies, and outside sources, it is clear that a Clemency Discharge at best may confer little on its recipient. Most probably it is no better than the Undesirable Discharge, the Bad Conduct Discharge, or the Dishonorable Discharge it replaces. If the PCB may offer only a Clemency Discharge, the Presidential Clemency Program has little or no meaning for the Board's military cases. Further, it places former military personnel, many of whom actually served honorably in Vietnam combat or had other long creditable service, in a worse position than those convicted of Selective Service violations. In comparison with the remedies available to the Department of Justice's unconvicted draft evaders, the injustice is even more glaring. 2 A Pardon It is clear that the President may grant a pardon for military convictions. It is also clear that a parden goes to the act, and not only to the criminal senction that was or could have been imposed for the offense. Thus the President may certainly grant pardons for AWOL's and desertions, whether followed by administrative sanctions (Undesirable Discharge) or courts-martial (Bad Conduct Discharge or Dishonorable Discharge). It is also clear that the Presidential intent is to grant pardons to the civilian coming before the PCB. It is no less implicit--and not pre- cluded by the Proclamation or Executive Order-that they be granted in military cases. To ensure that military cases are treated fully equally with civilian cases, therefore, a parden should be the normal consequence of elemency for military cases as well as for civilians. And, as for civilian con- victions, the pardon does not suggest that the original governmental action was in any way improper. In civilian cases, the PCB first determines whether elemency should be granted. Having done this, it distinguishes between especially westby cases and others by determining the amount of alternative service required to earn the pardon. This should be the same approach in military cases. Military Discharges The armed services not only punish unautholsed absences by trial, conviction and sentence, but also characterize the type of service by the nature of the discharge adjudged. This means that military cases come to the PCB with two disabilities--an offense and conviction, and an adverse discharge. This discharge preciudes veterans' benefits and severely impaire the opportunities available in later civilian life. Therefore, grant of clemency must not only address the offense by giving a parden, but should also address the nature of the discharge that that offense warranted. A perdon does not by itself change or affect an adverse discharge. Similarly, a Clemeney Discharge is not a significant improvement in the individual's circumstances. Therefore, the grant of elemency should enable the individual to improve his discharge paper beyond the Clemency Discharge which the PCB will normally recommend. The PCB does not wish to intrude upon the decisions made by the Department of Defense or other government agencies as to who should 3 receive up-graded discharges or veterans' benefits. Therefore, in most cases, it would not be advisable for the PCB itself to recommend mere than a Clemency Discharge. However, the armed services regularly review Bad Conduct Discharges, Disheuerable Discharges, and Undesirable Discharges through a number of methods. These include the Discharge Review Boards and Boards for the Correction of Military Records and direct elemency action through the service Secretaries. Because the grant of a Presidential pardon for an unauthorised absence is a substantial change in the circumstances that led to the issuance of the Undesirable Discharge, Bad Conduct Discharge, or Dishenerable Discharge, it is extirely proper that the appropriate military bedies review the cases to determine whether an up-graded discharge is warranged. It would be appropriate, therefore, If each elemency recommended by the PCB and approved by the President were to be forwarded automatically to the armed services for review as to possible up-grading. The Unique Cases Im our review of the first 80 military cases, it is apparent that there are some cases in which further action is required. Some absences followed long and distinguished service in combat. Others may have been preveked by a combination of circumstances beyond the individual's control. There may even be a rare case of an injustice warranting immediate correction. For these extremely unusual cases, the transmittal of the discharge to the armed forces for possible up-grading is inadequate. It will be an empty act, first, because it is a self-ovident case for up-grading. Second, there is no reason why the President should not exercise his own elemency powers and Commander-in-Chief powers to effect the up-grade himself. For Rigese rare cases, the PCB would recommend that the President order an up-grade of the bad discharge beyond the Clemency Discharge to s General Discharge or Honorable Discharge, as warranted. Alternative Service The foregoing discussion does not consider the requirement of alternative service. In each case, however, the grant of elemency would of course be conditional on the satisfactory completion of the period of Alternative Service, If any, .which the Board determines necessary to earn the elemency it has recommended. THE WHITE HOUSE WASHINGTON 12/9/74 TO: SENATOR GOODELL FROM: RICK TROPP See especially page 19. FORD & LIBRARY GERALD DEPARTMENT OF THE ARMY PAMPHLET 27-100-59 MILITARY LAW REVIEW VOL. 59 Articles THE GRAVITY OF ADMINISTRATIVE DISCHARGES: A LEGAL AND EMPIRICAL EVALUATION ATTITUDES OF US ARMY WAR COLLEGE STUDENTS TOWARD THE ADMINISTRATION OF MILITARY JUSTICE MY 1A1 AND MILITARY JUSTICE-TO WHAT EFFECT? Comments COMA REVIEW THE MILITARY LAW SYSTEM IN INDONESIA THE KNOX COURT-MARTIAL: W. T. SHERMAN PUTS THE PRESS ON TRIAL (1863) Recent Developments Book Reviews HEADQUARTERS, DEPARTMENT OF THE ARMY WINTER 1973 MLR MILITARY LAW REPORTER PUBLIC LAW EDUCATION INSTITUTE THE GRAVITY OF ADMINISTRATIVE DISCHARGES: A LEGAL AND EMPIRICAL EVALUATION* By Major Bradley K. Jones** The consequences of the general and undesirable dis- charges are frequently little considered by their recipi- ents. Similarly they are little understood by the JAG officers asked to "counse" the recipients. The author examines the consequences of the administrative dis- charge from the standpoint of governmental benefits iost and civilian opportunities prejudiced. A survey of employers, unions, colleges, and professional examiners reveals some of the difficulties facing the serviceman discharged under other than honorable conditions. I. INTRODUCTION There & can be no doubt that ;an undesirable] discharge is punitive in nature, since it stigmatizes the serviceman's reputation, impedes his ability to gain employment and is in life, if not in law, prima facie evidence against the serviceman's character, patriotism or loyalty.' This federal district court statement aptly describes the present view of military administrative discharges thought to be held by most Americans. The undersirable discharge is the object of great concern and has evoked increasing Congressional interest in changing the procedural framework under which it is ad- ministered. This article will attempt to determine whether the administra- tive discharges, although not designated punitive actions at law, do, in reality, have pragmatic consequences equally or more deleterious than punitive discharges. The legal background and consequences of administrative discharges will be discussed first *This article was adapted from a thesis presented to The Judge Advocate General's School, US Army, Charlottesville, Virginia, while the author was a member of the Twentieth Advanced Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General's School or any other govern- mental agency. **JAGC, US Army; Office of the Staff Judge Advocate, XVIII Airborne Corps, Fort Bragg, North Carolina; B.S., 1963, United States Military Academy; J.D., 1971, William and Mary College. Stapp V. Resor, 314 F. Supp. 475, 478 (S.D.N.Y. 1970). 1 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES to present the factual background of the present stigma today there are three administrative discharges and two puni- ment. Empirical data will then be used to test and evaulate argu- tive discharges in the following order: honorable, general, un- the stigma argument. It should be noted that punitive discharges desirable, bad conduct, and dishonorable. are discussed only for purposes of comparison, since this article The administrative discharge system in the Army is implement- deals primarily with administrative discharges and their prag- ed with the honorable discharge used as the measuring para- matic effects. meter. This discharge is awarded when there has been proper military behavior including proficient performance of duty." II. THE LAW OF ADMINISTRATIVE DISCHARGES When a service.nan's in-servite record seems undeserving of an honorable discharge, one of the two remaining administrative Л. HISTORY AND PRACTICE discharges, the general or the undestrable, may be awarded If basis, the power to discharge enlisted men has been almost as With broad enabling authority granted by Congress the his behavior and duty performance are sufficiently below the standards for an honorable discharge so as to warrant one of totally left to the discrețion of the Secretaries of the Military these lesser discharges. The four categories of grounds for Services.' Therefore, the law of administrative discharges is these discharges are unsuitability, unfitness, misconduct, and embodied largely in regulations published by the appropriate request for discharge for the good of the service, Discharge by lineated therein.' The Secretarys' discretionary power is limited Secretary or his agents and is enforced by the sanctions de- reason of unsuitability will normally result in the issuance of a general discharge when the serviceman is unsuitable for form minimum guidelines for the several armed services. only by the Department of Defense directive prescribing uni- further military service because of inaptitude, character and behavior disorders, apathy, defective attitudes, inability to ex honorable and without honor, whereas the only punitive dis- as Administrative discharges were originally characterized pend effort constructively, enuresis, alcoholism, in-service homo- sexuality, and financial irresponsibility." Discharge by reason of charge was labeled dishonorable. The "unclassified" discharge unfitness will normally result in the award of an undesirable but was added in 1913, becoming the third administrative discharge, discharge when a serviceman's military service record in his into by the "blue" discharge. In 1947, the blue discharge was it and the without honor discharge were supplanted in 1916 current period of service includes one or more of the following: frequent involvements of & discreditable nature with civil or mill- tive classifications of discharges to insure more categories of Veteran's Administration pressure for an increase in the defini- the general and undesirable discharges as a result of split the tary authorities; sexual perversion to include lewd and lascivi- ous acts, homosexual acts, and sodomy; drug abuse; established eligibility for benefits among discharged servicemen." The pattern for shirking; established pattern showing dishonorable failure to pay just debts; dishonorable failure to support de- ble discharge was under honorable conditions whereas the undesira- general pendents; and unsanitary habits." Discharge by reason of mis- was termed as under conditions other than honorable. Thus, conduct will normally result in an undesirable discharge when one or more of the following conditions exist: conviction by civil Lane, Act 1(b), 50 U.S.C. App. $ 454(h) (1970). For parallel & Service "See $ 10 U.S.C. s 1169 (1970); Universal Military Training authorities of an offense for which the maximum penalty is 95-100 Evidence (1972). and the Administrative Discharge Board, 55 discussion, MIL L. REV. sea confinement in excess of one year or of an offense involving moral turpitude, procurement of a fraudulent enlistment or Reg. No. 635-212 Jul. 1966), Army Reg. No. 635-206 (15 Jul. 1966), Reg. No. 635-200 The current (15 Army regulatory provisions are found in Army induction, and prolonged unauthorized absence of one year or objectors (15 Jul. 1966). Special provisions concerning conscientious and Army more." Discharge by reason of a request for discharge for the are found in Army Reg. No. 635-20 (31 Jul. 1970). good of the service will normally result in an undesirable dis- $ U.S. Dep't of Defense Directive No. 1332.14 (Dec. 20, 1965). 108 (1962) of the Senate Comm. on the Judiciary, 87th Cong., on Constitu- 2d stitutional tional Rights dighta of Military Personnel Before the Subcomm. on Con Cope CONG., AND ADMIN. NEWS, 2643 (1967) Hearings * Army Reg. No. 635-200. para. 1-5 (15 Jul. 1966). DOD Dir., supra note 4. para VI-A. Id. para VII-G: Army Reg. 635-212, supra note 8, para Bb. Army (testimony of Alfred B. Fitt, Deputy Under Secretary Sess. DOD Dir., supre note 4, para VII-I; Army Reg. 635-212, supra note $, charges-What It's All About, 25 ARMY DIGEST No. 9, p. 5 (1970). [hereinafter cited as 1962 Hearings] Offer, Administrative of Dis- the pars 6a. DOD Dir., expre note 4, para VII-J; Army Reg. 635-206, supra note 3. 2 8 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES discharge." After studying the grounds within each of a punitive court-martial under circumstances which could lead to i charge where a serviceman's conduct rendered him triable or sexual perversion." Generally, all services consider convictions to attach at the termination of the trial even though an appeal man's concerning matters and problems which are beyond the of at gories, it should be noticed that unsuitability is a word the cat is pending. However, the Air Force holds any administrative discharge procedure in abeyance until the appeal is finally re- art for control whereas unfitness and misconduct service viewed. If the appeal results in the sentence being set aside, gories is the customary discharge awarded for each of the al though acts which are voluntarily performed. Additionally, are words 0: then no discharge procedure is initiated. The Army starts the discharge procedure immediately but no discharge is issued until classification upgrade any of the discharges to à more has the power to as mentioned above, the convening authority cate the appeal is finally denied or the serviceman has waived his right to await final review." Finally, the Air Force and Army warrant when the particular circumstances in a given favorable case prohibit the issuance of a discharge less favorable than that such action." recommended by an administrative board whereas the Coast All the armed services utilize the four categories of Guard, Marine Corps, and Navy permit the reviewing authority identical for administrative discharges aforementioned. All have grounds to change the board's recommendation to the detriment of the from the discharges. There are, however, some minor issuing these guidelines in their individual regulations for nearly serviceman." unfitness Guard, Marine Corps, and Navy have one issuance. The Coast Army system in procedure and grounds for deviations B. REVIEW AND REMEDIES as the ground, "for other good and sufficient reasons," additional 16 The administrative discharge appellate system consists of local habits Air Force has three additional grounds for where- convening authority review and two administrative review boards. moral and traits of character tending towards antisocial unfitness: The local judge advocate normally reviews the legal sufficiency trends, conviction by a court-martial with im- of the findings and recommended disposition of the board of ized confinement greater than six months, and established sentence of officers." Reversible error is rarely found and the convening inadvisable. absence 16 of less than one year but court-martial is unauthor- authority customarily issues a discharge in accordance with constitutes Another difference is in the interpretation deemed the board's recommendation. conduct a conviction by a civil court for determining of what Subsequent to the discharge, the individual, now a civilian. and sufficient for discharge. The Coast Guard, Marine mis- has the right to have his case reviewed by the Army Discharge turpitude whereąs the Air Force and Army have moral tur- pitude," Navy do not spell out what offenses involve Corps, Review Board (ADRB). 22 If the ADRB denies the request for change and issuance of a new discharge, the individual may to include only offenses involving narcotics narrowed violation moral petition the Army Board for Correction of Military Records (ABCMR) 23 The scope of inquiry of the ADRB is limited to Ch. 23 DOD 10; JAGA Dir., nupra 1969/3538, note 4, 25 para Mar. VII-K; 1969. Army Reg. 635-200, supra note 8, determining whether the type of discharge received was equita- note Supra, Army 3, para Reg. 30; 635-200, Army Reg. supra 635-212, note 3, supra para 10-8; note Army Reg. 635-206, supra bly and properly given under the specific facts presented. It does not review all the merits or the facts of each individual's career. Man. Nos. 12-B-10. 12-B-12, 12-B-13, 12-B-15; Guard Reg. 12-B-6; note 3; Air Force Reg. Nos. 39-10 & 3, 39-12; para 4a Const & b. The ABCMR provides review of service records in order to 3840080, 6012 3850120, & 6016-6019; 3850220, Navy 3850300, BuPersMan 3420180, Marine 3420220, Corps 3420240, Sep. 30 Army Reg. No. 635-206 para 39; Air Force Reg. No. 80-12. se Id.; Dougherty & Lynch, supra note 13, at 504; Lerner, Effect of Charao- 498, The 501 Administrative (1961). Discharge: Military 3860140; Justice?, 33 Dougherty GEO. WASH. & L Lynch, REV. ter of Discharge and Length of Service on Eligibility To Veteran's Bene- fits, 13 MIL. L. REV. 121, 133 (1961). course, $5 DOD control. Dir., gupra note 4. The specific requirements of the Directive, of 20 Dougherty & Lynch, supra note 18, at 515. " Review by a Judge Advocate is required prior to the issuance of an BuPersMan 30 Coast Guard 3420220. Reg. No. 12-B-12; Marine Corps Sep. Man. 6017; Navy undesirable discharge under Army Reg. No. 635-212, para 19a (15 Jul. 1965). IT Air Force Reg. No. 39-12. - Army Reg. No. 15-180 (9 Feb. 1965). BuPersMan Coast Guard Reg. No. 12-B-13, Marine Corps Sep. Man. 6018; Navy Army Reg. No. 15-185 (8 Jan. 1962). There is no right to a hearing 3420240 & 3860140. at the ARCMR. In fact petitions are often denied for failure to state a cause for relief or for failure to exhaust other administrative remedies. See AR 4 16-183. para & 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES correct errors or remove an injustice and thus has a broader scope of review and remedial power than does the ADRB. Other partial remedies exist, but are merely laudatory in na- Several problem areas in the review system exist. Most note- ture and do not alter the discharge. The Department of Labor, worthy is the time perspective and attitude within which ad- upon individual request and documentation, will issue an Ex- ministrative discharge appeals occur. The review occurs emplary Rehabilitation Certificate 27 to aid discharged servicemen discharge at a time when the individual is a civilian. Thus, post- he in combating the effects of a less than honorable discharge. The no longer has free military counsel provided for his appeal certificate, issued by the Secretary of Labor, is a remedy for he would in the case of a punitive discharge. Additionally, unlike as that express purpose, but in no way alters the less than honora- punitive discharges, there is virtually no review after approval ble discharge received. The certificate states that the individual and prior to execution of discharge. Thus, the petitioner is has been rehabilitated as an exemplary citizen as judged by his challenging a fait accompli. performance during the preceding three year period and that he is entitled to special job counseling and job placement services. by the American Legion, American Red Cross, Disabled Ameri- An inadequate solution to the lack of counsel problem is offered To obtain the certificate, the individual must have been an ex- emplary citizen for a minimum of three years subsequent to can Veterans, and Veterans of Foreign Wars, who provide free advocates for the petitioner before the ADRB and ABCMR. 24 The discharge and complete an application with recommendations from the chief law enforcement agency in his community, pres- counsel provided by these organizations are very experienced in ent and past employers, and five character references. He ac- practicing before these boards but are not legally qualified counsel. crues no benefits from the certificate except those to which he They will accept all cases, however, and advocate them through- was already entitled when he received his discharge." The in- out the approximately one year period needed for complete adequacy of the certificate is illustrated by the fact that since appellate review. However, the individual's hopes should not be set high. Since the inception of the ADRB in 1944, there have 1966, there have been 3,500 requests for the application, only been 94,700 cases considered, but only 8,900 changed to honora- 566 returned completed, and of those, only 460 certificates ac- ble and 5,960 changed to general discharges. Thus, the 14,860 tually issued. The program seems to be unpublicized, unknown, upgrading his discharge." changes indicate that the individual has a 15.7% chance of and of doubtful help. C. PROPOSALS FOR CHANGE An inadequate alternative to the military appellate system would be for the individual to bring suit directly before the Criticism of administrative discharge procedures seemed to United States Court of Claims or a federal district court. These snowball after Chief Judge Robert E. Quinn of the Court of courts will review the discharge solely to determine whether the Military Appeals stated that he was aware of occasions on which requirements of due process have been fulfilled and will not the administrative discharge was being used by the services to peer into the merits of the discharge decision. Thus, the individ- circumvent the judicial safeguards of the Uniform Code of ual must present a justiciable violation of individual rights tan- Military Justice." The fallout ignited Congressional investigation tamount to a denial of due process or establish that the service of the administrative discharge system during the 1962 military this agency involved did not follow its own regulations. Obviously, justice hearings 81 and the introduction of legislation by Senator avenue is rarely utilized because of the prohibitive expense. BY 29 U.S.C. §§ 601-007 (1970). 29 U.S.C. h 604 (1970). in 25 H Washington, Telephone interview D.C., 20 with Dec. 1971. Mr. Campbell, American Red Cross Counsel, 20 Engelhardt, Many Learn-Too Late, ARMY DIGEST p. 68, 67 (May 1969). se United States V. Phipps, 12 U.S.C.M.A. 14, 30 C.M.R. 14 (1960). Judge Chief p. 2 (June 1971); Telephone interview with Col. Richard F. ARMY DIGEST Comment, Chance of Getting Undesirable Discharge Reversed, 1969) Engelhardt, Little Many Learn-Too Late, ARMY DIGEST p. 66 (May Quinn stated: I am also aware of circumstances tending to indicate that the undentrable discharge has been used as a substitute for a court-martial, even in deprivation of an accused's rights 1972. Counsel Army Council of Review Boards, in Washington, D.C., Selbert, 5 Jan. under the Uniform Code of Military Justice. However, the remody for this troublesome situation rests In the hands of Congress. (1958) Roberts V. Vance, 343 F. 2d 236 (D.C. Cir. 1964). " Beard v. Stahr, 37p US 41 (1962) Harmon V. Brucker, 855 U.S. 579 Id., at 16 Sudge Quinn reiternied his opinion during his testimony at the Senate committee hearings in 1962. 1952 Hearings 179. # 1962 Hearings 2. 6 7 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES by the criticism and issued a new directive which increased the Sam J. Ervin (D-NC). 32 The Secretary of Defense was swayed by a stronger Bennett bill 41 which incorporated some of the rights of servicemen in discharge proceedings and enlarged provisions of the previously introduced Ervin bill. The Bennett hearings dealing with the rights of servicemen were held in viously skimpy procedural guidelines. Additional Congressional pre- bill has Department of Defense backing and in fact, is that Department's substitute bill.** Senator Ervin the next year." 1966 34 and gave birth to a new, more detailed bill offered by These bills are intended to increase the rights of servicemen to ensure due process at administrative discharge proceedings. Such Congressional activity stirred considerable discussion of Normally, a serviceman may not be less than honorably dis- the administrative discharge system 36 and the American Bar charged except upon the recommendation of a board of officers. Association's Special Committee on Military Justice issued However, the decisional procedures of the board are administra- ommendations for minimum standards in 1968. These recom- rec- tive in nature and :nost of the safeguards found in criminal mendations later formed the substance of legislation submitted judicial proceedings are lacking. Respondents are generally en- by Representative Charles E. Bennett (D 38 The bill and titled to the following rights: a hearing, notice, statement of ABA recommendations are general in purview and place few allegations, names of adverse witnesses, presence of available limitations on the particular service Secretary's discretion. In witnessès, counsel, and cross-cxamination of witnesses present." 1971 a more drastic Ervin bill 40 was introduced, followed shortly On the other hand, practically anything is admissible as evidence and there are no rights of mandatory attendance of witnesses cerning military justice. S.2002-19, 88th Cong., 1st Sess. (1963). tem contained in several of the eighteen bills he introduced con- sys- - Senator were Ervin's proposals for legislative changes In the discharge or in-hearing confrontation and cross-examination. The Bennett and Ervin bills attempt to cure these particular problems of the rective with Department of Defense Directive 1332.14 (Jan. 14, 1959) The 20, 1965) Compare Department of Defense Directive 1332.14 (Dec. present system by an overhaul which results in additional rights for the servicemen. The Ervin bill would prohibit is- ceptions, whereas the previous regulation was very permissive several ex- made representation by lawyer-counsel mandatory, with new di- suance of an undesirable discharge unless the serviceman is view requirement, The sections of board procedures, former jeopardy, as to this represented by legally trained counsel at the proceeding. Also, commanders. action were greatly expanded with increased limitations placed and re- on a serviceman would be entitled to the right of confrontation Joint Hearings on S.745 (and other bills) Before the Subcomm. and cross-examination of witnesses while the administrative Subcomm. stitutional Rights of the Senate Comm. on the Judiciary and the on Con- board would have concomitant subpoena powers over witnesses." (1966) of the Senate Comm. on Armed Services, 89th Cong., 2d Special Sess. In contrast, the first Bennett bill added little to the current [hereinafter cited as 1966 Hearings]. Senator Cong., Sess. (1969); reintroduced as S.2247, 92d Cong., 1st Sess. S.1266, 91st S.2009, 1st 90th Cong., 1st Sess. (1967); reintroduced as Department of Defense Directive except to grant subpoena power to the board of officers and require board decisions to be based containing Ervin's bill proposes a new chapter to Title 10, United States (1971). on a preponderance of the evidence." The new Bennett bill " through establish an entire statutory discharge system from pages. jurisdiction bill would twenty-six sections and covering twenty-seven The Code, would allow an undesirable discharge to be given a serviceman REV. Lynch. The Administrative Discharge: Changes Needed? Secretary. See final review, with little discretion vested in the without board action for: 1) AWOL for one year or more, 2) conviction by a civil court for an offense which under the UCMJ dulum L. 141 (1970); Everett, Military Administrative Discharges-The 22 MAINE carries confinement in excess of one year, and 3) an aggregate Discharges: Swings, 1966 DUKE L. J. 41; Dougherty and Lynch, Administrative Pen- " Military Juntice?, 33 GEO. WASH. L. REV. 498 of three separate courts-martial or civilian convictions within a discovery rights, and findings based on a preponderance of the process, (1968). recommendations included the power to issue REP. greater 577 Report The of the Special Committee on Military Justice, 93 (1964). A.B.A. H.R. 10422, 92d Cong., 1st Seas. (1071). Dep't of Defense Substitute Bill, Hezrings on H.R. 523 (H.R. 10422) Cong., 1st Seas. (1971). H.R. 19697, 90th Cong., 2d Seas. (1968). reintroduced as evidence. 11.R. 523, 92d Before the Subcomm. to Limit the Separation of Members of the Armed Forces Under Conditions Other Than Honorable of the House Comm. on The Bennett bill proposes to amend 10 U.S.C. I 1161 alone, and Armed Services, 92d Cong., 1st Seas., nt 5840-8 (1971) [hereinafter cited detailed only three pages. The bill follows the ABA committee's philosophy that covers the as 1971 Hearings]: H.R. 10422, 1971 Hearings 6034-7. service secretaries' administrative discretion and that only policy guidance is provisions in Senator Ervin's bill would improperly invade the Army Reg. 15-8 para 8, supra note s1; Army Regs. 635-200, 206, 212, supre note 3. needed. 93 A.B.A. REF. 577, 580 (1968). 2247 SL.: Cook, 1st Sear (1971). S.2247, 92d Cong., 1st Seas. (1971). H.R. 10422, 92d Cong., 1st Seas. (1971). 11. 8 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES three year period. Additionally, no undesirable discharges could The greatest economic impact of the undesirable discharge in be awarded unless the respondent were defended by a legally causing lost government benefits is in the area administered by qualified attorney and the board of officers would have subpoena the Veterans Administration (VA). Confusion exists in the powers over witnesses. Board decisions would be based upon public mind as to which discharges bar the ex-serviceman from the preponderance of the evidence rule and a Department of which benefits. A good deal of this riddle can be solved when it Army review board would be established to enable respondents is understood that only "veterans" are eligible to receive VA to appeal an adverse officers board decision prior to his dis- benefits and a "veteran" is defined as "a person who served in charge into civilian status. Thus, the new Bennett bill provides, the active military, naval, or air service, and who was discharged in moderation, many of the proposed safeguards of the more or released therefrom under conditions other than dishonora- drastic Ervin bill. ble." Thus, a veteran, in VA terminology, may receive a dis- charge worse than honorable but better than the dishonorable III. THE PUNITIVE ASPECTS OF THE ADMINISTRATIVE and still qualify for VA benefits. Congress obviously intended DISCHARGE to make the maximum number of servicemen eligible without including incorrigibles when it defined veteran in such broad Spurring the various proposals for new administrative dis- terms. The question is then reached as to where the general and charge legislation is the belief that any less than honorable undesirable discharges fall. The very terms of the general dis- discharge $7 may substantially hinder the post-service life of its charge, under honorable conditions, and the statutory language ? recipient. Clearly the military itself promotes this belief. Scho- qualify the recipient for all federal benefits whether administered MATTOR larly comment," testimony before leglislative bodies 50 and court by the VA or other federal agency. it is the undesirable dis- OF RIGHT? opinions 81 also mention a stigma attaching to administrative charge which creates the difficulty. The determination of who is OR ascro- discharge recipients. The exact nature and extent of the stigma, a veteran qualifying for benefits in the case of the undesirable TION? however, are rarely discussed. Often hearsay substitutes for legal discharge is an administrative determination within the discre- knowledge, and personal experience suffices in view of the lack tionary power of the Veterans Administrator pursuant to the of empirical data. guidelines cstablished by statute and agency regulations." The A. GOVERNMENT BENEFITS LOST Administrator's determination is final and conclusive without being subject to review by other agencies or the courts." He The tangible detriment to the administratively discharged has authority to promulgate regulations controlling the nature serviceman involves his eligibility for the multitude of post- and extent of evidentiary proof necessary before the VA Board service benefits provided by federal and state agencies. and to establish the procedures for collecting and furnishing this evidence to the Board to aid it in reaching its decision." Ex- The term "less than honorable discharge" is used to denominate the amples of benefits which hang on the discretion of the VA Board general, undesirable, bad conduct, and dishonorable discharges. The term are the payment of dependency and indemnity compensation, "administrative discharge" is used to refer to the general and undesirable Servicemen's Group Life Insurance, educational assistance under discharges. 48 Army Reg. 635-206, flg. 1 (15 Jul. 1966) Army Reg. 635-212, flg. 1 the GI Bill, home and other loans, and funeral and burial (15 Jul, 1966). A soldier being discharged from the Army is advised that expenses. an undesirable discharge results in the loss of many or all veteran's benefits and causes substantial prejudice in civilian life. See Lynch, The Adminis- Guidelines utilized for the exercise of VA discretion are fairly trative Discharge: Changes Needed?, 22 MAINE L. REV. 3 (1970). broad, but they specifically deny certain grounds for the See generally Dougherty & Lynch, supra note 13; Susskind, Military Ad- issuance of an undesirable discharge from qualifying as other minintrative Discharge Boards: The Right to Confrontation and Cross-Ex- amination, 44 MICH. STATE BAR J. 25 (1965); Creech, Congress Looks to than dishonorable. A discharge received for any of the following the Serviceman's Rights, 49 ABAJ 1070 (1963); Bednar, Discharge and Dis- missal as Punishment in the Armed Forces, 16 MIL. L REV. 1 (1962) 38 U.S.C. $ 101 (2) (1970) (emphasis added). Metsch, Stigmatic Military Discharges, 57 A.B.A.J. 1068 (1971). 23 C.F.R. 3.12 (10,1), See footnotes 64-71 in/ra. 38 U.S.C. 211a (1970). See text and cases cited qt footnotes 72-76 infra. 38 U.S.C. 210c (1970). 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES reasons is considered to have been issued under dishonorable question as to fitness for employment such as criminal convictions conditions: or immorality." Thus, the administrative discharge would rarely 1. acceptance of undesirable discharge in lieu of a general court- be the sole basis for inability to acquire federal employment; martial, inability to acquire a security clearance is a contributing factor. Additionally, federal agencies look askance at the hiring of in- 2. mutiny or spying, dividuals discharged from other federal agencies. The inability 3. conviction of an offense involving moral turpitude (felony) to obtair 9 security clearance also creates employment difficulties 4. willful and persistent misconduct (This includes a discharge with private firms performing under Federal Government con- under other than honorable conditions, If it is issued because of tracts. There are no statutory bars nor mandatory contract willful and versistent misconduct. A minor offense discharge will not be considered willful and persistent if the individual's service clauses which preclude the employment of administratively dis- was otherwise honest, faithful, and meritorious.), and charged individuals by the prime or sub-contractors. Again, 5. homosexual acts." however, the inability io obtain a security clearance creates the same effect as with federal employment. Additionally, a discharged serviceman who was a conscientious State veterans benefits may also be denied. For example, in objector who refused to perform military duty, wear a uniform, New York a general discharge bars the individual from receiving comply with lawful orders of military authorities, or who was state veteran benefits similar to those he is simultaneously a deserter, is totally barred from receiving any VA benefits eligible for under federal law since a prerequisite for the state regardless of the type discharge received." benefits is an honorable discharge." Also, if state law interprets Certain benefits administered by the military services are a "conviction" to include an undesirable discharge, the individual denied the recipient of an undesirable discharge. These include would lose additional benefits and property rights as well as payment for accrued leave, transportation of dependents and acquire damaging civil disabilities." Thus, it is arguable that household goods, and burial in a national cemetery. Similarly, an undesirable discharge might result in the same lost rights, benefits administered by other federal agencies such as the five under state statute, as would a criminal conviction." point veteran federal civil service preference and reemployment rights which assure restoration to a job if application for reem- B. CIVILIAN COMMUNITY EFFECTS ployment is made within 90 days subsequent to discharge are lost. While an undesirably discharged serviceman may never care If a serviceman is improperly awarded an other than honorable to use VA benefits or take a job requiring a security clearance, discharge which is later upgraded by a review board, he can claim he will almost certainly be wanting to work or go to school back pay to a maximum of $10,000 by entering the Court of Claims. However, he has lost a property right to any back pay in F.P.M. 731-7 (Inst. 85, 27 Jan. 1967), para 3-3a; F.P.M. Supp. 837-72. 32 C.F.R. parts 1-39 (ASPR) (1971). See "clauses" in part 7 therein. excess of the court's jurisdictional limit.⁵* 61 Schustack v. Herren, 234 F. 2d 134 (2d Cir. 1956). There are no statutory þars precluding the employment of a Special Project-The Collateral Consequeness of a Criminal Conviction: administratively discharged individuals for Federal Government Civil Disabilities, 23 VAND. L. REV. 929 (1970). Examples are disfranchise- ment, loss of right to hold public office, and loss of employment, judicial, jobs. However, in the case of the undesirable discharge and the domestic, and property rights. absence of any extenuating circumstances, the individual may not A profitable followup study might examine the policies of state employ- be accepted until the lapse of one year subsequent to his dis- ment boards and state licensing agencies regarding less than honorable dis- charges. The Virginia Employment Commission. indicated that its policy is charge. Further, he is subject to appropriate investigation to to ignore discharge classifications and provide its employment services to all ensure that the grounds for the discharge do not raise a serious individuals. Interview with Virginia Employment Commission, Charlottes- ville, Virginia, 28 December 1971. A similar check with the Virginia Alco- holic Beverage Control Board indicated that an administrative discharge in 38 C.F.R. § 3.12d (1971), no way tainted an ex-serviceman's application for a liquor sales license. C. 38 C.F.R. 809 3.12c (1&4) (1971). Virginia prohibits the issuance of the license when the applicant has been 28 U.S.C. $ 1491 (1970); Voira, Extraordinary Relief of Punitive and convicted of n felony involving moral turpitude. Interview with Local Di- Administrative Discharges from The Armed Forces, 7 Duq. L REV. 384 rector, Virginia Alcoholic Beverage Control Board, Charlottesville, Virginia, (1968-69). 28 December 1971. 13 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES somewhere. In this area the effects of the administrative dis- You don't go into detail to find out what makes him undesirable. charge may be most serious and are least known. You think he may be a thief, he may be a homosexual, he may not be supporting his children, his family, in the minds of some people, The consensus of opinion among witnesses at various Con- but he is undesirable, you don't want him around. It is a gressional hearings, which have produced many outspoken critics liability and a heavy one. of the severity of administrative discharges, has been that a The Congressional hearings are replete with similar criticism by It stigma does attach However, their opinions have never been witnesses. Thus, there are many who believe that an undesirable verified by an empirical study or other collected data. Major discharge is tantamount to or even worse than a punitive bad General Kenneth J. Hodson testified that he had no evidence to conduct discharge. Similar, but less severe stigma has been said refute the stigma allegation." In testimony concerning the un- to attach to the general discharge." desirable discharge, former Chief Judge Quinn of the Court of Many civilian courts have felt that any discharge other than Military Appeals testified: honorable carries with it some degree of stigma and depriva- I think, generally speaking, Mr. Chairman, it is worse than a bad tions." conduct discharge, as far as its implications are concerned, and the results are also quite severe. You cannot get a job in a bank, or [A]ny discharge characterized as less than honorable will result in in a trust company or for the government or any of the places serious injury. It not only means the loss of numerous benefits in where there is any confidential requirement. They will not give work both the federal and state systems, but it also results in an un- to a man with an undesirable discharge. It is a very severe penalty." mistakable social stigma which greatly limits the opportunities for both public and private civilian employment." Chief Judge Quinn's rationale for this statement is that while people may overlook one act of bad conduct, they are not so Since most soldiers are discharged from the service with honor- prone to overlook undesirability. In a similar vein, Congressman able discharges, an undesirable discharge places great stigma Clyde Doyle stated that the results of a quick poll of industry on the ex-serviceman." Some courts have been more forceful in indicated that & man with an undesirable discharge would gen- clearly stating that undesirable discharges carry the same stigma erally not be granted an interview," and in discussing why an as punitive discharges." undesirable discharge creates a life stigma, he stated: " Id. at 328. I think it is, because with the ordinary person you will say a man TO 1983 Hearings 15-18, 004 64 (BCD and undesirable discharges produce is an undesirable citizen in civilian life, that is a life stigma. He is very similar stigma and hardships) 1906 Hearings 834-35 (undesirable an undesirable. You don't want to have anything to do with him. discharge is a flagrant act of character assassination); 1966 Hearings 335 (undesirable discharge carries with it the suspicion of homosexuality) 1971 H 1962 Hearings 5, 315-28, 335-36 (testimony of Senator Kenneth Keating Hearings 5825, 5900 (BCD is better than an undesirable discharge since (R-NH), Representative Clyde Doyle (D-Cal), and Charles H. Mayer). In the undesirable cannot be explained away-testimony of Representative the Senate report it was stated that the subcommittee had received letters Charles E. Bennett); id. at 5856 (Bennett-an undesirable discharge from many ex-servicemen who accepted undesirable discharges without a carries the connotation of being penal in nature); 1971 Hearings 5855. full understanding of the stigma and the difficulty it created in obtaining 1962 Hearings at 328, 330-41 (a general discharge carries an implied employment. Subcommittee on Constitutional Rights of the Senate Comm. on stigma in the eyes of prospective employers since the overwhelming num- the Judiciary, 88th Cong., 1st Sess., Summary Report of Hearings on Con- ber of discharges are honorable); 1971 Hearings 6000 (testimony of Kar- stitutional Rights of Military Personnel Pursuant to S. Res. 58 2 (1963); patkin, ACLU General Counsel-the public equates anything other than 1971 Hearings 5825-5938. honorable with undesirable). 1966 Hearings 381 (testimony of Brigadier General Kenneth J. Hodson, " Beard V. Stahr, 370 U.S. 41 (1962), J. Douglas dissent at 42-45; Nelson Assistant Judge Adyocate General). General Hodson was appointed The V. Miller, 373 F. 2d 474 (3d Cir. 1967); Van Bourg v. Nitze, 388 F. 2d 557 Judge Advocate General of the Army later that year and promoted to Major (D.C. Cir. 1967); Bland V. Connally, 293 F. 2d 852 (D.C. Cir. 1961); General. At subsequent hearings, he testified that the undesirable discharge Unglesby v. Zimny, 250 F. Supp. 714, 716 (N.D. Cal. 1965) Conn V. United tags a man and has an adverse effect upon gaining civilian employment. 1971 States, 376 F. 2d 878, 881 (Ct. CI. 1967) Sofranoll v. United States, 165 Ct. Hearings 5916. CI. 470 (1964); Murray v. United States, 154 Ct. CI. 185 (1961); Claekum 1962 Hearings 188. V. United States, 148 Ct. CI. 404 (1960); Stapp v. Resor, 314 F. Supp. 475, Id. Not many people outside the military realize that the bad conduct 478 (S.D.N.Y. 1970). discharge is the result of a criminal conviction. The natural tendency is to # Bland V. Connaily. 293 F. 2d 852 (D.C. Cir. 1961). suppose that a man found undesirable by the military is also undesirable Id. at 858. for civilian society, while bad conduct is only a one-time mistake. 1962 Hear- - Van Bourg V. Nilse, 388 F 2d 557 (D.C. Cir. 1967): Stapp V. Resor, 314 ings 328 (testimony of Representative Clyde Doyle (D-Cal) ). F. Supp. 475, 478 (S.D.N.Y. 1970) Glidden v. United States, 185 Ct, CL P 1962 Hearings 315 (testimony of Representative Clyde Doyle (D-Cal)). 515 (1966). 15 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES In contrast, some courts have disagreed with the claims of made from national directories. Various types of businesses, severity concerning the general discharge, stating that it is not large and small, were selected to ensure that a cross-section of severe nor punitive in nature." These courts maintain there is no typical employers were represented. Large businesses were sep- connotation of dishonor in a general discharge, that it does not arately defined as having annual income of over $1,000,000. deprive service personnel of any of the inherent rights provided Unions were selected so as to gain representation for blue collar by honorable discharges, and that there certainly is a lesser stigma trades. Medical and bar examiners were canvassed to cover pro- attached to a general discharge. fessional employment. Large (over 5,000 students) and small colleges were selected to measure any educational difficulties that IV. AN EMPIRICAL VIEW OF THE STIGMA discharged servicemen encounter. A. SURVEY OBJECTIVES Each of these seven types of activities, representing a cross- Much of the commentary regarding the effect of the adminis- section of American employment, were canvassed in each of six trative discharge is based on sheer speculation." To remedy this regions. The two business categories were further broken down defect, a survey was conducted of employers, educators and into large (over 250,000 population) and small cities so the im- professional licensing authorities to determine their understand- pact of both business and city size could be measured. Thus, there ing of and reaction to various forms of less than honorable dis- were six possible combinations of each activity being evaluated charge." The survey sought answers to the following questions: except in the two business categories which had twelve. The 1) To what extent is there awareness of the distinctions be- number of questionnaires sent to each activity was determined tween the various types of discharges? 2) Is a man's discharge by the probable impact that activity would exert upon the ex- characterization considered in a hiring or acceptance decision? serviceman. Thus, traditional businesses received 600 of the total 3) If so, what investigation of the discharge is made and to what 1,000 surveys. Large colleges, small colleges, and unions received extent do the various types of less than honorable discharges 100 questionnaires each with the remainder going to the profes- disqualify or retard the serviceman? sional examiners. Of the 1,000 questionnaires sent, 547 were re- turned in usable form and in time to be analyzed." B. THE TECHNIQUE North Carolina, Tennessee, Virginia, and West Virginia); (3) North Central One thousand subjects were selected from each of six regions (IHINOIS, Indiana, Iova, Michigan, Minnesota, Nebraska, North Dakota, Ohio, within the United States." The actual selection of subjects was South Dakota, and Wisconsin); (4) South Central (Arkansas, Colorado, Kansas, Louisiana, Missouri, New Mexico, Oklahoma, and Texas); (5) 'McCurdy v. Zuckert, 359 F. 2d 491 (5th Cir. 1966) Ives V. Franke, 271 Northwest (Alaska, Idaho, Montana, Oregon, Washington, and Wyoming) F. 2d 469 (D.C. Cir. 1959) Grant v. United States, 162 Ct. Cl. 600 (1963). (0) Southwest (Arizona, California, Hawaii, Nevada, and Utah). The num- One exception is a survey of the Amarillo, Texas, area completed by ber of respondents per region was proportionately established by overall Leonard J. Hippchen in 1962 which attempts to establish the impact that population to equalize a nationwide representation of responses and to in- other than honorable discharges have on nine business classifications of both sure a more accurate depiction of the attitudes within a particular region. large and medium size firms. Hippchen's efforts seem to be directed towards There was a conscious effort made to select respondents such as the auto- ascertaining which job types were most available to these individuals. He mobile manufacturers in Detroit who had the greatest probability of being used the term, dishonorable as synonymous with other than honorable since an employment target of the discharged Individual and would thus exert a it was his assumption that civilian employers would be unable to differentiate more realistic influence on the survey. and were only cognizant of dishonorable vis-a-vis honorable. Therefore, his so The survey seemed valid based upon the 60% response and the appropri- results are less than discriminating when it comes to analyzing the relative ateness of answers. Nearly all questions were answered with logic and a position of administrative discharges vis-a-vis punitive discharge. Hippchen, degree of understanding. This could be judged since subsequent questions Employer Attitudes Toward Hiring Dishonorably Discharged Servicemen, were generally dependent upon the response to previous questions. THE MILITARY PRISON, p. 170 (1970). There were several survey limitations worth noting. First, it was impossible A copy of the questionnaire appears as appendix A. The "Yes-No" to tabulate each region by activity; that is, to Indicate what activity within format was utilized to encourage case of answering for the respondents and the region had the most impact on the overall regional percentage. Region- case of compilation for the author. Respondents were promised anonymity in by-activity samples would have been too small for meaningful survey pur- their responses. poses. Second, the data for the unions is probably of limited value due to The regional divisions were (1) Northeast (Connecticut, Delaware, the 25% response received, a figure far lower than any other return rate. Maine, Massachusetts. New Hampshire, New Jersey, New York, Pennsyl- Also, the cuestionnaire was sent to national or intermediate union head- vania, Rhode Island, and Vermont): (2) Southcast (Alabama, District of quarters who may have had little to do with union employment policies. A Columbia, Florida, Georgia, Kentucky, Maryland, Mississippi, South Carolina, valuable future study might contact local union hiring halls. Finally, the 17 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES To determine the significance of the variables of activity, centage, ranging as high as one-third for dishonorable discharges, region, and city size, the "chi square" method was used. In brief automatically disqualified such applicânts. The majority of re- summary, this statistical technique expresses the likelihood that a spondents not automatically disqualifying an applicant did look tested variable (here activity, region, or city size) rather than behind the discharge and based their hiring or acteptance deci- mere chance was responsible for differing results.* sion on the particular facts of the case. Only about one respondent A measured confidence level (C.L.) equal to or greater than in ten indicated that a hired or accepted ex-serviceman would be 95% would indicate that the tested variable was significant in placed on probation or given a lower level position because of influencing the responses. A C.L. below 95% would tend to indi- the character of his discharge. cate no influence or a limited influence was exerted by the tested Significant distinctions arise according to the type of discharge variable. Although the C.L. is not an absolute indication that the awarded. The respondents discriminated against the discharged tested variable was the controlling factor which others were de- serviceman according to the severity of the discharge. For ex- pendent on, it does add credence to the suggestion that a tested ample, while 77% were influenced by a dishonorable discharge variable is the controlling factor in the responses. and 75% by a BCD, only 69% were influenced by an undesirable discharge and 51% by a general discharge. Similarly, 84% C. RESULTS automatically rejected the dishonorably discharged applicant; Considered as a whole 82 the results showed considerable knowl- 27% the BCD recipient; 20% the undesirably discharged; and edge of military discharge practices, significant use of the dis- 8% the generally discharged. The results rebut the contention charge as an employment or admission qualification and a rather that the civilian world does not distinguish between types of less sophisticated distinction among the less than honorable dis- than honorable discharges and the contrary pronduncement that charges. Virtually all respondents (98%) indicated a familiarity the judicial bad conduct discharge is less stigmatizing than the with court-martial discharge powers. Eighty percent indicated a administratively issued undesirable discharge. The results further general awareness of the existence of other than dishonorable Indicate that the general discharge under honorable conditions and honorable discharges. Sixty percent specifically knew of the cannot be cquated with the honorable discharge. While it is per se existence of the administrative general or undesirable discharge. disqualifying in eight per cent of the cases overall, that figure Approximately two-thirds (65.6%) of all respondents did rises to cut twe've percert when only the business categories make inquiry as to an ex-serviceman's discharge. The majority of are examined. Further, in half of all cases the general discharge those inquiring (60.1%) simply accepted the man's word as to the will "influence" employment or acceptance decisions. Even character of discharge. One-third required a showing of the dis- though the Government is willing to credit the generally dis- charge certificate and only six percent made inquiry to the ap- charged serviceman with the full benefits of "honorable" service, propriate armed service. a considerable part of the civilian world is not willing to accord A less than honorable discharge obviously hampered an ex- him such treatment. serviceman's employment or acceptance prospects. The majority Examination of the data according to type, region, and city' of respondents admitted that their policies were "influenced" size revealed several interesting patterns. The C.L. for activity by any type of discharge other than honorable. A smaller per- was significant for all critical questions (see appendix B) indicat- ing that activity may be a controlling factor for any difficulties survey did not adequately cover cities under 10,000 population nor one-man stores in larger cities. Again, further study could provide additional valuable the individual encounters. A number of factors stood out. College data. officials showed a greater awareness of the administrative dis- The "Chi Square" computer program was selected from among several charge system than did the businesses. Conversely, businesses were choices since it performed the greatest number of operations desired at the lowest cost, yet with great efficiency in producing usable, intelligent data. more likely to inquire into the serviceman's discharge, more likely The decision to run three chi square programs was based on the author's to be influenced by it, and much more likely to automatically pre-survey hypothesis that activity, region, and city size might all be reject than the colleges. Within the two groups size worked in critical variables in determining the reaction to less than honorable dis- charges different ""YE. Big businesses were more likely to inquire, be in- The overall results may be obtained from the Total column of the Activity Survey, appendix B. A summary of these results appears in appendix C. 18 19 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES fluenced by, and disqualify than small businesses. Big colleges, changing the statutory denials of benefits. Thus, military proce- however, were less likely to inquire, be influenced by, and dis- dures do not create the onerous overtones of administrative dis- qualify than their smaller counterparts. Despite minor discrepan- charges and should not be the subject of such criticism. cies all types of respondents followed the general pattern of dis- The attitudinal stigma, the subject of the empirical survey, criminating with increasing severity from general to undesirable is personal in nature and is a creation of our society. The survey to bad conduct to dishonorable discharge. establishes that some stigma does attach from receipt of an ad- Not surprisingly the bar and medical examiners were markedly ministrative discharge, but not to the extent of being tantamount more interested in the character of an applicant's discharge. to the consequences of punitive discharges as some Congressional Nearly three-quarters made some inquiry and then either re- leaders, judges, and literary critics seem to believe. In fact, the quired a look at the discharge certificate or verification from the civilian population understands and distinguishes between the armed forces. Over seventy percent stated that even a general dis- various discharges fairly well, contrary to Congressional presump- charge "influenced" their licensure decision. The more severe dis- tion. Thus, it seems that insufficient credit has been given the charge classifications influenced decisions in between eighty and civilian population in Congressional assessment of the severity eighty-six percent of all cases. These figures were substantially of administrative discharges. Certainly, general or undesirable ahead of the other categories. However, it is noteworthy that discharge is something with which to be reckoned by its recipient, while the professional examiners were influenced by discharges but is is not as severe as it is often presumed to be and does not they nonetheless had the lowest automatic rejection average. Ap- reach the stigma level of a punitive discharge. parently, the examiners had the investigative resources and desire This study does not answer the questions: 1) Should the mill- to look behind discharge characterizations and avoid snap judg- tary continue the practice of characterizing discharges? and 2) ments. By contrast small businesses were least likely to look into If so, are further procedural reforms needed to assure that such the facts in the individual's case. characterizations are factual and fair? Much additional legisla- The C.L. for region was significant in only two of twenty- tive and administrative study is needed to provide the answers to three questions. Since these involved the little used probationary these questions. If nothing else, however, this study of discharge or lower starting level criteria it appears safe to conclude that a consequences emphasizes the fact that many popular notions re- surprising regional homogeneity exists. Based on these questions garding the administrative discharge have no basis in fact. In and these regional breakdowns, conclusions about regional pro adopting new laws and regulations, it is hoped that hard facts or anti military feeling are not justified. and not fine rhetoric will serve as the guideposts. Considered by city size the majority of responses (15 of 23) showed a statistically significant confidence level. Generally, how- ever, the variances were not large. Small city respondents were more likely to automatically disqualify applicants or to employ a probationary or lower level criterion than their larger counter- parts. Large city respondents were slightly more likely to look behind the discharge certificate prior to making an acceptability decision, V. CONCLUSIONS When the stigma argument is dissected, it is seen to consist of two elements, statutory and attitudinal stigma. The statutory stigma is generally under the control of Congress and the Veter- ans Administration. The amount of stigma is a function of the bars these bodies place on veterans benefits and employment oppor- tunity. Congress can alter the degree of actual harmfulness by 21 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES APPENDIX A QUESTIONNAIRE ON THE PRACTICAL EFFECTS OF THE LESS Type Signifi- cant no yes no yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes THAN HONORABLE DISCHARGE 1. Prior to this inquiry, were you aware that there existed types of less than honorable discharges other than the Dishonorable Discharge? Chi Sq C.L.* 87 99.9 39 YES NO 100 100 99.9 100 99.9 100 100 100 99.7 100 100 100 100 100 100 100 2. Were you aware that a soldier could receive a General or Undesirable Discharge as the result of an administrative separation? YES NO 3. Were you sware that a soldier could receive a Bad Conduct or Dishonor- Total 81.1 61.0 98.0 65.6 60.1 33.1 5.7 51.2 69.1 75.0 77.4 8.1 20.1 26.8 33.8 47.5 47.5 47.0 43.4 able Discharge as the result of a court-martial conviction? YES NO 4. Prior to accepting a former serviceman into your organization, do you inquire into the type of discharge he received? YES. NO Medical Exam- iners 75.8 69.7 97.0 72.7 30.3 57.6 18.2 72.7 81.8 81.8 84.8 3.0 12.1 15.2 15.2 72.7 69.7 66.7 69.7 In any inquiry you might make, do you: 5. Accept the man's word as to his discharge? YES NO 6. Require him to show his discharge certificate? YES NO 7. Make an inquiry to the armed service concerned? YES NO FREQUENCY BY ACTIVITY SAMPLE (IN PERCENT) Bar Examiners 82.9 74.3 97.1 74.3 28.6 51.4 20 71.4 82.9 85.7 85.7 0 2.9 5.7 8.6 71.4 80.0 80.0 77.1 Are your personpel, admission, or licensing policies influenced by any of the following less than honorable discharges: a. General Discharge? 10. Bad Conduct Discharge? YES NO YES NO 9. Undesirable Discharge? 11. Dishonorable Discharge? APPENDIX B Union 95.8 62.5 100 50 54.2 37.5 0 50.0 50 66.7 66.7 8.3 8.3 20.8 25.0 45.8 45.8 37.5 37.5 YES NO YES NO Do you automatically reject the application of any person who has received one of the following less than honorable discharges: 12. General Discharge? 14. Bad Conduct Discharge? Small Colleg's 73.5 61.8 98.5 61.8 55.9 44.1 5.9 54.4 72.1 77.9 79.4 29 8.8 10.3 8.8 52.9 63.2 69.1 69.1 YES NO YES NO 13. Undesirable Discharge? 15. Dishonorable Discharge? YES NO YES NO Do you look behind the discharge certificate to determine the grounds (e.g., homosexuality, alcoholism, misconduct, etc.) for the discharge and make Big Colleges 88.4 81.2 97.1 40.6 58.0 29.0 0 34.8 49.3 55.1 56.5 1.4 4.3 5.8 11.6 34.8 44.9 49.3 44.9 your decision as to the applicant's acceptability based upon those findings when he has received any of the following discharges: 16. General Discharge? 18. Bad Conduct Discharge? YES NQ YES NO Small Business 78.9 51.4 96.5 62.0 70.4 24.6 2.8 17. Undesirable Discharge? 19. Dishonorable Discharge? 44.4 64.1 69.7 73.2 12.7 28.2 34.5 47.2 37.3 33.1 32.4 27.5 YES NO YES NO Do you place on probationary status or in a lower level position than he level otherwise would have been given an accepted applicant who received any of the following discharges: Big Business 81.8 55.9 99.4 79.4 67.1 28.2 5.9 54.1 77.6 84.1 87.1 11.8 31.2 42.9 51.8 49.4 43.5 40.0 34.7 20. General Discharge? 22. Bad Conduct Discharge? YES NO YES NO 21. Undesirable Discharge? 23. Dishonorable Discharge? YES NO YES NO No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 22 23 59 MILITARY LAW REVIEW DISCHARGE CONSEQUENCES Type Signifi- APPENDIX C cant yes yes yes yes COMPARISON OF DISCHARGE EFFECTS BY TYPES OF DISCHARGE" Chi Sq TO 100 100 100 100 A. Discharge Inquiries (questions 4-7) : Inquire into Look at Write armed Discharg" Accept word Discharge forces Total 11.8 11.3 10.9 9.1 65.6% 51.8% 46.8% 8.6% B, Acceptance Policies (questions 8-23) Policy Reject Influenced Automati- Look Medical Exam- iners 18.2 18.2 15.2 15.2 by cally Behind Probation I. General 51.2% 15.1% 77.1% 17.9% Bar Examiners II. Undesirable 8.6 8.6 8.6 5.7 69.1% 28.8% 66.7% 15.6% III. BCD 75.0% 35.4% 62.2% 14.4% Union 4.2 4.2 12.5 12.5 IV. Dishonorable 77.4% 43.3% 56.3% 11.6% *Percentages on left of vertical line are total affirmative respanses of which those on the right are a portien, Small Colleges 5.9 8.8 11.8 11.8 who wl 10 Big Colleges 8.7 15.9 14.5 11.6 Small Business 13.4 10.6 10.6 8.5 Big Business 14.7 11.2 8.8 6.5 -C.L-Confidence level Ques. No. 20 21 22 23 24 25 NOTE: Senator Goodell On 1/14, Bill Strauss and I reviewed the held cases. These we agree should be reconsidered by the Board. YMB LMB CC: Bob Horn Gretchen Ray Mitchell CEG Rick Held Cases Reconsider 127 Base 3, Result 6. A#5, but evidence contrary 161 Result 13. Maye wants reconsidered 174 Base 6, Result 12 178 Base 5, Result 8. Juvenile offenses 195 Base 4, Result 10. A#5 lacking 213 Base 7, Result 7. No aggravating, some mitigating. Should lower. 239 Base 7, Result 10. 243 No clemency, no aggravating, only long AWOL 244 Base 5, result 8. No aggravating 249 Base 4, no clemency 258 Base 6, result 6. Long service, only long AWOL. Lower? 260 Base 6, result 12. Only long AWOL 028 Base 6, result 12. No A or M factors 046 No clemency. One prior offense, low sentence. Some drug involvements. 048 Commutation only. Special to President 041 Pardon. Trepantation case. More Reconsider 107 Base 12, result 12. No facts for A#5, evidence of VN opposition. Chaney 108 Base 12, result 18. A#5, but family problems. Chaney 212 Base 4, result 7. Long AWOL, M1, 2, 14 237 Base 5, result 5. Long AWOL only. M1, 2, 14 245 Base 5, result 8. Long AWOL. M 2, 3 PRESIDENTIAL CLEMENCY BOARD THE WHITE HOUSE WASHINGTON, D.C. 20500 May 14, 1975 MEMORANDUM FOR: CHARLES E. GOODELL FROM: LAWRENCE M. BASKIR mB SUBJECT: UNRESOLVED ISSUES TO TAKE UP WITH BUCHEN I. Upgrade The Board has recommended twenty-one (21) upgrade cases to date, not counting four (4) panel recommendations which were not acted upon by the full Board at the last meeting. The tacit arrangement that now exists is that the Defense Department wishes to wait a period of time to find out how many cases overall we will have. Counting the panel re- commendations of the last meeting, 6 percent of military cases we have reviewed have resulted in an upgrade recommen- dation. II. Pardons for Undesirable Discharges My memo to you, and the attachments and our discussions should be enough for you in your meeting. III. Effect of Clemency on Future Discharge Review 2. We proposed that any individual going to a Discharge Review Board or Board for the Correction of Military Records having received a Pardon from the President would be treated as follows: (a) He would not have to make a separate, special application to these boards. The application to the Clemency Board would be considered the functional equivalent of the application to the military; (b) Any review would be taken without regard to the acts for which the President has issued a Pardon. FORD is LIBRARY - 2 - The tacit position of the Department appears to be that they will provide forms for application to us to send to the individual but will not accept an automatic application approach. They have not truly responded to our argument on the kind of review we are asking for clemency discharge. IV. Nature of Clemency Discharge 3, The Proclamation and the President's evident intent is that the Clemency Discharge be a truly neutral discharge, neither less-than-honorable nor "under honorable conditions". The actual certificate used by Defense states that it is a Clemency Discharge given "under clemency conditions" or some similar phraseology. However, the Department has made it quite clear that they consider the Clemency Discharge to be a discharge under other than honorable conditions (the functional equivalent of an Undesirable Discharge), not only for the pruposes of continuing to preclude veterans benefits (the President's desire), but also as a public connotation and an official description within the government. It is not easy to suggest a quick remedy for the Department's actions since this is essentially an internal DOD characteri- zation. I suggest that the remedy is a directive from the President or Buchen reminding (instructing) the Department to preserve the true neutrality of a Clemency Discharge in all their administrative processing. We have not raised with the President our desire that the Clemency Discharge be characterized as a "General Discharge under honorable conditions for the convenience of the government" but without entitlement to veterans benefits. This would be a step beyond the President's neutrality just as the DOD's characterization is a step below. There are two other issues which are still outstanding which you should keep in mind: (1) Justice, Defense Department, and the Board have not resolved the formal language that the warrants in military cases will take. I believe our form to be perfectly adequate in law and in style and that they are only nitpicking, but we have not yet joined the issue with them. (2) Case #41 has not yet been decided. May 16, 1975 MEMORANDUM TO: CEG FROM: Gretchen As of 2 p.m. Friday, 600 case summaries have been distri- buted as follows: 1) 200 cases (50 cases each) for panels W, X, Y,Z, were mailed to Board members prior to the meeting on May 8 with Board members on May 14, and each have received his or her cases. 2) 50 cases were mailed to panel D on May 15; and and 100 additional 50 were either hand carried or put on airplanes on May 16. 3) 50 cases were mailed to Panel E on May 13. An additional 25 cases were mailed on May 15. An additional 25 cases were hand 100 delivered or put on airplanes on May 16. 4) 50 cases were mailed to Panel E on May 13. An additional 3 50 were hand delivered or put on airplamson May 16. 5) 75 cases were mailed on May 15. An additional 25 cases B were hand delivered or put on airplanes on May 16. An additional 25 cases each for Panels D, E, F & G will be ready for mailing tonight. of Total 100) we will, however, check with Board before sending thes Another 25 cases will ready for mailing Sunday or Monday. We will, however, check further with Board members before sending these out. (Total 100) Your 125 cases are on your desk at 2033 M Street. CC: L. Baskir FORD LIBRARY is GERALD 5/20 Senator Goodell - - 50 more case summaries have been sent or delivered to each Board member as gollows: 7 Goodell, Walt, Craig, Lally, Puller, Maye and / erhard by hand. Ford by special delivery. 1 Adams to airline checkin to be picked up before boarding plane tomorrow. Same for Dougovito (though different airport). be delivered to Riggs and O'Connor delivered to/their Washington hotel tomorrow (per their request) for reading Wed. evening. Hesburgh, Vinson and Morrow all traveling and summaries being held here for their arrival at various times on Thursday (again per their request, we spoke with all but Joan.) Finch and Jordan not attending. Panel breakdown is as follows: W,X, Y and z 50 summaries in Board members hand prior to 5/8. D,E, F and G 100 summaries received by Board members on or prio to 5/19. 50 summaries delivered (though not necessarily received) 5/20. Hope this is clearer than the last memo! GMH P.S. We presently have on hand an additional 50 summaries for each of 4 panels which can be distributed to Board members on Thurs. or Fri. in preparation for June meetings. (and there may well be more spackets ready for distribution before Board decamps this week). BUT, we need to know which Board members are going to be assigned to which panels before packets are distributed. Are you working on this? Or is Larry? And will we know before you've queried the Board on Thrusday as to their June availability? will not know before 5/22/92 of GERALD R. LIBRARY FORD