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Final Report - Draft, 8/29/75 (10)
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Final Report - Draft, 8/29/75 (10)
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Charles E. Goodell Papers
Presidential Clemency Board Subject Files
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
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The original documents are located in Box 5, folder "Final Report - Draft, 8/29/75 (10)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 5 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
IV
J
GERALD
AL & FOND $
IV. PCB APPLICANTS
C. OUR MILITARY APPLICANTS
IV-C-1
C. Our Military Applicants
During the Vietnam War, 7,500,000 individuals served in uniform.
Most served well under difficult circumstances, and 94% received
Honorable Discharges. One-third of them served in Vietnam, where
56,000 lost their lives and 300,000 were wounded. Almost one in
twelve Vietnam era servicemembers -- 500,000 -- went AWOL ("Absent
Without Official Leave") one or more times. Almost half of the
AWOL offenders were absent for less than 30 days. Usually, they
were reprimanded or given a minor (non-judicial) punishment.
More than one half of these offenders -- 325,000 -- left their
units for more than 30 consecutive days, thereby giving rise to
administrative classification as deserters;- over 10,000 never
returned. Of those who did return, about one-third (123,000) faced
court-martial charges. Many (55,000) avoided trial by accepting a
"For the Good of the Service' discharge, while another 68,000
did stand trial, with all but 500 found guilty. The majority
(42,500) of those found guilty were punished and returned to their
units; the others were adjudged Bad Conduct (23,000) or Dishonorable
(2,000) Discharges. The remaining 63,000 had established a pattern
of misconduct which prompted an administrative discharge: 43,000
were given General Discharges for Unsuitability, and 20,000 received
Undesirable Discharges for Unfitness.
The President's clemency program included the 100,000 who
had received Undesirable, Bad Conduct, or Dishonorable Discharges --
A 30 day absence subjects a serviceman to the maximum punishment
authorized for an Article 86 UCMJ, absence without leave offense.
Judicial proof of desertion, however, requires more than proof of a
30 day absence.
"For the Good of the Service" discharges were commonly known to us
as discharges "in lieu of court-martial" described in service regu-
lations. SEE: Army Regulation 635-200, Chapter 10.
IV-C-2
plus the 10, 115 who were still at large. Their offenses were often
very serious -- some AWOLs were for as long as seven years -- and
many were repeat offenders. This group comprised only one-sixth
of all AWOL offenders and one-third of all desertion offenders
during the Vietnam War.
In the discussion which follows, we trace the general
experiences of our military applicants. In sequence, we look
at the following:
1. Background
2. Induction or Enlistment in the Armed Forces
3. Early Experiences in the Military
4. Requests for Leave, Reassignment, or Discharge
5. Assignment to Vietnam
6. AWOL offenses
7. Encounters with the Military Justice System
8. Effects of a less than Honorable Discharge
1.
Background
Our military applicants were raised in small towns or on
farms (40%), and a disproportionate number (30%) came from the
South. Generally, they came from disadvantaged environments.
Many (60%) grew up in a broken home struggling to cope with a
low income (57%). Most were white, but a disproportionate per-
centage were black (21%) and Spanish-speaking (4%). Their average
IQ was very close to the national average. Nonetheless, over
three-quarters dropped out of high school before joining the
service, while less than one-half of one percent graduated from
college. Despite the common belief that our applicants resisted
the war, our applicants were not articulate, well-educated
opponents of the war; almost none of them (0.2%) had applied for
a conscientious objector draft classification before entering the
military.
2.
Induction or Enlistment in the Military
Our applicants began their military careers at an early
age. Almost one-third enlisted at age 17, and over three-quarters
were in uniform by their 20th birthday. Most (84%) enlisted
rather than be drafted. Our applicants represented the Army
(63%), the Marines (23%), and to a lesser degree, the Navy (12%)
and the Air Force (3%).
The reasons for enlistment varied from draft pressure to
the desire to learn a trade, to the simple absence of anything
else to do. Many of them saw the military as an opportunity to
become more mature
IV-C-3
(Case #00148) Applicant enlisted after high school becuase he did not
want to go to college or be inducted into the Army.
(Case #02483) Applicant enlisted to obtain specialized training
to become a microwave technician.
(Case #00179) Applicant enlisted at age 17 because he wanted a place to
eat and a roof over his head.
(Case #00664) Applicant enlisted because he was getting into trouble all
the time and felt that service life might settle him down.
As the Vietnam war expanded America's military manpower needs, the pres-
sures on recruiters became very intense. Many recruiters were helpful to our
applicants by arranging entry into the preferred military occupational speci-
ality and geographic area of assignment.*
(Case #00356) Applicant enlisted at age 17 for motor maintenance training,
but instead was trained as a cook. This action caused him disappointment
and frustration. His grandmother contended that he was misled by the
recruiter.
(Case #01371) Applicant started drinking at age 13 and was an excessive
user of alcohol. He was expelled from two schools after getting into
trouble with teachers because of his dislike and disrespect for authority.
He was turned down for enlistment by the Air Force. The Naval Recruiting
Officer told him to omit these facts from his application for enlistment
in the Navy.
PROJECT 100,000
Before the Vietnam War, the military generally had not accepted persons
for enlistment or induction if they had Category IV scores on their AFQT
test, imposing an enlistment barrier at the 30th percentile. Some individuals scor
ing between the 15th and 30th percentiles were brought into the service
under project STEP.
In August, 1966, Secretary of Defense, Robert McNamara announced
Project 100,000 "to use the training establishment of the Armed Forces to
*The press for manpower led to improp rieties by recruiters and misunder-
standings by enlistees, which some of our applicants claimed were justi-
fications for their unauthorized absences.
**The Armed Forces Qualification Test (AFQT)
was the basic test for
mental qualification for service in the military, administered at the Armed
Forces Entrance and Examination Stations (AFEES).
IX-C4
help certain young men become more productive citizens when
they return to civilian life." Like STEP, Project 100,000
offered the opportunity and obligation of military service
to marginally qualified persons by reducing mental and medical
standards governing eligibility. During its first year, 40,000
soldiers entered the military under this program. Thereafter,
it lived up to its name by enabling 100,000 marginally qualified
soldiers to join the service each year.
Military studies have indicated that the opportunity for
technical training was the principal motivation for the enlist-
ment of Category IV soldiers. However, over half enlisted at
least party because of the draft pressure. Other reasons for
enlistment were to travel, obtain time to find out what to do
with one's life, serve one's country, and enjoy educational
benefits after leaving the service. Despite their eagerness for
vocational training, many Category IV soldiers soon found them-
selves being trained in the combat arms -- skills of little
significance in the civilian job market. Almost 40% of all
soldiers in combat arms positions in 19 had Category IV AFQT
scores
However, some of our less educated applicants did
learn marketable skills, and 13% received a high school equivalency
certificate while in the service.
C-5
Almost one-third of our applicants (32%) were allowed to join the
military despite pre-enlistment AFQT scores at or below the 30th percentile,
including one half of 1% whose scores were below the 10th percentile and who
were generally statutorily ineligible for military service.
(Case No. 00847) Applicant had an AFQT of 11 and a GT (IQ score ) of
61 at enlistment. He successfully completed basic
training, but went AWOL shortly thereafter.
(Case No. 0229) Applicant had an 8th grade education and an AFQT of
11. From a broken home, he was enthusiastic about
his induction into the Army, believing that he would
have financial security and would receive technical
training. His lack of physical agility and difficulties
in reading and writing caused him to fail basic training.
He was in BCT for nine months before he was sent to
AIT as a tank driver. He continued to have learning
problems in advanced training. This problem was
compounded by the ridicule of his peers who discovered
that he required several months to complete basic
training.
Not all of our Category IV applicants joined the service because of
Project 100,000. Some had other test scores qualifying them for enlistment
under the earlier standards. Nonetheless, we suspect that many of our
applicants would never have been in the service were it not for Project 100,000.
Our Category IV applicants tended to be from disadvantaged circumstances.
Compared to our other applicants, they were predominantly Black or Spanish-
speaking (42% vs. 18%)* and grew up in cities (55% VS. 44%). Their families
struggled with low incomes (72% vs. 49%), and they dropped out of high school
(75% VS. 56%). The quality of their military service was about the same as
that of our other applicants; however, they had no more punishments for
non-AWOL offenses (53% VS. 52%) or non-AWOL charges pending at time of discharge
(13% VS. 12%). Despite this, a greater percentage received administrative
Undesirable Discharges (68% VS. 57%).
The first figure is the percentage of the Category IV soldiers, the second
refers to all other soldiers.
N-C-6
We saw only the failures of Project 100,000 -- never its successes.
If our applicants were representative of all 100,000 discharged and fugitive
servicemen eligible for clemency, 35,000 of the latter had Category IV AFQT
scores. Of all Category IV soldiers during the Vietnam Era,
% committed
AWOL offenses and were eligible for clemency. Of all Category I - II soldiers,
% committed AWOL offenses and were eligible for clemency.
3. Early Experiences in the Military
Our applicant's first encounter with the military was in basic training**
It was during these first weeks that our applicants had to learn the regimen
and routine of military life. For many, this was their first experience away
from home and the first time they faced such intense personal responsibilities.
Some of our applicants did not adjust well to the demands placed on them.
Homesickness and emotional trauma found expression ranging from commonplace
complaints and tears, to the more unusual conduct:
(Case No. 02483) Applicant went on aimless wanderings prior to advanced
training. He finally lost control of himself and
knocked out 20 windows in the barracks with his bare
hands, resulting in numerous wounds to himself.
Ethnic and cultural differences among recruits posed problems for others
who did not get along well in the close quarters of the barracks environment.
(No. 0309)
During boot camp, applicant, of Spanish heritage,
was subjected to physical and verbal abuse. He recalls
being called "chili bean" and "Mexican chili". His
ineptness also made him the butt of his boot camp unit.
He wept at his trial when he recalled his early
experiences that led to his AWOL.
(No. 10125)
Applicant's version of his various problems is that he
could no longer get along in the Marine Corps. Other
Marines picked on him because he was Puerto Rican, and
wouldn't permit him to speak Spanish to other Puerto
Ricans and finally they tried to get him into trouble
when he refused to let them "push" him around.
Women, in particular had unique problems. REJECT
** Since 63% of our applicants were Army, our discussion will center (unless
otherwise specified) on Army procedures, which differ in degree from other
services, but not in substance.
IV-C-7
(Case No. 00704) Applicant was a high school graduate with a Category I
AFQT score and a GT (IQ test) score of 145. She
complained that other soldiers harrassed her without
cause and accused her of homosexuality. She departed
AWOL to avoid the pressure.
Incidents of AWOL during basic training usually resulted in minor forms
of punishment. Typically, a new recruit would receive a non-judicial punishment
resulting in restriction, loss of pay, or extra duty. Seven percent of our
applicants were discharged because of an AWOL commencing during basic training.
Following basic training, pressures on the average soldier with family
or personal problems may have increased, incidental to a transfer to another
unit for advanced or on the job training. Altogether, 10% of our applicants
were discharged for an AWOL begun during advanced training. Individual
transfers resulted in breaking up units and frequently intense personal friend-
ships. The AWOL rate tended to be higher for soldiers "in transit" to new
/
assignments.
Many of our applicants were discouraged by training in an occupational
speciality they feared would lead to Vietnam assignments. Others were trained
in jobs which they found unsatisfying and some of our applicants were given
details which made no use of their newly-earned skills.
(Case No. 9488) Applicant found himself pulling details and mowing
grass rather than working in his military occupational
speciality. He then went home and did not return for
over three years.
*
Scheduling of schools, formation of units, personnel transfers and other
administrative actions may have led to delays, assignments to transient
billets, and temporary details of newly trained personnel to duties not
utilizing their skills. Also, military life, especially for lower ranking
enlisted personnel, required the performance of certain duties for which
no training was required, such as kitchen patrol and area cleanups.
IV-1-8 -
Others were still having difficulty adjusting to the many demands
of military life. As in civilian employment circles, a daily routine had to
be followed, superiors had to be treated with respect and orders had to be
obeyed. The civilian's or service-member's failure to comply with these
expectations could result in his being fired, with attendant loss of pay,
promotability and status, or transfer. But the servicemen may have violated
violated military custom or law which could lead to
disciplinary action. Altogether, over half (53%) of our applicants were
punished for one or more military offenses other than AWOL which would not
have been criminal offenses in civilian life. Only 3% were punished for
military offenses comparable to civilian crimes (such as theft or vandalism).
(Case No. 14392) Applicant had difficulty adjusting to the regimentation
of Army life. While he was in the service, he felt that
he needed to have freedom of action at all times. He
would not take guidance from anyone, was repeatedly
disrespectful, and disobeyed numerous orders. His
course of conduct resulted in his receiving three non-
judicial punishments and three Special Court-Martial.
After training periods were completed, our applicant morale often
declined. This is probably due to the break-up of units with soldiers moved
to different duty assignments. Therefore, much of the closeness and camaraderie
of their early military life was disrupted. Many of our applicants faced more
loneliness than before, with personal and family pressures leading to numerous
instances of AWOL. A majority (52%) of our applicants were discharged for
AWOL offenses occurring during stateside duty other than during training.
4. Requests for Leave, Reasignment, or Discharge
Most of our applicants complained of personal or family problems during
their military careers. Parents died, wives had miscarriages, children had
illnesses, houses were repossessed, families went on welfare, and engagements
were broken.
IV.C-9
(Case No. 3289) The applicant failed the first, second and fourth
grades, and quit high school in his first year because
he was uncomfortable there. He was drafted into
the Army and in view of his educational deficiencies,
was sent to a Special Training Company. His GT score
was 54 and his AFQT score of 14 placed him in Category IV.
During his 4 months and 19 days of creditable service
he was absent without official leave on five occasions.
He was motivated in each instance by his concern for
his grandmother who was now living alone and who he
believed needed his care and support.
The military has remedies for soldiers with these problems. They could
request leave, reassignment (compassionate, or normal change of duty station),
and, in extreme cases, discharge due to a hardship. Unit officers, chaplains,
attorneys of the Judge Advocate General's Corps, and Red Cross workers were
there to render assistance within their means. Because of impatience,
bashfulness, distrust, or misinformation, many applicants never tried to solve
their problems through military channels. Other applicants indicated that
they tried some of these channels but failed to obtain the desired relief.
(Case No. 1244) Applicant's wife was pregnant, in financial difficulties
and being evicted; she suffered from an emotional
discrder and nervous problems; his oldest child was
asthmatic and an epileptic, having seizures that
sometimes resulted in unconsciousness. Applicant
requested transfer and a hardship discharge which
were denied.
The Department of Defense discovered that 58% of its clemency applicants
did seek help from at least one military source before going AWOL. However,
only 45% approached their commanding officer, and fewer yet approached an
officer above the Company level. Only 1.3% of our applicants were granted
leave or reassignment to help them solve the problem which led to their AWOL.
By contrast, 8.6% had their leave or reassignment requests turned down.
(Case No. 74-436) Applicant received information that his pregnant wife
was in the hospital. She had fainted and fallen on
the edge of a coffee table and had started bleeding
internally. Applicant asked his commanding officer
for permission to return home after informing him
IV-C-10
of his wife's difficulty and of the risk of a
miscarriage. This request was denied, so he went AWOL.
Sometimes, the enormity of the problem made one period of leave
insufficient for the applicant's purpose.
(Case No. 01336) While applicant was home on leave to get married, a
hurricane flooded his mother-in-law's house, in which
he and his newly wed wife were staying. Almost the
entire property and his belongings were lost. He
requested and was granted a 21-day leave extension,
which he spent trying to repair the house, However,
the house remained in an unliveable condition, and
his wife began to suffer from a serious nervous
condition. Applicant went AWOL for four days to ease
the situation. He returned voluntarily and requested
a Hardship Discharge or a six-month emergency leave,
both of which were denied. He then went AWOL.
Requests for leave or reassignment were matters within a commanding officer's
*
discretion.
The Hardship Discharge offered a more lasting solution to the conflict
between a soldier's problems and his military obligations, without the stigma
of most other administrative separations. To get a Hardship Discharge, he had
to submit a request in writing to his commanding officer, explaining the nature
of his problem and how a discharge would help him solve it. The Red Cross
was often asked for assistance in documenting the request. Higher headquarters
was required to review the request and had the power to make final decisions.
None of our applicants received Hardship Discharges of course -- but
,
000 were granted during the Vietnam War to individuals who adequately
documented problems as required by service regulations.
Requests for leave were matters within the Commanding Officer's discretion.
However, leave is earned at the rate of 30 days per calendar year (2½ days
per month fo satisfactory service) and individuals often used leave substan-
tially in excess of the amount they had earned. Commanding Officers could
not normally authorize "advance leave" in excess of 30 days, even "Emergency
Leave" was charged against the annual leave allowance. As a general rule
was no procedure available to military personnel comparable to "Leave
Without Pay" or a sabbitical leave as in the civilian sector.
38
Occasionally, our applicants requested reassignments not
because of their need to be close to home, but because of a
dislike for their unit or commanding officer. Though reassign-
ments were not always easy to arrange, a procedure was
adopted in light of the emerging volunteer army to permit
persons with similar skills to switch jobs requiring similar
skills with a willing service member at a different installation.
The soldier who was conscientiously opposed to war could
apply for in-service conscientious objector status. Very few
of our applicants did. Only 1.1% took any initiative to
obtain this in-service status, and only 0.5% made a formal
application. It is likely that the rate of C.O. applications
and approvals would have been higher if the services permitted
their judge advocates to take active roles in the C.O.
application process at no cost to the service member (also
true of Hardship Applications). While the soldier was entitled
to counsel at the various stages of the proceeding, counsel
was not furnished by the Government, and civilian counsel
could have been very expensive. Since the C.O. application
process is one of the most elaborate administrative proceedings
that an individual soldier may initiate, the average soldier
7
Reassignment practices varied with individual services; in
general, members could be transferred within command, with
minimal difficulty, major geographical reassignments re-
quired high level authority.
IV-C-39
would likely become confused without proper guidance in the
preparation of the application, its documentation, and pre-
sentation before the hearing officer. Moreover without
someone to make appropriate inquiries into the status of the
application, the soldier could easily become disillusioned and
frustrated by the delays in processing. These delays might
have run as long as four months -- and even longer if the
service member failed to comply with all regulatory require-
ments or became frustrated and departed AWOL after filing his
request (thereby stopping all favorable personnel actions).
There are two types of conscientious objector applications.
One resulted in reassignment to a non-combatant activity, while
the other provided for a discharge under honorable conditions.
Each type involves separate but similar procedures. Both
procedures put the burden of proof on the applicant, who was
required to submit statements on six separate questions con-
cerning the origin, nature, and implications of his conscientious
objection. The applicant had to "conspicuously demonstrate
the consistency and depth of his beliefs. 19. / It was difficult
for the inarticulate person to meet this standard.
IV-C-40
(Case No. 10402) For a year-and-a-half after he
was drafted, applicant tried to obtain
conscientious objector status, because
he did not believe in killing human
beings. He is minimally articulate, but
stated that even if someone was trying
to kill him, he could not kill in return.
He talked to his Captain and the Red Cross,
neither of whom found his aversion to
taking human life to be persuasive.
When his application was denied and he
was scheduled for Vietnam he went AWOL.
After submitting his application, the soldier was inter-
viewed by a chaplain and a military psychiatrist. The chaplain
had to comment on the sincerity and depth of the applicant's
belief, and the psychiatrist evaluated him for mental disorders.
One of our applicants alleges a difficult time with a psychiatrist
he consulted regarding a C.O. application.
(Case No. 0472) Three years after enlisting in the Navy,
applicant made several attempts to be
recognized as a conscientious objector.
He spoke with chaplains, legal officers,
doctors, and a psychiatrist. He told the
psychiatrist of his opposition to the war
in Vietnam and of his heavy drug use.
The psychiatrist threw his records in his
10-C-41
face and told him to get out of his
office. He went AWOL after his experience
with the psychiatrist.
The conscientious objectors next stop was to present his
case before a hearing officer, who in turn made a recommenda-
tion through the chain of command on his request. The final
authority rested either with the general Court-Martial convening
authority (usually the installation commander) or with the
administrative affairs office in the appropriate Service
Department Headquarters.
Approximately 17,000 requests for in-service conscientious
objector status were made during the Vietnam War. Altogether,
were granted. The approval rate was much
higher in the early 1970's than in the late 1960's. Only
% were approved in 196 , while
% were
approved in 197 .
Since at least 4.6% of our military applicants committed
their offenses primarily because of their opposition to the
Vietnam War, the much smaller percentage of those who applied
for in-service conscientious objector status may indicate that
many did not know such a remedy existed, had little hope their
request would be approved, or feared repercussions for expressing
their beliefs, In addition, some of our applicants were
apparently misinformed about application criteria when they
did inquire.
BERALD FORD LIBRARY
14-C-42
(Case #
)
From the time of his arrival at his
Navy base, applicant consulted with
medical, legal, and other officers on
how to obtain a discharge for conscientious
objection. He was told that the initiative
for such a discharge would have to be taken
by the Navy, so he would have to demon-
state that he was a conscientious objector.
He then went AWOL to prove his beliefs.
Following his conviction for that brief
AWOL, he requested a discharge as a
conscientious objector. His request was
denied.
IV-C-11 -
5. Assignment to Vietnam
During the height of the Vietnam War, our applicants were ordered to
Vietnam about six months after entering the service. Just over half (51%) of our
applicants received orders for Vietnam. Most complied with the orders, but many
did not. Twenty-four percent of our applicants were discharged because of an
AWOL offense they committed prior to departure for Vietnam.
(Case # 03584) Applicant received orders to report to Vietnam. While
on leave before he had to report, he requested help
from his Congressman so that he would not be sent over-
seas. He also applied for an extension of his departure
date on the grounds that his wife was 8 months pregnant
and that he was an alien. His request was denied, and
he went AWOL.
Once they arrived in Vietnam, our applicants were less likely to desert.
They faced the risk of being stranded in a foreign nation without the legal
documents necessary to permit their return. They also faced the risk of capture
by the enemy. Finally, any desertion offense under combat conditions could be
treated more harshly by military authorities. Only 3.4% of our applicants desert-
ed from Vietnam, and one-third of those went AWOL from non-combat situations. In
many cases, their reasons related to personal problems, often of a medical nature.
(Case #00423) Applicant was assigned to an infantry unit in
Vietnam. During his combat service, he sustained an
injury which caused his vision to blur in one eye.
His vision steadily worsened, and he was referred to
an evacuation hospital in DaNang for testing. A
doctor's assistant told him that the eye doctor was
fully booked and that he would have to report back
to his unit and come back to the hospital in a
couple of weeks. Frustrated by this rejection and
fearful to his inability to function in an infantry
unit, applicant went AWOL.
Almost 90% of our applicants who were sent to Vietnam were assigned to
combat situations. Some -- but not many -- acrually deserted while serving in a
combat assignment.
(Case # 3304) Applicant would not go into the field with his unit
because he felt the new C.O. of his company was in-
DERALD FORD LIBRARY
competent. He was getting nervous about going out on
an operation in which the probability of enemy contact
IV-C-12
was high. (His company was subsequently dropped anto
a hill where they engaged the enemy in combat). He
asked to remain in the rear but his request was denied.
Consequently, he left the company area because, in the
words of his chaplain, "the threat of death caused him
to exercise his right of self preservation." Applicant
was apprehended while traveling on a truck away from
his unit without any of his combat gear.
Once a soldier arrived in Vietnam it was difficult for him to leave the
country. He was permitted to return to the U.S. on emergency leave when appropriate.
Also, he was offered several days of "R&R" (Rest and Relaxation) at a location
removed from combat zones, and frequently outside of Vietnam. It was on these
sojourns outside of Vietnam that some of our applicants departed AWOL.
Many of our applicants served with distinction in Vietnam. They fought
hard and well, often displaying true heroism in the service of their country. Of
our applicants who served in Vietnam, one in eight was wounded in action. One in
twelve was awarded a Bronze Star for heroism in combat, and some even earned a
Silver Star.
(Case #2065) While a medic in Vietnam, applicant (an American Indian)
received the Bronz Star for heroism because of his actions
during a night sweep operation. When his platoon came
under intense evening fire, he moved through a mine field
under a hail of fire to aid his wounded comrades. While
in Vietnam, he was made Squad Leader of nine men, seven
of whom (including himself) were wounded in action. In
addition to his BronzeStar, he received the Army Commen-
dation Medal with Valor Device, the Vietnam Service Medal
with devices, the Vietnam Campaign Medal, and the Combat
Medics Badge.
Others experienced severe psychological trauma from their combat experiences;
some applicants turned to drugs to help them cope.
(Case #00188) During his combat tour in Vietnam, applicant's platoon
leader, with whom he shared a brotherly relationship,
was killed while awakening applicant to start his duty.
He was mistaken for a Viet Cong and shot by one of his
own men. This event was extremely traumatic to the
applicant, who experienced nightmares. In an attempt
to cope with this experience, he turned to the use of
heroin. After becoming an addict, he went AWOL.
BERALD FORD LIBRARY
IV-C-13 -
Still other applicants indicated that combat experience was a source of
personal fulfillment.
(Case: #0423)
Applicant, who was drafted, was pleased by his
assignment to Vietnam because of his confidence
in his training and membership in a cohesive,
elite unit.
In fact, almost one-half of our applicants who served in Vietnam had volunteered
either for Vietnam service, for Combat action, or for an extended Vietnam tour.
They enjoyed the close comradeship of combat situations and felt a sense of
accomplishment from doing a difficult job well. Occasionally, an applicant indi-,
cated he went AWOL because of his inability to extend his tour in Vietnam.
(Case # 8232) While in Vietnam, applicant tried to extend his tour
but his request was never answered. He was told much
later that he would have to wait until he returned
stateside, he was told that he could not return, so he
went AWOL. He had derived satisfaction from his work in
Vietnam because he was respected, and he found the
atmosphere close and friendly.
Combat experience for some applicants also produced a sense of
uneasiness about the cause for which they were fighting.
IV-C-14 -
(Cáse #03697) Applicant was successfully pursuing his military
career until he served in Cambodia assisting the
Khmer Armed Forces. He began to experience internal
conflicts over the legality and morality of Army
operations in Cambodia. This reinforced his feelings
and resulted in disillusionment.
Our Vietnam Veteran applicants frequently articulated severe readjustment
problems upon returning to the United States. This "combat fatigue" or "Vietnam
syndrome" was partly the result of the incessant stress of life in combat.
(Case #2892) After returning from two years in Vietnam, applicant
felt that he was on the brink of a nervous breakdown.
He told his commander that he was going home and could
be located there, if desired. He then went AWOL from his
duty station.
Jawes to bulp
Two-fifths of our Vietnam veteran applicants (11% of all military appli-
cants)
experienced severe personal problems as a result of their tour of duty.
These problems were psychological (45%), medical (34%), legal (17%), financial (8%),
or familial (5%). One third of their psychological and medical problems were
permanent disabilities of some kind. They often complained that they had sought
help, received none, and departed AWOL as a. consequence.
(Case #2065) (This is a continuation of the case of the American
Indian who received a Bronze Star for heroism). After
applicant's return to the United States from Vietnam,
he asked his commanding officer for permission to see
a chaplain and a psychiatrist. He claimed that he was
denied these rights, so he decided to see his own doctor.
(2065) cont'd
He was given a psychological examination and was
referred to a VA hospital. After a month of care,
he was transferred back to camp. He again sought
psychiatric care, but could find none. Later, he
was admitted to an Army hospital. One examining
psychiatrist noted that he needed prompt and fairly
intensive short-term psychiatric care to avert further
complications of his war experience. His many offenses
of AWOL were due to the fact that he felt a need for
psychiatric treatment but was not receiving it.
Our Vietnam veteran appli cants frequently complained that upon return to
stateside duty, they encountered a training Army and the routine of peacetime duty
lacking the satisfaction of the more demanding combat environment. Some adjustment
problems may have resulted from their injuries.
(Case #08349) After his return from Vietnam, applicant was frustrated
over his inability to perform his occupational speciality
as a light vehicle driver due to his injuries. His work
was limited to details and other menial and irregular
activity that led him to feel "like the walls were closing
in on me." He then went AWOL.
Unfortunately, other soldiers who had never seen combat experience were
sometimes unfriendly to those who had, adding to the combat veterans' readjustment
problems.
(Case #8145)
While in Vietnam, applicant saw much combat action and re-
ceived numerous decorations. He was an infantryman and
armor crewman who served as a squad and team leader. He
participated in six combat compaigns, completed two tours
in Vietnam, and received the Bronze Stars for heroism.
In one battle, he was wounded -- and all his fellow
soldiers were killed. His highest rank was staff sergeant
(E-6). Upon his return from Vietnam, he went AWOL because
of harassment from fellow servicemen that he was only a
"rice paddy NCO" who would not have his rank if not for the
war.
Veterans of other wars usually came home as national heroes. The Vietnam
veteran, however, was greeted coolly. Some of our applicants were disappointed by
the unfriendly reception they were given by their friends and neighbors. Many
Vietnam veterans, deeply committed to the cause for which they had been fighting,
were unprepared to return home to the attitudes of Americans in the midst of
controversy over the war.
1V-C-16
(Case #
) Applicant received a Bronze Star and Purple Heart
in Vietnam. He wrote the following in his appli-
cation for clemency: "While in Vietnam, I didn't
notice much mental strain, but it was an entirely
different story when I returned. I got depressed very
easily, was very moody, and felt as if no one really
cared that I served their country for them. And this
was very hard to cope with, mainly because while I
was in Vietnam I gave it 100%. I saw enough action for
this life and possibly two or three more. I hope that
someone understands what I was going through when I
returned."
(Case # 8145) On his return from combat in Vietnam, applicant found
it difficult to readjust to stateside duty. He was
shocked by the civilian population's reaction to the
war and got the feeling he had been "wasting his time.
6. AWOL Offenses:
By going AWOL, our applicants committed at least one of three specific
military offenses: AWOL (Article 85, UCMJ), Desertion (Article 86, UCMJ), and
Missing Movement (Article 87, UCMJ). Of the three, desertion was the most serious
offense. To commit desertion, our applicants had to be convicted of departing
with the intent to avoid hazardous duty or shirking important service (the most
serious form of desertion), or absenting himself with intent to permanently remain
away. Though the military service administratively classified most of our appli-
cants as deserters, (usually because they were gone for periods in excess of 30 days),
only 9.2% of our applicants were convicted of the offense of desertion. Desertion
convictions were difficult to obtain because of the difficulty proving the intent
element of the offense (e.g. intention to remain away permanently, etc.)
A soldier could be convicted of missing movement when he failed to accompany
his unit aboard a ship or aircraft transporting them to a more strategic position.
Only 0.9% of our applicants were convicted of missing movement.
IV-C-17
The majority of our applicants - 90% - were convicted of AWOL. Almost
one-fourth of our applicants sustained an AWOL conviction for failure to report
for transportation to Vietnam. AWOL was the easiest form of unauthorized
absence to prove and the lesser included offense of desertion. Hence, where
the evidence did not establish the intent element of desertion, a military
court could still return a finding of AWOL.
There were recognized defenses to the various chargesof AWOL. However, the applicant
had to establish credible evidence of a defense to avoid conviction once the govern-
ment established a pima facie case. This was often difficult to do, and provoked
some unusual explanations.
(Case #16332) Applicant states he was traveling across the Vietnamese
IV-C-18
countryside with a sergeant, when he and the sergeant
were captured by the Viet Cong. He was a POW for two
months before he finally escaped and returned 30 pounds
lighter and in rags, to his unit. His unit commander
did not believe his story, and his defense counsel
advised him to plead guilty at his trial.
Our military applicants went AWOL from different assignments, for different
reasons, and under a variety of circumstances. As described earlier, 7% left from
basic training, 10% from advanced individual training, 52% from other stateside
duty, 24% because of assignment to Vietnam, 3.4% from Vietnam, and 1.3% from
Vietnam leave. The remaining 2.3% went AWOL from overseas assignements in countries
other than Vietnam.
As a criminal offense, AWOL is peculiar to the military. If a student leaves
his school, he might be expelled. If an employee leaves his job, he might be fired
and suffer from a loss of income. But if a serviceman leaves his post, he might
not only be fired, but also criminally convicted, fined and imprisoned. These extra
sanctions are necessary -- especially in wartime -- to maintain the level of military
discipline vital to a well-functioning Armed Forces. Desertion in time of Congress-
ionally-declared war carries a possible death penalty, and most of the offenses
committed by our applicants could have brought them long periods of confinement. Such
swift, certain, and severe penalties are necessary to deter military misconduct even
in the face of enemy fire.
In light of this, why did all of our applicants go AWOL? Why did an estimated
500,000 soldiers go AWOL during the Vietnam War? Almost 4,000 of our applicants were
Vietnam combat veterans, yet they risked -- and lost-- many privileges and veterans
benefits as a result of their offenses.
Though the general public frequently assumed that many unauthorized absences
during the Vietnam era were motivated by conscientious opposition to the war, and
this was a factor motivating this program, only 4.6% of our military applicants went
AWOL primarily because of an articulated opposition to the war.* An additional
1.8% went AWOL to avoid serving in combat.
* By coincidence, this 4.6% figure corresponds to the 4.6% of all cases in which
our Board identified conscientious reasons (mitigating factor #10). It is very
close to the % conscientious objection figure cited by the Defense Department's
clemency program and the 3.6% finding of an earlier AWOL study.9
IV-C-19
While another 9.7% left because they did not like the military; both reasons
may have implied an unarticulated opposition to the war. Thus, at most, only
10% of our applicant's offenses fit the broadest possible definition of conscien-
tious objection.
(Case #03285) Applicant decided he could not conscientiously remain
in the Army and went to Canada where he worked in a civilian
hospital. Prior to his discharge, applicant stated: "In
being part of the Army, I am filled with guilt. That guilt
comes from the death we bring. I am as guilty as the man
who shoots the civilian in his village. My being part of the
Army makes me just as guilty of war crimes as the offender."
A small but significant 1.8% of our applicants went AWOL because of post-
combat psychological problems.
(Case #8887) Applicant received a Bad Conduct Discharge for an AWOL between
16 March and 28 Vovember 1970. This AWOL was terminated by
surrender in California. Applicant went AWOL because he was
"disturbed and confused" upon returning from Vietnam. He
described himself as "really weird, enjoying killing and stuff
like that", and as being "restless". During the AWOL, he was
totally committed to Christ and the ministry.
In some instances, an applicant's actions seemed beyond his reasonable control.
(Case #05233) Applicant participated in 17 combat operations in Vietnam. He
was medically evacuated because of malaria and an acute drug-
induced brain syndrome. He commenced his AWOL offenses shortly
after he was released from the hospital. Since his discharge,
applicant has either been institutionalized or under constant
psychiatric supervision.
Approximately thirteen per cent of our applicants left the military alleging
denied requests for hardship leave, broken promises for occupational assignments
and improper enlistment practices, or other actions by their superiors which might
have been perceived as unfair.
(Case #0751) Applicant enlisted for the specific purpose of learning aircraft
maintenance, but instead was ordered to Artillery school. When
he talked with his commanding officer about this, he was told
that the Army needed him more as a fighting man.
(Case #4793) Applicant, a Marine Sergeant (E-5) with almost ten years of
creditable service, requested an extension of his tour in
Okinawa to permit him time to complete immigration paperwork
for his Japanese wife and child. Several requests were denied.
IV-C-20 -
Upon return to the United States, he again requested time, in
the form of leave. He was unable to obtain leave for five
months, until it was granted after he sought help from a
senator. Applicant relates that his First Sergeant warned him,
before he left on leave, that "he was going to make it as hard
for him as he could" when he returned, because he had sought
the assistance of a senator.
(Case #0649) Applicant enlisted in the Army for a term of three years,
specifying a job preference for electronics. The recruiter
informed him that the electronics field was full, but that if
he accepted assignment to the medical corps he could change his
job after entry onto active duty. Once on active duty, applicant
was informed that his MOS could not be changed. He was unsuccess-
ful in obtaining the help of his platoon sergeant, aompany commander
and chaplain, so he left AWOL.
(Case #0269) Applicant states that his father, who had suffered for three years
from cancer, committed suicide by hanging. His family's resources
and morale had been severely strained by the father's illness
and death. Applicant spent a period of time on emergency leave
to take case of funeral arrangements and other matters. At the
time, his-mother was paralyzed in one arm and unable to work.
Applicant sought a hardship discharge, but after three weeks
of waiting his inquiries into the status of the application revealed
that the paperwork had been lost. Applicant then departed AWOL.
10-C-21
Most of these violators were AFQT Category III or IV individuals, many
of whom were only marginally fit for military service at the time of their
enlistment.
(Case #14813) Applicant has a category IV AFQT score. He
went AWOL because he was apparently unaware of
or did not understand the Army drug abuse program.
The corrections officer at the civilian prison
where he is incarcerated believes that applicant's
retardation, while borderline, makes it impossible
for him to obey rules and regulations.
Sixteen percent committed their offenses because of personal reasons--
usually medical or psychological problems. Half of their problems were
related to alcohol or drugs.
(Case #01371) Applicant started drinking at age 13 and was an
excessive user of alcohol. Awaiting court-martial
for one AWOL offense, applicant escaped but
voluntarily returned shortly thereafter. He
claimed that his escape was partly the result of
his intoxication from liquor smuggled in by another
detainee. A psychiatrist described him as emotionally
unstable, unfit for military service.
The bulk of our military applicants 41% committed their offenses because
of family problems. Sometimes these problems were severe; sometimes not.
(Case #00191) Applicant commenced his absence from a leave status
because of his father's failing health and his mother's
poor economic prospects. He had applied twice for
hardship discharges before his offense. While appli-
cant was AWOL, his father died of a stroke. His mother
was left with a pension of $22 a month; she was a polio
victim and unable to work.
1v-c-22 - 22
Finally, twelve percent went AWOL for reasons of immaturity, boredom, or
just plain selfishness. These tended to be people who could not--or would not--
adjust to military life.*
(Case #14392) As a youth, applicant experienced numerous conflicts with
his parents and ran away from home on several occasions.
He joined the Army because there was nothing else to do
in the rural community in which he was raised. Applicant
had difficulty adjusting to the regimentation of Army life,
and he went AWOL four times.
Our typical applicant went AWOL three times; over four-fifths went AWOL more
than once. AWOL offenders tended to be 19 or 20 when they committed their first
offense, 20 or 21 when they committed their last offense.
Their first offense occurred between 1968-1970, and their last between
1969-1971. Typically, their last AWOL was their longest, lasting months.
At the time of their last AWOL, they had usually accumulated to months of
creditable military service time;
% had six months or more of creditable
service, enough to qualify them for veterans benefits. Only 1.1% used any force
to effect their escape from the military.
While AWOL, almost all of them (81%) were employed full-time. Only 8% were
unemployed. Often they were working in jobs where they would have been fired,
lost their union membership, or had their trade license revoked if their AWOL status
had been known.
(Case #00230) During his AWOL, applicant found employment as a tile and
carpet installer. He became a union member in that trade.
*This 12% figure is considerably less than the 28% of all cases in which our Board
identified selfish and manipulative reasons (aggravating factor #5). The reason
for this discrepancy is that many of the family problems cases involved such minor
difficulties that we had to regard the AWOL offenses as a selfish neglect of
military responsibilities.
IV-C-23
(Case #08145) During his AWOL period, applicant worked as a carpenter
to support his sister's family. Later, he worked as a
security guard.
Over three-quarters (76%) either returned to military control immediately or
settled in their home towns under their own names. Most carried on life just
as they had before they joined the service. Another 13% settled openly in the
United States, and 6% settled in the foreign country where they had been assigned
(often Germany). Only 5% became fugitives: 2% in Canada, 2% in other foreign
countries (often Sweden), and 1% in the United States.
(Case #00847) Applicant went back to his old job after going AWOL.
He never changed his name or tried to conceal his
identity.
Slightly over half (52%) of our applicants were arrested for their last
AWOL offenses. Some efforts were made to apprehend AWOL soldiers, but those
efforts were startling ineffective. Normally, an AWOL offender's commanding officer
sent a letter to his address of record within ten days of his absence. He also
completed a form, "Deserter Wanted by the Armed Forces" which went to the military
police, the FBI, and eventually the police in the soldier's home of record. Either
the local police never received their copies, or they were unwilling to arrest
AWOL offenders. We had countless applicants who lived openly at home for years until
they surrendered or were apprehended by coincidence (for example, through a routine
police check after running a red light). In some cases, the military itself did not
seem that interested in locating AWOL soldiers.
(Case #03697) Applicant had a duty assignment at a military office in
Germany. He experienced a great deal of tension, frustration,
and restlessness, culminating in a feeling one day that he
'couldn't face" going to work. He remained at his off-post home
during his AWOL. His office made no effort to contact his wife
during the entire period of his AWOL. He drank heavily, became
anxiety-ridden, and concealed his AWOL status from his wife by
feigning to go to work each morning. He was eventually appre-
hended when his wife, concerned over his strange behavior, called
his office to ask his co-workers if they knew what was wrong with
him. They had not seen him in months.
IV-C-24 -
Most apprehended AWOL offenders were arrested by civilian police. They were
kept in local jails until they could be delivered to a central "pick-up" facility,
often a period of several days. Military police were usually available to AWOL
soldiers only in the immediate vicinity of military bases.
IV-C-25
7.
Encounters with the Military Justice System
Upon returning to military control, our applicants had to face some form
of discipline. Some (14%) faced other charges in addition to AWOL or Desertion.
In all cases, their last AWOL offenses factored in their discharge under other
than honorable conditions. Hundreds of thousands of other AWOL offenders were
more fortunate. They received more lenient treatment and later were discharged
under honorable conditions. About twenty-two percent of our applicants had
records reflecting at least one period of unauthorized absence for which no
punishment was indicated.
Most of the Army soldiers who were AWOL for over thirty days were processed,
upon their return to military control, through a Personnel Control Facility
(PCF) formerly known as Special Processing Detachments. These were units with
their own billets and chain of command. It was from this command structure
that the decision was made, in appropriate cases, to confine returning offenders.
Life at these facilities was not always easy for our applicants. While there
were some opportunities for simple tasks, boredom, anxiety and petty crime
were commonplace, making life difficult.
(Case #08349) Applicant voluntarily surrendered himself to an Army post
near his home town. He found conditions in the personnel
control facility intolerable due to the absence of regular
work, the prevalence of crime, and the continued lack of
regular pay. He went AWOL again one week later.
While in the PCF, our applicants were processed for administrative or
court-martial action. At the outset, they were briefed by a JAG officer
(a military attorney) who advised them generally what disciplinary actions to
expect. They were told about their opportunity to request a discharge in
lieu of court-martial.
Some first offenders were quickly re-integrated into military life.
Others faced more uncertainty about their fates. They had to decide,
in most instances, whether to proceed to a trial or accept an administrative
IV-C-26
discharge. The decision to go to trial usually carried the risks of conviction,
a period of confinement, and perhaps a punitive discharge. Their stay in the
PCF or pre-trial confinement might be lengthened due to delays essential to
attorneys preparing their cases. On the other hand, after service of confinement,
they would be able to return to active duty, and serve out their enlistment
which would be extended by the equivalent of time they were AWOL and in confinement.
Even if a punitive discharge had been adjudged, a return to active duty was
frequently permitted as a reward for having demonstrated rehabilitative potential
while confined. If no further problems developed, they would separate from the
service with a discharge under honorable conditions and entitlement to many
veterans benefits.
The decision to accept an administrative discharge in lieu of trial amounted
to a waiver of trial, a virtual admission of guilt, and a discharge under less
than honorable conditions. However, the administrative process was speedier,
so they could return to their personal and family problems; they avoided confinement,
and they did not have to risk a return to military life with a conviction that
might set them apart from other soldiers and lead to further disciplinary
problems. Though they were acquiring a stigmatic discharge (which many felt
as a consequence of their experiences while AWOL, would not be a major liability)
they were avoiding a federal criminal conviction.
Thus, the choices for the average 18 to 20 year old were very difficult.
Many of those who chose the administrative discharge route did so to get away
from the PCF or further pre-trial confinement. Others found their return to
military control too difficult an adjustment and departed AWOL again, putting
the decision off until they again returned to military control.
IV-C-27
If our applicant had established what his commander felt was a pattern of
misconduct,* the commander might decide that he was no longer fit for active
duty. The commander would then notify the soldier of his proposed action and
the soldier would have to fight the action by demanding a board of officers.
Otherwise he would waive his right to such a board. If he asked for the Board,
the convening authority would then detail at least three officers to hear
the evidence, as presented by the government, and as rebutted by the respondent
and his detailed military defense counsel. The Board was then authorized
to make a finding that the soldier was either unfit or unsuitable for further
military duty, if they believed he should be discharged. They could also
find that he was suitable for retention. If they found a basis for discharge,
they were then obligated to recommend an appropriate discharge classification.
If they found the soldier unsuitable, the normal recommendation to the convening
authority would be discharge under honorable conditions. However, while an
honorable classification was also possible if unfitness were found, the usual
result in such a case was to recommend an undesirable discharge. Once the
Board made its findings, the convening authority had to implement the Board's
decision, or take some other action as provided by the service regulations.
Though the convening authority in the Army may make no disposition more
severe than rendered by the Board, that is not true in the Air Force.
The line between the unsuitability discharge and the unfitness discharge
was often as fine one, lacking clear distinction; yet the choice between
them affected an AWOL offender's reputation and eligibility for veterans benefits
for the rest of his life.
DOD Directive 1332114 provides for early separations for soldiers frequently
involved in disciplinary problems or drug abuse. Overt homosexuality may also
cause separation for unfitness in some services, as well as established
pattern of shirking and unsanitary habits (generally repetitive VD).
**
The rule-of-thumb often applied is that an Unsuitability Discharge went to a
soldier "who would if he could, but he can't" -- in other words, to comeone with
a psychological problem or inaptitude. Also included is bed wetting, and financ 1
irresponsibility. An Unfitness Discharge went to a soldier with more of an
attitude problem, "who could if he would, but he won't." "
IV-C-28
(Case # 8328) Applicant was under consideration for an unsuitability discharge.
A military psychiatrist indicated that he suffered from a
character and behavior disorder characterized by "impulsive,
escape-type behavior" and "unresolved emotional needs marked
by evasion. of responsibility". Because of this diagnosis
of a severe character and behavior disorder, he espected
a General Discharge. Shortly before his discharge, a racial
disruption occurred in his company, in which applicant took
no part. This disruption led to the rescission of a lenient
discharge policy, and applicant was given an Undesirable
Discharge for unfitness.
The more common administrative procedure, accounting for the discharge of
45% of our applicants, was the "For the Good of the Service" discharge, in lieu
of court-martial,* which was granted only at the request of a soldier facing
trial for an offense for which a punitive discharge could be adjudged. Until
recently, it did not require an admission of guilt -- but it did require that
the AWOL offender waive his right to court-martial and acknowledge his will-
ingness to accept the disabilities of a discharge under other than honorable
conditions (e.g. undesirable discharge). Although none of our applicant were so
fortunate, a few AWOL offenders received General Discharges through "Good of the
Service" proceedings.
Our applicants did not have a right to a discharge in lieu of court-martial.
They could only make a request. To qualify, for the discharge, the AWOL for
which the applicant was facing trial had to range between 30 days and a year and
a half, depending on the standards set by the convening authority where the
applicant returned to military control.
(Case # 0664) Applicant was absent without leave twice for a total of
almost one year and two months. He applied twice for a discharge
in lieu of court-martial for his AWOL's, but both requests
were denied.
Occasionally, our applicants indicate they went AWOL specifically to qualify for
a "Chapter 10" discharge.
(Case #15528) After his third AWOL, applicant requested a discharge in
lieu of court-martial, which was denied. He then went AWOL
three more times. He told an interviewing officer after his
6th AWOL that he had gone AWOL in order to qualify for a Chapter
10 discharge.
* This is commonly called the "Chapter 10" discharge within the Army; referring
to AR635-200 Chapter 10.
1V-C-24
AWOL offenders who qualified for a discharge in lieu of trial rarely chose to
a face court-martial. The desire was often strong to leave the PCF or get out
of pre-trial confinement. If a soldier was granted a Chapter 10 discharge, he
was usually allowed to leave the PCF or confinement within one week after his
application. One to two months later, he was given his discharge. Occasionally,
our applicants indicate they went home expecting to receive a General Discharge,
only to get an Undesirable Discharge.*
Whether one of our applicants was better off -- or worse off -- for
receiving an administrative discharge in lieu of trial is hard to say. On the
one hand, it prevented him from facing a court-martial and the risk of a punitive
discharge and imprisonment. On the other hand, he relinquished a full opportunity
to defend the charges against him. He might have had been acquitted or had
his charges dropped. He might also have been convicted but not discharged,
giving him another chance to earn an Honorable Discharge. Even if convicted
and a discharge adjudged, he might have obtained a suspension, and ultimately
a remission, of the discharge after a period of good conducts.
Our applicants who received discharges in lieu of trail generally were
those whose last AWOL ended between 1971 and 1973. The likelihood of receiving
a discharge was greater if their AWOL had been no more than one year in length.
* While it was a permissible practice in the Army at some installations prior to
197 for an accused to condition his request for discharge in lieu of trial upon
his being granted a General Discharge under honorable conditions, they were
rarely granted. Thus, in order to speed the discharge application, many soldiers
requested discharge, acknowledged that they might be given a UD, but requested
that they be furnished a GD in a separate statement. This may account for
some misunderstanding by many applicants as to the discharge they would receive.
See case #8349 above.
IV-C-30 -
The following two tables relate the effects of year of discharge and length of
last AWOL on the type of punishment which our applicants received.
YEAR OF DISCHARGE
1966
1967
1968
1969
1970
1971
1972
1973
UD - in lieu of trial
3%
1%
11%
37%
34%
67%
62%
56%
UD - Unfitness
26%
25%
27%
19%
10%
12%
6%
12%
Punitive Discharge
71%
74%
62%
54%
56%
21%
32%
32%
(court-martial)
LENGHT OF AWOL
0-6 Months
7-12 Months
over 12 months
UD - Discharge in lieu of tiral
50%
45%
36%
UD - Unfitness
21%
10%
7%
Punitive Discharge
29%
45%
57%
(court-Martial)
It is worth noting that 51% of our AFQT Category IV applicants received discharges
in lieu of trial compared to 44% of our Category II and III soldiers, while only
32% of our Category I servicemen were ousted by that process. Blacks were about
equally as likely as whites to receive Chapter 10 discharges (46% versus 44%),
but Spanish-speaking soldiers received a very disproportionate share (66%).
1U-C-31 -
Some of our applicants requested -- or the military insisted --
that they face court-martial for their offenses. In a court-martial,
they had greater opportunity to deny OF explain all charges brought
agains with benefit of counsel and with full advance knowledge
of the prosecution's case. They also faced the threat of a punitive
discharge and imprisonment An accused soldier enjoyed at least as
many rights at trial as an accused civilian. Usually, his court-
martial took place very promptly, limiting pre-trial delays (and
therefore, confinement or residence at the PCF) to two or three months
at most.
There were three forms of court-martial. The Summary Court-
Martial consisted of a hearing officer (summary court officer) who
called witnesses for the prosecution and defense, rendered a verdict,
and adjudged sentence. The summary court adjudged no sentence greater
than confinement at hard labor (and then only if the accused was in
pay grade E-4 and below) for one month, hard labor without confinement
for 45 days, reduction to the lowest enlisted pay grade (except soldier's
in grade E-5 and above could be reduced only to the next inferior pay
grade), and forfieture of two-thirds of one month's pay. After 197_
WAS
no confinement could be adjudged unless the accused represented by
counsel (as a consequence of the ruling by the Supreme Court in
Argisinger V. United States
). No transcript of the
trial was kept and there was no judicial review. However, a summary
court never sat in judgement without the express consent of the accused,
IV-C-32
who could refuse the court and leave to the convening authority the
decision whether to refer the charges to a higher court. Altogether,
16% of our applicants faced a summary court-martial at least once.
The Special Court, experienced by 54% of our applicants was
similar in composition and procedure to the General Court faced by
13% of our applicants. An accused facing a General or Special Court
was tried by a court of officers (jury) unless the accused specifically
requested that at least one-third of the court be enlisted members
(usually of higher rank). A military judge, since 1969, normally
presided over the trial, and the accused was entitled to request
that the military judge, alone, hear the case and adjudge sentence.
In the absence of a military judge, the President of the court of
members (the senior member) presided over the trial.
The accused was entitled to legally qualified defense counsel
after 1969. The service detailed a defense counsel to the accused,
and permitted him any counsel he requested by name, provided the
attorney was "reasonably available". Neither of these counsel was
at the expense of the accused. The accused could also have his own
civilian attorney. It was not uncommon for the defendant at a
Special or General court to have more than one attorney as counsel,
often at no expense to him.
The rules of evidence were followed and a verbatim record of
trail was required 1f/an an adjudged punitive discharge was to be affirmed
on appeal. Otherwise a summarized record was kept at special courts-
martial.
IV - - 33
The Special Court could adjudge no sentence greater than con-
finement at hard labor for six months, forfeiture of two-thirds pay
for six months, reduction to grade E-1, and a Bad Conduct Discharge.
As the Army did not routinely order a verbatim record be kept, the
Bad Conduct Discharge was adjudged only where the convening authority
expressly authorized the Special Court to adjudge a punitive discharge.
The General Court could adjudge any sentence, including death and
life imprisonment as authorized by the Uniform Code of Military
Justice or the Table of Maximum Punishment, as appropriate. It also
adjudged the Dishonorable Discharge in addition to the Bad Conduct
Discharge, although total forfeiture of pay and allowances were also
ordered.
IV-C-34
Altogether, 40% of our applicants stood court-martial for their last AWOL
offense.* About
of them pled "not guilty." All were convicted and all
but a few received punitive discharges. They were further sentenced to pay
forfeitures, reduction-in-rank, and imprisonment for typically five to eight
months. Their sentences were often reduced through the automatic review of the
Court of Military Review. Our court-martialed applicants' final sentences aver-
aged five months, with only 2% having to serve more than one year in prison.
Our applicants who were punitively discharged had their cases reviewed for
errors of law by a JAG officer responsible to the court-martial convening author-
ity. They were further reviewed for errors of fact or law by a Court of Military
Review (previously known as Boards of Review) and occasionally by the Court of
Military Appeals.
Few of our applicants voiced objection to the fairness of their trials, though
some complaints were heard.
(Case #00423)
Applicant, a Vietnam veteran, sustained some sort of eye
injury (probably in Vietnam) which caused his retina to
become detached. He is now nearly blind in one eye. At
trial, his counsel attempted to introduce the testimony
of his attending ophthalmologist to prove that he absented
himself to obtain medical treatment, not to desert. The
military judge refused to admit the ophthalmologist's
testimony, in the absence of independent evidence of its
relevancy. His decision was upheld on appeal.
Sentences under 30 days were usually served at the post stockade. Convicted
but undischarged AWOL offenders sentenced to more than one month of imprisonment
were transferred to the Army Retraining Brigade at Fort Riley, Kansas. Efforts
were made to rehabilitate the offender and enable him to complete his military
service successfully. However, many were habitual offenders. For others, military
* The percentage tallies for the three types of courts-martial add up to more than
40% because many of our applicants faced court-martial for more than one AWOL
offense.
1U-C-35
life became even more difficult after confinement.
(Case #356)
As the result of a two-month AWOL, applicant was con-
victed by a summary court-martial and sentenced to
confinement. After his release and return to his former
unit, he was constantly harrassed, ridiculed, and assigned
to demeaning work. He found this intolerable and he went
AWOL again.
Those who were pending punitive discharges and had received sentences of
over 30 days were sent to the Disciplinary Barracks at Fort Leavenworth, Kansas.
Approximately 170 soldiers were still serving their terms when the President's
Clemency Program was announced. They were all released upon their application
for clemency.
Effects of the Bad Discharge
All of our applicants had one experience in common: they all received bad
discharges. Sixteen percent received Undesirable Discharges for Unfitness and
45% received Undesirable Discharges in lieu of court-martial. Those who faced
court-martial and received punitive discharges received Bad Conduct Discharges (38%)
or Dishonorable Discharges (2%). In some states a court-martial conviction, parti-
cularly if a discharge or confinement over one year were adjudged, may impose the
same disabilities as a felony conviction in the civilian courts. Thus, some of our
applicants may have jeopardized their voting and property rights and the opportunity
to obtain certain licenses by virtue of their punitive discharge.
What was more important to our applicants was the effect of discharge on their
ability to get veterans' benefits and obtain a job. Some were caught in a downward
spiral: they could not afford to train themselves for a skilled job without veterans
benefits. Employers would not hire them for other jobs because of their discharge.
They then could not receive unemployment compensation because of their discharge.
(Case #08062)
Following his discharge, applicant sought employment in
the area of his military training as a finance clerk. He
wanted to study to become a CPA, but was financially unable
10-C-36
without benefit of the GI Bill--from whose benefits
he was barred. Finally he found employment as a
truck driver for small trucking firms and is now
earning $70 per week. He could have earned more with
the larger trucking companies but they refused to hire
him because of his discharge.
(Case #08232)
Applicant, a Vietnam veteran, was unable to find work
for his first month after discharge because everyone
insisted upon knowing his discharge. He finally found work
as a painter but was laid off five months later. Because
of his discharge he was denied unemployment benefits.
A number of studies have shown that employers discriminate against former
servicemen who do not hold Honorable Discharges. About 40% discriminate against
General Discharges, 60% against Undesirable Discharges and 70% against Bad Conduct
or Dishonorable Discharges. Many employers will not even consider an application
from anyone with less than an Honorable Discharge.
Before applicants could submit to any proceeding which might result in un-
desirable discharge, each was warned to the effect:
"I understand that I may expect to encounter substantial prejudice in
civilian life in the event a general discharge under honorable conditions
is issued me. I further understand that, as a result of the issuance of
an undesirable discharge under conditions other than honorable, I may be
ineligible for many or all benefits as a veteran under both federal and
state laws and that I may expect to encounter substantial prejudice in
/
civilian life."
Civilian courts have taken judicial notice of the less-than-honorable discharge,
calling them
"punitive in nature, since it stigmatizes a serviceman's reputation, impedes
his ability to gain employment and is in life, if not in law, prima facie
evidence against a serviceman's character, patriotism or loyalty."
Stapp V. Resor, 314 F. Supp.
; accord, Sofranoff V. U.S., ; 165 Ct. C1. 470
478 (1964), Glidden V. U.S., 185 Ct. C1. 515 (1968), Bland V. Connally,
293 F. 2d. 858 ( Cir 1961)
/ AR 635-200.
IV-C-37
The injury caused by the less-than-honorable discharge is particularly acute
in the case of our applicants who served more than enough time to have earned
veterans' benefits, and who obtained Honorable Discharges for the purpose of re-
enlisting, but who received bad discharges in their last period of enlistment.
These soldiers were often denied benefits just as the soldier given the stigmatizing
discharge prior to completing his first enlistment.
(Case #16332)
Applicant had four years, four months creditable service.
(Case #4793)
Applicant had 9 years, 10 months, 15 days creditable service.
(Case #0456)
Applicant had 8 years, 7 months, 20 days creditable service.
IV
D
$10
IV. PCB APPLICANTS
D. CONCLUSION
IV-D-1
D-Conclusion
An estimated 123, 000 persons could have applied for clemency.
Only 22, 300 did apply. Who were the 100,000 who did not? Why did they
fail to apply? What happens to them now?
Who Were They?
The following table identifies non-applicants in a very general sense:
Percentage of
Total Number of
Clemency Program Type of Applicants
Non -Applicants
Non-Applicants
PCB
Military - UD
89%
66,600
PCB
Military-BCD/DD
78%
19,400
PCB
Convicted civilians
77%
6,700
DOD
Military absentees
47%
3,800
DOJ
Fugitive civilians
84%
3,800
Total
82%
100,400
We know little more about their characteristics than what this table
shows. Discharged servicemen with Undesirable Discharges were the least
likely to apply, in terms of percentage and total numbers. This is
probably attributable to the fact that we mailed application materials to
eligible persons with punitive (BCD/DD) discharges, but were unable to
do so for those with Undesirable Discharge's.
The Department of Defense had access to the military records of
its eligible non-applicants. Using these records, it could make comparisons
between its applicants and non-applicants. In most ways, they were
alike - - family background, AFQT score education, type of offense,
circumstances of offense, and so forth. Only a few clear differences
could be found. Non-applicants committed their offenses earlier
in the War, they were older, and they were more likely to be married.
This implies that many may not have applied because their lives are
settled, with their discharges more a matter of past than present
concern.
Why did they Fail to Apply?
We can identify five reasons why eligible persons did not apply
for clemency. We have listed them below in order of the significance
we attribute to each of them:
Misunderstanding about eligibility criteria. Despite our
public information campaign, many eligible persons may never have
realized that they could apply for clemency.
Misunderstanding about the offerings of the program. Many
prospective applicants may have been concerned about the usefulness of a
Clemency Discharge. Others may not have known about the Presidential
pardons given to all applicants to our Board or they may not have
realized that our applicants were asked to perform an average of only
three months of alternative service.
Settled status. Others may not have cared about the kind of
discharge they had, or they may have been concerned that their applica -
tion would have made their discharge public knowledge.
Inability or unwillingness to perform alternative service.
Some individuals might have feared that if they quit their jobs to perform
alternative service, they would not get them back later. Many fugitives
in Canada had jobs and homes there, with chilren in school, so they might
have seen two years of alternative service as more of a disruption than
they were willing to bear.
General distrust of government. Unfortunately, some may
not have applied because they were afraid that, somehow, they would
only get in trouble by surfacing and applying for clemency. Some might
have been unsuccessful in pursuing other appeals, despairing of any
hope that a new appeal would be of any help.
Opposition to the program. Some might have felt, for
reasons of conscience, that only unconditional amnesty would be an
acceptable basis for them to make peace with the government.
What Happens to Them Now?
Civilians convicted of draft offenses and former servicemen
discharged for AWOL offenses will have to live with the stigma of a
bad record. They still have the same opportunities for appeal that
existed before the President's program -- principally through the
United States Pardon Attorney and the military Discharge Review
Boards -- but their prospects for relief are realistically remote.
Military absentees still in fugitive status can surrender them-
selves to civilian or military authorities. They still face the possibility
of court-martial, but it is possible that many will quickly receive
an Undesirable Discharge and be sent home.
Fugitive draft offenders can first inquire to learn whether
they are on the Department of Justice's list of 4522 indictments. If
they are not, they are free from any further threat of prosecution.
If their names are on that list, they can surrender to the United States
Attorney in the district where they committed their draft offense.
They will then stand trial for their offenses. Although there have been
exceptions, convicted draft offenders have been recently sentenced to 24
months of alternative service and no imprisonment. But they still have
a felony conviction, involving a stigma and a loss of civil rights.
We encourage those who did not apply to do what they can to
settle their score with the government. Likewise, we encourage
military and civilian authorities to be reasonably clement with them.