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The original documents are located in Box 8, folder "Notes on Clemency Board
Regulations" of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
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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States of America his copyrights in all of his unpublished writings in National Archives collections.
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domain. The copyrights to materials written by other individuals or organizations are presumed to
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Digitized from Box 8 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Channe Library
Regs
Mis a copy of
Hiscomplete
PI - A. Procedures ? Act,
package. mm 2/26
P2.
P.3. - public of
files not used - Instice.
P4 - or evid material to the Bd's decision is
corrected or disputed
P5, - former
87. - before March 1, 1975
P8 - "or complete service under 46 (j)
have jurisd
over but not
Do man we sonvieted dursh?
"or offenses directly related ther to "
"or is serving a sentence of confinement for
such viol."
"or other law"
BERALD Prt FORD LIBRARY
P9 - (1) grant an immediate unconditional pardon
service," without any requirement condition of atternative
(III) Qunitive disch
(A) recommendations not specifically presuded,
812 - Adminis ofc of As ?
P13 - "Files not available to applicant. not used."
P14 - "thus :- therefore,
Regs. 2.
815. - summary inscruraries
material from applicant or/ amends M supps,
30days after receipt,
applicant
P/6 - consid before the Bd, / appedited proceds?
(d) 10 mins.
applient or repres,
reas. time.
P17 list of factors
"Each person will be sent a list of the
mitigating and aggravating factors considerel
applicable by the Bd to be agglicable in
his case."
P18.
,
30 days of receipt
alternative service
P19 - 10 mins.
BERRLO FORD LIBRARY
P 21 - initing branch 7
confidentiality - Justice's opn.
anonymonese summeries & name
Regs- 3
P22- "terminate by law",
"oonfidentiality of the indiv"
p23 - postponement of A/S
"for reasons of pers. hardship substantial
legal or administrative remedies in his case."
carflisting obligas or ephaustion of other
P24, why Part 102
P25, - additional aggravating eire,?
BERALD FORD
P27. factors
(3) prior A/S gerformed ? Interrupted
"remainder "of 4 auttractions?
judges sentence + final sentence,
828 - alternative service (b) of (c)
immediate w/o A/S,
Comparison of Baskir and Tropp regulations
1.) Purpose and scope:
R: p. 1
L: p. 7
L's simply an abridged version.
2.) General Definitions:
R: p. 1
L: p. 7
L's is simply an abridged version.
3.) Jurisdiction:
R: pp. 2-3
L: p. 2, pp. 7-8
L's is essentially an abridged version,
except "not later than March 1, 1975"
replaces " before March 1, 1975" and
"or offenses directly related thereto" has
been added to the military jurisdiction
section.
4.) Remedies:
R: pp. 3-5
L: pp. 2-3, pp. 8-9
L's differs from R's in that it makes the
distinction between restoration of Federal
and state civil rights, it deletes the para-
graph concerning recommendations to DOD,
and it states that in "unusual circumstances"
the PCB may make "other recommendations"
(e.g., General Discharges) to the President.
5.) Initial Filing:
R: pp. 5-6
L: pp. 9-11
L's differs significantly from R's. L states
that oral applications must be reduced to
writing and postmarked "not later than
March 31, 1975;" R's says "within thirty (30)
calendar days of the oral communication."
Regarding initial filings made by represen-
FORD
tatives, L states; applicant must.
&
submit his application promptly thereafter. 11
R's position is "appli cant has within seven (7)
days."
6.) Application Form:
R: pp. 7-8
L: pp. 11-12
L's is essentially an abridged version, except
"completed application forms should be post-
marked within a reasonable period after their
receipt" replaces "within thirty (30) calendar
-2-
days. " L also omits the application kit.
7.) Assignment of Action Attorney,
R: pp. 8-11
Case Number, and Determination
L: p. 3, pp. 12-13
of Jurisdiction:
L states that: "Files not available to an
applicant are not used as the basis of
statements in the initial summary." R states
those pages of other agencies' files
which are used by Board staff attorneys as
the basis of statements in the I.S. must be
available, as a matter of right, to the
applicant."
8.) Initial Summary:
R: pp. 12-13
L: pp. 14-15
L's is essentially an abridged version.
9.) Final Summary:
R: p. 14
L: p. 15
L's version does not require that a final
summary be sent to the applicant.
10.) Consideration Before the
R: pp. 15-19
Board:
L: p. 4, pp. 16-17
L's differs significantly from R's. Regarding
a hearing before the Board, L "provides for
a personal appearance as a matter of right
if an applicant can show that an oral presen-
tation is necessary to the Board's under-
standing of his case. " L has, thus, replaced
R's "essential" with "necessary" and omitted
the right to appear "if (the) applicant takes
the trouble to appear before the Board, withou
a representative accompanying him. " Second1
L has omitted R's "Presentation of Witnesses'
section. Thirdly, L makes no provision for
a representative appearing before the Board.
11.) Recommendations to the
R: p. 20
President:
L: p. 17
R states: "Following action by the President,
the Board will send notice of such action in
writing to all persons whose names were
submitted to the President. Persons not
receiving executive clemency will be so
notified, with reasons for denial. " To end the
implication that the cases of those whom do
not receive clemency are not submitted to the
President, L deleted the second sentence.
-3-
12.) Reconsideration:
R: pp. 21-23
L: p. 4, pp. 18-20
R makes the distinction between reconsider-
ation as a matter of discretion and as a matter
of right; L doesn't. Secondly, R grants
reconsideration if an applicant's petition show
new facts or factual error; L lists these two
reasons plus a third one, procedural error.
Thirdly, R allows an oral presentation of
fifteen minutes in length; L allows ten minutes
13.) Transmittal to Other
R: pp. 24-26
Agencies of Clemency Decisions:
L: p. 4, pp. 20-21
R states in detail when and to whom informatic
about an applicant will and will not be released
L essentially makes a general statement that
"only such information about the President's
decision as is necessary for the agency to
perform its functions under the President's
clemency program, or for other necessary
action respecting the applicant" shall be SECTION
transmitted. L deleted executive privilege.
14.) Confidentiality of
R: pp. 27-28
Communications:
L: pp. 21-22
Concerning releasing information about the
commission of a felony, R wants to release
"information which reveals the probable
cause tp believe. "'' whereas, L wants to
release "information which reveals commis-
sion. " Secondly, R talks of "destroying"
files, L of "sealing" them. Thirdly, L
deleted from his regs R's subsection regarding
publishing anonymous case summaries.
15.) Representation Before the
R: p. 29
Board:
L: p. 22
R states: "Upon request, Board staff will
attempt to refer an applicant to a skilled
volunteer representative.' L states: "The
Board staff will advise applicants of those
private sources which are available to
provide counseling."
16.) Requests for Information
R: pp. 30-31
About the Clemency Program:
L: pp. 22-23
L's is essentially an abridged version, except
L deleted R's subsection requiring that an
Action Attorney make a written summary after
talking with a person who requested information
17.) Postponement of Board
R: not done
Consideration and of the Shart
L: p. 23
of Alternative Service:
Section 102
1.) Purpose and Scope:
R: p. 1
L: p. 24
L's is simply an abridged version.
2.) Board Recommendations:
R: pp. 1-2
L: p. 24
L's is essentially an abridged version.
3.) Aggravating Circumstances:
R: pp. 2-3
L: pp. 24-25
L's is simply an abridged version.
4.) Mitigating Circumstances:
R: pp. 3-4
L: pp. 26-27
L's list is more up-to-date. Secondly, L
deleted R's subsection stating that whenever
a mitigating circumstance not listed is
considered by the Board as material to the
disposition of the case, final decision will be
postponed to enable the applicant to submit
additional evidence germane to the unlisted
circumstance. Thirdly, L states: "An
applicant may bring to the Board's attention
any other factor which he believes should be
considered. 11
5.) Calculation of Length of
R: pp. 2-4
Alternative Service:
L: p. 5, pp. 27-28
L's is almost verbatim R's. **
Eligibility of Clemency
R: Preamble
Recilients for Militaty
L: p. 5
Discharge Review Review
L's is essentially an abridged version except
Remedies:
R urges veterans to consider simultaneously
remedies available through DOD; L doesn't.
** In the copy of R's regs that I saw, I could not find the subsection stating that
the PCB creditsall creditable military service on a one-for-one basis against the
baseline period.
TITLE 2 - CLEMENCY
Chapter 1 - Presidential Clemency Board
Part 101 - Administrative Procedures
Part 102 - Substantive Standards
The Presidential Clemency Board published its proposed adminis-
trative procedures and substantive standards on November 27, 1974
(39 FR 41351). Since that time, the Board has considered the first
military cases before it, and has had the benefit of more than 40 comments
on its proposed regulations. With the benefit of this additional experience
and these comments, the Board publishes the final regulations setting out
ITS
these procedures and standards.
It is the intent of the Board to provide notice to the public of the
standards it uses to make recommendations to the President concerning
individual applications for clemency. The Board also wishes to ensure
equity and consistency for applicants under the President's clemency
program.
Because it is a temporary organization within the White House
Office the sole function of which is to advise the President with respect to
the exercise of his constitutional power of executive clemency, the Board
does not consider itself formally bound by the Administrative Procedure
Act. Nonetheless, within the time and resources available, the Board
wishes to adhere as closely as possible to the principles of procedural due
process set forth in the Act. The administrative procedures established
&
GERALD
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THIS
in these regulations reflect decision.
The Board reserves the right to publish changes in individual
sections as it deems necessary. The Board welcomes continuing
comment on problems which may arise in the application of particular
sections of these procedures and invites recommendations on how best
these problems may be resolved.
Several dozen technical changes have been made in these regula-
tions. Some clarify refune significantly the rights and procedures available to
applicants. The following is an explanation of these changes which seem
to the Board to be most significant:
Jurisdiction: Section 101. 3 has been added in order to incorporate
the criteria for determining whether or not a person is eligible for
IT
consideration by the Presidential Clemency Board. This section restates
the criteria established in Proclamation 4313 (Announcinga Program for
the Return of Vietnam Era Draft Evaders and Military Deserters) and
repeated in Executive Order 11803 (Establishing a Clemency Board.
).
ECTION
Remedies: $101.4 has been added to explain the remedies avail-
IT
able from the Presidential Clemency Board. This section-states the
authority with which the Board is vested by Executive Order 11803,
GERALD
issued pursuant to Proclamation 4313.
A Presidential pardon restores those federal civil rights lost as
a result of a felony conviction. State law recognizes Presidential pardons
generally
as a matter of comity, restoring the right to vote in federal and state
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public
elections, to hold local government-office, and to obtain licenses for
trades and professions from which convicted felons are barred under
state law. Since conviction by military court-martial is treated as a
felony conviction by many states, and since an Undesirable Discharge
may have the same consequences as a punitive discharge resulting
from a court-martial conviction, the benefits of a pardon apply to
servicemen as well as to civilian draft evaders.
A Clemency Discharge neither entitles its recipient to veterans
benefits nor bars his receiving those benefits to which he is otherwise
entitled.
SUBSECTION
Availability of Other Agencies' Files to Applicant. 4 101.7(c)
has been added to clarify which files belonging to other agencies an
IT
applicant has a right to see. This subsection specifies that where other
agencies request that their files remain confidential, these files are
not used as the basis of statements in the initial summary. Where the
rules of an agency permit an individual to see his file (e.g., Selective
Service System), it is open to the applicant and his representative.
This subsection is in response to comments that subsections
201.5(b) and 201. 6(c) were unclear.
FORD
RALD
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SUBSECTION
Hearing before the Board. $101.10(c) provides for a personal
appearance as a matter of right if an applicant can show that an oral
presentation is necessary to the Board's understanding of his case.
Reconsideration: Subsection 101. 12(c) describes the circumstances
IT
in which the Board will reconsider a case. This subsection provides
for reconsideration when new or over-looked circumstances are shown.
Transmittal to Other Agencies of Presidential Decisions
Section 101. 13 provides that grants of unconditional pardon
by the President will be transmitted formally to other government
agencies, as appropriate. Pending completion of the alternative service
requirement, grants of conditional clemency will be communicated to
other federal agencies only to the extent this information is necessary
for the agency to perform its functions under the clemency program or
for other necessary action respecting the applicant. Upon completion
of alternative service, notification of the pardon shall be forwarded to
all appropriate agencies. Denials of clemency by the President will
be held confidential by the Board.
The intent of this section, adopted here in response to comments
by veterans organizations, is that a person who applies for clemency
should not be prejudiced in his pursuit of other remedies through the
military services' discharge review processes or elsewhere. Since the
President's clemency program is an extraordinary remedy, its action
FOR
on a case should not further prejudice a person who has already paid
the penalty under the law for his violation.
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Calculation of Length of Alternative Service
Subsection 102. 5(c) has been added in order to make clear
the Board's decision that the initial baseline period of alternative
service for applicants with Undesirable Discharges will be three (3)
months.
Eligibility of Clemency Recipients for Military Discharge
Review Remedies. The Presidential Clemency Board notes, although
the matter is not one for inclusion in its regulations, that it has received
numerous comments which assume that a recipient of executive clemency
under the President's clemency program is ineligible for consideration
under the military services' discharge review processes.
This is incorrect. Any applicant to the Board for executive
clemency may also seek review of his discharge through one of the
military services' discharge review boards or boards for the correction
of military records. Applying to the Board does not bar a former serviceman
from recourse to the military services' boards nor does it preclude
the remedies which are available from those boards. These remedies
are statutory law and cannot be denied or abridged by Executive Order.
(Executive Order 11803, 39 FR 33297, as amended)
In consideration of the foregoing, this chapter will become
effective immediately.
&
FORS
Issued in Washington, D. C. on February , 1975.
GERALD
Charles E. Goodell
Chairman,
Presidential Clemency Board
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1. Part 201 is deleted, and Part 101 is added to read as follows:
Sec.
101.1
Purpose and Scope.
101.2
General definitions.
101.3 Jurisdiction.
101.4
Remedies.
101.5
Initial Filing.
101.6
Application form.
101.7
Assignment of Action Attorney and Case Number,
and determination of Jurisdiction.
101.8
Initial Summary.
101.9
Final Summary.
101.10 Consideration before the Board.
101.11 Recommendations to the President.
101.12 Reconsideration.
TRANSMITTAL TO OTHER AGENCIES OF CLEMENCY DECISIONS
101.13 Referral to appropriate agencies.
101.14 Confidentiality of Communications.
101.15 Representation before the Board.
101.16 Requests for Information about the Elemency Program.
BOACS CONSURERATION AND OF THE START
101.17 Postponement of Alternative Service.
&
FOND
.
CERALD
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EXECUTIVE ORDER
Authority: BOn 11803, 39 FR 33297, as amended.
Section 101. 1 Purpose and Scope.
SECTION
This part contains the regulations governing the procedures
of the Presidential Clemency Board. Certain other matters are also
treated, such as the assistance to be given to individuals requesting
determinations of jurisdiction, or requesting information respecting
those parts of the Presidential Clemency Program which are administered
by the Department of Defense and the Department of Justice under
Presidential Proclamation 4313 (39 FR 33293).
Section 101.2 General Definitions.
"Action attorney" means an attorney on the staff of the Board
who is assigned an applicant's case.
"Applicant" means an individual who invokes the jurisdiction
of the Board, and who has submitted an initial filing.
"Board" means the Presidential Clemency Board as created by
OR
Executive Order 11803m any duly authorized panel of that Board, or any
successor agencies.
Section 101. 3 Jurisdiction.
Jurisdiction will lie with the Board with respect to a particular
person if such person applies to the Board not later than March 1, 1975
and:
FORD
CERALD
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(a) He has been convicted for failure under the Military
Selective Service Act (50 App. U.S.C. 462) or any rule or regulation
promulgated thereunder to register or register on time, to keep the
local board informed of his current address, to report for or submit
to preinduction or induction examination, to report for or submit to
atternative
induction itself, or to report for or submit to, or complete ^ service
under Section 6(j) of the Act during the period from August 4, 1964 to
March 28, 1973, inclusive; or
(b) He has received a punitive or undesirable discharge as a
consequence of offenses under Article 85 (desertion), 86 (AWOL), or
87 (missing movement) of the Uniform Code of Military Justice
(10 U.S.C. §885, 886, 887) or offenses directly related thereto that
occurred between August 4, 1964 and March 28, 1973, inclusive, or
is serving a sentence of confinement for such violation.
(c) Jurisdiction will not lie with respect to an individual pre-
cluded from re-entering the United States under 8 U.S.C. 1182(a)
(22) or other law.
Section 101.4 Remedies
(a) The Presidential Clemency Board is empowered only to
make recommendations to the President on clemency applications.
The Board has no final authority of its own. The Board may recommend
to the President that he:
R.FORD
/
GERALD
- 9 -
(i) grant an unconditional pardon;
an
unconditional
(ii) grant A pardon conditioned upon the satisfactory
completion of a specified period of alternative service
not to exceed 24 months;
(iii) grant a clemency discharge in substitution for a
punitive or Undesirable Discharge;
(iv) commute the sentence; or
(v) deny clemency.
(b) In unusual circumstances, and in order to give full effect
to the intent and purposes of the President's clemency program, the
Board may make such other recommendations as justice requires
which are not specifically precluded by the terms of its authority.
&
FORD
Section 101. 5 Initial Filing
CERALD
(a) In order to comply with the requirements of Executive
Order 11803, as amended, an individual must make an initial filing
to the Board not later than March 1, 1975. The Board will consider
sufficient as an initial filing any written communication postmarked
not later than March 1, 1975 and received by the Board, the Department
of Justice, the Department of Defense, the Department of Transportation,
the Selective Service System, or other appropriate federal agency.
In the communication an individual or his representative must request
consideration of the individual's specific case or demonstrate an intention
to apply. A prospective applicant must, however, submit his application
promptly thereafter. Oral applications made not later than March 1, 1975
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will be considered sufficient if reduced to writing, received by the
Board, and postmarked not later than March 31, 1975.
&
FORD
RALD
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(b) If an application is made by a representation, the case will
not be considered by the Board unless and until the applicant submits
a written confirmation of his clemency application. This confirmation
may be sent either directly or through a representative, but must be
sent within a reasonable amount of time. A statement by an attorney
that he is acting on behalf of an applicant is sufficient.
Section 101.6 Application form.
(a) Upon receipt of an initial filing, a member of the Board's
staff will make a determination of probable jurisdiction. Persons who
are clearly beyond the Board's jurisdiction will be so notified in writing.
A person who questions this determination should promptly write the
General Counsel, Presidential Clemency Board, The White House,
Washington, D. C. 20500, stating his reasons for questioning the
determination. The General Counsel of the Board shall make the
final determination of probable jurisdiction and shall so notify the
applicant or his representative in writing stating the reasons why. In
doubtful cases, a final determination of jurisdiction will be made by
if
FORD
the Board.
CRALD
(b) A person who has been notified that jurisdiction does not
lie in his case will be considered as having made a timely filing should
the final determination be that the Board has jurisdiction over his case.
(c) A person who is within the jurisdiction of the Board will
be sent an application form, information about the Presidential clemency
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program, instructions for the preparation of the application form,
a statement describing the Board's procedures and method of determining
cases, and a list of available sources of volunteer counseling services.
(d) The person will be urged to return the completed application
form to the Board as soon as possible. In the absence of extenuating
circumstances, completed application forms should be postmarked within
a reasonable period after their receipt by applicant.
(e) An applicant who does not wish to file his own application
may have his representative do so on his behalf provided that he complies
with subsection 101.5.
Section 101.7 Assignment of Action Attorney, Case Number, and
Determination of Jurisdiction.
(a) Upon receipt by the Board of the completed application form
or of information sufficient for the Board to request the records and files
SECTION
specified in subparagraph (b) of this section, the applicant's case will be
reviewed for preliminary determination of the Board's jurisdiction. If
it appears that the Board has jurisdiction over the case, a file will be
opened and a case number will be assigned. The Board will then request
from all appropriate government agencies the relevant records and files
FOR
pertaining to the applicant's case.
(b) In normal circumstances, the relevant records and files for
civilian cases will be the applicant's files from the Selective Service System
and the Bureau of Prisons. For military cases, it will include the applicant's
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military personnel records, military clemency folder, and record of
court martial, if any. Applicants have the right to request that the
Board consider other pertinent files, and the Board will attempt to
comply with the request.
(c) Information collected directly by the Board shall be, as a
matter of right, freely available for his examination at the offices of
the Board. All material obtained from other agencies will be available
to the extent not barred by the rules of the agency owning the file. The
reason for denial of access to any file must be stated in writing upon
demand. Files not available to an applicant are not used as the basis
of statements in the initial summary.
(d) Where the initial filing contains adequate information, the
Board staff may assign a case number and request records and files
prior to receipt of the completed application form.
(e) If the Action Attorney determines that jurisdiction does
not exist, he will promptly notify the applicant in writing, stating
the reasons why.
(f) An applicant who questions this adverse determination of
jurisdiction should write the General Counsel of the Board in accordance
with the provisions of SED 101. 6(a).
FO
/
&
GERALD
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Section 101.8 Initial Summary.
(a) Upon receipt of the necessary records and files, the
Action Attorney will prepare an initial summary of the applicant's case.
The files, records, and any additional sources used in preparing the
initial summary will be listed. No other material will be used. The
initial summary shall include the name and business telephone number
of the Action Attorney who may be contacted by the applicant or his
representative.
(b) The initial summary shall be sent by certified mail to
the applicant or his representative. The summary will be accompanied
by an instruction sheet describing the method by which the summary was
prepared, and by a copy of the guidelines that have been adopted by the
Board for the determination of cases. Applicants will be encouraged
to review the initial summary for accuracy and completeness and
advised of their right to submit additional sworn or unsworn material.
Additional material may be submitted in any length. Nothing over three
(3) single-spaced, typewritten, letter-sized pages in length will be read
verbatim to the Board. Where necessary, thus, an applicant should
summarize his additional material to comply with this verbatim
FORD
presentation requirement. If this is not done, the Action Attorney
shall do it.
GERALD R.
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(c) At any time before Board consideration of his case,
an applicant may submit evidence of inaccurate, incomplete, or
misleading information in the complete Board file or other files.
This information shall be incorporated in applicant's Board file.
(d) An applicant's case will be ready for final consideration
by the Board not sooner than thirty (30) days after the initial summary
has been received by the applicant. Receipt by the applicant shall be
attested to by a certified mail receipt returned to the Board by the
Postal Service or by a reasonable determination of receipt made by
Board staff. Material which amends or supplements the applicant's
initial summary must be postmarked within thirty (30) days of receipt
to ensure that it will be considered. An applicant's request that this
thirty (30) day period be extended shall be liberally granted by the Action
Attorney, if the request is received prior to Board action.
&
FORD
Section 101.9 Final Summary.
GERALD
(a) Upon receipt of the applicant's response to the initial
summary, the Action Attorney will note all such amendments, supple- -
ments, or corrections on the initial summary submitted by the applicant
or his representative. All such amendments must be attached to the
initial summary with notation by the Action Attorney of any discrepancies
of fact which in his opinion remain unresolved.
(b) The final summary shall then consist of the initial summary
as amended and the summary of the materials submitted by the applicants /
as described in $101.8(b).
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Section 101. 10 Consideration Before the Board
(a) At a regularly scheduled meeting of the Board, a quorum
being present, the Board will consider the applicant's case. A quorum
shall consist of a majority of the Board. However, the Board may
provide by role that cases will be considered by panels of three or more
members.
(b) The Action Attorney will present to the Board a brief
statement of the final summary of the applicant's case together with THE
material, submitted by the applicant for presentation to the Board. The
Action Attorney shall then stand ready to answer from the Board files
any questions from the members of the Board concerning the applicant's
case.
ANY
(c) Each applicant wishing to make an oral presentation must
provide the Board with a written statement giving the reasons why he
&
FORD
thinks a personal appearance is particularly appropriate to an under
GERALD
standing of his case. The Board will consider each request for an
oral presentation at a regular meeting and shall inform the applicant
AN APPLICANT SHALL BE PERMITTED AN ORAL
whether or not his request has been granted. PRESENTATION As A MATTER OF RIGHT IF HE
CAN SHOW THAT IT IS NECESSARY TO THE BOARD'S UNDERSTANDING of HIS CASE,
(d) Any oral presentation granted by the Board shall not exceed
ten (10) minutes. Neither applicant nor his representative may be present
when the Board begins deliberations but should remain available for
further consultation immediately thereafter for a period not to exceed
one hour.
- 16 17 -
UPON
(e) After due deliberation the Board will decide its
recommendations to the President listing the factors it considered in
making its recommendation. A list of these factors will be forwarded
to the applicant together with the President's decision.
(f) If the Board believes it requires more information before
making its recommendation, it will table the case and return the file
to the Action Attorney with directions to conduct further investigation.
Section 101. 11 Recommendations to the President
(a) At appropriate intervals, the Chairman of the Board will
submit to the President certain master warrants listing the names of
applicants recommended for executive clemency, and a list of the names
of applicants considered by the Board but not recommended for clemency.
The Chairman will also submit such terms and conditions for executive
clemency, if any, that have been recommended in each case by the Board.
(b) Following action by the President, the Board will send
notice of such action in writing to all persons whose names were submitted
to the President. Persons not receiving executive clemency will also
be so notified. All persons will be sent the list of factors deemed present
and pertinent by the Board in making its recommendation.
FORD
i
- 18 -
Section 101. 12 Reconsideration
(a) An applicant may ask the Board for reconsideration of his
case. Petitions for reconsideration, including any supplementary
material must be postmarked within thirty (30) days of the receipt of
the notification in $101. 11 (b) .
(b) At a regularly scheduled Board meeting, a quorum being
present, the Board will reconsider the applicant's case if the
applicant's petition shows:
(1) new facts, material to the disposition of his case,
which the Board had not previously considered, provided
that the applicant explains to the Board's satisfaction why
such facts were not submitted earlier. New facts shall, for
purposes of this section, be considered material only if they
relate to presence or absence of an aggravating circumstance
under $102.3 or of a mitigating circumstance under $102.4, or
to calculation of length of alternate service under $102.5; or
(2) factual error, in the final summary or other
document considered by the Board that was material to the
Board's disposition of his case and detrimental to him.
FORD
BALO
- 19 -
Procedural error that was material to the
Board's disposition of his case and detrimental to him.
(c) The Board may in its discretion permit an applicant or
his representative to present before the Board an oral statement not
to exceed ten (10) minutes in length. The provisions of $101.1 10 apply
to any request for a personal appearance.
(d) After due deliberation, the Board may:
(1) Leave unchanged its original recommendation;
(2) As to any person granted executive clemency,
recommend to the President that he diminish the length
of alternative service on which the grant of clemency has
been conditioned, or immediately grant a full and uncondi-
tional pardon;
(3) As to any person not granted executive clemency,
recommend to the President that he grant executive clemency
in accordance with such terms and conditions as may be
appropriate.
R. FORD
- 20 -
(e) Applicants requesting reconsideration will be so notified
in writing of the Board's decision, together with the reasons.
Section 101. 13 Transmittal to Other Agencies of Clemency Decisions.
(a) The Chairman of the Board shall forward for further
action to the Secretaries of the Army, Navy, and Air Force, the
Secretary of Transportation, the Director of the Selective Service
System, and the Attorney General, as appropriate, only such information
about the President's decision as is necessary for the agency to perform
its functions under the President's clemency program, or for other
necessary action respecting the applicant.
&
FORD
GERALD
20
(d) Decisions by the Pre sident to deny executive clemency
to a person who has fully discharged his obligations under the law
for his offense shall not be transmitted by the Board to any other agency
of the United States Government or to any other person, public or private,
except the applicant or his representative.
Section 101. 14 Confidentiality of Communications
(a) In order to have his case considered by the Board, an applicant
need submit only information sufficient for a determination of jurisdiction,
and for the retrieval of necessary official records and files. The application
form will require the applicant's name, date of birth, selective service
branch mly
number, military service and service number, if applicable, information
concerning the draft evasion offense or absence-related military offense,
and the disposition thereof, and the mailing address and telephone number
of either the applicant or his representative.
(b) The Board has determined that it will take all steps possible
to protect the privacy of applicants and potential applicants to the
Presidential clemency program. No personal information concerning
an applicant or potential applicant and related to the Presidential clemency
program will be made known to any agency, organization, or individual,
whether public or private, unless disclosure is necessary for the normal
and proper functioning of the Presidential Clemency Board or unless
required by court order or otherwise required under law. However
information which reveals that there has been commission of a serious
- $1 -
offense previously unknown (other than an offense subject to the
Presidential clemency program) will be forwarded to the appropriate
authorities.
(c) All personal information obtained by the Board in the
course of reviewing an applicant's case, except information obtained
FROM
THIS SHALL HAPPEN
for other agencies, will be sealed by the Board when the applicant has
received his pardon from the President or when the Board's operations
terminate by law.
(d) The Board shall publish anonymous case summaries of all
recommendations to the President, upon final action by the President.
Section 101. 15 Representation Before the Board
(a) Although an applicant may bring his case before the Board
without a representative, each applicant will be advised of his right
to representation and will be encouraged to seek counsel experienced
in military or selective service law. A representative need not be an
attorney, although legal counsel is recommended to applicants. The
Board staff will advise applicants of those private sources which are
i
FORD
available to provide counseling.
RALD
Section 101. 16 Requests for Information About the Clemency Program
(a) Upon receipt by the Board of a request for information the
FOR
Board's staff shall attempt to determine the individual's eligibility in any
part of the Presidential clemency program. In doing so, the Board attorney
will preserve the confidentiality of the individual if requested to do so.
-
-
(b) A member of the Board's staff shall also inform any
FROM
individual of other remedies available tohim, including those at the
Departments of Justice and Defense
Section 101. 17 Postponement of Board Consideration and of the start
of Alternative Service.
(a) An applicant may request that the Board defer consideration
PURSUIT
OTHER
of his case for a reasonable time to permit the pursuance of alternate
remedies. Such deferments will be liberally granted provided that they
do not result in an undue disruption of the Board's operations.
(b) An applicant who has been granted executive clemency
conditioned upon a period of alternative service may ask for the post-
ponement of the beginning of his period of alternative service. because
of current enrollment in school, certain employment contracts, and the
like. TheBoard will make every effort, consistent with its own authority
and that of the Selective Service System, to make reasonable accommodations
to such requests.
i
FORD
GERALD
14
-
Part 202 is deleted, and Part 102 is added to read as follows:
SECTION
102. 1
Purpose and Scope.
102. 2
Board Recommendations.
102. 3
Aggravating Circumstances.
102. 4
Mitigating Éircumstances.
102. 5
Calculation of Length of Alternative Service.
EXECUTIVE OFFER
AUTHORITY: E.O. 11803. 39 FR 33297, as amended.
Section 102.1 Purpose and Scope.
SECTION
This part contains the standards which the Board will employ
in deciding whether or not to recommend that the President grant
executive clemency and whether or not clemency should be conditioned
upon a period of alternative service.
Section 102. 2 Board Recommendationspn Executive Clemency
In each case the Board will first decide whether or not it will
recommend to the President that the applicant be granted executive
clemency. In reaching that decision, the Board will consider the
aggravating circumstances listed in Section 102. 3 and the mitigating
FORD
circumstances listed in Section 102.4.
GERALD
Section 102. 3 Aggravating Circumstances
(a) Presence of any of the aggravating circumstances listed
below may either disqualify an individual for executive clemency or
25
- 24 -
may be considered by the Board as cause for recommending to the
President a period of alternative service exceeding the applicant's
"baseline period of alternative service, " as determined under Section
102. 5.
(b) Aggravating circumstances of which the Board will take
ARE:
notice include and are limited to
(1) Prior criminal convictions
(2) False statement to the Presidential Clemency Board
by applicant;
(3) Use of force by applicant collaterally to AWOL, desertion,
or missing movement;
(4) Desertion during combat;
(5) Evidence that applicant committed offense for
obviously manipulative and selfish reasons;
(6) Prior refusal to fulfill alternative service;
(7) Violation of probation or parole;
(8) Multiple AWOL/UA offenses; AND
(9) Length of AWOL/UA.
(c) Whenever an additional aggravating circumstance not listed
is considered by the Board in the discussion of a particular case, and
is material to the disposition of that case, the Board shall postpone final
decision of the case so that the applicant may submit evidence material
to the additional circumstance.
FORD
i
BERALD
-
-
Section 102. 4 Mitigating circumstances
(a) Presence of any of the mitigating circumstances listed below
or of any other appropriate mitigating circumstance will be considered
as cause for recommending that the President grant executive clemency
to an applicant, and as cause for reducing the applicant's baseline period
of alternative service, as determined under Section 102. 5.
(b) Mitigating circumstances of which the Board will take
notice are:
1. Lack of sufficient education or ability to understand
obligations under the law;
2. Personal and family circumstances either at the time
of offense or afterwards;
3. Mental or physical condition;
4. Employment and other activities of service to the public;
5. Service-connected disability, wounds in combat or
special decorations and commendations;
6. Period of creditable military service;
7. Tours of service in the war zone;
8. Substantial evidence of personal or procedural unfairness;
9. Denial of conscientious objector status on procedural,
technical or improper grounds;
&
FOR
10. Evidence that an applicant acted for conscientious,
not for manipulative or selfish reasons;
GERALD
11. Voluntarily submitted himself to authorities
12. Behavior which reflects mental stress caused by combat;
13. Volunteering for combat, or extension of service while in combat;
- -
14. Above average military conduct and proficiency; AND
15. Personal decorations for valor.
(c) An applicant may bring to the Board's attention any other
factor which he believes should be considered.
Section 102. 5 Calculation of Length of Alternative Service.
(a) Having reached a decision to recommend that the President
grant executive clemency to a particular applicant, the Board will then
ORNUT
decide whether clemency should be conditioned upon a specified period
of alternative service and, if so, what length that period should be:
(1) The starting point for calculation of length of alternative
service will be 24 months.
(2) The starting point will be reduced by three times the
amount of prison time served.
(3) The starting point will be further reduced by the amount
THE
of prior alternative service performed, provided that $ prescribed period
of alternative service has been satisfactorily completed.
(4) The starting point will be further reduced by the amount
THE
of time served on probation or parole, provided that a prescribed period
FORD
has been satisfactorily completed.
GTV87
(5) The baseline period of alternative service will be the
remainder of these four subtractions or the judge's sentence to imprisonment,
whichever is less.
28
- 27 -
(b) In no case will the baseline period of alternate service
(3)
be less than three months.
(c) For applicants who have received an Undesirable Discharge
from a military service, the baseline period of alternate service shall
be three (3) months.
(d) The Board may consider mitigating circumstances as cause
for recommending clemency conditioned upon a period of alternative
service less than an applicant's baseline period of alternative service,
or for recommending unconditional clemency.
(e) In cases in which aggravating circumstances are present
and are not, in the Board's judgment, balanced by mitigating circumstances,
the Board may consider such aggravating circumstances as cause for
recommending clemency conditioned upon a period of alternative service
exceeding, either by three (3), six (6), or nine (9) additional months, the
applicant's baseline period of alternative service. In extraordinary cases,
as an alternative to denying clemency, the Board may increase the
baseline period to a maximum of not more than 24 months.
&
FORD
BRALD
rules and regulations
This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect most of which are
keyed to and cedified in the Code of Federal Regulations, which is published under 50 titles purseant to 44 U.S.C. 1520.
The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL
REGISTER issue of each month.
Title 2-Clemency
Remedies. Section 101.4 has been
as specified in $5 102.3 and 102.4, the
CHAPTER I--PRESIDENTIAL
added to explain the remedies available
case is tabled. The action attorney is in-
CLEMENCY BOARD
from the Presidential Clemency Board.
structed to obtain additional facts.
It states the authority with which the
This is in response to comments from
ADMINISTRATIVE PROCEDURES AND
Board is vested by Executive Order
the private bar.
SUBSTANTIVE STANDARDS
11803, issued pursuant to Preclamation
Hearing before the Board. Subsection
The Presidential Clemency Board pub-
4313.
101.9(c) provides for a personal appear-
lished its proposed administrative pro-
A Presidential pardon restores those
ance as a matter of right if an applicant
cedures and substantive standards on
federal civil rights lost as a result of a
can show that an oral presentation is
November 27, 1974 (39 FR 41351). Since
felony conviction. State law recognizes
necessary to the Board's understanding
that time, the Board has considered the
Presidential pardons as a matter of com-
of a mitigating circumstance or an ag-
first military cases before #, and has had
Hy, usually restoring the right to vote
gravating circumstance which applies to
the benefit of more than 40 comments on
in federal and state elections, to hold
his case. The Board has provided a right
its proposed regulations. With the benefit
public office, and to obtain licenses for
to personal appearance in response to
of this additional experience and these
trades and professions from which con-
several comments.
comments, the Board publishes the final
victed felons are barred under state law.
Reconsideration. Subsection 101.11(b)
regulations setting out its procedures
Since conviction by military court-
has been amended in order to add stand-
and standards.
martial is treated as a felony conviction
ards which must be met if the Board is
It is the intent of the Board to provide
by many states, and since an Undesir-
to consider an applicant's petition for
notice to the public of the standards it
able Discharge may have the same con-
reconsideration. In the proposed regu-
uses to make recommendations to the
sequences as a court-martial conviction,
lations, consideration of such petition by
President concerning individual applica-
the benefits of a pardon apply to former
the Board was & matter of discretion.
tions for clemency. The Board also
servicemen as well as to civilian draft
This amendment limits the circum-
wishes to ensure equity and consistency
evaders.
stances under which reconsideration
for applicants under the President's
A Clemency Discharge neither en-
will be granted, but provides that when
clemency program.
titles its recipient to veterans benefits
an applicant shows that any of those
Because it is a temporary organiza-
nor bars his receiving those benefits to
circumstances are present, reconsidera-
tion within the White House Office, the
which he is otherwise entitled. The Vet-
tion will be granted as a matter of right.
sole function of which is to advise the
erans Administration and other agencies
Transmittal to other agencies of Presi-
President with respect to the exercise of
may extend veterans' benefits to some
dential decisions. Section 101.12 provides
his constitutional power of executive
holders of a Clemency Discharge, but it
that grants of immediate parden by the
clemency, the Board does not consider 1t-
is contemplated that most will not re-
President are transmitted formally to
self formally bound by the Administra-
ceive veterans benefits.
other government agencies, as appropri-
tive Procedure Act. Nonetheless, within
Availability of files to applicant and
ate. Pending completion of the alterna-
the time and resource constraints gov-
his representative. Section 101.7(c) clari-
tive service requirement, grants of con-
erning it, the Board wishes to adhere as
fies which files an applicant and his
ditional clemency are communicated to
closely as possible to the principles of
representative have a right to see. At
another federal agency only to the extent
procedural due process. The administra-
the offices of the Board, information col-
this information is necessary for the
tive procedures established in these reg-
lected by the Board independently of
agency to perform its functions under
ulations reflect this decision.
any other government agency is readily
the clemency program or for other nec-
The Board may publish changes in in-
available to an applicant or his repre-
essary action respecting the applicant.
dividual sections as it deems necessary.
sentative. All files obtained from other
Upon completion of alternative service,
The Board welcomes continuing com-
agencies are available to the extent not
notification of the pardon is forwarded
ment on problems which may arise in the
barred by the rules of the agency own-
to all appropriate agencies. Denials of
application of particular sections of
ing the file. For example, the Selective
clemency by the President are held con-
these procedures and invites recommen-
Service System file is available to him
fidential by the Board.
dations on how best these problems may
and his representative. Files from an-
The intent of this section, adopted here
be resolved.
other agency are cited in a summary
in response to several comments is that
Several dozen technical changes have
when they are used as the basis of state-
a person who applies for clemency should
ments in that summary. Reason for
not be prejudiced in his pursuit of other
been made in these regulations in re-
denial of access to any of these files is
remedies through the military services'
sponse to new circumstances that were
presented to the Board. Some clarify sig-
stated in writing upon request.
discharge review processes or elsewhere.
Other remedies available to applicant.
nificantly the rights and procedures
This subsection is in response to com-
Section 101.15(b) requires that Board
available to applicants. The following is
ments that §§ 201.5(b) and 201.6(c),
staff inform both applicants to the Board
an explanation of those changes which
read together, were either unclear or
and persons who inquire about the
seem to the Board to be most significant:
overbroad.
clemency program, but are clearly not
Jurisdiction. Section 101.3 has been
Completed case summary. The com-
under the Board's jurisdiction, of the
added in order to incorporate the criteria
pleted case summary consists of the
remedies available to them under mili-
for determining whether or not a person
initial case summary, amendments as
tary discharge review processes and
is eligible for consideration by the Presi-
described in the §§ 101.8 (c) and (e),
through the judiciary. Applicants to the
dential Clemency Board. It restates the
and the materials submitted by the ap-
Board or to one of the other agencies
criteria established in Proclamation 4313
plicant and his representative as de-
administering part of the elemency pro-
(Announcing a Program for the Return
scribed in § 101.8(b). Where, in the
gram may pursue such other remedies
of Vietnam Era Draft Evaders and Mili-
opinion of the Board, there is a conflict
simultaneously or subsequently to, or
tary Deserters) and repeated in Execu-
of fact, false statement, or omission ma-
stead of their remedies under the clemo
RD
tive Order 11803 (Establishing a Clem-
terial to the Board's consideration of an
ency program. The Board's staff informs
ency Board
aggravating or mitigating circumstance,
them of their other options.
FEDERAL REGISTER, VOL. 40, NO. 56-FRIDAY, MARCH 21, 1975
12764
RULES AND REGULATIONS
Aggravating and mitigating circum-
Sec.
§ 101.4 Remodies.
stances. Sections 102.3 and 102.4 contain
101.7
Assignment of Action Attorney and
new aggravating and mitigating circum-
case number, nddetermination of
(a) The Board is empowered only to
stances which the Board deems material
jurisdiction.
make recommendations to the President
101.8
Initial case summary.
to its decisions.
on clemency applications. The Board has
101.9
Consideration before the Board.
The Board notes that it has seen a
no final authority of its own. The Board
101.10
Recommendations to the President.
number of cases of persons who behaved
may recommend to the President that he
101.11
Reconsideration.
with valor during combat, but then com-
101.12
Transmittal to other agencies of
take one or more of the following actions:
mitted AWOL offenses because of mental
clemency decisions.
(1) Grant an unconditional pardon
stress caused by combat. The Board calls
101.13
Confidentiality of communications.
without a requirement of alternative
attention to this mitigating circum-
101.14
Representation before the Board.
service;
101.15
stance as one which it considers particu-
Requests for information about the
(2) Grant an unconditional pardon
larly important in some cases.
Clemency Program.
upon the satisfactory completion of a
101.16
Postponement of Board considera-
A number of comments from the pri-
specified period of alternative service
tion and of the start of alternative
vate bar have suggested that the Board
not to exceed 24 months;
service.
should add as a mitigating circumstance
Appendix A: Application kit.
(3) Grant a clemency discharge in
"evidence that an applicant would prob-
Appendix B: Proclamation 4313.
substitution for a Dishonorable, Bad
ably have obtained a Selective Service
Appendix C: Executive Order 11803.
Conduct, or Undestrable Discharge;
status or military discharge or reassign-
(4) Commute the sentence; or
AUTHORITY: Executive Order 11803, 39 FR
ment beneficial to him, but failed to ap-
33297, as amended.
(5) Deny clemency.
ply due to lack of knowledge or confu-
(b) In unusual circumstances and as
sion." Mitigating circumstances #1, 8,
§ 101.1 Purpose and scope.
authorized by Executive Order 11803, the
and 9, in conjunction, are adequate to
This part establishes the procedures
Board may make other recommenda-
meet this problem.
of the Presidential Clemency Board.
tions as to the form that clemency should
Calculation of length of alternative
Certain other matters are also treated,
take. This shall only be done in order to
service. Subsection 102.5(c) has been
such as the assistance to be given to in-
give full effect to the intent and purposes
added in order to make clear the Board's
dividuals requesting determinations of
of the Presidential Clemency prográm.
decision that the initial baseline period
jurisdiction, or requesting information
§ 101.5 Initial filing.
of alternative service for applicants with
respecting those parts of the Presidential
Undesirable Discharges is three (3)
Clemency Program which are adminis-
(a) In order to comply with the re-
months.
tered by the Department of Defense and
quirements of Executive Order, 11803, as
Eligibility of clemency recipients for
the Department of Justice under Presi-
amended, an individual must make an
military discharge review remedies. The
dential Proclamation 4313 (39 FR 33293)
initial filing to the Board not later than
Presidential Clemency Board notes, al-
March 31, 1975. The Board considers suf-
though the matter is not one for inclu-
§ 101.2 General definitions.
ficient as an initial filing any written
sion in its regulations, that it has
"Action attorney" means an attorney
communication postmarked not later
received numerous comments which as-
on the staff of the Board who is assigned
than March 31, 1975, and received by
sume that a recipient of executive clem-
an applicant's case.
the Board, the Department of Justice,
ency under the President's clemency
"Applicant" means an individual who
the Department of Defense, the Depart-
program is ineligible for consideration
invokes the jurisdiction of the Board,
ment of Transportation, or the Selective
under the military services' discharge
and who has submitted an initial filing.
Service System. In the communication
review processes.
"Board" means the Presidential
an individual or his representative must
This is incorrect. Any applicant to the
Clemency Board as created by Executive
request consideration of the individual's
Board for executive clemency may also
Order 11803 (39 FR. 33297) or any duly
case or raise questions which evidence
seek review of his discharge through one
authorized panel of that Board.
a serious interest in applying for the
of the military services' discharge re-
program. Oral applications made not
view boards or boards for the correction
§ 101.3 Jurisdiction.
later than March 31, 1975 are considered
of military records. Applying to the
Jurisdiction lies with the Board with
sufficient reduced to writing, and post-
Board does not exclude a former service-
respect to a particular person if such
marked not later than May 31, 1975.
man from the jurisdiction of the military
person applies to the Board not later
(b) If an initial filing is made by a
services' boards, nor does it preclude the
than March 31, 1975 and:
representative, the case is not considered
remedies which are available from those
(a) He has been convicted for failure
by the Board unless and until the appli-
boards.
under the Military Selective Service Act
cant submits a written confirmation of
The Presidential Clemency Board
(50 App. U.S.C. 462) or any rule or regu-
his clemency application. This confirma-
notes that a veteran who receives a
lation promulgated thereunder to register
tion by the applicant may be sent either
Clemency Discharge through the Board
or register on time, to keep the local
directly or through a representative, but
may subsequently seek, according to the
board informed of his current address,
it must be mailed not later than May 31,
Department of Defense, an upgrading of
to report for or submit to preinduction or
1975. A statement by an attorney that he
that discharge through the military serv-
induction examination, to report for or
is acting on behalf of an applicant is suf-
ices' normal discharge review processes.
submit to induction itself, or to report for
ficient. Applications by a representative
This chapter will become effective
or submit to, or complete (alternative)
on behalf of an applicant may be con-
service under section 6(j) of the Act for
sidered by the Board where good cause is
immediately.
offenses committed during the period
shown why the applicant is unable to
Issued in Washington, D.C. on March
from August 4, 1964 to March 28, 1973,
apply.
18, 1975.
inclusive; or
§ 101.6 Application form.
CHARLES E. GOODELL,
(b) He has received a punitive or
(a) Upon receipt of an initial filing, a
Chairman, Presidential Clem-
undesirable discharge as a consequence
member of the Board's staff makes a de-
ency Board, The White House.
of offenses under Article 85 (desertion),
termination of probable jurisdiction.
1. Part 101 is added to read as follows:
86 (AWOL), or 87 (missing movement)
Persons who are clearly beyond the
of the Uniform Code of Military Justice
PART 101-ADMINISTRATIVE
Board's jurisdiction are so notified in
(10 U.S.C. 885, 886, 887) that occurred
PROCEDURES
writing. A person who questions this de-
between August 4, 1964 and March 28,
termination should promptly write the
Sec.
1973, inclusive, or is serving a sentence of
General Counsel, Presidential Clemency
101.1
Purpose and scope.
confinement for such violation.
101.2
General definitions.
Board, The White House, Washington,
101.3
Jurisdiction.
(c) Jurisdiction will not lie with re-
D.C. 20500, stating his reasons for ques-
101.4
Remedies.
spect to an individual precluded from
tioning the determination. The General
101.5
Initial filing.
re-entering the United States under 8
Counsel of the Board makes the final de-
101.6
Application form.
U.S.C. 1182(a) (22) or other law.
termination of probable jurisdiction and
FEDERAL REGISTER, VOL. 40, NO. 56-FRIDAY, MARCH 21, 1975
RULES AND REGULATIONS
12765
so notifies the applicant or his repre-
tion in a particular case, he promptly
(f) Where, in the opinion of the Board,
sentative in writing stating the reasons
notifies the applicant or his representa-
there is a conflict of fact, false state-
why. In doubtful cases, a final determi-
tive in writing, stating the reasons for
ment, or omission material to the Board's
nation of jurisdiction is made by the
such a determination.
consideration of an aggravating or miti-
Board.
(f) An applicant or his representative
gating circumstance, as specified in
(b) A person who has been notified
who questions this adverse determination
§§ 102.3 and 102.4, the case is tabled. The
that jurisdiction does not lie in his case
of jurisdiction should write the General
Action Attorney is then instructed to ob-
is considered as having made a timely
Counsel of the Board in accordance with
tain additional facts.
filing if the final determination is that
the provisions of $ 101.6(a).
§ 101.9 Consideration before the Board.
the Board has jurisdiction over his case.
§ 101.8 Initial case summary.
(c) A person who is within the juris-
(a) At a regularly scheduled meeting
diction of the Board is sent an applica-
(a) Upon receipt of the necessary rec-
of the Board, an applicant's case is con-
tion form, information about the Presi-
ords and files, the Action Attorney pre-
sidered. The Board may provide by rule,
dential clemency program, instructions
pares an initial case summary of the ap-
however, that cases will be initially con-
for the preparation of the application
plicant's case. The files, records, and any
sidered by panels of not less than three
form, a statement describing the Board's
additional sources used in preparing the
Board members. Any case may be
procedures and method of determining
initial case summary are listed. No other
brought before a majority of the full
cases, and a list of volunteer counseling
material is used. The initial case sum-
Board for consideration at the request
services.
mary includes the name and business
of a panel member. Panel recommenda-
(d) The person is urged to return the
telephone number of the Action Attorney
tions will be considered and approved by
completed application form to the Board
who may be contacted by the applicant
a majority of the full Board.
as soon as possible. Completed applica-
or his representative.
(b) The Action Attorney presents to
tion forms must be postmarked within
(b) The initial case summary is sent
the Board a brief statement of the com-
sixty (60) days of the time they were
by certified mail to the applicant or his
pleted case summary and, as provided
mailed by the Board, in order to qualify
representative. The summary is accom-
in § 101.8(b), the material submitted by
for the Board's consideration as a matter
panied by an instruction sheet describing
the applicant.
of right.
the method by which the summary was
(c) The Board grants a personal ap-
prepared and by a copy of the guidelines
§ 101.7 Assignment of Action Attorney,
pearance to an applicant and his rep-
used by the Board for the determination
case number, and determination of
resentative if they can show in a written
of cases. Applicants are encouraged to
jurisdiction.
statement that such an appearance is
review the initial case summary for ac-
necessary to the Board's understanding
(a) Upon receipt by the Board of the
curacy and completeness and advised of
of the applicant's case. The Board con-
completed application form or of infor-
their right to submit additional sworn
siders each request for an oral presen-
mation sufficient for the Board to re-
or unsworn material. Additional material
tation at a regular meeting and informs
quest the records and files specified in
may be submitted in any length. Nothing
the applicant and his representative
paragraph (b) of this section, the ap-
over three (3) single-spaced, typewritten,
whether or not his request has been
plicant's case is reviewed for preliminary
letter-sized pages in length is read ver-
granted.
determination of the Board's jurisdic-
batim to the Board. Where necessary,
(d) Any oral presentation granted by
tion. If it appears that the Board has
therefore, an applicant should summa-
the Board shall not exceed a reasonable
jurisdiction over the case, a file is opened
rize his additional material to comply
period of time. Neither applicant nor his
and a case number assigned. The Board
with this verbatim presentation require-
representative may be present when the
will then request from all appropriate
ment. If this is not done, the Action
Board begins deliberations, but should
government agencies the relevant rec-
Attorney does SO.
remain available for further consulta-
ords and files pertaining to the appli-
(c) At any time before consid-
tion immediately thereafter.
cant's case.
eration of his case, an applicant may sub-
(e) After due deliberation the Board
(b) In normal circumstances, the rel-
mit evidence of inaccurate, incomplete,
decides upon its recommendation to the
evant records and files for civilian cases
or misleading information in the com-
President listing the factors it considered
are the applicant's files from the Bu-
plete Board file or other files. This in-
in making its recommendation.
reau of Prisons and information that he
formation is incorporated in applicant's
to the Board. For military cases,
Board file.
§ 101.10 Recommendations to the Pres-
they will include the applicant's military
(d) An applicant's case is ready for
ident.
personnel records, military clemency
final consideration by the Board not
(a) At appropriate intervals, the
folder, record of court martial, if any,
sooner than thirty (30) days after the
Chairman of the Board submits to the
and information that the applicant has
initial case summary is mailed to the
President certain master warrants list-
sent to the Board. Applicants and their
applicant. Material which amends or sup-
ing the names of applicants recom-
representatives have the right to request
plements the applicant's initial case sum-
mended for executive clemency and a
that the Board consider other pertinent
mary must be postmarked within this
list of the names of applicants consid-
files. The Board will attempt to comply
thirty (30) day period to ensure that it
ered by the Board but not recommended
with these requests.
is considered. An applicant's request that
for clemency. The Chairman will also
(c) At the offices of the Board, infor-
this thirty (30) day period be extended
submit such terms and conditions for
mation collected by the Board inde-
is liberally granted by the Action Attor-
executive clemency, if any, that have
pendently of any other agency is readily
ney, if the request is received prior to
been recommended in each case by the
available to an applicant or his repre-
Board action and is reasonable.
Board.
sentative. All files obtained from other
(e) Upon receipt of the applicant's re-
(b) Following action by the President,
agencies are available to the extent not
sponse to the initial summary, the Action
the Board sends notice of such action
barred by the rules of the agency owning
Attorney notes all such amendments, sup-
in writing to all applicants whose
the file. Files from another agency are
plements, or corrections on the initial
names were submitted to the President.
cited in a summary when they are used
summary submitted by the applicant or
Each applicant is sent a list of the miti-
as the basis of statements in that sum-
his representative. All such amendments
gating and aggravating circumstances
mary. Reason for denial of access to any
are attached to the initial case summary
decided by the Board to be applicable
of these files is stated in writing upon
with notation by the Action Attorney of
in his case.
request.
any discrepancies of fact which in his
(d) Where the initial filing contains
opinion remain unresolved. The complete
§ 101.11 Reconsideration.
adequate information, the Board staff
case summary consists of the initial sum-
(a) An applicant may ask the Board
may assign a case number and request
mary, amendments as described in para-
for reconsideration of his case. Petitions
records and files prior to receipt of the
graph (c) and this section, and the ma-
for reconsideration, including any sup-
completed application form.
terials submitted by the applicant and
plementary material, must be post-
(e) If the Action Attorney determines
his representative as described in para-
marked within thirty (30) days of Board
that the Board does not have jurisidic-
graph (b) of this section.
mailing specified in $ 101.10(b).
FEDERAL REGISTER, VOL. 40, NO. 56-FRIDAY, MARCH 21, 1975
12766
RULES AND REGULATIONS
(b) At a regularly scheduled Board
submit only information sufficient for a
$ 101.16 Postpinement
meeting, a majority of the Board being
determination of jurisdiction and for the
sideration and of the start of
present, tt will reconsider the applicant's
retrieval of necessary official records and
native service.
case if the applicant's petition shows one
files. The application form requires the
(a) An applicant may request that
or more of the following:
applicant's name, date of birth, selective
the Board defer consideration of his case
(1) New fact, material to the disposi-
service number, military branch and
for a reasonable period of time. Such de-
tion of his case, which the Board had
service number, if applicable, informa-
ferments are liberally granted provided
not previously considered, provided that
tion concerning the draft evasion offense
that they do not result in an undue dis-
the applicant explains to the Board's
or absence-related military offense, and
ruption of the Board's operations or de-
satisfaction why such facts were not sub-
the disposition thereof, and the mailing
lay the final termination of the Board's
mitted earlier. New facts are, for purposes
address and telephone number of either
operations.
of this section, considered material only
the applicant or his representative.
(b) An applicant who has been granted
if they relate to presence or absence of
(b) The Board takes all steps in its
executive clemency conditioned upon a
an aggravating circumstance under
power to protect the privacy of ap-
period of alternative service may ask
$ 102.3 or of a mitigating circumstance
plicants and potential applicants to the
for the postponement of the beginning
under $ 102.4, or to calculation of length
Presidential clemency program. No per-
of his period of alternative service for a
of alternative service under $ 102.5.
sonal information concerning an ap-
reasonable period of time. The reasons
(2) Factual error, in the complete case
plicant or potential applicant is released
for which a postponement may be grant-
summary or other document considered
by the Board unless disclosure is neces-
ed include personal hardship and con-
by the Board that was material to the
sary for the proper functioning of the
flicting obligations. The Board makes
Board's disposition of his case and detri-
Board (e.g., to the Selective Service Sys-
every effort, consistent with its own au-
mental to him; or
tem so that alternative service may be
thority and that of the Selective Service
(3) Procedural error that was material
performed) or unless required by law.
System to accommodate postponement
to the Board disposition of his case and
(1) Information which reveals com-
requests.
detrimental to him.
mission of a serious crime, unrelated to
2. Part 102 is added to read as follows:
(c) The Board may at its discretion
any offense subject to the jurisdiction of
permit an applicant or his representative
the Presidential clemency program is
PART 102-SUBSTANTIVE STANDARDS
a reasonable period of time to present
forwarded to the appropriate authorities.
Sec.
before the Board an oral statement. The
(2) As required by law. the name (but
102.1 Purpose and scope.
provisions of $ 101.9 apply to any request
only the name) of a recipient of clem-
102.2
Board recommendations
for a personal appearance.
ency is released to the public.
102.4 Mitigating circumstances.
(d) After due deliberation, the Board
(c) All personal information obtained
102.5 Calculation of length of alternative
may:
by the Board in the course of reviewing
service.
(1) Leave unchanged its original rec-
an applicant's case, except information
AUTHORITY: Executive Order 11803, 39 FR
ommendation;
obtained from other agencies, is sealed
33297, as amended.
(2) Where executive clemency was not
by the Board. This happens when the ap-
§ 102.1 Purpose and scope.
granted, recommended to the President
plicant has received his pardon from the
President or when the Board's operations
This section contains the standards
that he grant it in accordance with such
which the Board employs in deciding
terms and conditions as may be appro-
terminate, whichever is earlier.
priate;
(d) Upon announcement of the Presi-
whether or not to recommend that the
(3) Where executive clemency was
dent's disposition of a case, the Board
President grant executive elemency,
granted, recommend to the President
may publish a summary of that case
whether or not elemency should be con-
after the removal of all information
ditioned upon satisfactory completion of
that he diminish the length of alternative
service on which the grant of clemency
likely to identify the individual.
a period of alternative service, and, if
so, what the length of this alternative
has been conditioned or immediately
$ 101.14 Representation before the
service is.
grant a full and unconditional pardon.
Board.
(e) Applicants requesting reconsider-
§ 102.2 Board recommendations.
(a) Although an applicant may bring
ation are so notified in writing of the
his case before the Board without a rep-
In each case the Board decides first
Board's decision, together with the
resentative, each applicant is advised of
whether or not it will recommend the
reasons.
his right to representation and encour-
President that the applicant be granted
§ 101.12 Transmittal to other agencies
aged to seek counsel experienced in mili-
executive clemency. In reaching this de-
of clemency decisions.
tary or selective service law. A. repre-
cision, the Board considers the aggre-
sentative need not be an attorney,
vating circumstances in $ 102.3 and the
(a) The Chairman of the Board may
although legal counsel is recommended
mitigating circumstances in $ 102.4.
forward for further action to the Secre-
to applicants. The Board staff advises
taries of the Army, Navy, and Air Force,
§ 102.3 Aggravating circumstances.
the Secretary of Transportation, the Di-
applicants of those private sources
(a) Presence of any of the aggravat-
rector of the Selective Service System,
which are available to provide counsel-
ing circumstances listed below may
and the Attorney General, as appropri-
ing.
either disqualify an individual for ex-
ate, only such information about the
§ 101.15 Requests for information about
ecutive clemency or cause the Board
President's decision as is necessary in the
the Clemency Program.
to recommend to the President a period
Board's judgment for the agency to per-
of alternative service exceeding the
form its functions under the President's
(a) Upon receipt by the Board of a re-
applicant's "baseline period of alterna-
clemency program or for other necessary
quest for information from an individual
tive service," as determined under
action respecting the applicant.
clearly not within the jurisdiction of the
$ 102.5.
(b) A decision by the President to deny
Board, the Board's staff attempts to de-
(b) Aggravating circumstances of
executive clemency to a person who has
which the Board takes notice are:
termine his eligibility for any other part
fully discharged his obligations under the
(1) Other adult criminal convictions;
of the Presidential clemency program. If
law for his offense is not transmitted by
(2) False statement by applicant to
the Board to any other agency of the
requested, the Board attorney preserves
the Presidential Clemency Board;
United States Government or to any
the confidentiality of the individual's
(3) Use of force by applicant collater-
other person, public or private, except
location.
ally to AWOL, desertion, or missing
the applicant or his representative.
(b) A member of the Board's staff also
movement or civilian draft evasion
offense;
§ 101.13 Confidentiality of communica-
informs any individual of other reme-
(4) Desertion during combat;
tions.
dies available to him, including those
(5) Evidence that applicant committed
(a) In order to have his case consid-
from the Departments of Justice and
offense for obviously manipulative and
ered by the Board, an applicant need
Defense and through judicial processes.
selfish reasons;
FEDERAL REGISTER, VOL. 40, NO. 56-FRIDAY, MARCH 21, 1975
RULES AND REGULATIONS
(6) Prior refusal to fulfill court or-
not clemency should be conditioned upon
dered alternative service;
a specified period of alternative service
(7) Violation of probation or parole;
and, if so, what length that period should
(8) Multiple AWOL/UA offenses; and
be:
(9) AWOL/UA of extended length.
(1) The starting point for calculation
(c) Whenever an additional aggravat-
of length of alternative service will be 24
ing circumstance not listed is considered
months.
by the Board in the discussion of a par-
(2) The starting point will be reduced
ticular case, and is material to the dispo-
by three times the amount of prison time
sition of that case, the Board postpones
served.
final decision of the case and immedi-
(3) The starting point will be further
ately informs the applicant and his rep-
reduced by the amount of prior alterna-
resentative of their opportunity to sub-
tive service performed, provided that the
mit evidence material to the additional
prescribed period of alternative service
circumstance.
has been satisfactorily completed or is
§ 102.4 Mitigating circumstances.
being satisfactorily performed.
(4) The starting point will be further
(a) Presence of any of the mitigating
reduced by the amount of time served on
circumstances listed below or of any
probation or parole, provided that the
other appropriate mitigating circum-
prescribed period has been satisfactorily
stance is considered as cause for rec-
completed or is being satisfactorily per-
ommending that the President grant
formed.
executive clemency to an applicant, and
(5) Subject to paragraphs (b) and (c)
as cause for reducing the applicant's
of this section, the baseline period of al-
alternative service below the baseline
ternative service will be the remainder of
period, as determined under § 102.5.
these four subtractions or final sentence
(b) Mitigating circumstances of which
to imprisonment, whichever is less.
the Board takes notice are:
(b) In no case will the baseline period
(1) Lack of sufficient education or
of alternative service be less than three
ability to understand obligations or
(3) months.
remedies available under the law;
(c) For applicants who have received
(2) Personal and family problems
an Undesirable Discharge from a military
either at the time of offense or if appli-
service, the baseline period of alternative
cant were to perform alternative service;
service shall be three (3) months. -
(3) Mental or physical condition;
(d) The Board may consider mitigat-
(4) Employment and other activities
ing circumstances as cause for recom-
of service to the public;
mending clemency upon satisfactory
(5) Service-connected disability,
completion of a period of alternative
wounds in combat or decorations for
service that is less than an applicant's
valor in combat;
baseline period of alternative service, or
(6) Period of creditable military
for recommending an immediate pardon.
service;
(e) In cases in which aggravating cir-
(7) Tours of service in the war zone;
cumstances are present and are not, in
(8) Substantial evidence of personal
the Board's judgment, balanced by miti-
or procedural unfairness;
gating circumstances, the Board may
(9) Denial of conscientious objector
consider such aggravating circumstances
status, of other claim for Selective Serv-
as cause for recommending clemency
ice exemption or deferment, or of a claim
upon satisfactory completion of a period
for hardship discharge, compassionate
of alternative service exceeding, by three
reassignment, emergency leave, or other
(3), six (6), or nine. (9) additional
remedy available under military law,
months, the applicant's baseline period
on procedural, technical, or improper
of alternative service. In extraordinary
grounds, or on grounds which have sub-
cases, as an alternative to denying clem-
sequently been held unlawful by the
ency, the Board may increase the base-
judiciary;
line period to a maximum of not more
(10) Evidence that an applicant acted
than 24 months.
for conscientious, not manipulative or
selfish reasons;
PART 201-[REVOKED]
(11) Voluntary submission to authori-
3. Part 201 is revoked.
ties by applicant;
PART 202-[REVOKED]
(12) Behavior which reflects mental
4. Part 202 is revoked.
stress caused by combat;
(13) Volunteering for combat, or ex-
[FR Doc.75-7464 Filed 3-20-75;8:45 am
tension of service while in combat;
(14) Above average military conduct
and proficiency; and
(15) Personal decorations for valor.
(c) An applicant may bring to the
Board's attention any other factor which
be believes should be considered.
& 102.5 Calculation of length of alterna-
tive service.
(a) Having reached a decision to rec-
ommend that the President grant execu-
tive clemency to a particular applicant,
the Board will then decide whether or
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"ocrText": "The original documents are located in Box 8, folder \"Notes on Clemency Board\nRegulations\" of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Charles Goodell donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 8 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Channe Library\nRegs\nMis a copy of\nHiscomplete\nPI - A. Procedures ? Act,\npackage. mm 2/26\nP2.\nP.3. - public of\nfiles not used - Instice.\nP4 - or evid material to the Bd's decision is\ncorrected or disputed\nP5, - former\n87. - before March 1, 1975\nP8 - \"or complete service under 46 (j)\nhave jurisd\nover but not\nDo man we sonvieted dursh?\n\"or offenses directly related ther to \"\n\"or is serving a sentence of confinement for\nsuch viol.\"\n\"or other law\"\nBERALD Prt FORD LIBRARY\nP9 - (1) grant an immediate unconditional pardon\nservice,\" without any requirement condition of atternative\n(III) Qunitive disch\n(A) recommendations not specifically presuded,\n812 - Adminis ofc of As ?\nP13 - \"Files not available to applicant. not used.\"\nP14 - \"thus :- therefore,\nRegs. 2.\n815. - summary inscruraries\nmaterial from applicant or/ amends M supps,\n30days after receipt,\napplicant\nP/6 - consid before the Bd, / appedited proceds?\n(d) 10 mins.\napplient or repres,\nreas. time.\nP17 list of factors\n\"Each person will be sent a list of the\nmitigating and aggravating factors considerel\napplicable by the Bd to be agglicable in\nhis case.\"\nP18.\n,\n30 days of receipt\nalternative service\nP19 - 10 mins.\nBERRLO FORD LIBRARY\nP 21 - initing branch 7\nconfidentiality - Justice's opn.\nanonymonese summeries & name\nRegs- 3\nP22- \"terminate by law\",\n\"oonfidentiality of the indiv\"\np23 - postponement of A/S\n\"for reasons of pers. hardship substantial\nlegal or administrative remedies in his case.\"\ncarflisting obligas or ephaustion of other\nP24, why Part 102\nP25, - additional aggravating eire,?\nBERALD FORD\nP27. factors\n(3) prior A/S gerformed ? Interrupted\n\"remainder \"of 4 auttractions?\njudges sentence + final sentence,\n828 - alternative service (b) of (c)\nimmediate w/o A/S,\nComparison of Baskir and Tropp regulations\n1.) Purpose and scope:\nR: p. 1\nL: p. 7\nL's simply an abridged version.\n2.) General Definitions:\nR: p. 1\nL: p. 7\nL's is simply an abridged version.\n3.) Jurisdiction:\nR: pp. 2-3\nL: p. 2, pp. 7-8\nL's is essentially an abridged version,\nexcept \"not later than March 1, 1975\"\nreplaces \" before March 1, 1975\" and\n\"or offenses directly related thereto\" has\nbeen added to the military jurisdiction\nsection.\n4.) Remedies:\nR: pp. 3-5\nL: pp. 2-3, pp. 8-9\nL's differs from R's in that it makes the\ndistinction between restoration of Federal\nand state civil rights, it deletes the para-\ngraph concerning recommendations to DOD,\nand it states that in \"unusual circumstances\"\nthe PCB may make \"other recommendations\"\n(e.g., General Discharges) to the President.\n5.) Initial Filing:\nR: pp. 5-6\nL: pp. 9-11\nL's differs significantly from R's. L states\nthat oral applications must be reduced to\nwriting and postmarked \"not later than\nMarch 31, 1975;\" R's says \"within thirty (30)\ncalendar days of the oral communication.\"\nRegarding initial filings made by represen-\nFORD\ntatives, L states; applicant must.\n&\nsubmit his application promptly thereafter. 11\nR's position is \"appli cant has within seven (7)\ndays.\"\n6.) Application Form:\nR: pp. 7-8\nL: pp. 11-12\nL's is essentially an abridged version, except\n\"completed application forms should be post-\nmarked within a reasonable period after their\nreceipt\" replaces \"within thirty (30) calendar\n-2-\ndays. \" L also omits the application kit.\n7.) Assignment of Action Attorney,\nR: pp. 8-11\nCase Number, and Determination\nL: p. 3, pp. 12-13\nof Jurisdiction:\nL states that: \"Files not available to an\napplicant are not used as the basis of\nstatements in the initial summary.\" R states\nthose pages of other agencies' files\nwhich are used by Board staff attorneys as\nthe basis of statements in the I.S. must be\navailable, as a matter of right, to the\napplicant.\"\n8.) Initial Summary:\nR: pp. 12-13\nL: pp. 14-15\nL's is essentially an abridged version.\n9.) Final Summary:\nR: p. 14\nL: p. 15\nL's version does not require that a final\nsummary be sent to the applicant.\n10.) Consideration Before the\nR: pp. 15-19\nBoard:\nL: p. 4, pp. 16-17\nL's differs significantly from R's. Regarding\na hearing before the Board, L \"provides for\na personal appearance as a matter of right\nif an applicant can show that an oral presen-\ntation is necessary to the Board's under-\nstanding of his case. \" L has, thus, replaced\nR's \"essential\" with \"necessary\" and omitted\nthe right to appear \"if (the) applicant takes\nthe trouble to appear before the Board, withou\na representative accompanying him. \" Second1\nL has omitted R's \"Presentation of Witnesses'\nsection. Thirdly, L makes no provision for\na representative appearing before the Board.\n11.) Recommendations to the\nR: p. 20\nPresident:\nL: p. 17\nR states: \"Following action by the President,\nthe Board will send notice of such action in\nwriting to all persons whose names were\nsubmitted to the President. Persons not\nreceiving executive clemency will be so\nnotified, with reasons for denial. \" To end the\nimplication that the cases of those whom do\nnot receive clemency are not submitted to the\nPresident, L deleted the second sentence.\n-3-\n12.) Reconsideration:\nR: pp. 21-23\nL: p. 4, pp. 18-20\nR makes the distinction between reconsider-\nation as a matter of discretion and as a matter\nof right; L doesn't. Secondly, R grants\nreconsideration if an applicant's petition show\nnew facts or factual error; L lists these two\nreasons plus a third one, procedural error.\nThirdly, R allows an oral presentation of\nfifteen minutes in length; L allows ten minutes\n13.) Transmittal to Other\nR: pp. 24-26\nAgencies of Clemency Decisions:\nL: p. 4, pp. 20-21\nR states in detail when and to whom informatic\nabout an applicant will and will not be released\nL essentially makes a general statement that\n\"only such information about the President's\ndecision as is necessary for the agency to\nperform its functions under the President's\nclemency program, or for other necessary\naction respecting the applicant\" shall be SECTION\ntransmitted. L deleted executive privilege.\n14.) Confidentiality of\nR: pp. 27-28\nCommunications:\nL: pp. 21-22\nConcerning releasing information about the\ncommission of a felony, R wants to release\n\"information which reveals the probable\ncause tp believe. \"'' whereas, L wants to\nrelease \"information which reveals commis-\nsion. \" Secondly, R talks of \"destroying\"\nfiles, L of \"sealing\" them. Thirdly, L\ndeleted from his regs R's subsection regarding\npublishing anonymous case summaries.\n15.) Representation Before the\nR: p. 29\nBoard:\nL: p. 22\nR states: \"Upon request, Board staff will\nattempt to refer an applicant to a skilled\nvolunteer representative.' L states: \"The\nBoard staff will advise applicants of those\nprivate sources which are available to\nprovide counseling.\"\n16.) Requests for Information\nR: pp. 30-31\nAbout the Clemency Program:\nL: pp. 22-23\nL's is essentially an abridged version, except\nL deleted R's subsection requiring that an\nAction Attorney make a written summary after\ntalking with a person who requested information\n17.) Postponement of Board\nR: not done\nConsideration and of the Shart\nL: p. 23\nof Alternative Service:\nSection 102\n1.) Purpose and Scope:\nR: p. 1\nL: p. 24\nL's is simply an abridged version.\n2.) Board Recommendations:\nR: pp. 1-2\nL: p. 24\nL's is essentially an abridged version.\n3.) Aggravating Circumstances:\nR: pp. 2-3\nL: pp. 24-25\nL's is simply an abridged version.\n4.) Mitigating Circumstances:\nR: pp. 3-4\nL: pp. 26-27\nL's list is more up-to-date. Secondly, L\ndeleted R's subsection stating that whenever\na mitigating circumstance not listed is\nconsidered by the Board as material to the\ndisposition of the case, final decision will be\npostponed to enable the applicant to submit\nadditional evidence germane to the unlisted\ncircumstance. Thirdly, L states: \"An\napplicant may bring to the Board's attention\nany other factor which he believes should be\nconsidered. 11\n5.) Calculation of Length of\nR: pp. 2-4\nAlternative Service:\nL: p. 5, pp. 27-28\nL's is almost verbatim R's. **\nEligibility of Clemency\nR: Preamble\nRecilients for Militaty\nL: p. 5\nDischarge Review Review\nL's is essentially an abridged version except\nRemedies:\nR urges veterans to consider simultaneously\nremedies available through DOD; L doesn't.\n** In the copy of R's regs that I saw, I could not find the subsection stating that\nthe PCB creditsall creditable military service on a one-for-one basis against the\nbaseline period.\nTITLE 2 - CLEMENCY\nChapter 1 - Presidential Clemency Board\nPart 101 - Administrative Procedures\nPart 102 - Substantive Standards\nThe Presidential Clemency Board published its proposed adminis-\ntrative procedures and substantive standards on November 27, 1974\n(39 FR 41351). Since that time, the Board has considered the first\nmilitary cases before it, and has had the benefit of more than 40 comments\non its proposed regulations. With the benefit of this additional experience\nand these comments, the Board publishes the final regulations setting out\nITS\nthese procedures and standards.\nIt is the intent of the Board to provide notice to the public of the\nstandards it uses to make recommendations to the President concerning\nindividual applications for clemency. The Board also wishes to ensure\nequity and consistency for applicants under the President's clemency\nprogram.\nBecause it is a temporary organization within the White House\nOffice the sole function of which is to advise the President with respect to\nthe exercise of his constitutional power of executive clemency, the Board\ndoes not consider itself formally bound by the Administrative Procedure\nAct. Nonetheless, within the time and resources available, the Board\nwishes to adhere as closely as possible to the principles of procedural due\nprocess set forth in the Act. The administrative procedures established\n&\nGERALD\n- 2 -\nTHIS\nin these regulations reflect decision.\nThe Board reserves the right to publish changes in individual\nsections as it deems necessary. The Board welcomes continuing\ncomment on problems which may arise in the application of particular\nsections of these procedures and invites recommendations on how best\nthese problems may be resolved.\nSeveral dozen technical changes have been made in these regula-\ntions. Some clarify refune significantly the rights and procedures available to\napplicants. The following is an explanation of these changes which seem\nto the Board to be most significant:\nJurisdiction: Section 101. 3 has been added in order to incorporate\nthe criteria for determining whether or not a person is eligible for\nIT\nconsideration by the Presidential Clemency Board. This section restates\nthe criteria established in Proclamation 4313 (Announcinga Program for\nthe Return of Vietnam Era Draft Evaders and Military Deserters) and\nrepeated in Executive Order 11803 (Establishing a Clemency Board.\n).\nECTION\nRemedies: $101.4 has been added to explain the remedies avail-\nIT\nable from the Presidential Clemency Board. This section-states the\nauthority with which the Board is vested by Executive Order 11803,\nGERALD\nissued pursuant to Proclamation 4313.\nA Presidential pardon restores those federal civil rights lost as\na result of a felony conviction. State law recognizes Presidential pardons\ngenerally\nas a matter of comity, restoring the right to vote in federal and state\n- 3 -\npublic\nelections, to hold local government-office, and to obtain licenses for\ntrades and professions from which convicted felons are barred under\nstate law. Since conviction by military court-martial is treated as a\nfelony conviction by many states, and since an Undesirable Discharge\nmay have the same consequences as a punitive discharge resulting\nfrom a court-martial conviction, the benefits of a pardon apply to\nservicemen as well as to civilian draft evaders.\nA Clemency Discharge neither entitles its recipient to veterans\nbenefits nor bars his receiving those benefits to which he is otherwise\nentitled.\nSUBSECTION\nAvailability of Other Agencies' Files to Applicant. 4 101.7(c)\nhas been added to clarify which files belonging to other agencies an\nIT\napplicant has a right to see. This subsection specifies that where other\nagencies request that their files remain confidential, these files are\nnot used as the basis of statements in the initial summary. Where the\nrules of an agency permit an individual to see his file (e.g., Selective\nService System), it is open to the applicant and his representative.\nThis subsection is in response to comments that subsections\n201.5(b) and 201. 6(c) were unclear.\nFORD\nRALD\n- 4 -\nSUBSECTION\nHearing before the Board. $101.10(c) provides for a personal\nappearance as a matter of right if an applicant can show that an oral\npresentation is necessary to the Board's understanding of his case.\nReconsideration: Subsection 101. 12(c) describes the circumstances\nIT\nin which the Board will reconsider a case. This subsection provides\nfor reconsideration when new or over-looked circumstances are shown.\nTransmittal to Other Agencies of Presidential Decisions\nSection 101. 13 provides that grants of unconditional pardon\nby the President will be transmitted formally to other government\nagencies, as appropriate. Pending completion of the alternative service\nrequirement, grants of conditional clemency will be communicated to\nother federal agencies only to the extent this information is necessary\nfor the agency to perform its functions under the clemency program or\nfor other necessary action respecting the applicant. Upon completion\nof alternative service, notification of the pardon shall be forwarded to\nall appropriate agencies. Denials of clemency by the President will\nbe held confidential by the Board.\nThe intent of this section, adopted here in response to comments\nby veterans organizations, is that a person who applies for clemency\nshould not be prejudiced in his pursuit of other remedies through the\nmilitary services' discharge review processes or elsewhere. Since the\nPresident's clemency program is an extraordinary remedy, its action\nFOR\non a case should not further prejudice a person who has already paid\nthe penalty under the law for his violation.\n- 5 -\nCalculation of Length of Alternative Service\nSubsection 102. 5(c) has been added in order to make clear\nthe Board's decision that the initial baseline period of alternative\nservice for applicants with Undesirable Discharges will be three (3)\nmonths.\nEligibility of Clemency Recipients for Military Discharge\nReview Remedies. The Presidential Clemency Board notes, although\nthe matter is not one for inclusion in its regulations, that it has received\nnumerous comments which assume that a recipient of executive clemency\nunder the President's clemency program is ineligible for consideration\nunder the military services' discharge review processes.\nThis is incorrect. Any applicant to the Board for executive\nclemency may also seek review of his discharge through one of the\nmilitary services' discharge review boards or boards for the correction\nof military records. Applying to the Board does not bar a former serviceman\nfrom recourse to the military services' boards nor does it preclude\nthe remedies which are available from those boards. These remedies\nare statutory law and cannot be denied or abridged by Executive Order.\n(Executive Order 11803, 39 FR 33297, as amended)\nIn consideration of the foregoing, this chapter will become\neffective immediately.\n&\nFORS\nIssued in Washington, D. C. on February , 1975.\nGERALD\nCharles E. Goodell\nChairman,\nPresidential Clemency Board\n- 6 -\n1. Part 201 is deleted, and Part 101 is added to read as follows:\nSec.\n101.1\nPurpose and Scope.\n101.2\nGeneral definitions.\n101.3 Jurisdiction.\n101.4\nRemedies.\n101.5\nInitial Filing.\n101.6\nApplication form.\n101.7\nAssignment of Action Attorney and Case Number,\nand determination of Jurisdiction.\n101.8\nInitial Summary.\n101.9\nFinal Summary.\n101.10 Consideration before the Board.\n101.11 Recommendations to the President.\n101.12 Reconsideration.\nTRANSMITTAL TO OTHER AGENCIES OF CLEMENCY DECISIONS\n101.13 Referral to appropriate agencies.\n101.14 Confidentiality of Communications.\n101.15 Representation before the Board.\n101.16 Requests for Information about the Elemency Program.\nBOACS CONSURERATION AND OF THE START\n101.17 Postponement of Alternative Service.\n&\nFOND\n.\nCERALD\n- 7 -\nEXECUTIVE ORDER\nAuthority: BOn 11803, 39 FR 33297, as amended.\nSection 101. 1 Purpose and Scope.\nSECTION\nThis part contains the regulations governing the procedures\nof the Presidential Clemency Board. Certain other matters are also\ntreated, such as the assistance to be given to individuals requesting\ndeterminations of jurisdiction, or requesting information respecting\nthose parts of the Presidential Clemency Program which are administered\nby the Department of Defense and the Department of Justice under\nPresidential Proclamation 4313 (39 FR 33293).\nSection 101.2 General Definitions.\n\"Action attorney\" means an attorney on the staff of the Board\nwho is assigned an applicant's case.\n\"Applicant\" means an individual who invokes the jurisdiction\nof the Board, and who has submitted an initial filing.\n\"Board\" means the Presidential Clemency Board as created by\nOR\nExecutive Order 11803m any duly authorized panel of that Board, or any\nsuccessor agencies.\nSection 101. 3 Jurisdiction.\nJurisdiction will lie with the Board with respect to a particular\nperson if such person applies to the Board not later than March 1, 1975\nand:\nFORD\nCERALD\n- 8 -\n(a) He has been convicted for failure under the Military\nSelective Service Act (50 App. U.S.C. 462) or any rule or regulation\npromulgated thereunder to register or register on time, to keep the\nlocal board informed of his current address, to report for or submit\nto preinduction or induction examination, to report for or submit to\natternative\ninduction itself, or to report for or submit to, or complete ^ service\nunder Section 6(j) of the Act during the period from August 4, 1964 to\nMarch 28, 1973, inclusive; or\n(b) He has received a punitive or undesirable discharge as a\nconsequence of offenses under Article 85 (desertion), 86 (AWOL), or\n87 (missing movement) of the Uniform Code of Military Justice\n(10 U.S.C. §885, 886, 887) or offenses directly related thereto that\noccurred between August 4, 1964 and March 28, 1973, inclusive, or\nis serving a sentence of confinement for such violation.\n(c) Jurisdiction will not lie with respect to an individual pre-\ncluded from re-entering the United States under 8 U.S.C. 1182(a)\n(22) or other law.\nSection 101.4 Remedies\n(a) The Presidential Clemency Board is empowered only to\nmake recommendations to the President on clemency applications.\nThe Board has no final authority of its own. The Board may recommend\nto the President that he:\nR.FORD\n/\nGERALD\n- 9 -\n(i) grant an unconditional pardon;\nan\nunconditional\n(ii) grant A pardon conditioned upon the satisfactory\ncompletion of a specified period of alternative service\nnot to exceed 24 months;\n(iii) grant a clemency discharge in substitution for a\npunitive or Undesirable Discharge;\n(iv) commute the sentence; or\n(v) deny clemency.\n(b) In unusual circumstances, and in order to give full effect\nto the intent and purposes of the President's clemency program, the\nBoard may make such other recommendations as justice requires\nwhich are not specifically precluded by the terms of its authority.\n&\nFORD\nSection 101. 5 Initial Filing\nCERALD\n(a) In order to comply with the requirements of Executive\nOrder 11803, as amended, an individual must make an initial filing\nto the Board not later than March 1, 1975. The Board will consider\nsufficient as an initial filing any written communication postmarked\nnot later than March 1, 1975 and received by the Board, the Department\nof Justice, the Department of Defense, the Department of Transportation,\nthe Selective Service System, or other appropriate federal agency.\nIn the communication an individual or his representative must request\nconsideration of the individual's specific case or demonstrate an intention\nto apply. A prospective applicant must, however, submit his application\npromptly thereafter. Oral applications made not later than March 1, 1975\n- 10 -\nwill be considered sufficient if reduced to writing, received by the\nBoard, and postmarked not later than March 31, 1975.\n&\nFORD\nRALD\n- 11 -\n(b) If an application is made by a representation, the case will\nnot be considered by the Board unless and until the applicant submits\na written confirmation of his clemency application. This confirmation\nmay be sent either directly or through a representative, but must be\nsent within a reasonable amount of time. A statement by an attorney\nthat he is acting on behalf of an applicant is sufficient.\nSection 101.6 Application form.\n(a) Upon receipt of an initial filing, a member of the Board's\nstaff will make a determination of probable jurisdiction. Persons who\nare clearly beyond the Board's jurisdiction will be so notified in writing.\nA person who questions this determination should promptly write the\nGeneral Counsel, Presidential Clemency Board, The White House,\nWashington, D. C. 20500, stating his reasons for questioning the\ndetermination. The General Counsel of the Board shall make the\nfinal determination of probable jurisdiction and shall so notify the\napplicant or his representative in writing stating the reasons why. In\ndoubtful cases, a final determination of jurisdiction will be made by\nif\nFORD\nthe Board.\nCRALD\n(b) A person who has been notified that jurisdiction does not\nlie in his case will be considered as having made a timely filing should\nthe final determination be that the Board has jurisdiction over his case.\n(c) A person who is within the jurisdiction of the Board will\nbe sent an application form, information about the Presidential clemency\n- 12 -\nprogram, instructions for the preparation of the application form,\na statement describing the Board's procedures and method of determining\ncases, and a list of available sources of volunteer counseling services.\n(d) The person will be urged to return the completed application\nform to the Board as soon as possible. In the absence of extenuating\ncircumstances, completed application forms should be postmarked within\na reasonable period after their receipt by applicant.\n(e) An applicant who does not wish to file his own application\nmay have his representative do so on his behalf provided that he complies\nwith subsection 101.5.\nSection 101.7 Assignment of Action Attorney, Case Number, and\nDetermination of Jurisdiction.\n(a) Upon receipt by the Board of the completed application form\nor of information sufficient for the Board to request the records and files\nSECTION\nspecified in subparagraph (b) of this section, the applicant's case will be\nreviewed for preliminary determination of the Board's jurisdiction. If\nit appears that the Board has jurisdiction over the case, a file will be\nopened and a case number will be assigned. The Board will then request\nfrom all appropriate government agencies the relevant records and files\nFOR\npertaining to the applicant's case.\n(b) In normal circumstances, the relevant records and files for\ncivilian cases will be the applicant's files from the Selective Service System\nand the Bureau of Prisons. For military cases, it will include the applicant's\n- 13 -\nmilitary personnel records, military clemency folder, and record of\ncourt martial, if any. Applicants have the right to request that the\nBoard consider other pertinent files, and the Board will attempt to\ncomply with the request.\n(c) Information collected directly by the Board shall be, as a\nmatter of right, freely available for his examination at the offices of\nthe Board. All material obtained from other agencies will be available\nto the extent not barred by the rules of the agency owning the file. The\nreason for denial of access to any file must be stated in writing upon\ndemand. Files not available to an applicant are not used as the basis\nof statements in the initial summary.\n(d) Where the initial filing contains adequate information, the\nBoard staff may assign a case number and request records and files\nprior to receipt of the completed application form.\n(e) If the Action Attorney determines that jurisdiction does\nnot exist, he will promptly notify the applicant in writing, stating\nthe reasons why.\n(f) An applicant who questions this adverse determination of\njurisdiction should write the General Counsel of the Board in accordance\nwith the provisions of SED 101. 6(a).\nFO\n/\n&\nGERALD\n- 14 -\nSection 101.8 Initial Summary.\n(a) Upon receipt of the necessary records and files, the\nAction Attorney will prepare an initial summary of the applicant's case.\nThe files, records, and any additional sources used in preparing the\ninitial summary will be listed. No other material will be used. The\ninitial summary shall include the name and business telephone number\nof the Action Attorney who may be contacted by the applicant or his\nrepresentative.\n(b) The initial summary shall be sent by certified mail to\nthe applicant or his representative. The summary will be accompanied\nby an instruction sheet describing the method by which the summary was\nprepared, and by a copy of the guidelines that have been adopted by the\nBoard for the determination of cases. Applicants will be encouraged\nto review the initial summary for accuracy and completeness and\nadvised of their right to submit additional sworn or unsworn material.\nAdditional material may be submitted in any length. Nothing over three\n(3) single-spaced, typewritten, letter-sized pages in length will be read\nverbatim to the Board. Where necessary, thus, an applicant should\nsummarize his additional material to comply with this verbatim\nFORD\npresentation requirement. If this is not done, the Action Attorney\nshall do it.\nGERALD R.\n- 15 -\n(c) At any time before Board consideration of his case,\nan applicant may submit evidence of inaccurate, incomplete, or\nmisleading information in the complete Board file or other files.\nThis information shall be incorporated in applicant's Board file.\n(d) An applicant's case will be ready for final consideration\nby the Board not sooner than thirty (30) days after the initial summary\nhas been received by the applicant. Receipt by the applicant shall be\nattested to by a certified mail receipt returned to the Board by the\nPostal Service or by a reasonable determination of receipt made by\nBoard staff. Material which amends or supplements the applicant's\ninitial summary must be postmarked within thirty (30) days of receipt\nto ensure that it will be considered. An applicant's request that this\nthirty (30) day period be extended shall be liberally granted by the Action\nAttorney, if the request is received prior to Board action.\n&\nFORD\nSection 101.9 Final Summary.\nGERALD\n(a) Upon receipt of the applicant's response to the initial\nsummary, the Action Attorney will note all such amendments, supple- -\nments, or corrections on the initial summary submitted by the applicant\nor his representative. All such amendments must be attached to the\ninitial summary with notation by the Action Attorney of any discrepancies\nof fact which in his opinion remain unresolved.\n(b) The final summary shall then consist of the initial summary\nas amended and the summary of the materials submitted by the applicants /\nas described in $101.8(b).\n- 16 -\nSection 101. 10 Consideration Before the Board\n(a) At a regularly scheduled meeting of the Board, a quorum\nbeing present, the Board will consider the applicant's case. A quorum\nshall consist of a majority of the Board. However, the Board may\nprovide by role that cases will be considered by panels of three or more\nmembers.\n(b) The Action Attorney will present to the Board a brief\nstatement of the final summary of the applicant's case together with THE\nmaterial, submitted by the applicant for presentation to the Board. The\nAction Attorney shall then stand ready to answer from the Board files\nany questions from the members of the Board concerning the applicant's\ncase.\nANY\n(c) Each applicant wishing to make an oral presentation must\nprovide the Board with a written statement giving the reasons why he\n&\nFORD\nthinks a personal appearance is particularly appropriate to an under\nGERALD\nstanding of his case. The Board will consider each request for an\noral presentation at a regular meeting and shall inform the applicant\nAN APPLICANT SHALL BE PERMITTED AN ORAL\nwhether or not his request has been granted. PRESENTATION As A MATTER OF RIGHT IF HE\nCAN SHOW THAT IT IS NECESSARY TO THE BOARD'S UNDERSTANDING of HIS CASE,\n(d) Any oral presentation granted by the Board shall not exceed\nten (10) minutes. Neither applicant nor his representative may be present\nwhen the Board begins deliberations but should remain available for\nfurther consultation immediately thereafter for a period not to exceed\none hour.\n- 16 17 -\nUPON\n(e) After due deliberation the Board will decide its\nrecommendations to the President listing the factors it considered in\nmaking its recommendation. A list of these factors will be forwarded\nto the applicant together with the President's decision.\n(f) If the Board believes it requires more information before\nmaking its recommendation, it will table the case and return the file\nto the Action Attorney with directions to conduct further investigation.\nSection 101. 11 Recommendations to the President\n(a) At appropriate intervals, the Chairman of the Board will\nsubmit to the President certain master warrants listing the names of\napplicants recommended for executive clemency, and a list of the names\nof applicants considered by the Board but not recommended for clemency.\nThe Chairman will also submit such terms and conditions for executive\nclemency, if any, that have been recommended in each case by the Board.\n(b) Following action by the President, the Board will send\nnotice of such action in writing to all persons whose names were submitted\nto the President. Persons not receiving executive clemency will also\nbe so notified. All persons will be sent the list of factors deemed present\nand pertinent by the Board in making its recommendation.\nFORD\ni\n- 18 -\nSection 101. 12 Reconsideration\n(a) An applicant may ask the Board for reconsideration of his\ncase. Petitions for reconsideration, including any supplementary\nmaterial must be postmarked within thirty (30) days of the receipt of\nthe notification in $101. 11 (b) .\n(b) At a regularly scheduled Board meeting, a quorum being\npresent, the Board will reconsider the applicant's case if the\napplicant's petition shows:\n(1) new facts, material to the disposition of his case,\nwhich the Board had not previously considered, provided\nthat the applicant explains to the Board's satisfaction why\nsuch facts were not submitted earlier. New facts shall, for\npurposes of this section, be considered material only if they\nrelate to presence or absence of an aggravating circumstance\nunder $102.3 or of a mitigating circumstance under $102.4, or\nto calculation of length of alternate service under $102.5; or\n(2) factual error, in the final summary or other\ndocument considered by the Board that was material to the\nBoard's disposition of his case and detrimental to him.\nFORD\nBALO\n- 19 -\nProcedural error that was material to the\nBoard's disposition of his case and detrimental to him.\n(c) The Board may in its discretion permit an applicant or\nhis representative to present before the Board an oral statement not\nto exceed ten (10) minutes in length. The provisions of $101.1 10 apply\nto any request for a personal appearance.\n(d) After due deliberation, the Board may:\n(1) Leave unchanged its original recommendation;\n(2) As to any person granted executive clemency,\nrecommend to the President that he diminish the length\nof alternative service on which the grant of clemency has\nbeen conditioned, or immediately grant a full and uncondi-\ntional pardon;\n(3) As to any person not granted executive clemency,\nrecommend to the President that he grant executive clemency\nin accordance with such terms and conditions as may be\nappropriate.\nR. FORD\n- 20 -\n(e) Applicants requesting reconsideration will be so notified\nin writing of the Board's decision, together with the reasons.\nSection 101. 13 Transmittal to Other Agencies of Clemency Decisions.\n(a) The Chairman of the Board shall forward for further\naction to the Secretaries of the Army, Navy, and Air Force, the\nSecretary of Transportation, the Director of the Selective Service\nSystem, and the Attorney General, as appropriate, only such information\nabout the President's decision as is necessary for the agency to perform\nits functions under the President's clemency program, or for other\nnecessary action respecting the applicant.\n&\nFORD\nGERALD\n20\n(d) Decisions by the Pre sident to deny executive clemency\nto a person who has fully discharged his obligations under the law\nfor his offense shall not be transmitted by the Board to any other agency\nof the United States Government or to any other person, public or private,\nexcept the applicant or his representative.\nSection 101. 14 Confidentiality of Communications\n(a) In order to have his case considered by the Board, an applicant\nneed submit only information sufficient for a determination of jurisdiction,\nand for the retrieval of necessary official records and files. The application\nform will require the applicant's name, date of birth, selective service\nbranch mly\nnumber, military service and service number, if applicable, information\nconcerning the draft evasion offense or absence-related military offense,\nand the disposition thereof, and the mailing address and telephone number\nof either the applicant or his representative.\n(b) The Board has determined that it will take all steps possible\nto protect the privacy of applicants and potential applicants to the\nPresidential clemency program. No personal information concerning\nan applicant or potential applicant and related to the Presidential clemency\nprogram will be made known to any agency, organization, or individual,\nwhether public or private, unless disclosure is necessary for the normal\nand proper functioning of the Presidential Clemency Board or unless\nrequired by court order or otherwise required under law. However\ninformation which reveals that there has been commission of a serious\n- $1 -\noffense previously unknown (other than an offense subject to the\nPresidential clemency program) will be forwarded to the appropriate\nauthorities.\n(c) All personal information obtained by the Board in the\ncourse of reviewing an applicant's case, except information obtained\nFROM\nTHIS SHALL HAPPEN\nfor other agencies, will be sealed by the Board when the applicant has\nreceived his pardon from the President or when the Board's operations\nterminate by law.\n(d) The Board shall publish anonymous case summaries of all\nrecommendations to the President, upon final action by the President.\nSection 101. 15 Representation Before the Board\n(a) Although an applicant may bring his case before the Board\nwithout a representative, each applicant will be advised of his right\nto representation and will be encouraged to seek counsel experienced\nin military or selective service law. A representative need not be an\nattorney, although legal counsel is recommended to applicants. The\nBoard staff will advise applicants of those private sources which are\ni\nFORD\navailable to provide counseling.\nRALD\nSection 101. 16 Requests for Information About the Clemency Program\n(a) Upon receipt by the Board of a request for information the\nFOR\nBoard's staff shall attempt to determine the individual's eligibility in any\npart of the Presidential clemency program. In doing so, the Board attorney\nwill preserve the confidentiality of the individual if requested to do so.\n-\n-\n(b) A member of the Board's staff shall also inform any\nFROM\nindividual of other remedies available tohim, including those at the\nDepartments of Justice and Defense\nSection 101. 17 Postponement of Board Consideration and of the start\nof Alternative Service.\n(a) An applicant may request that the Board defer consideration\nPURSUIT\nOTHER\nof his case for a reasonable time to permit the pursuance of alternate\nremedies. Such deferments will be liberally granted provided that they\ndo not result in an undue disruption of the Board's operations.\n(b) An applicant who has been granted executive clemency\nconditioned upon a period of alternative service may ask for the post-\nponement of the beginning of his period of alternative service. because\nof current enrollment in school, certain employment contracts, and the\nlike. TheBoard will make every effort, consistent with its own authority\nand that of the Selective Service System, to make reasonable accommodations\nto such requests.\ni\nFORD\nGERALD\n14\n-\nPart 202 is deleted, and Part 102 is added to read as follows:\nSECTION\n102. 1\nPurpose and Scope.\n102. 2\nBoard Recommendations.\n102. 3\nAggravating Circumstances.\n102. 4\nMitigating Éircumstances.\n102. 5\nCalculation of Length of Alternative Service.\nEXECUTIVE OFFER\nAUTHORITY: E.O. 11803. 39 FR 33297, as amended.\nSection 102.1 Purpose and Scope.\nSECTION\nThis part contains the standards which the Board will employ\nin deciding whether or not to recommend that the President grant\nexecutive clemency and whether or not clemency should be conditioned\nupon a period of alternative service.\nSection 102. 2 Board Recommendationspn Executive Clemency\nIn each case the Board will first decide whether or not it will\nrecommend to the President that the applicant be granted executive\nclemency. In reaching that decision, the Board will consider the\naggravating circumstances listed in Section 102. 3 and the mitigating\nFORD\ncircumstances listed in Section 102.4.\nGERALD\nSection 102. 3 Aggravating Circumstances\n(a) Presence of any of the aggravating circumstances listed\nbelow may either disqualify an individual for executive clemency or\n25\n- 24 -\nmay be considered by the Board as cause for recommending to the\nPresident a period of alternative service exceeding the applicant's\n\"baseline period of alternative service, \" as determined under Section\n102. 5.\n(b) Aggravating circumstances of which the Board will take\nARE:\nnotice include and are limited to\n(1) Prior criminal convictions\n(2) False statement to the Presidential Clemency Board\nby applicant;\n(3) Use of force by applicant collaterally to AWOL, desertion,\nor missing movement;\n(4) Desertion during combat;\n(5) Evidence that applicant committed offense for\nobviously manipulative and selfish reasons;\n(6) Prior refusal to fulfill alternative service;\n(7) Violation of probation or parole;\n(8) Multiple AWOL/UA offenses; AND\n(9) Length of AWOL/UA.\n(c) Whenever an additional aggravating circumstance not listed\nis considered by the Board in the discussion of a particular case, and\nis material to the disposition of that case, the Board shall postpone final\ndecision of the case so that the applicant may submit evidence material\nto the additional circumstance.\nFORD\ni\nBERALD\n-\n-\nSection 102. 4 Mitigating circumstances\n(a) Presence of any of the mitigating circumstances listed below\nor of any other appropriate mitigating circumstance will be considered\nas cause for recommending that the President grant executive clemency\nto an applicant, and as cause for reducing the applicant's baseline period\nof alternative service, as determined under Section 102. 5.\n(b) Mitigating circumstances of which the Board will take\nnotice are:\n1. Lack of sufficient education or ability to understand\nobligations under the law;\n2. Personal and family circumstances either at the time\nof offense or afterwards;\n3. Mental or physical condition;\n4. Employment and other activities of service to the public;\n5. Service-connected disability, wounds in combat or\nspecial decorations and commendations;\n6. Period of creditable military service;\n7. Tours of service in the war zone;\n8. Substantial evidence of personal or procedural unfairness;\n9. Denial of conscientious objector status on procedural,\ntechnical or improper grounds;\n&\nFOR\n10. Evidence that an applicant acted for conscientious,\nnot for manipulative or selfish reasons;\nGERALD\n11. Voluntarily submitted himself to authorities\n12. Behavior which reflects mental stress caused by combat;\n13. Volunteering for combat, or extension of service while in combat;\n- -\n14. Above average military conduct and proficiency; AND\n15. Personal decorations for valor.\n(c) An applicant may bring to the Board's attention any other\nfactor which he believes should be considered.\nSection 102. 5 Calculation of Length of Alternative Service.\n(a) Having reached a decision to recommend that the President\ngrant executive clemency to a particular applicant, the Board will then\nORNUT\ndecide whether clemency should be conditioned upon a specified period\nof alternative service and, if so, what length that period should be:\n(1) The starting point for calculation of length of alternative\nservice will be 24 months.\n(2) The starting point will be reduced by three times the\namount of prison time served.\n(3) The starting point will be further reduced by the amount\nTHE\nof prior alternative service performed, provided that $ prescribed period\nof alternative service has been satisfactorily completed.\n(4) The starting point will be further reduced by the amount\nTHE\nof time served on probation or parole, provided that a prescribed period\nFORD\nhas been satisfactorily completed.\nGTV87\n(5) The baseline period of alternative service will be the\nremainder of these four subtractions or the judge's sentence to imprisonment,\nwhichever is less.\n28\n- 27 -\n(b) In no case will the baseline period of alternate service\n(3)\nbe less than three months.\n(c) For applicants who have received an Undesirable Discharge\nfrom a military service, the baseline period of alternate service shall\nbe three (3) months.\n(d) The Board may consider mitigating circumstances as cause\nfor recommending clemency conditioned upon a period of alternative\nservice less than an applicant's baseline period of alternative service,\nor for recommending unconditional clemency.\n(e) In cases in which aggravating circumstances are present\nand are not, in the Board's judgment, balanced by mitigating circumstances,\nthe Board may consider such aggravating circumstances as cause for\nrecommending clemency conditioned upon a period of alternative service\nexceeding, either by three (3), six (6), or nine (9) additional months, the\napplicant's baseline period of alternative service. In extraordinary cases,\nas an alternative to denying clemency, the Board may increase the\nbaseline period to a maximum of not more than 24 months.\n&\nFORD\nBRALD\nrules and regulations\nThis section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect most of which are\nkeyed to and cedified in the Code of Federal Regulations, which is published under 50 titles purseant to 44 U.S.C. 1520.\nThe Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL\nREGISTER issue of each month.\nTitle 2-Clemency\nRemedies. Section 101.4 has been\nas specified in $5 102.3 and 102.4, the\nCHAPTER I--PRESIDENTIAL\nadded to explain the remedies available\ncase is tabled. The action attorney is in-\nCLEMENCY BOARD\nfrom the Presidential Clemency Board.\nstructed to obtain additional facts.\nIt states the authority with which the\nThis is in response to comments from\nADMINISTRATIVE PROCEDURES AND\nBoard is vested by Executive Order\nthe private bar.\nSUBSTANTIVE STANDARDS\n11803, issued pursuant to Preclamation\nHearing before the Board. Subsection\nThe Presidential Clemency Board pub-\n4313.\n101.9(c) provides for a personal appear-\nlished its proposed administrative pro-\nA Presidential pardon restores those\nance as a matter of right if an applicant\ncedures and substantive standards on\nfederal civil rights lost as a result of a\ncan show that an oral presentation is\nNovember 27, 1974 (39 FR 41351). Since\nfelony conviction. State law recognizes\nnecessary to the Board's understanding\nthat time, the Board has considered the\nPresidential pardons as a matter of com-\nof a mitigating circumstance or an ag-\nfirst military cases before #, and has had\nHy, usually restoring the right to vote\ngravating circumstance which applies to\nthe benefit of more than 40 comments on\nin federal and state elections, to hold\nhis case. The Board has provided a right\nits proposed regulations. With the benefit\npublic office, and to obtain licenses for\nto personal appearance in response to\nof this additional experience and these\ntrades and professions from which con-\nseveral comments.\ncomments, the Board publishes the final\nvicted felons are barred under state law.\nReconsideration. Subsection 101.11(b)\nregulations setting out its procedures\nSince conviction by military court-\nhas been amended in order to add stand-\nand standards.\nmartial is treated as a felony conviction\nards which must be met if the Board is\nIt is the intent of the Board to provide\nby many states, and since an Undesir-\nto consider an applicant's petition for\nnotice to the public of the standards it\nable Discharge may have the same con-\nreconsideration. In the proposed regu-\nuses to make recommendations to the\nsequences as a court-martial conviction,\nlations, consideration of such petition by\nPresident concerning individual applica-\nthe benefits of a pardon apply to former\nthe Board was & matter of discretion.\ntions for clemency. The Board also\nservicemen as well as to civilian draft\nThis amendment limits the circum-\nwishes to ensure equity and consistency\nevaders.\nstances under which reconsideration\nfor applicants under the President's\nA Clemency Discharge neither en-\nwill be granted, but provides that when\nclemency program.\ntitles its recipient to veterans benefits\nan applicant shows that any of those\nBecause it is a temporary organiza-\nnor bars his receiving those benefits to\ncircumstances are present, reconsidera-\ntion within the White House Office, the\nwhich he is otherwise entitled. The Vet-\ntion will be granted as a matter of right.\nsole function of which is to advise the\nerans Administration and other agencies\nTransmittal to other agencies of Presi-\nPresident with respect to the exercise of\nmay extend veterans' benefits to some\ndential decisions. Section 101.12 provides\nhis constitutional power of executive\nholders of a Clemency Discharge, but it\nthat grants of immediate parden by the\nclemency, the Board does not consider 1t-\nis contemplated that most will not re-\nPresident are transmitted formally to\nself formally bound by the Administra-\nceive veterans benefits.\nother government agencies, as appropri-\ntive Procedure Act. Nonetheless, within\nAvailability of files to applicant and\nate. Pending completion of the alterna-\nthe time and resource constraints gov-\nhis representative. Section 101.7(c) clari-\ntive service requirement, grants of con-\nerning it, the Board wishes to adhere as\nfies which files an applicant and his\nditional clemency are communicated to\nclosely as possible to the principles of\nrepresentative have a right to see. At\nanother federal agency only to the extent\nprocedural due process. The administra-\nthe offices of the Board, information col-\nthis information is necessary for the\ntive procedures established in these reg-\nlected by the Board independently of\nagency to perform its functions under\nulations reflect this decision.\nany other government agency is readily\nthe clemency program or for other nec-\nThe Board may publish changes in in-\navailable to an applicant or his repre-\nessary action respecting the applicant.\ndividual sections as it deems necessary.\nsentative. All files obtained from other\nUpon completion of alternative service,\nThe Board welcomes continuing com-\nagencies are available to the extent not\nnotification of the pardon is forwarded\nment on problems which may arise in the\nbarred by the rules of the agency own-\nto all appropriate agencies. Denials of\napplication of particular sections of\ning the file. For example, the Selective\nclemency by the President are held con-\nthese procedures and invites recommen-\nService System file is available to him\nfidential by the Board.\ndations on how best these problems may\nand his representative. Files from an-\nThe intent of this section, adopted here\nbe resolved.\nother agency are cited in a summary\nin response to several comments is that\nSeveral dozen technical changes have\nwhen they are used as the basis of state-\na person who applies for clemency should\nments in that summary. Reason for\nnot be prejudiced in his pursuit of other\nbeen made in these regulations in re-\ndenial of access to any of these files is\nremedies through the military services'\nsponse to new circumstances that were\npresented to the Board. Some clarify sig-\nstated in writing upon request.\ndischarge review processes or elsewhere.\nOther remedies available to applicant.\nnificantly the rights and procedures\nThis subsection is in response to com-\nSection 101.15(b) requires that Board\navailable to applicants. The following is\nments that §§ 201.5(b) and 201.6(c),\nstaff inform both applicants to the Board\nan explanation of those changes which\nread together, were either unclear or\nand persons who inquire about the\nseem to the Board to be most significant:\noverbroad.\nclemency program, but are clearly not\nJurisdiction. Section 101.3 has been\nCompleted case summary. The com-\nunder the Board's jurisdiction, of the\nadded in order to incorporate the criteria\npleted case summary consists of the\nremedies available to them under mili-\nfor determining whether or not a person\ninitial case summary, amendments as\ntary discharge review processes and\nis eligible for consideration by the Presi-\ndescribed in the §§ 101.8 (c) and (e),\nthrough the judiciary. Applicants to the\ndential Clemency Board. It restates the\nand the materials submitted by the ap-\nBoard or to one of the other agencies\ncriteria established in Proclamation 4313\nplicant and his representative as de-\nadministering part of the elemency pro-\n(Announcing a Program for the Return\nscribed in § 101.8(b). Where, in the\ngram may pursue such other remedies\nof Vietnam Era Draft Evaders and Mili-\nopinion of the Board, there is a conflict\nsimultaneously or subsequently to, or\ntary Deserters) and repeated in Execu-\nof fact, false statement, or omission ma-\nstead of their remedies under the clemo\nRD\ntive Order 11803 (Establishing a Clem-\nterial to the Board's consideration of an\nency program. The Board's staff informs\nency Board\naggravating or mitigating circumstance,\nthem of their other options.\nFEDERAL REGISTER, VOL. 40, NO. 56-FRIDAY, MARCH 21, 1975\n12764\nRULES AND REGULATIONS\nAggravating and mitigating circum-\nSec.\n§ 101.4 Remodies.\nstances. Sections 102.3 and 102.4 contain\n101.7\nAssignment of Action Attorney and\nnew aggravating and mitigating circum-\ncase number, nddetermination of\n(a) The Board is empowered only to\nstances which the Board deems material\njurisdiction.\nmake recommendations to the President\n101.8\nInitial case summary.\nto its decisions.\non clemency applications. The Board has\n101.9\nConsideration before the Board.\nThe Board notes that it has seen a\nno final authority of its own. The Board\n101.10\nRecommendations to the President.\nnumber of cases of persons who behaved\nmay recommend to the President that he\n101.11\nReconsideration.\nwith valor during combat, but then com-\n101.12\nTransmittal to other agencies of\ntake one or more of the following actions:\nmitted AWOL offenses because of mental\nclemency decisions.\n(1) Grant an unconditional pardon\nstress caused by combat. The Board calls\n101.13\nConfidentiality of communications.\nwithout a requirement of alternative\nattention to this mitigating circum-\n101.14\nRepresentation before the Board.\nservice;\n101.15\nstance as one which it considers particu-\nRequests for information about the\n(2) Grant an unconditional pardon\nlarly important in some cases.\nClemency Program.\nupon the satisfactory completion of a\n101.16\nPostponement of Board considera-\nA number of comments from the pri-\nspecified period of alternative service\ntion and of the start of alternative\nvate bar have suggested that the Board\nnot to exceed 24 months;\nservice.\nshould add as a mitigating circumstance\nAppendix A: Application kit.\n(3) Grant a clemency discharge in\n\"evidence that an applicant would prob-\nAppendix B: Proclamation 4313.\nsubstitution for a Dishonorable, Bad\nably have obtained a Selective Service\nAppendix C: Executive Order 11803.\nConduct, or Undestrable Discharge;\nstatus or military discharge or reassign-\n(4) Commute the sentence; or\nAUTHORITY: Executive Order 11803, 39 FR\nment beneficial to him, but failed to ap-\n33297, as amended.\n(5) Deny clemency.\nply due to lack of knowledge or confu-\n(b) In unusual circumstances and as\nsion.\" Mitigating circumstances #1, 8,\n§ 101.1 Purpose and scope.\nauthorized by Executive Order 11803, the\nand 9, in conjunction, are adequate to\nThis part establishes the procedures\nBoard may make other recommenda-\nmeet this problem.\nof the Presidential Clemency Board.\ntions as to the form that clemency should\nCalculation of length of alternative\nCertain other matters are also treated,\ntake. This shall only be done in order to\nservice. Subsection 102.5(c) has been\nsuch as the assistance to be given to in-\ngive full effect to the intent and purposes\nadded in order to make clear the Board's\ndividuals requesting determinations of\nof the Presidential Clemency prográm.\ndecision that the initial baseline period\njurisdiction, or requesting information\n§ 101.5 Initial filing.\nof alternative service for applicants with\nrespecting those parts of the Presidential\nUndesirable Discharges is three (3)\nClemency Program which are adminis-\n(a) In order to comply with the re-\nmonths.\ntered by the Department of Defense and\nquirements of Executive Order, 11803, as\nEligibility of clemency recipients for\nthe Department of Justice under Presi-\namended, an individual must make an\nmilitary discharge review remedies. The\ndential Proclamation 4313 (39 FR 33293)\ninitial filing to the Board not later than\nPresidential Clemency Board notes, al-\nMarch 31, 1975. The Board considers suf-\nthough the matter is not one for inclu-\n§ 101.2 General definitions.\nficient as an initial filing any written\nsion in its regulations, that it has\n\"Action attorney\" means an attorney\ncommunication postmarked not later\nreceived numerous comments which as-\non the staff of the Board who is assigned\nthan March 31, 1975, and received by\nsume that a recipient of executive clem-\nan applicant's case.\nthe Board, the Department of Justice,\nency under the President's clemency\n\"Applicant\" means an individual who\nthe Department of Defense, the Depart-\nprogram is ineligible for consideration\ninvokes the jurisdiction of the Board,\nment of Transportation, or the Selective\nunder the military services' discharge\nand who has submitted an initial filing.\nService System. In the communication\nreview processes.\n\"Board\" means the Presidential\nan individual or his representative must\nThis is incorrect. Any applicant to the\nClemency Board as created by Executive\nrequest consideration of the individual's\nBoard for executive clemency may also\nOrder 11803 (39 FR. 33297) or any duly\ncase or raise questions which evidence\nseek review of his discharge through one\nauthorized panel of that Board.\na serious interest in applying for the\nof the military services' discharge re-\nprogram. Oral applications made not\nview boards or boards for the correction\n§ 101.3 Jurisdiction.\nlater than March 31, 1975 are considered\nof military records. Applying to the\nJurisdiction lies with the Board with\nsufficient reduced to writing, and post-\nBoard does not exclude a former service-\nrespect to a particular person if such\nmarked not later than May 31, 1975.\nman from the jurisdiction of the military\nperson applies to the Board not later\n(b) If an initial filing is made by a\nservices' boards, nor does it preclude the\nthan March 31, 1975 and:\nrepresentative, the case is not considered\nremedies which are available from those\n(a) He has been convicted for failure\nby the Board unless and until the appli-\nboards.\nunder the Military Selective Service Act\ncant submits a written confirmation of\nThe Presidential Clemency Board\n(50 App. U.S.C. 462) or any rule or regu-\nhis clemency application. This confirma-\nnotes that a veteran who receives a\nlation promulgated thereunder to register\ntion by the applicant may be sent either\nClemency Discharge through the Board\nor register on time, to keep the local\ndirectly or through a representative, but\nmay subsequently seek, according to the\nboard informed of his current address,\nit must be mailed not later than May 31,\nDepartment of Defense, an upgrading of\nto report for or submit to preinduction or\n1975. A statement by an attorney that he\nthat discharge through the military serv-\ninduction examination, to report for or\nis acting on behalf of an applicant is suf-\nices' normal discharge review processes.\nsubmit to induction itself, or to report for\nficient. Applications by a representative\nThis chapter will become effective\nor submit to, or complete (alternative)\non behalf of an applicant may be con-\nservice under section 6(j) of the Act for\nsidered by the Board where good cause is\nimmediately.\noffenses committed during the period\nshown why the applicant is unable to\nIssued in Washington, D.C. on March\nfrom August 4, 1964 to March 28, 1973,\napply.\n18, 1975.\ninclusive; or\n§ 101.6 Application form.\nCHARLES E. GOODELL,\n(b) He has received a punitive or\n(a) Upon receipt of an initial filing, a\nChairman, Presidential Clem-\nundesirable discharge as a consequence\nmember of the Board's staff makes a de-\nency Board, The White House.\nof offenses under Article 85 (desertion),\ntermination of probable jurisdiction.\n1. Part 101 is added to read as follows:\n86 (AWOL), or 87 (missing movement)\nPersons who are clearly beyond the\nof the Uniform Code of Military Justice\nPART 101-ADMINISTRATIVE\nBoard's jurisdiction are so notified in\n(10 U.S.C. 885, 886, 887) that occurred\nPROCEDURES\nwriting. A person who questions this de-\nbetween August 4, 1964 and March 28,\ntermination should promptly write the\nSec.\n1973, inclusive, or is serving a sentence of\nGeneral Counsel, Presidential Clemency\n101.1\nPurpose and scope.\nconfinement for such violation.\n101.2\nGeneral definitions.\nBoard, The White House, Washington,\n101.3\nJurisdiction.\n(c) Jurisdiction will not lie with re-\nD.C. 20500, stating his reasons for ques-\n101.4\nRemedies.\nspect to an individual precluded from\ntioning the determination. The General\n101.5\nInitial filing.\nre-entering the United States under 8\nCounsel of the Board makes the final de-\n101.6\nApplication form.\nU.S.C. 1182(a) (22) or other law.\ntermination of probable jurisdiction and\nFEDERAL REGISTER, VOL. 40, NO. 56-FRIDAY, MARCH 21, 1975\nRULES AND REGULATIONS\n12765\nso notifies the applicant or his repre-\ntion in a particular case, he promptly\n(f) Where, in the opinion of the Board,\nsentative in writing stating the reasons\nnotifies the applicant or his representa-\nthere is a conflict of fact, false state-\nwhy. In doubtful cases, a final determi-\ntive in writing, stating the reasons for\nment, or omission material to the Board's\nnation of jurisdiction is made by the\nsuch a determination.\nconsideration of an aggravating or miti-\nBoard.\n(f) An applicant or his representative\ngating circumstance, as specified in\n(b) A person who has been notified\nwho questions this adverse determination\n§§ 102.3 and 102.4, the case is tabled. The\nthat jurisdiction does not lie in his case\nof jurisdiction should write the General\nAction Attorney is then instructed to ob-\nis considered as having made a timely\nCounsel of the Board in accordance with\ntain additional facts.\nfiling if the final determination is that\nthe provisions of $ 101.6(a).\n§ 101.9 Consideration before the Board.\nthe Board has jurisdiction over his case.\n§ 101.8 Initial case summary.\n(c) A person who is within the juris-\n(a) At a regularly scheduled meeting\ndiction of the Board is sent an applica-\n(a) Upon receipt of the necessary rec-\nof the Board, an applicant's case is con-\ntion form, information about the Presi-\nords and files, the Action Attorney pre-\nsidered. The Board may provide by rule,\ndential clemency program, instructions\npares an initial case summary of the ap-\nhowever, that cases will be initially con-\nfor the preparation of the application\nplicant's case. The files, records, and any\nsidered by panels of not less than three\nform, a statement describing the Board's\nadditional sources used in preparing the\nBoard members. Any case may be\nprocedures and method of determining\ninitial case summary are listed. No other\nbrought before a majority of the full\ncases, and a list of volunteer counseling\nmaterial is used. The initial case sum-\nBoard for consideration at the request\nservices.\nmary includes the name and business\nof a panel member. Panel recommenda-\n(d) The person is urged to return the\ntelephone number of the Action Attorney\ntions will be considered and approved by\ncompleted application form to the Board\nwho may be contacted by the applicant\na majority of the full Board.\nas soon as possible. Completed applica-\nor his representative.\n(b) The Action Attorney presents to\ntion forms must be postmarked within\n(b) The initial case summary is sent\nthe Board a brief statement of the com-\nsixty (60) days of the time they were\nby certified mail to the applicant or his\npleted case summary and, as provided\nmailed by the Board, in order to qualify\nrepresentative. The summary is accom-\nin § 101.8(b), the material submitted by\nfor the Board's consideration as a matter\npanied by an instruction sheet describing\nthe applicant.\nof right.\nthe method by which the summary was\n(c) The Board grants a personal ap-\nprepared and by a copy of the guidelines\n§ 101.7 Assignment of Action Attorney,\npearance to an applicant and his rep-\nused by the Board for the determination\ncase number, and determination of\nresentative if they can show in a written\nof cases. Applicants are encouraged to\njurisdiction.\nstatement that such an appearance is\nreview the initial case summary for ac-\nnecessary to the Board's understanding\n(a) Upon receipt by the Board of the\ncuracy and completeness and advised of\nof the applicant's case. The Board con-\ncompleted application form or of infor-\ntheir right to submit additional sworn\nsiders each request for an oral presen-\nmation sufficient for the Board to re-\nor unsworn material. Additional material\ntation at a regular meeting and informs\nquest the records and files specified in\nmay be submitted in any length. Nothing\nthe applicant and his representative\nparagraph (b) of this section, the ap-\nover three (3) single-spaced, typewritten,\nwhether or not his request has been\nplicant's case is reviewed for preliminary\nletter-sized pages in length is read ver-\ngranted.\ndetermination of the Board's jurisdic-\nbatim to the Board. Where necessary,\n(d) Any oral presentation granted by\ntion. If it appears that the Board has\ntherefore, an applicant should summa-\nthe Board shall not exceed a reasonable\njurisdiction over the case, a file is opened\nrize his additional material to comply\nperiod of time. Neither applicant nor his\nand a case number assigned. The Board\nwith this verbatim presentation require-\nrepresentative may be present when the\nwill then request from all appropriate\nment. If this is not done, the Action\nBoard begins deliberations, but should\ngovernment agencies the relevant rec-\nAttorney does SO.\nremain available for further consulta-\nords and files pertaining to the appli-\n(c) At any time before consid-\ntion immediately thereafter.\ncant's case.\neration of his case, an applicant may sub-\n(e) After due deliberation the Board\n(b) In normal circumstances, the rel-\nmit evidence of inaccurate, incomplete,\ndecides upon its recommendation to the\nevant records and files for civilian cases\nor misleading information in the com-\nPresident listing the factors it considered\nare the applicant's files from the Bu-\nplete Board file or other files. This in-\nin making its recommendation.\nreau of Prisons and information that he\nformation is incorporated in applicant's\nto the Board. For military cases,\nBoard file.\n§ 101.10 Recommendations to the Pres-\nthey will include the applicant's military\n(d) An applicant's case is ready for\nident.\npersonnel records, military clemency\nfinal consideration by the Board not\n(a) At appropriate intervals, the\nfolder, record of court martial, if any,\nsooner than thirty (30) days after the\nChairman of the Board submits to the\nand information that the applicant has\ninitial case summary is mailed to the\nPresident certain master warrants list-\nsent to the Board. Applicants and their\napplicant. Material which amends or sup-\ning the names of applicants recom-\nrepresentatives have the right to request\nplements the applicant's initial case sum-\nmended for executive clemency and a\nthat the Board consider other pertinent\nmary must be postmarked within this\nlist of the names of applicants consid-\nfiles. The Board will attempt to comply\nthirty (30) day period to ensure that it\nered by the Board but not recommended\nwith these requests.\nis considered. An applicant's request that\nfor clemency. The Chairman will also\n(c) At the offices of the Board, infor-\nthis thirty (30) day period be extended\nsubmit such terms and conditions for\nmation collected by the Board inde-\nis liberally granted by the Action Attor-\nexecutive clemency, if any, that have\npendently of any other agency is readily\nney, if the request is received prior to\nbeen recommended in each case by the\navailable to an applicant or his repre-\nBoard action and is reasonable.\nBoard.\nsentative. All files obtained from other\n(e) Upon receipt of the applicant's re-\n(b) Following action by the President,\nagencies are available to the extent not\nsponse to the initial summary, the Action\nthe Board sends notice of such action\nbarred by the rules of the agency owning\nAttorney notes all such amendments, sup-\nin writing to all applicants whose\nthe file. Files from another agency are\nplements, or corrections on the initial\nnames were submitted to the President.\ncited in a summary when they are used\nsummary submitted by the applicant or\nEach applicant is sent a list of the miti-\nas the basis of statements in that sum-\nhis representative. All such amendments\ngating and aggravating circumstances\nmary. Reason for denial of access to any\nare attached to the initial case summary\ndecided by the Board to be applicable\nof these files is stated in writing upon\nwith notation by the Action Attorney of\nin his case.\nrequest.\nany discrepancies of fact which in his\n(d) Where the initial filing contains\nopinion remain unresolved. The complete\n§ 101.11 Reconsideration.\nadequate information, the Board staff\ncase summary consists of the initial sum-\n(a) An applicant may ask the Board\nmay assign a case number and request\nmary, amendments as described in para-\nfor reconsideration of his case. Petitions\nrecords and files prior to receipt of the\ngraph (c) and this section, and the ma-\nfor reconsideration, including any sup-\ncompleted application form.\nterials submitted by the applicant and\nplementary material, must be post-\n(e) If the Action Attorney determines\nhis representative as described in para-\nmarked within thirty (30) days of Board\nthat the Board does not have jurisidic-\ngraph (b) of this section.\nmailing specified in $ 101.10(b).\nFEDERAL REGISTER, VOL. 40, NO. 56-FRIDAY, MARCH 21, 1975\n12766\nRULES AND REGULATIONS\n(b) At a regularly scheduled Board\nsubmit only information sufficient for a\n$ 101.16 Postpinement\nmeeting, a majority of the Board being\ndetermination of jurisdiction and for the\nsideration and of the start of\npresent, tt will reconsider the applicant's\nretrieval of necessary official records and\nnative service.\ncase if the applicant's petition shows one\nfiles. The application form requires the\n(a) An applicant may request that\nor more of the following:\napplicant's name, date of birth, selective\nthe Board defer consideration of his case\n(1) New fact, material to the disposi-\nservice number, military branch and\nfor a reasonable period of time. Such de-\ntion of his case, which the Board had\nservice number, if applicable, informa-\nferments are liberally granted provided\nnot previously considered, provided that\ntion concerning the draft evasion offense\nthat they do not result in an undue dis-\nthe applicant explains to the Board's\nor absence-related military offense, and\nruption of the Board's operations or de-\nsatisfaction why such facts were not sub-\nthe disposition thereof, and the mailing\nlay the final termination of the Board's\nmitted earlier. New facts are, for purposes\naddress and telephone number of either\noperations.\nof this section, considered material only\nthe applicant or his representative.\n(b) An applicant who has been granted\nif they relate to presence or absence of\n(b) The Board takes all steps in its\nexecutive clemency conditioned upon a\nan aggravating circumstance under\npower to protect the privacy of ap-\nperiod of alternative service may ask\n$ 102.3 or of a mitigating circumstance\nplicants and potential applicants to the\nfor the postponement of the beginning\nunder $ 102.4, or to calculation of length\nPresidential clemency program. No per-\nof his period of alternative service for a\nof alternative service under $ 102.5.\nsonal information concerning an ap-\nreasonable period of time. The reasons\n(2) Factual error, in the complete case\nplicant or potential applicant is released\nfor which a postponement may be grant-\nsummary or other document considered\nby the Board unless disclosure is neces-\ned include personal hardship and con-\nby the Board that was material to the\nsary for the proper functioning of the\nflicting obligations. The Board makes\nBoard's disposition of his case and detri-\nBoard (e.g., to the Selective Service Sys-\nevery effort, consistent with its own au-\nmental to him; or\ntem so that alternative service may be\nthority and that of the Selective Service\n(3) Procedural error that was material\nperformed) or unless required by law.\nSystem to accommodate postponement\nto the Board disposition of his case and\n(1) Information which reveals com-\nrequests.\ndetrimental to him.\nmission of a serious crime, unrelated to\n2. Part 102 is added to read as follows:\n(c) The Board may at its discretion\nany offense subject to the jurisdiction of\npermit an applicant or his representative\nthe Presidential clemency program is\nPART 102-SUBSTANTIVE STANDARDS\na reasonable period of time to present\nforwarded to the appropriate authorities.\nSec.\nbefore the Board an oral statement. The\n(2) As required by law. the name (but\n102.1 Purpose and scope.\nprovisions of $ 101.9 apply to any request\nonly the name) of a recipient of clem-\n102.2\nBoard recommendations\nfor a personal appearance.\nency is released to the public.\n102.4 Mitigating circumstances.\n(d) After due deliberation, the Board\n(c) All personal information obtained\n102.5 Calculation of length of alternative\nmay:\nby the Board in the course of reviewing\nservice.\n(1) Leave unchanged its original rec-\nan applicant's case, except information\nAUTHORITY: Executive Order 11803, 39 FR\nommendation;\nobtained from other agencies, is sealed\n33297, as amended.\n(2) Where executive clemency was not\nby the Board. This happens when the ap-\n§ 102.1 Purpose and scope.\ngranted, recommended to the President\nplicant has received his pardon from the\nPresident or when the Board's operations\nThis section contains the standards\nthat he grant it in accordance with such\nwhich the Board employs in deciding\nterms and conditions as may be appro-\nterminate, whichever is earlier.\npriate;\n(d) Upon announcement of the Presi-\nwhether or not to recommend that the\n(3) Where executive clemency was\ndent's disposition of a case, the Board\nPresident grant executive elemency,\ngranted, recommend to the President\nmay publish a summary of that case\nwhether or not elemency should be con-\nafter the removal of all information\nditioned upon satisfactory completion of\nthat he diminish the length of alternative\nservice on which the grant of clemency\nlikely to identify the individual.\na period of alternative service, and, if\nso, what the length of this alternative\nhas been conditioned or immediately\n$ 101.14 Representation before the\nservice is.\ngrant a full and unconditional pardon.\nBoard.\n(e) Applicants requesting reconsider-\n§ 102.2 Board recommendations.\n(a) Although an applicant may bring\nation are so notified in writing of the\nhis case before the Board without a rep-\nIn each case the Board decides first\nBoard's decision, together with the\nresentative, each applicant is advised of\nwhether or not it will recommend the\nreasons.\nhis right to representation and encour-\nPresident that the applicant be granted\n§ 101.12 Transmittal to other agencies\naged to seek counsel experienced in mili-\nexecutive clemency. In reaching this de-\nof clemency decisions.\ntary or selective service law. A. repre-\ncision, the Board considers the aggre-\nsentative need not be an attorney,\nvating circumstances in $ 102.3 and the\n(a) The Chairman of the Board may\nalthough legal counsel is recommended\nmitigating circumstances in $ 102.4.\nforward for further action to the Secre-\nto applicants. The Board staff advises\ntaries of the Army, Navy, and Air Force,\n§ 102.3 Aggravating circumstances.\nthe Secretary of Transportation, the Di-\napplicants of those private sources\n(a) Presence of any of the aggravat-\nrector of the Selective Service System,\nwhich are available to provide counsel-\ning circumstances listed below may\nand the Attorney General, as appropri-\ning.\neither disqualify an individual for ex-\nate, only such information about the\n§ 101.15 Requests for information about\necutive clemency or cause the Board\nPresident's decision as is necessary in the\nthe Clemency Program.\nto recommend to the President a period\nBoard's judgment for the agency to per-\nof alternative service exceeding the\nform its functions under the President's\n(a) Upon receipt by the Board of a re-\napplicant's \"baseline period of alterna-\nclemency program or for other necessary\nquest for information from an individual\ntive service,\" as determined under\naction respecting the applicant.\nclearly not within the jurisdiction of the\n$ 102.5.\n(b) A decision by the President to deny\nBoard, the Board's staff attempts to de-\n(b) Aggravating circumstances of\nexecutive clemency to a person who has\nwhich the Board takes notice are:\ntermine his eligibility for any other part\nfully discharged his obligations under the\n(1) Other adult criminal convictions;\nof the Presidential clemency program. If\nlaw for his offense is not transmitted by\n(2) False statement by applicant to\nthe Board to any other agency of the\nrequested, the Board attorney preserves\nthe Presidential Clemency Board;\nUnited States Government or to any\nthe confidentiality of the individual's\n(3) Use of force by applicant collater-\nother person, public or private, except\nlocation.\nally to AWOL, desertion, or missing\nthe applicant or his representative.\n(b) A member of the Board's staff also\nmovement or civilian draft evasion\noffense;\n§ 101.13 Confidentiality of communica-\ninforms any individual of other reme-\n(4) Desertion during combat;\ntions.\ndies available to him, including those\n(5) Evidence that applicant committed\n(a) In order to have his case consid-\nfrom the Departments of Justice and\noffense for obviously manipulative and\nered by the Board, an applicant need\nDefense and through judicial processes.\nselfish reasons;\nFEDERAL REGISTER, VOL. 40, NO. 56-FRIDAY, MARCH 21, 1975\nRULES AND REGULATIONS\n(6) Prior refusal to fulfill court or-\nnot clemency should be conditioned upon\ndered alternative service;\na specified period of alternative service\n(7) Violation of probation or parole;\nand, if so, what length that period should\n(8) Multiple AWOL/UA offenses; and\nbe:\n(9) AWOL/UA of extended length.\n(1) The starting point for calculation\n(c) Whenever an additional aggravat-\nof length of alternative service will be 24\ning circumstance not listed is considered\nmonths.\nby the Board in the discussion of a par-\n(2) The starting point will be reduced\nticular case, and is material to the dispo-\nby three times the amount of prison time\nsition of that case, the Board postpones\nserved.\nfinal decision of the case and immedi-\n(3) The starting point will be further\nately informs the applicant and his rep-\nreduced by the amount of prior alterna-\nresentative of their opportunity to sub-\ntive service performed, provided that the\nmit evidence material to the additional\nprescribed period of alternative service\ncircumstance.\nhas been satisfactorily completed or is\n§ 102.4 Mitigating circumstances.\nbeing satisfactorily performed.\n(4) The starting point will be further\n(a) Presence of any of the mitigating\nreduced by the amount of time served on\ncircumstances listed below or of any\nprobation or parole, provided that the\nother appropriate mitigating circum-\nprescribed period has been satisfactorily\nstance is considered as cause for rec-\ncompleted or is being satisfactorily per-\nommending that the President grant\nformed.\nexecutive clemency to an applicant, and\n(5) Subject to paragraphs (b) and (c)\nas cause for reducing the applicant's\nof this section, the baseline period of al-\nalternative service below the baseline\nternative service will be the remainder of\nperiod, as determined under § 102.5.\nthese four subtractions or final sentence\n(b) Mitigating circumstances of which\nto imprisonment, whichever is less.\nthe Board takes notice are:\n(b) In no case will the baseline period\n(1) Lack of sufficient education or\nof alternative service be less than three\nability to understand obligations or\n(3) months.\nremedies available under the law;\n(c) For applicants who have received\n(2) Personal and family problems\nan Undesirable Discharge from a military\neither at the time of offense or if appli-\nservice, the baseline period of alternative\ncant were to perform alternative service;\nservice shall be three (3) months. -\n(3) Mental or physical condition;\n(d) The Board may consider mitigat-\n(4) Employment and other activities\ning circumstances as cause for recom-\nof service to the public;\nmending clemency upon satisfactory\n(5) Service-connected disability,\ncompletion of a period of alternative\nwounds in combat or decorations for\nservice that is less than an applicant's\nvalor in combat;\nbaseline period of alternative service, or\n(6) Period of creditable military\nfor recommending an immediate pardon.\nservice;\n(e) In cases in which aggravating cir-\n(7) Tours of service in the war zone;\ncumstances are present and are not, in\n(8) Substantial evidence of personal\nthe Board's judgment, balanced by miti-\nor procedural unfairness;\ngating circumstances, the Board may\n(9) Denial of conscientious objector\nconsider such aggravating circumstances\nstatus, of other claim for Selective Serv-\nas cause for recommending clemency\nice exemption or deferment, or of a claim\nupon satisfactory completion of a period\nfor hardship discharge, compassionate\nof alternative service exceeding, by three\nreassignment, emergency leave, or other\n(3), six (6), or nine. (9) additional\nremedy available under military law,\nmonths, the applicant's baseline period\non procedural, technical, or improper\nof alternative service. In extraordinary\ngrounds, or on grounds which have sub-\ncases, as an alternative to denying clem-\nsequently been held unlawful by the\nency, the Board may increase the base-\njudiciary;\nline period to a maximum of not more\n(10) Evidence that an applicant acted\nthan 24 months.\nfor conscientious, not manipulative or\nselfish reasons;\nPART 201-[REVOKED]\n(11) Voluntary submission to authori-\n3. Part 201 is revoked.\nties by applicant;\nPART 202-[REVOKED]\n(12) Behavior which reflects mental\n4. Part 202 is revoked.\nstress caused by combat;\n(13) Volunteering for combat, or ex-\n[FR Doc.75-7464 Filed 3-20-75;8:45 am\ntension of service while in combat;\n(14) Above average military conduct\nand proficiency; and\n(15) Personal decorations for valor.\n(c) An applicant may bring to the\nBoard's attention any other factor which\nbe believes should be considered.\n& 102.5 Calculation of length of alterna-\ntive service.\n(a) Having reached a decision to rec-\nommend that the President grant execu-\ntive clemency to a particular applicant,\nthe Board will then decide whether or"
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