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Final Report - Draft, 11/11/75 (2)
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Final Report - Draft, 11/11/75 (2)
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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
Amnesty
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The original documents are located in Box 6, folder "Final Report - Draft, 11/11/75 (2)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 6 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
type involved separate but similar procedures.
Understandably, military procedures put the burden of proof
on the applicant. He was required to submit statements on
six separate questions concerning the origin, nature, and
implications of his conscientious objection. Military
regulations required that the applicant "conspicuously
demonstrate the consistency and depth of his beliefs. 1128
Some of our applicants did not persuade authorities of their
conscientious beliefs.
(Case 3-77)
For a year-and-a-half after he was
drafted, applicant tried to obtain CO
status, because he did not believe in
killing human beings. He talked to his
Captain and the Red Cross, neither of whom
found his aversion to taking human life to
be persuasive. The applicant is minimally
articulate, but states that even if
someone was trying to kill him, he could
not kill in return. When he had exhausted
his application for CO status and was
scheduled for Vietnam, he went AWOL.
After submitting an application for conscientious
objector status, a soldier was interviewed by a chaplain and
a military psychiatrist. The chaplain commented on the
sincerity and depth of the applicant's belief, and the
psychiatrist evaluated him for mental disorders. Some
applicants claimed they were victims of irregularities, and
they went AWOL rather than seek remedies within channels.
(Case 3-78)
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.
Applicant claimed that the psychiatrist
threw his records in his face and told him
to get out of his office. He went AWOL
after his experience with the
psychiatrist.
The conscientious objector's next step was to present
his case before a hearing officer, who in turn made a
recommendation through the chain of command. The final
authority rested either with the General Court-Martial
Convening Authority or with the administrative affairs
office in the appropriate service department headquarters.
Assignment to Vietnam
FORD i LIBRARY GERALD
During the height of the Vietnam War, about one-third
(34%) of the applicants were ordered to Vietnam, usually
about six months after entering the service. Most complied
with the orders, but many did not. Seven percent were
discharged because they went AWOL when assigned to Vietnam.
(Case 3-79)
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
overseas. He also applied for an
extension of his departure date on the
grounds that his wife was eight months
pregnant and that he was an alien. His
request was denied, and he went AWOL.
The other 27% did go to Vietnam, often on assignment to
combat units. Once there, very few went AWOL. Roughly one
in eight (three percent of all military applicants) went on
extended AWOL while in Vietnam. Typically, AWOLs in Vietnam
resulted from personal problems, often of a medical nature.
(Case 3-80)
Applicant was assigned to an infantry unit
in Vietnam. During his combat service, he
sustained an injury which caused his
vision to blur in one eye. His vision
steadily worsened, and he was referred to
an evacuation hospital in DaNang for
testing. An eye doctor's assistant told
him that the doctor was fully booked and
that he would have to report back to his
unit and come back to the hospital in a
couple of weeks. Frustrated by this
rejection and fearful of his inability to
function in an infantry unit, applicant
went AWOL.
Only about one percent of the military applicants went AWOL
from a combat zone, and very few of those cases involved
demonstrable cowardice. We estimate that only about one-
tenth of one percent actually deserted under fire.
(Case 3-81)
Applicant would not go into the field with
his unit, because he felt the new
commanding officer of his company was
incompetent. Applicant was nervous about
going out on an operation in which the
probability of enemy contact was high.
(His company was subsequently dropped onto
a hill where it 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, he was less likely to
go AWOL. However, he was permitted to return to the United
States on emergency leave when appropriate. Also, he was
FORD is PERALO LIBRARY
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 applicants often went AWOL.
(Case 3-82)
Applicant was granted emergency leave from
Vietnam due to his father's impending
death. Applicant failed to return from
the leave.
Many military applicants served with distinction in
Vietnam. They fought hard and well, often displaying true
heroism in the service of their country. of those who
served in Vietnam, one in eight was wounded in action.
(Case 3-83)
While a medic in Vietnam, applicant (an
American Indian) received the Bronze Star
for Heroism because of his actions during
a night sweep operation. When his platoon
came under intense enemy fire, he moved
through a minefield under a hail of fire
to aid his wounded comrades. While in
Vietnam, he was made Squad Leader of nine
men, seven of whom (including himself)
were wounded in action. In addition to
his Bronze Star, he received the Army
Commendation Medal with Valor Device, the
Vietnam Service Medal with devices, the
Vietnam Campaign Medal, and the Combat
Medic's Badge.
Others experienced severe psychological trauma as a
result of their combat experiences; some applicants turned
to drugs.
(Case 3-84)
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 guard duty. He was mistaken for a
Viet Cong and shot by one of his own men.
This event was extremely traumatic to
applicant, who subsequently experienced
nightmares. In an attempt to cope with
this experience, he turned to the use of
heroin. After becoming an addict, he went
AWOL. During his AWOL, he overcame his
drug addition only to become an alcoholic.
After obtaining help and curing his
alcoholism, he turned himself in.
Still other applicants indicated that combat experience
was a source of personal fulfillment.
(Case 3-85)
Applicant, who was drafted, was pleased by
his assignment to Vietnam. He was proud
of his training and membership in a
cohesive, elite unit.
i
FORD
of the military applicants who served in Vietnam, almost
half had volunteered either for Vietnam service, for Combat
action, or for an extended Vietnam tour. They enjoyed the
GERALD
LIBRARY
close companionship of combat situations and felt a sense of
accomplishment from doing a difficult job well. Some
applicants went AWOL because of their inability to extend
their tour in Vietnam.
(Case 3-86)
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. After he did, 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 found
the atmosphere close and friendly.
In contrast, combat experience for other applicants
produced a sense of uneasiness about the cause for which
they were fighting.
(Case 3-87)
Applicant was successfully pursuing his
military career until he served in
Cambodia assisting the Khmer Armed Forces.
He began to question the legality and
morality of Army operations in Cambodia.
This resulted in disillusionment and led
to his AWOL offense.
Vietnam veteran applicants frequently experienced severe
readjustment problems upon returning to the United States.
Almost all of them (23% of all military applicants) went
AWOL after returning from their Vietnam tour of duty. This
"combat fatigue" or "post-Vietnam syndrome" was partly the
result of the incessant stress of life in combat. The
Clemency Board found that six percent of all military
applicants suffered from mental stress caused by combat.
(Case 3-88)
After returning from two years in Vietnam,
applicant felt that he was on the brink of
a nervous breakdown. He went AWOL from
his duty station, telling his commander
that he was going home and could be
located there, if desired.
Two-fifths of the Vietnam veteran applicants (11% of all
military applicants) claimed to have experienced severe
personal problems as a result of their tour of duty. These
problems were psychological, medical, legal, financial, or
familial in nature. 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 went AWOL as a consequence.
(Case 3-89)
(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,
&
FORD
so he decided to see his own doctor.
He
was given a psychological examination and
was referred to a Veterans Administration 3
LIBRARY
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 psychological complications
from 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.
Vietnam veteran applicants frequently complained that
they had difficulty adjusting to the routine of stateside
duty which contrasted sharply with the more demanding combat
environment. Some adjustment problems may have resulted
from their injuries.
(Case 3-90)
After his return from Vietnam, applicant
was frustrated over his inability to
perform his occupational specialty as a
light vehicle driver due to his injuries.
His work was limited to details and other
menial and irregular activity. He began
to feel "like the walls were closing in on
(him) " so he went AWOL.
Unfortunately, other soldiers who had never seen combat
experience were sometimes unfriendly, adding to the combat
veteran's readjustment problems.
(Case 3-91)
While in Vietnam, applicant saw much
combat action and received numerous
decorations. He was an infantryman and
armor crewman who served as a squad and
team leader. He participated in six
combat campaigns, completed two tours in
Vietnam, and received the Bronze Star for
heroism. In one battle, he was wounded --
and all of his fellow soldiers were
killed. His highest rank was staff
sergeant. 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 earned his
rank if not for the war.
Veterans of other wars usually came home as national
heroes. The Vietnam veteran, however, was sometimes greeted
coolly. Some Vietnam veteran applicants were disappointed
by the unfriendly reception they were given by their friends
and neighbors. Many, deeply committed to the cause for
which they had been fighting, were unprepared to return home
to an America in the midst of divisive controversy over the
war.
(Case 3-92)
Applicant received a Bronze Star and
Purple Heart in Vietnam. He wrote the
following in his application for clemency:
"While in Vietnam, I didn't notice much
FORD & 078875 LIBRARY
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 3-93)
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.
Reasons for AWOL Offenses
By going AWOL, our military applicants committed at
least one of three specific military offenses: desertion,
AWOL, or missing movement. (See Chapter 2-B.) of the three,
desertion is the most serious offense. To commit desertion,
a soldier had to be convicted of shirking important service
(the most serious form of desertion), departing with the
intent to avoid hazardous duty, or departing with the intent
to remain away permanently. Although the military
administratively classified most applicants as deserters,
usually because they were gone for periods in excess of 30
days, only nine percent were convicted of the offense of
desertion. Desertion convictions were infrequent because of
the difficulty in proving intent.
A soldier could be convicted for missing movement when
he failed to accompany his unit aboard a ship or aircraft
for transport to a new position. Only one percent of the
military applicants were convicted for missing movement.
The majority -- 90% -- were punished for AWOL. AWOL was
the easiest form of authorized absence to prove. Where the
evidence did not establish the intent element of desertion,
a military court could still return a finding of AWOL.
Military applicants went AWOL from different
assignments, for different reasons, and under a variety of
circumstances. As described earlier, seven percent left
from basic training, ten percent from advanced individual
training, seven percent because of assignment to Vietnam,
three percent from Vietnam, one percent from Vietnam leave,
two percent went AWOL from overseas assignments in countries
other than Vietnam, 23% from post-Vietnam stateside duty,
and 47% from other stateside duty.
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
CERRIOR GERALD R. FORD LIBRARY
might not only be "fired," but also criminally convicted,
fined, or imprisoned. These extra sanctions are necessary
-- especially in wartime -- to maintain the level of
discipline vital to a well-functioning military. Desertion
in time of Congressionally-declared war carries a possible
death penalty, and the offenses committed by many of our
applicants could have brought them long periods of
confinement. Such swift, certain, and severe penalties are
necessary to deter military misconduct.
In light of this, why did all of the military applicants
go AWOL? Almost 4,000 were Vietnam combat veterans, yet
they risked -- and lost -- many privileges and veterans
benefits as a result of their offenses.
Though the general public has frequently assumed that
many unauthorized absences during the Vietnam era were
motivated by conscientious opposition to the war, less than
five percent of the military applicants went AWOL primarily
because of an articulated opposition to the war. 29
(Case 3-94)
Applicant decided he could not
conscientiously remain in the Army, and he
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,
the tremendous ecological damage we do,
the destruction of nations, the uprooting
of whole families, plus the millions of
dollars wasted each year on scrapped
projects and abuse of supplies. I am as
guilty as the man who shoots the civilian
in his village. My being part of the Army
makes me as guilty of war crimes as the
offender."
An additional two percent went AWOL to avoid serving in
combat, and ten percent left because they did not like the
military. In some cases, these reasons may have implied an
unarticulated opposition to the war. Thus, anywhere from
five percent to 17% of the military applicants offenses may
have fit a very broad definition of opposition to the war or
the military. However, few of the additional 12% offered
any explicit evidence of conscientious objection to war.
(Case 3-95)
Applicant left high school at age 16 due
to poor grades and disinterest. He was
inducted, but after one week of basic
combat training, he went AWOL. Though he
was not discharged until two years later,
he only accumulated 18 days of creditable
service.
A small but significant two percent of our applicants
went AWOL because of post-combat psychological problems.
&
FORD
(Case 3-96)
Applicant went AWOL because he was
"disturbed and confused" upon returning
from Vietnam. He described himself as
GERALD
LIBRARY
"restless" and "really weird, enjoying
killing and stuff life that. During his
AWOL, he states that he was totally
committed to Christ and the Ministry.
In some instances, an applicant's actions seemed beyond
his reasonable control.
(Case 3-97)
Applicant participated in seventeen 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 13% of the military applicants left the
military because of denied requests for hardship leave,
broken promises for occupational assignments and improper
enlistment practices, or other actions by their superiors
which they did not like.
(Case 3-98)
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. He later went AWOL.
(Case 3-99)
Applicant, a Marine Corps Sergeant with
almost ten years of creditable military
service, several times requested an
extension of his tour in Okinawa to permit
him time to complete immigration paperwork
for his Japanese wife and child. His
requests were denied. Upon return to the
United States, he requested leave for the
same purpose. He was unable to obtain
leave for five months; it was finally
granted after he sought help from a
Senator. Applicant relates that his
superior officer warned him, before he
went 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.
Some may have committed their offenses because of their
basic unfitness for military service at the time of their
enlistment.
(Case 3-100)
Applicant had a Category IV AFQT score.
He went AWOL because he was apparently
unaware of the existence of 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
GERALD FORD LIBRARY
impossible for him to obey rules and
regulations.
Sixteen percent committed their offenses because of
personal problems -- usually medical or psychological in
nature. Half of their problems were related to the use
alcohol or drugs.
(Case 3-101)
Applicant started drinking at age 13 and
was an excessive user of alcohol.
Awaiting court-martial for one AWOL
offense, he escaped but soon returned
voluntarily. 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 and unfit for
military service.
The bulk of the military applicants (41%) committed
their offenses because of family problems. Sometimes these
problems were severe, and sometimes not.
(Case 3-102)
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 applicant was AWOL his
father died of a stroke. His mother was
left with a pension of $22 a month. In
addition, she was a polio victim and
unable to work.
(Case 3-103)
Applicant had been granted leave so he
could be with his wife and newborn child,
but he remained home in AWOL status.
Finally, 12% of our sample of applicants 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 3-104)
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.
Some applicants offered bizarre explanations for their
offenses.
(Case 3-105)
Applicant states he was traveling across
the Vietnamese countryside with another
soldier, when they were captured by the
Viet Cong. He claimed that he was a
prisoner-of-war for two months before he
FORD & 938839 LIBRARY
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 to AWOL at his court-martial.
Military applicants typically went AWOL three times.
Over four-fifths went AWOL more than once. They were around
nineteen or twenty when they committed their first offenses,
and twenty or twenty-one when they committed their last
offenses. Their first offenses usually occurred around
1968-1970, and their last around 1969-71. Typically, their
last AWOLs were the longest, lasting seven months. One-
fourth (25%) were AWOL for three months or less, and 27%
were AWOL for over one year. Only three percent were AWOL
for more than four years.
(Case 3-106)
Applicant's military records reflect a
series of unauthorized absences, the
longest amounting to five years and five
months, with only one month's creditable
service.
At the time of their last AWOL offenses, military
applicants had typically accumulated fourteen months of
creditable military service time; 81% had six months or more
of creditable service, enough to qualify them for veterans
benefits. Only one percent used any force to effect their
escape from the military.
Experiences as Fugitives
Over three-quarters (76%) either returned to military
control immediately or settled in their hometowns 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 six percent settled in the foreign
country where they had been assigned (often Germany). Only
five percent became fugitives: two percent in Canada, two
percent in other foreign countries (often Sweden), and one
percent in the United States.
(Case 3-107)
Applicant went back to his old job after
going AWOL. He never changed his name or
tried to conceal his identity.
While AWOL, most applicants (81%) were employed full-
time. Only 8% were unemployed. Often they worked in jobs
in which they would have been fired, lost their union
membership, or had their trade license revoked if their AWOL
status had been known.
(Case 3-108)
During his AWOL, applicant found
employment as a tile and carpet installer.
He became a union member in that trade.
During his AWOL period, applicant worked
as a carpenter to support his sister's
family. Later, he worked as a security
guard.
FORD i GERALD LIBRARY
Slightly over half (52%) of the military applicants were
arrested for their last AWOL offenses. Some efforts were
made to apprehend AWOL soldiers, but those efforts were
startlingly ineffective. Normally, an AWOL offender's
commanding officer sent a letter to his address of record
within ten days of his absence. In addition, he would
complete a form, "Deserter Wanted by the Armed Forces,
which went to the military police, the Federal Bureau of
Investigation, and, eventually, to the police in the
jurisdiction of the soldier's home of record.
Either the local police never received bulletins about
AWOL offenders, or they were unwilling to act on them.
Countless applicants lived openly at home for years until
they surrendered or were apprehended by accident, such as
through a routine police check after running a red light.
In some cases, an applicant's family was not even notified
of his AWOL status.
(Case 3-109)
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 apprehended 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.
Return to Military Control
Upon returning to military control, military applicants
had to face some form of disciplinary action. Some (14%)
faced other charges in addition to AWOL or desertion. For
all Clemency Board applicants, their last AWOL offenses
resulted in discharges under other than honorable
conditions. Other AWOL offenders who were not eligible for
the clemency program were more fortunate. They received
more lenient treatment and later were discharged under
honorable conditions. About 22% of our applicants had
records reflecting at least one prior period of unauthorized
absence with no record of punishment.
Upon return to military control, most applicants who
were AWOL for over thirty days were processed through
Personnel Control Facilities. Life at these minimum-
security facilities was not always easy for them.
(Case 3-110)
Applicant voluntarily surrendered at an
Army post near his home town. He found
LIBRARY GERALD R. FORD
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 Personnel Control Facilities, applicants
were processed for administrative or court-martial action.
Some were transferred to more secure pre-trial confinement.
At the outset, they were briefed by military attorneys who
advised them about what disciplinary actions to expect.
They were told about their opportunity to request a
discharge in lieu of court-martial.
Administrative Discharges
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 trial or accept an administrative discharge. The
decision to go to trial usually carried the risks of
conviction, a period of confinement, and perhaps a punitive
discharge. Occasionally, a court-martial did not lead to
discharge: a convicted soldier might be returned to active
duty, thereby giving him an opportunity to complete his
enlistment (extended by the amount of time he was AWOL and
in confinement). Even if a punitive discharge was adjudged,
a return to duty was frequently permitted if an individual
demonstrated rehabilitative potential while confined. In
fact, over half (54%) of the first courts-martial for AWOL
faced by applicants resulted in their return to their units.
They would have received a discharge under honorable
conditions, with entitlement to veterans' benefits, if no
further problems had developed. However, they were unable
to make the most of their second chances.
(Case 3-111)
Applicant was convicted for four periods
of AWOL totaling one year and two months.
He had an exemplary record for valor in
Vietnam. The convening authority
suspended the punitive discharge adjudged
by his court-martial. The discharge was
reimposed, however, after he failed to
return from leave granted him following
his court-martial.
Military applicants' decisions to accept administrative
discharges in lieu of trial amounted to waivers of trial,
virtual admissions of guilt, and discharges under less than
honorable conditions. Recipients of administrative
discharges also lost an opportunity to defend charges
against them. However, the administrative process was
speedier, permitting rapid return home to solve personal
problems. It also involved no risk of imprisonment and no
Federal criminal conviction. However, it did impose a
stigmatized discharge. Thus, the choice between
administrative discharge and court-martial was very
difficult. 30
FORD i GERALD LIBRARY
If an AWOL offender had established what his commander
felt was a pattern of misconduct, the commander might decide
that he was no longer fit for active duty. This usually
resulted in an Undesirable Discharge for Unfitness.31
Case 3-112)
Applicant was discharged for unfitness due
to repeated AWOL, frequent use of drugs,
habitual shirking, and the inability to
conform to acceptable standards of
conduct.
The commander would then notify the soldier of his
intention to discharge him. The soldier could then choose
to fight the action by demanding a board of officers. If he
asked for the board, the convening authority detailed at
least three officers to hear the evidence presented by the
government and rebutted by the soldier and his assigned
military defense counsel. The board was then authorized to
determine whether the soldier was either unfit or unsuitable
for further military duty; if so, they recommended his
discharge. The board could also recommend his retention in
the Service. If the board found the soldier unsuitable, the
normal recommendation would be discharge under honorable
conditions. A discharge under honorable conditions was also
possible if unfitness were found, but the usual result in
such a case was to recommend an Undesirable Discharge. Once
the board made its recommendations, the convening authority
had to make a final decision.
The choice between a discharge for unsuitability
(usually a General Discharge) and a discharge for unfitness
(usually an Undesirable Discharge) affected an AWOL
offender's reputation and eligibility for veterans' benefits
for the rest of his life. The decision was based upon a
serviceman's whole record. The rule-of-thumb often applied
was that an unsuitability discharge went to a soldier "who
would if he could, but he can't"--in other words, to someone
with a psychological problem or lack of mental ability. An
unfitness discharge went to a soldier with more than an
attitude problem, "who could if he would, but he won't."
However, each military base set its own criteria for
administrative discharges.
(Case 3-113)
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
expected 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 at his military base, and
applicant was given an Undesirable
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Discharge for Unfitness.
GERALD
The more common administrative procedure, accounting for
LIBRARY
the discharge of 45% of our applicants, was the "For the
Good of the Service" discharge, given in lieu of court
martial. This discharge 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 willingness to accept the disabilities of a
discharge under other than honorable conditions. Unlike our
applicants, a few AWOL offenders received General Discharges
through "Good of the Service" proceedings in lieu of court-
martial, because their overall records were satisfactory.
AWOL offenders did not have a right to a discharge in
lieu of court-martial; they could only make such a request.
To qualify, the AWOL for which they were facing trial had to
range between 30 days and a year and a half, depending on
the standards set by the court-martial convening authorities
at the bases where the AWOL offenders returned to military
control.
(Case 3-114)
Applicant was AWOL twice, for a total
absence of almost one year and two months.
He applied twice for a discharge in lieu
of court-martial for his AWOLs, but both
requests were denied.
Some applicants returned from their AWOLs with the
expectation that they would receive "Good-of-the-Service"
discharges, freeing them from further military
responsibilities.
(Case 3-115)
Applicant wrote that he "looked around"
for ways to deal with his personal
pressures and finally decided to go AWOL.
After three months living in a commune, he
returned with the expectation that he
would be discharged. He received a
discharge in lieu of court-martial.
A few indicated that they went AWOL specifically to
qualify for an Undesirable Discharge in lieu of court-
martial.
(Case 3-116)
After his third AWOL, applicant requested
a "Good-of-the-Service" discharge in lieu
of court-martial. It was denied, and he
then went AWOL three more times. He told
an interviewing officer after his sixth
AWOL that he had gone AWOL in order to
qualify for a discharge in lieu of court-
martial.
AWOL offenders who qualified for a discharge in lieu of
court-martial rarely chose to face trial. The desire was
often strong to leave the Personnel Control Facility or get
out of pre-trial confinement. If a soldier was granted a
discharge in lieu of court-martial, he was usually allowed
to leave confinement within one week after his application.
FORD is GERALD LIBRARY
One to two months later, he was given his discharge.
Occasionally, our applicants claimed that they went home
expecting to receive a General Discharge, only to get an
Undesirable Discharge. While it was a permissible practice
in the Army prior to 1973 for an accused to condition his
request for discharge in lieu of trial upon his being
granted a General Discharge under honorable conditions, this
was rarely granted. In order to speed the discharge
application, a soldier could request a discharge,
acknowledged that he might be given an Undesirable
Discharge, but requested that he be furnished a General
Discharge in a separate statement. This may account for the
misunderstanding by some applicants as to the discharge they
would receive.
(Case 3-117)
Applicant's last AWOL ended in a 30-day
pre-discharge confinement, during which he
refused to accept a nonjudicial punishment
for his offense. He alleged that his
sergeant told him that if he did not sign,
he would be unable to see anyone about his
problem. He further alleged that he was
promised nothing more severe than a
General Discharge, so he signed the
papers. Later, he discovered that he was
given an Undesirable Discharge. He
unsuccessfully appealed his discharge
before the Army Discharge Review Board.
Applicants who received discharges in lieu of trial
generally were those whose last AWOL ended between 1971 and
1973. Their likelihood of receiving such discharges was
greater if their AWOLs had been no more than one year in
length.
Table 5 and Table 6 describe the relative effects of
"year of discharge" and "length of AWOL" on the type of
discharge received by our applicants.
TABLE 5: TYPE OF DISCHARGE BY YEAR OF DISCHARGE
1966 1967 1968 1969 1970 1971 1972 1973
UD-in lieu of
court-martial:
3%
1%
11%
37%
34%
67%
62%
56%
UD-Unfitness:
26%
25%
27%
19%
10%
12%
6%
12%
Punitive Dis-
charge via
court-martial: 71%
74%
62%
54%
56%
21%
32%
32%
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TABLE 6: TYPE OF DISCHARGE BY LENGTH OF AWOL
0-6 months 7-12 months Over 12 months
UD - In lieu of
court-martial:
50%
45%
36%
UD - Unfitness:
21%
10%
7%
Punitive Discharge
via court-martial:
29%
45%
57%
Over half (51%) of the AFQT Category IV applicants
received discharges in lieu of court-martial, compared to
44% of Category II and III applicants and only 32% of
Category I applicants. Blacks were about as likely as
whites to receive discharges in lieu of court-martial (46%
versus 44%), but Spanish-speaking soldiers were much more
likely to receive them (66%).
Trials By Court-Martial
Frequently, the military insisted that AWOL offenders
face court-martial for their offenses. Less often, the
applicants themselves chose to face trial instead of
requesting administrative discharges, because of the threat
of punitive discharge and imprisonment. In court-martial
trials, they had greater opportunity to deny or explain all
charges brought against them, with benefit of counsel and
with full advance knowledge of the prosecution's case.
Accused soldiers enjoyed at least as many rights in court-
martial trials as accused persons in civilian trials.
Usually, trials took place very promptly, with pre-trial
delays (and confinement or residence at the Personnel
Control Facility) limited to two or three months at most.
Military applicants experienced three forms of court-
martial. The Summary Court-Martial consisted of a hearing
officer who called witnesses for the prosecution and
defense, rendered a verdict, and adjudged sentence. The
Summary Court adjudges no sentence greater than confinement
at hard labor for one month, hard labor without confinement
for 45 days, reduction to the lowest enlisted pay grade, and
forfeiture of two-thirds of one month's pay. After 1971, no
confinement could be adjudged unless the accused were
represented by counsel. 32 No transcript of the trial was
kept, and there was no judicial review. However, a Summary
Court-Martial was never convened without the express consent
of the accused, who could refuse the court and leave to the
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convening authority the decision whether to refer the
charges to a higher court. Altogether, 16% of the military
GERALD
applicants faced a Summary Court-Martial at least once.
Address
The 54% of the military applicants who faced a Special
Court-Martial were tried by a court of officers, unless the
accused specifically requested that at least one-third of
the court be from enlisted ranks. After 1969, a military
judge 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 senior member of the court of officers (the
President of the Court) presided over the trial. The
Special Court could adjudge no sentence greater than
confinement at hard labor for six months, two-thirds
forfeiture of pay for six months, reduction to the lowest
enlisted pay grade, and a Bad Conduct Discharge. of
applicants tried by a Special Court, 50% received a Bad
Conduct Discharge. The other half were returned to their
units.
The 13% who were tried by a General Court-Martial faced
a possible sentence of up to 5 years imprisonment, a
Dishonorable Discharge, and total forfeiture of pay and
allowances. The composition and procedures of General
Courts-Martial were similar to those of Special Courts-
Martial. of military applicants tried by a General Court,
99% were ordered discharged, almost all (85%) with a Bad
Conduct Discharge.
After 1969, AWOL offenders facing Special or General
Court-Martial were entitled to free military defense
counsel, who could be requested by name. They also could
secure civilian attorneys, but at their own expense.
Official military rules of evidence were followed and a
verbatim record of trial was required if a punitive
discharge was adjudged. Those who were punitively
discharged had their cases reviewed for errors of law by a
military attorney responsible to the court-martial convening
authority. Their cases were further reviewed for errors of
fact or law through military legal channels.
Few of our applicants expressed objections to the
fairness of their trials, but some complaints were heard.
(Case 3-118)
Applicant, a Vietnam veteran, sustained an
eye injury (probably in Vietnam) which
caused his retina to become detached. He
is now nearly blind in one eye. At his
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. The Judge's decision was
upheld on appeal.
Altogether, 40% of the military applicants stood Special
or General Court-Martial for their last AWOL offense. of
those, about 16% pled "not guilty." All were convicted, and
FORD is LIBRARY
all but a few received punitive discharges. They were
further sentenced to pay forfeitures, reduction-in-rank, and
imprisonment, typically for seven months. Their sentences
were often reduced through the automatic review of a Court
of Military Review. Court-martialed applicants' final
sentences averaged five months, with only three percent
having to serve more than one year in prison.
Prison Experiences
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 such correctional facilities as the Army
Retraining Brigade. Efforts were made to rehabilitate
offenders and enable them to complete their military service
successfully. However, many were habitual offenders. For
others, military life became even more difficult after
confinement.
(Case 3-119)
As the result of a two-month AWOL,
applicant was convicted by a summary
court-martial and sentenced to
confinement. After his release and return
to his former unit, he was constantly
harassed, ridiculed, and assigned to
demeaning work. He found this
intolerable, and he went AWOL again.
Those who were pending punitive discharges or had
received lengthy sentences were sent to confinement
facilities like the Disciplinary Barracks at Fort
Leavenworth, Kansas. Approximately 170 military applicants
were still serving their terms when the President's clemency
program was announced. They were all released upon their
application for clemency.
Consequences of Bad Discharges
All military 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 were sentenced to punitive
discharges received Bad Conduct Discharges (38%) or
Dishonorable Discharges (2%). In some states, a court-
martial conviction, particularly if it led to a discharge or
confinement over one year, incurs the same legal
disabilities as a felony conviction in the civilian courts.
Thus, some applicants lost their voting and property rights
and the opportunity to obtain certain licenses by virtue of
their punitive discharge. 33
Civilian courts have taken judicial notice of the less-
than-honorable discharge, calling it "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. 1134
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What was more important to military applicants was the
effect of a bad discharge on their ability to qualify for
veterans' benefits. Former servicemen with less than
honorable discharges are denied veterans' benefits such as
educational assistance, hospital and home health care,
pensions to widow and children, medical and dental care,
prosthetic devices, burial benefits, preference in
purchasing defense housing, and home, farm, and business
loans.
Perhaps the most important benefits lost are those
affecting employment opportunities, such as vocational
rehabilitation, Federal civil service preference, veterans'
re-employment benefits, and unemployment insurance benefits.
Most applicants were twenty to twenty-two years old when
they received their discharges. Many were looking for their
first full-time civilian job. Some were caught in downward
spirals: 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 discharges; they
then could not receive unemployment compensation because of
their discharges.
(Case 3-120)
Applicant was unable to go to accountant's
school without benefit of the GI Bill.
Finally, he found employment as a truck
driver for small trucking firms enabling
him to earn $70 per week. He could have
earned more with the larger trucking
companies, but they refused to hire him
because of his discharge.
(Case 3-121)
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 servicement 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. 35
The injury caused by the discharge under other than
honorable conditions is particularly acute in the case of
military 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 terminating their last period of enlistment.
In most cases, their bad discharges lost them the veterans'
benefits they had previously earned. Thirteen percent of
all military applicants had more than three years of
creditable service, and four percent had more than five
years.
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(Case 3-122)
Applicant enlisted in the Marine Corps in
1961 and received his first Honorable
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Discharge four months later, when he re-
enlisted for four years. He received his
second Honorable Discharge in 1965, and he
again re-enlisted. He received a third
Honorable Discharge in 1968 and again re-
enlisted. He had good proficiency and
conduct ratings (4.5), and he had attained
the rank of Sergeant E-5. He went AWOL
for 4-1/2 months in 1970 before receiving
a Bad Conduct Discharge in 1971. His
total creditable service was 9 years, 10
months, and 15 days.
Unfortunately, many military applicants turned to crime.
At the time of their applications, 12% of the military
applicants had also been convicted of civilian felony
offenses. Seven percent were incarcerated for civilian
offenses. Sometimes, their civilian offenses resulted from
their military experiences--a drug habit developed in
Vietnam, for example.
(Case 3-123)
Applicant served eight months in Vietnam
as a supply specialist before his
reassignment back to the United States.
His conduct and proficiency scores had
been uniformly excellent during his
Vietnam service. However, while in
Vietnam he became addicted to heroin. He
could not break his habit after returning
stateside, and he began a series of seven
AWOL offenses as he "got into the local
drug scene." Eventually, he "ran out of
money" and "had a real bad habit," so he
"tried to break into a store with another
guy that was strung out. " He was arrested,
convicted for burglary, and given an
Undesirable Discharge for AWOL while on
bail.
Of military applicants who are not incarcerated and
whose current employment status is known, six percent are in
school, 17% are unemployed, four percent are working part-
time, and the rest (73%) are working full time. Two-fifths
of those working full-time are in low-skilled jobs.
D. Non-Applicants
An estimated 113,300 persons could have applied for
clemency. of those, 21,725 did apply. Who were the 91,500
who did not? Why did they fail to apply? What happens to
them next?
Who Were They?
GERALD FORD LIBRARY
The following table identifies nonapplicants in a very
general sense:
TABLE 7: CHARACTERISTICS OF NON-APPLICANTS
Percentage
Total Number
Clemency
of
of
Program
Type of Applicants
Nonapplicants
Nonapplicants
PCB
Military-UD
87%
57,000
PCB
Military-BCD/DD
78%
19,400
PCB
Convicted Civilians
78%
6,800
DOD
Fugitive Servicemen
47%
4,500
DOJ
Fugitive civilians
84%
3,800
Total
81%
91,500
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 may be
attributable to the fact that we mailed application
materials to eligible persons with Bad Conduct or
Dishonorable Discharges, but were unable to do so for those
with Undesirable Discharges. (See Chapter 2-E.)
Throughout the Vietnam Era, there never had been any
tally -- even a partial tally -- of the number of war-
induced exiles. Some estimates were made, but they were
based upon very imperfect counting methods. For example,
figures of up to 100,000 were derived from the numbers of
files on American emigrants at aid centers. 36 Many emigrants
were not draft resisters or deserters, and many had files at
more than one center.
The Department of Defense had access to the military
records of its eligible nonapplicants. Using these records,
it could make comparisons between applicants and eligible
nonapplicants. In most ways, they were alike -- family
background, AFQT score, education, type of offense, and
circumstances of offense. Only a few clear differences
could be found. Nonapplicants 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.
If the Department of Defense findings are correct -- in
other words, if nonapplicants are not very different from
applicants -- we can make some estimate as to how many draft
resisters of deserters ever were Canadian exiles. In the
FORD & LIBRARY GERALD
Clemency Board program, two percent of the military
applicants and six percent of the civilian applicants had at
one time been Canadian exiles. In the Defense program, two
percent had been Canadian exiles. Many of the Department of
Justice applicants may have been Canadian exiles, but no
official data exists. Extrapolating from this data, it
appears that, at most, 7,000 persons eligible for clemency
had ever been Canadian exiles. This amounts to only five
percent of all eligible individuals. However, there may
have been thousands more who fled to avoid the draft, but
for whom no indictments were ever issued.
At present, we estimate that about 4,000 persons are
still fugitives in Canada. Most are those who declined to
apply to the Department of Justice program. We assume that
few of them misunderstood their eligibility for clemency.
Why Did They Fail to Apply?
We can identify seven 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.
1. Unawareness of eligibility criteria. Despite our public
information campaign, many eligible persons may never have
realized that they could apply for clemency. Had we begun
our public information campaign earlier, or if the program
had been of longer duration, it is likely that more would
have applied.
2. Settled status. Others may not have cared about the
kind of discharge they had, or they may have succeeded in
other endeavors since their convictions or discharges. They
may have wanted to avoid the risk that their employers
neighbors, or even families might find out about their past.
3. 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 clemency
recipients who applied to the Clemency Board -- or they may
not have realized that Clemency Board applicants were asked
to perform an average of only three months of alternative
service.
4. Opposition to the Program by Interest Groups. Interest
groups on both sides of the clemency amnesty issue were not
cooperative in making accurate information available to
prospective applicants. Our media efforts were impaired by
demands for equal time by pro-amnesty groups. Some groups
discouraged eligible persons from applying.
5. 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 children in school, so they might have
seen two years of alternative service as more of a
disruption than they were willing to bear.
FORD & LIBRARY
6. Personal 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.
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 that a new appeal would be of
little help.
What Happens to Them Next?
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 themselves to civilian or military authorities.
They still face the possibility of court-martial, but it is
possible that many will quickly receive Undesirable
Discharges 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, unless they never registered
for the draft. If their names are on that list, they can
surrender to the United States Attorney in the district
where they committed their draft offenses. They will then
probably 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. Nonetheless, they will still have felony
convictions, involving a stigma and a loss of civil rights.
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FORD is LIBRARY 938870
As the Clemency Board began receiving applications, we
were confronted with the need to develop procedural and
substantive rules for making clemency recommendations to the
President. The Proclamation could not have been clearer in
its instruction to act upon clemency applications on a case-
by-case basis. However, it left to the Board the
responsibility for determining the specific procedures and
substantive standards which we were to use in reaching
individual case dispositions.
We found ourselves in a situation similar to that of the
allegorical King Rex in Lon Fuller's The Morality of Law. 1
King Rex wanted to reform the legal system of his country.
Possessing the general power of law-maker, but lacking the
tools to write a code, he decided to proceed on a case-by-
case basis. He hoped that certain rules and regulations
would become apparent with the passing of time:
Under the stimulus of a variety of cases, he hoped
that his latent powers of generalization might
develop and, proceeding case by case, he would
gradually work out a system of rules that could be
incorporated in a code. Unfortunately, the defects
in his education were more deep-seated than he had
supposed. The venture failed completely. After he
had handed down literally hundreds of decisions,
neither he nor his subjects could detect in those
decisions any pattern whatsoever. Such tentatives
toward generalization as were to be found in his
opinions only compounded the confusion, for they
gave false leads to his subjects and threw his
meager powers of judgment off balance in the
decision of later cases.2
King Rex died "old before his time and deeply
disillusioned with his subjects. 113
To avoid the fate of King Rex, we had to understand the
FORD & LIBRARY UN
limitations as well as the advantages of a case-by-case
approach. It facilitates protection of individual rights,
but it threatens inconsistency and slowness of judgment. It
also leads to higher stakes. Any error may lead to unfair
treatment of the individual.
Therefore, we took a number of steps to insure the fairness,
accuracy, consistency, and timeliness of our case
dispositions. Essentially, we imposed rules upon ourselves.
Unfortunately, the Board had no direct precedents as guides
in setting up procedures. When we first met, we looked for
guidance from past precedents of other clemency programs and
the legal basis for Executive clemency sections. However,
there has been very little written on the procedures used by
Presidents in arriving at a decision to pardon. Articles
and cases dealing with the pardon power usually talk only in
terms of substance. Decisions of the United States Supreme
Court are often couched in terms of "public policy" and
"humanitarian considerations. They refer to the general
principle of American government that the President
represents the people and that he must act on their behalf.
A. Determination and Publication of Rules
These general instructions tell very little about the
procedural obligations of a board such as ours. The panoply
of rights accorded individuals under the due process clause
do not apply to the clemency process. The rights to
clemency review and to a clemency hearing are nowhere
guaranteed in the Federal Constitution. A recent federal
court decision disposed of arguments in the contrary by
stating:
we find plaintiff's argument that he was
entitled to a due process hearing before the
President could attach the challenged condition (to
his pardon) to be clearly specious.5
Therefore, the Board did not face the same
constitutional requirement of procedural due process as
imposed upon more familiar administrative proceedings. In
those other proceedings, the Supreme Court has generally
found that the requirement of a fair hearing prior to the
termination of various public benefits requires certain
procedural elements peculiar to an adversary trial-type
proceeding: timely and specific notice, opportunity to
confront and cross-examine witnesses, opportunity to appear
in person or through counsel, an impartial decision-maker,
and a written decision stating the result and the reasons
therefor.6
The more discretionary and personal nature of the
President's pardoning power is not necessarily bound by
these specific requirements. We considered ourselves not
bound by the Administrative Procedures Act, for example,
since we were an advisory body to the President, assisting
FORD & GERALD LIBRARY
him with recommendations as to how he should exercise his
personal power under the pardon clause.
Although we considered ourselves sui generis and thereby
free of any binding precedent in the devising of our
procedures, we recognized the inherent value of adopting the
general requirements of procedural due process. We did not
do this uncritically. We reviewed the various elements of
procedural due process, assessing them in terms of the
practical necessities of our operations and the realistic
importance of these rights to the applicants. We wished our
procedures to have real meaning. As we stated in our final
regulations:
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 resource
constraints governing it, the Board wishes to
adhere as closely as possible to the principles of
procedural due process. The administrative
procedures established in these regulations reflect
this decision.⁷ (See Appendix B.)
A provisional set of regulations was published in the
Federal Register on November 27, 1974.8 In keeping with our
goal of simplicity, we drafted these rules in layman's
words. Copies were sent to veterans' groups, civil
liberties groups, pro-amnesty organizations, and every
member of Congress. In all, the Board distributed
approximately seven hundred copies of proposed rules; we
received forty written responses and many other informal
comments. For the most part, the rules were well received.
Having rules -- and following those rules -- only
matters if those rules are reasonable and fair. We
developed rules of procedure and substance to reflect, as
best we could, the clement spirit of the President's
program. In the first half of this chapter, we describe
these procedures in more detail: what kinds of information
we used, how case summaries were prepared, how the Board
decided cases, and how we tried to protect the privacy of
our applicants. In the second half, we focus on our
substantive rules, our baseline formula, and our aggravating
and mitigating factors.
B. Procedural Rules
Acquiring Information
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To act upon applications on a case-by-case basis, we
needed specific information about applicants. Board members
could not review the complete files for each case. We
relied on the legal staff to gather and summarize pertinent
information. The quality, industry, and dedication of case
attorneys played a key role in how cases came to us. While
every Board member had the right to examine any file, this
right was never actually exercised. We collected and used
four different kinds of data: (1) application and intake
information; (2) official records; (3) written
correspondence from applicants, their representatives, or
other interested parties; and (4) oral statements by
applicants or their representatives.
Our collection of information about applicants began
with their first contact with us. Many letters from
applicants explained the reasons for their offenses and
described their present circumstances. The impact of a
personal letter from an individual detailing the
circumstances of his situation often made a dramatic
difference in the kind of recommendation made by the Board.
Our survey of applicants indicated that if an individual
took the time and effort to write a letter to the Board, he
had a 59% chance of the Board recommending an outright
pardon in his case. The outright pardon rate for all
applicants was 42%. Unfortunately, written personal
statements were submitted with an application in only 21% of
the cases. Other correspondence, not submitted with the
original application, was submitted in 14% of our cases.
(See Appendix D.) Whenever relevant, these letters were read
verbatim to the Board.
For the most part, we placed a high reliance on official
records. Lacking the time and resources to do much
independent investigation, we had to assume the accuracy of
the records, absent clear evidence of error. On occasion,
case attorneys questioned the accuracy and completeness of
the official records. When problems arose, staff attorneys
resolved them on a case-by-case basis. They made extensive
attempts to reach the applicant, his family, and other
possible sources of information. Because the staff did not
have the means to make investigative trips, these efforts
were limited to phone calls and written correspondence.
They were further limited by the fact that the applicants'
rights to privacy precluded some contacts, such as
employers, which might have proven useful.
A survey of case attorneys indicated that 32% of the
official Military Personnel Files were perceived by them as
not being adequate to understand military applicants and
their circumstances. According to case attorneys, about 10%
of the files were said to contain incorrect, contradictory
or confusing information. (See Appendix D.) Specific
instances of omission and neglect in file-keeping involved
miscalculation of periods spent AWOL, dates of Summary and
Special Courts-Martial, time spent in confinement, and the
amount of creditable military service. In cases concerning
individuals who were told to "go home and await assignment
orders," the personnel file often revealed no record of any
kind. The Official Military Personnel File was often not
sufficient in detail to draft a case summary which would
inform the Board of the "whole" individual and the specific
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reason for the offense.
In civilian cases, action attorneys normally used
presentence reports as their primary source of information.9
We used presentence reports in 81% of our cases, and we
received probation officers' reports in 45% of our cases.
(See Appendix D.) In this regard, the cooperation of the
Federal Probation Officers was most beneficial to our
program. We realized that the original function of the
presentence report was solely to aid the sentencing judge in
deciding whether or not to assign probation or a particular
length of incarceration. 10 Rule 32 (c) of the Federal Rules
of Civil Procedure provides that the sentencing court "may
disclose to the defendant or his counsel all or part of the
material contained in the report of the presentence
investigation" (emphasis added). Because practice differed
from one court to another, many defendants never saw the
evidence upon which sentencing judges based their decisions.
In these cases, there was a greater likelihood of
inaccuracies, errors, and omissions. As American
involvement in the Vietnam War drew to a close, some Federal
judges began automatically giving probation rather than
imprisonment for draft offenses. Consequently, no
presentence reports were prepared in these cases. While
this lenient treatment was welcomed by defendants,
ironically it put them in a more difficult position before
the Clemency Board, because we had little information upon
which to evaluate their applications.
The Board's reliance on official presentence reports and
Military Personnel Files had its drawbacks. In cases where
an applicant did not take advantage of his opportunity to
review and comment on his case summary, we may have made a
recommendation on the basis of erroneous information.
Additionally, in cases where an applicant had not previously
seen his presentence report or Military Personnel File and
did not exercise his right to see our files, his case
summary may have conveyed information new to him -- such as
his IQ score, history of mental difficulties, wife's
statements, or parent's observations as to why he committed
his offense. A terrific burden was placed on case attorneys
to search for information, and on quality control attorneys
to verify it. Case attorneys personally spoke with the
applicants in about 22% of our cases. They also often
talked with parents, probation officers, or prison
officials. However, reliance on oral communications with
applicants posed difficult problems. Locating applicants
was never easy, since they were most likely at work or away
during normal working hours. Considerations of privacy
dictated not contacting them at their places of employment.
Applicants, when contacted, were often surprised and tongue-
tied by a call from a government attorney in Washington,
D.C. Memory under such circumstances was sometimes hazy,
and thoughts were sometimes poorly expressed.
Perhaps the most serious problem in orally communicating
with applicants involved incriminating information. The
case attorney's role was neither that of counsel for the
applicant nor that of his adversary. His function was to
elicit as much relevent information, good and bad, as he
could. Yet case attorneys had a professional responsibility
to inform the applicants that they need not submit any
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information, and especially not evidence detrimental to
their applications. Balancing these considerations and
insuring that applicants also understood them required a
high degree of professional care. Written instructions on
these matters were distributed to case attorneys and were
reinforced by oral reminders. (See the Clemency Law
Reporter excerpts in Appendix D.)
Reliance on oral communications had one important
benefit. Applicants were greatly impressed with the
individual attention their cases received. Many had never
had such close and personal contact with a government office
before, much less from an attorney on the staff of an
activity in the Executive Office of the President. We
believe that this personal contact convinced them and their
families of the seriousness of the program and the
importance attached to it by the President. We regret that
we did not have greater personal contact with applicants.
Case Summary Preparation
Staff preparation of the file for decision revolved
around the case summary. This summary, generally about two
pages in length, summarized all information possibly
relevant to the Board's decision. We insisted that it be in
narrative form to present the individual as a human being.
Two models of civilian and military case summaries are
included in Appendix D.
Our case attorneys received detailed instructions
concerning the drafting of the case summary's four major
parts: (1) Offense and Present Status: (2) Background; (3)
Circumstances of Offense; and (4) Chronology. The following
is paraphrased from instructions given to case attorneys and
mailed to every applicant:
Offense and Present Status. The offense was stated in
correct but not legal language. Applicable statutes or
regulations were not cited. Present status was similarly
made clear. The remaining items included the name of the
sentencing court; total time served in confinement;
discharge status; total creditable military service; age;
and date of application. The purpose of these items was to
give the Board a first impression of the individual in terms
of the factors directly affecting his eligibility and
alternative service baseline.
Background. This statement provided a narrative picture of
the applicant as an individual: family background; race; 11
age; educational levels; intelligence; conscientious
objector status, or conscientious nature of his beliefs;
physical and mental health; marital status; number of
dependents; present residence; employment history; custody
level; and parole or probation status. Case attorneys were
instructed to use only evidence taken from official files or
information otherwise corroborated. Personal conclusions
and opinions were excluded. Any unofficial comments or
interpretations had to be labeled as such, and the sources
from which they came were identified.
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Circumstances of Offense. The basic circumstances
surrounding the applicant's offense were also stated in
specific but not legal language. The statement provided a
narrative description of the applicant's offense.
Information was included concerning any event in the life of
the applicant which was pertinent to the particular offense.
Whenever possible, the circumstances of the offense were
phrased in terms of the aggravating and mitigating
circumstances utilized by the Board. The case attorney did
not, however, draw conclusions concerning mitigating and
aggravating circumstances. All derivative or conclusory
judgments were always cited to the source.
The Chronology. The case attorney started with the date of
the applicant's birth and proceeded through his last
recorded date of involvement with civilian judicial systems
or military authorities. This sometimes included such
future events as the anticipated expiration date of
incarceration or probation. Possible errors or
contradictions were noted, and a brief explanation was given
at the bottom of the page. (See Appendix D.)
Although the summary was designed to be as complete a
statement as possible of relevant facts, the Board decided
that some information was extremely prejudicial and should
not be brought to its attention. Likewise, the case summary
omitted identifying information such as names, specific
addresses, college or high schools, and employers.
We relied heavily on the professionalism, knowledge, and
experience of case attorneys in preparing summaries.
However, the Board's legal staff of over three hundred was
drawn from many different agencies, without initial
screening on our part. To insure that Board rules were
followed and that all cases were written in a consistent,
complete, and accurate manner, quality control of case
preparation was essential. Without it, the Board could have
had no confidence that each summary was an accurate
reflection of the information bearing on the case. We
therefore created an unusual internal check on the
preparation of the case summary to control staff error,
omission, abuse of discretion, and inconsistency. This
quality control consisted of a special group of attorneys
which reviewed all summaries for improper, irrelevant,
inaccurate, or prejudicial material. Corrections suggested
by the quality control staff were conclusive unless the case
attorney could convince quality control that they should not
be made. This was a unique operation, for which we could
find little parallel in government legal processing. For
all its uniqueness, the process worked extremely well, and
case attorneys did not regard this as a reflection on their
professional competence.
We instituted a further check on accuracy by encouraging
the applicant to participate in the drafting of his case
summary. The following letter, pursuant to Section 101.8 (b)
of our Rules and Regulations, 12 was sent with the initial
case summary to each applicant:
***
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Your application to the Clemency Board has been
received. We are sending to you some additional
information which will help you understand how we
will review your case.
The most important thing that you should look at is
the Initial Case Summary. This is a brief statment
of the facts of your case and your personal
background that has been made from your files. The
summary has been enclosed so that you may see the
main tool that the Board will use when we review
your case. Like the Board, you and your attorney
may also see your entire file.
Please read your summary very carefully. If
anything in the summary is wrong or if there is
anything you want to explain, please tell the
Board. You may also tell the Board of any other
information that you think we should consider. If
we do not receive your comments twenty days from
the date of this letter, we may have to go on with
your case without them.
We have also sent to you the instructions for
preparing summaries. This is what the Presidential
Clemency Board gave to its lawyers to tell them how
to prepare your summary. We hope that it will
explain to you what each item on your summary
means.
* * *
After the case summary was completed, reviewed by
quality control, and mailed to the applicant, it was
docketed for Board review. Originally, it was the Board's
policy to wait thirty days before hearing the case to allow
the applicant time to respond to the summary. Because case
preparation never ran very far ahead of Board consideration,
cases were usually heard prior to the expiration of this
period. To accommodate this change, our rules provided that
the submission of any fact which could possibly effect the
preliminary result would cause the case to be referred to a
new panel. To guard against penalizing an applicant from
this double review, the second panel was barred from
recommending a more severe result. The only exception to
this was if the subsequent information disclosed a serious
felony conviction which the Board could not properly ignore.
Board Consideration
The preparation of the case summary was preliminary to
the presentation and review of the case by the Board
members. In the early, formative meetings, the Board
briefly considered delegating some evaluative role to the
staff. This suggestion was raised again when the large
influx of cases required us to reconsider our procedures.
From the start, however, the Board was unanimous in the view
that the full responsibility for review and recommendation
should lie with it alone. To ensure the integrity of this
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process, and to preserve the objectivity of the staff
attorney presenting the case, the Board rejected the idea of
having the staff make preliminary recommendations as to the
proper case dispositions.
The Board did not consider clemency recommendations to
be amenable to the adversary process, so our deliberations
were not conducted in that manner. An effective adversary
proceeding demands vigorous representation on both sides,
cross-examination, and strict requirements of proof and
rebuttal. This was totally inappropriate to a clemency
proceeding, since the applicants usually had no counsel and
were almost never present during case hearings. By
rejecting an adversary approach, the Clemency Board avoided
the competitive nature of many ordinary trials. The purpose
of the President's program was to heal wounds and to
reconcile, and our process was consistent with that goal.
At first, each case was presented to the Board with the
attorney giving a formal recitation of the facts of the
case. This procedure proved impractical when the Board's
docket expanded in April. Thereafter, with the increase in
the Board from nine to eighteen and expansion of case
attorneys from about a dozen to three hundred, we changed
procedures. Board members sat in panels of three or four
which were changed weekly, and sometimes more often. In
advance of each panel meeting, case summaries were
distributed to each panel member. During an average week,
each panel was responsible for 100-125 cases per day, with a
typical weekly total of 300-450. This usually meant two
days of reading cases for every three days of decision.
From June through August, the average Board member met in
panels, met with the full Board, or read cases every
weekday, and often over the weekend. Some members heard
over 4000 cases, with the average member sitting on 2711
cases.
Because each panel member had read every case summary
prior to panel deliberations, we dispensed with the formal
oral presentation by the case attorney. He was available,
however, to submit additional information gathered after the
summary had been prepared, to read letters, and to answer
questions pertaining to the full file. Panel members then
compared their views on the applicable aggravating and
mitigating factors. Once they were agreed upon, the panel
discussed the proper recommendation to the President. (See
Chapter 5.)
Originally, the Board was concerned that the change to a
panel proceeding would seriously impair our work. However,
the advance reading more than counter-balanced the absence
of a full recitation. A careful balancing of panel
membership resulted in a remarkable degree of consistency
among panels. The various procedures we initiated for
referrals to the full Board were also designed to insure a
high degree of consistency.
Inevitably, fatigue from a large caseload caused
problems for each of us. However, after we adjusted to
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deciding cases in panels and hearing them quickly, our
consistency of case dispositions was not materially affected
by these changes. Lengthy discussions did not always
improve our understanding of a case. In most instances, the
relevant factors were not in doubt, and the panel members
were in substantial agreement on a recommendation. This
left sufficient opportunity for more extended discussions
about complicated cases. Where there were any
irreconcilable differences in a panel on the treatment of a
case, it was presented anew before the full Board. While
there is no question that we would have preferred a less
hectic and exhausting pace than the continuous schedule from
May through September, the heavy caseload did not impair the
fairness of our case dispositions. (See Chapters 5 and 6.)
To achieve consistency in Board decision-making, several
procedures were applied. Any Board member could freely
refer a case from a panel to the full Board for
reconsideration. No case was considered final until the
President had signed a master warrant which included that
case disposition. Any case attorney who felt that a
disposition was inconsistent with past decisions could flag
that case for determination by the Chairman as to whether it
should be reconsidered by the full Board. Also, the Board
relied on help from a computer to compare each result to the
pattern of results for similar cases. (See Appendix E.) A
legal analysis staff reviewed the attorney-flagged and
computer-flagged cases, which included both harsh and
lenient cases, before they were referred to the Chairman.
In applying this reconsideration process, the Board was not
delegating its referral function to the staff. Actual
referrals could only be made by the Chairman or any other
Board member. Altogether, the case attorneys, the computer,
and the independent initiative of the Board members resulted
in 500 cases being referred from panels for a full Board
review.
Barely three percent of the cases produced disagreement
in panels sufficient for a member to seek full Board review,
and Board dissents were registered in only two percent more.
(See Chapter 5.) All in all, the Board made thousands of
recommendations to the President with a remarkable degree of
consensus, considering the difficult and controversial
nature of our responsibilities.
Applicants were not advised immediately of the Board's
recommendations, since as an advisory body to the President,
our advice had to be kept confidential until the President
had made his own decisions. Once the President had acted,
the result was relayed to the applicant, along with a list
of the factors the Board had identified in his case.
Obviously, the Board could not describe how each different
member had weighed the various factors, and we made this
clear to the applicant. But the listing of relevant factors
plus the summary enabled the applicant to understand how his
case was reviewed. It also gave him a basis upon which he
could file a request for reconsideration. (See Appendix D.)
Openness, Privacy, and Counseling
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Three aspects of our procedures deserve special
emphasis. Because we were concerned about giving the widest
possible procedural rights to applicants, we stressed the
openness of proceedings, the privacy of applicants, and
their right to counseling.
The Board process was as open as possible, except for
the actual deliberations on particular cases. It
established procedural and substantive rules, published them
in the Federal Register, gave them wide public distribution,
and mailed them to every applicant. Our major instructions
to staff were also distributed to applicants, and
supplementary decisions and precedents were published in the
Clemency Law Reporter, which was made available to the
public on request.
One of the major purposes of the Clemency Law Reporter
was to keep case attorneys, Board members, and interested
citizens aware of Board policy precedents. It provided
precise definitions of the aggravating and mitigating
factors, with illustrative case examples. The Reporter also
served as a forum for debate on policy issues, analyzed
legal issues, and enabled case attorneys with special
expertise to share it with the staff and the Board. (For an
index of Reporter articles and selected excerpts, see
Appendix D.)
An individual's official files were available to him
only at the Clemency Board offices. This required the
applicant or his attorney to contact someone in the
Washington, D.C., area to examine the records for him.
Where possible, information was relayed by phone, and small
portions were sometimes duplicated and sent to him.
However, we received few requests for access to file
materials other than the case summary.
We tried to reconcile the competing demands of an open
process and the applicants' privacy. Applicants were
guaranteed confidentiality, and great care was taken to
avoid including identifying information on case summaries,
since we had to assume that they might be made public. The
summary itself was sent by registered mail to prevent anyone
but the applicant from seeing it. The Board felt that its
promise of confidentiality and the integrity of the clemency
process required that no person be put in a worse position
because he applied for clemency. As it turned out, there
were less than a dozen inquiries from law enforcement
agencies, and a good number of these were requests to see
pre-existing official files.
The guarantees of confidentiality in the Board's
regulations, and in all communications with applicants,
imposed limitations on discovery and verification of
information. The Board considered a proposal to seek the
assistance of the FBI to learn more about applicants,
primarily from existing law enforcement records. To have
done so, however, would have violated our earlier pledge of
confidentiality, since the FBI would have verified the
identity of each applicant. Furthermore, the Board was
concerned that requesting FBI checks would have seriously
compromised the goal of reconciliation in the eyes of the
applicants and the general public. The proposal was
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rejected unanimously.
The requirement of privacy meant that the Board was
reluctant to publish case summaries with final dispositions
to establish precedents for public guidance. For a brief
period, short anonymous summaries were published, describing
the decisive characteristics of each case. These proved
extremely difficult to prepare and were not helpful to
anyone. They were discontinued after a few months in favor
of the use of the Clemency Law Reporter to present
discussion and illustrations of the factors as applied by
the Board. (See Appendix D.)
Inevitably, the public was not very well-informed of our
procedures. In only one case did an applicant waive his
right to a closed hearing and request a public proceeding
with the media present. Open hearings would have increased
public understanding, but it was not within the Board's
province to made deliberations public without an applicant's
approval.
Despite the informality and simplicity of our process,
we encouraged applicants to seek legal counseling. There is
no question that the lesser educated could have profited by
outside help. Unfortunately, only about two percent of the
applicants had any legal assistance that we were aware of,
although many more wrote to us asking for references of
counsel that we were unable to give. This was because many
legal assistance organizations proved either unwilling or
unable to advise applicants. Although the Board tried to
persuade these groups to allow us to include their names on
the legal referral lists sent to each applicant, most
declined. However, some groups ccoperated. The Los Angeles
County Bar Association represented a large number of
applicants. A number of veterans' groups which were
publicly critical of the program did not let this stand in
the way of their helping former servicemen earn a pardon and
a Clemency Discharge through the President's program.
Nevertheless, most applicants were left to proceed on their
own resources, reinforcing our decision to make our
procedures as flexible and as simple as possible.
The Board only granted a conditional right to appear,
but very few requests were ever made. For the most part,
personal appearances were made to clarify the reasons for
the offense. of about 25 requests, roughly half were
granted. The Board denied some of the others because our
decision to recommend an immediate pardon made the request
moot. We denied the remaining requests when it was clear
that personal statements would not contribute to those
aspects of the cases we considered determinative.
C. Substantive Rules
The Presidential Clemency Board confronted an extremely
diverse array of motivations and situations for the 14,514
&
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applicants whose cases we reviewed. There was an obvious
need to regularize the decision-making process so that we
VLAALD
would treat all individuals fairly and equally.
LIBRARY
At the first meeting in which the Board began to examine
cases, we developed a preliminary set of relevant
substantive criteria which were later publicly announced.
As we came upon new circumstances which we deemed important,
we added them to our list. The Board, however, tried to
resist the temptation to change rules once formulated, since
it would have been unfair to apply different rules to later
cases. The use of published substantive rules was
instrumental in guiding decisions-making, in insuring
consistency, and in informing the applicants, the public,
and the President of our criteria for making case
dispositions. (See Appendix D.)
Our substantive rules consisted of a baseline formula
and a specific list of aggravating and mitigating factors. 15
(See Appendix D.) They enabled us to achieve several legal
objectives. First, we maintained a policy of openness
toward prospective applicants by giving notice of the
framework within which we considered each application;
second, our use of aggravating and mitigating circumstances
forced us to focus on all aspects of an applicant's case
and, therefore, to treat him as an individual; third, the
rules gave us the means to check the consistency of our
recommendations; finally, since each applicant's baseline
calculation and applicable factors were ultimately
communicated to him, he could understand the basis for the
decision in his case, giving him a foundation should he wish
to appeal.
Baseline Calculations
First, we calculated a baseline period of alternative
service for each case. The use of this formula reflected
the basic difference between clemency Board applicants and
those eligible for the Justice and Defense programs.
Clemency Board applicants had already paid a legal penalty
for their offenses; they had received a civilian or military
conviction, or a less-than-honorable administrative
discharge. Also, a pardon could never be as beneficial a
remedy as complete relief from prosecution or administrative
punishment. For these reasons, our formula almost always
resulted in a baseline or starting-point significantly less
than the twenty-four month baseline which the other two
programs used.
The baseline formula, once established, remained
unchanged throughout Board deliberations. Like the Justice
and Defense programs, we began our calculation with twenty-
four months, the maximum period set forth in the President's
Proclamation. This period represented the normal amount of
military service which each draftee had been obliged to
perform, and the period which conscientious objectors are
expected to serve in lieu of military duty.
Because many applicants had suffered confinement for
their offenses, we reduced the baseline by three months for
FORD & GERALD LIBRARY
every month's confinement. The baseline was further reduced
one month for every month of court-ordered alternative
service, probation, or parole previously served, provided
the applicant had not been prematurely terminated because of
lack of cooperation.
This final calculation was subject to three exceptions.
First, if the calculated baseline was greater than either
the sentence of the Federal judge or court-martial, that
length of sentence became the baseline. Second, the
baseline was never less than three months. Third, in all
cases of Undesirable Discharges, the baseline automatically
became three months. The Board adopted a three-month
baseline for administrative discharge cases to reflect the
fact that the military authorities had determined that these
applicants' offenses did not warrant the more serious
consequences of a court-martial. This approach, plus the
three-to-one credit for confinement, established an
equitable starting point for the different categories of
Presidential Clemency Board applicants. 13
This approach was possible because the starting point of
twenty four months was not made mandatory for us. The
Proclamation and the Executive Order gave the Board
flexibility in determining appropriate lengths of
alternative service. In comparison, both Department of
Defense and Department of Justice used twenty-four month
baselines. Both of these programs acted pursuant to the
explicit dictates of the Presidential Proclamation 4613.
For Justice Department applicants, the Proclamation stated:
The period of service shall be twenty-four
months, which may be reduced by the Attorney
General because of mitigating circumstances. 14
Concerning the Defense Department program, the
Proclamation provided:
The period of service shall be twenty-four
months which may be reduced by the Secretary of the
appropriate Military Department
because
of
mitigating circumstances. 15
Aggravating and Mitigating Factors
In the Clemency Board program, as in the Justice and
Defense programs, the baseline did not necessarily represent
the actual period of alternative service to be assigned the
applicant. In accordance with the President's desire, all
three programs created mitigating factors to reduce the
baseline. Because of our reduced baseline, the Clemency
Board also used aggravating factors to raise the baseline in
certain cases.
All factors were established or amended by vote of the
FORD i LIBRARY 078870
full Board. They were first formally published in the
Federal Register cn November 27, 1974. 16 Since November of
1974, our regulations were amended three times to reflect
changes and additions to the factors. 17
There was some expansion of the aggravating and
mitigating circumstances over the course of our work.
Almost all of these additions and modifications occurred
with respect to military applicants. We discovered that the
majority of our applicants were former servicemen whose
absences were not explicitly unrelated to the Vietnam War.
It did not take us long to realize that a fair evaluation of
these cases required additional aggravating and mitigating
factors which took into account the applicant's entire
military record. Therefore, we went from seven to twelve
aggravating circumstances and from eleven to sixteen
mitigating circumstances. All but one of these additions
was exclusively applied to military cases. (See Appendix
B.)
We examined our first cases in October 1974. At first,
we applied the factors subjectively. However, it soon
became clear that we were not evaluating the cases in a
consistent manner, and each of us was not aware how other
members were assessing the cases. After we had tentatively
decided the first sixteen cases, we asked the staff to
analyze our results. This exercise demonstrated to us that
we had to be more consistent and controlled in our work.
Consequently, we applied our factors more rigorously, making
certain that Board members were in general agreement on the
presence or absence of aggravating and mitigating factors
before making case recommendations.
Once a Board panel had discussed and agreed on the
factors present in each case, each member expressed a view
on the appropriate result. We agreed to increase or
decrease the baseline by three-month intervals. If the
aggravating and mitigating factors were of equal weight, we
left the baseline standing. If the weight came down more on
one side, we changed the baseline by an increment of three
months. Where the factors on one side were very dominant,
we moved by six months. In unusual cases, we changed the
baseline by nine months or more. A maximum period of 24
months could be recommended as an alternative to a "no
clemency" disposition. In deserving cases, the baseline was
reduced to zero and immediate clemency recommended.
In particularly meritorious military cases, tentative
recommendations were made for immediate discharge upgrades
to honorable conditions. (See Chapter 5.) These cases were
referred to a special upgrade panel, consisting primarily of
Vietnam veteran board members, who made final
recommendations to the President.
The aggravating and mitigating factors fell into four
major categories. First, we examined the reason for the
offense. Second, we considered the circumstances
surrounding the offense. Third, we examined the
individual's overall record. Finally, we took into account
some circumstances surrounding his application for clemency.
We applied factors somewhat differently in civilian and
FORD & LIBRARY GERALD
military cases because of their contrasting fact
circumstances.
CIVILIAN CASES
Reasons for the Offense
Probably the most important question we could ask about
a civilian applicant was why he committed his offense. On
the basis of his statements and official records, we
considered whether or not his motivation for committing his
draft offense was conscientious.
We were predisposed to be clement in cases where there
was evidence the applicant acted for conscientious reasons
or had been denied conscientious objector status, or any
other classification, on narrow or improper grounds. We
reasoned that had the applicant been granted his deferment
or exemption, he would not have been convicted of a draft
offense in the first place.
We also realized that a civilian applicant's offense
might have been explained by lack of education or capacity
to understand his obligations and available remedies, by
personal or family problems, or by some mental or physical
condition. Such explanations applied more often to lower-
income, less articulate applicants.
When we did not find a reasonable justification for the
offense, we tried to discern whether the applicant committed
his offense for selfish or manipulative reasons. Usually,
there was evidence to substantiate this conclusion. Where
there was not, we looked at the inferences which could be
drawn about his reasons, although we never gave such an
inference the same weight as direct evidence.
Evidence that Applicant Acted for Conscientious Reasons:
Mitigating Factor # 10 (applied in 73% of the civilian
cases). A great many civilian applicants committed their
offenses because of sincere ethical or religious beliefs.
Most conscientious objectors fall into this category.
(Case 4-1)
While in college, applicant came under the
influence of and actually worked with a
group of Quakers. It was then that he
developed conscientious objection to the
war.
Our concern extended to applicants who had not
previously filed for CO Status, but who demonstrated their
opposition to the war in some other way.
(Case 4-2)
Because of the applicant's beliefs that
"peace among human beings is of the
FORD & LIBRARY 077839
ultimate necessity," he became involved in
anti-war demonstrations.
Some applicants did not know they could apply, and
others who opposed only the Vietnam War did not bother to
file CO claims since objection to a specific war did not
qualify for CO status. 18
Case 4-3)
Applicant's claim for conscientious
objector status was denied by his local
board because he objected only to the
Vietnam War, rather than all wars.
When we found this factor, an immediate pardon was
generally recommended because this was the classic
circumstance which the President had in mind when he created
the clemency program.
Denial of Conscientious Objector Status on Grounds Which
are Technical, Procedural, Improper, or Subsequently Held
Unlawful by the Judiciary: Mitigating Factor #9 (applied in
8% of civilian cases). Some applicants had their CO claims
denied on grounds which were subsequently held unlawful by
the judiciary. Prior to Welsh V United States, 19 a CO was
required to base his beliefs on religious grounds. In the
Welsh case, the Supreme Court held that it was sufficient if
CO claims were grounded on sincere ethical and moral
beliefs. Although the court decision was not retroactive,
we felt it only fair to give credit to applicants who
received convictions simply because they were brought to
trial before Welsh. We also looked favorably upon
applicants whose CO request had been denied on purely
technical or procedural grounds.
(Case 4-4)
Applicant applied for conscientious
objector status after his student
deferment had expired. Applicant opposed
the Vietnam War on ideological grounds,
and he sincerely believed he was a
conscientious objector. He did hospital
work to support his beliefs, but he failed
to comply with time requirements for
status changes under the Selective Service
Act. Applicant's request for CO status
was denied; consequently, he refused
induction.
When we found this factor, we normally recommended immediate
clemency, since had the CO status been granted, no offense
and thus no conviction would have occurred.
Substantial Evidence of Procedural or Personal
Unfairness: Mitigating Factor #8 (applied in 6% of civilian
cases). In civilian cases, this circumstance normally
applied where an applicant failed to receive a Selective
Service deferment or exemption for reasons which appeared to
be arbitrary or unfair. We did not apply this factor unless
it was evident that an applicant would have been deferred or
exempted from the draft, except for the questionable
decision by his local board. The denied deferment or
FORD i LIBRARY
exemption could have been for physical disability, hardship,
or any other type of classification.
(Case 4-5)
Applicant was denied a hardship deferment
solely on the grounds that he had applied
after receiving induction orders. His
father had both brain damage and a
drinking problem which might have
qualified applicant for a hardship
discharge.
In these cases, we applied the spirit of the clemency
process to discount technical bars to deferment which courts
are not free to ignore. Originally, we did not distinguish
between this factor and Mitigating Factor # 10 -- improper
denial of CO status. In our amended regulations of March
21, 1975,20 the two factors were separated because we found
the latter circumstance particularly significant in our
determinations.
Mental or Physical Condition: Mitigating Factor #3
(applied 9% of civilian cases). Generally, persons with
serious mental or physical disabilities received deferments
or exemptions, so they did not often commit draft offenses.
However, some civilian applicants did have serious
disabilities.
(Case 4-6)
Applicant refused to report for a physical
examination. He claimed he had a
disfiguring physical ailment which would
subject him to embarrassment if he were
required to submit to an examination
before several other persons. Although
applicant's attorney maintained that such
ailment should qualify as a complete
physical exemption, applicant's appeal for
change of I-A status was denied.
Lack of Sufficient Education or Ability to Understand
Obligations or Remedies Available Under the Law: Mitigating
Factor # 1 (applied in 3% of civilian cases). In civilian
cases, we looked to an applicant's IQ scores and educational
level as an indication of his ability to understand his
obligations.
(Case 4-7)
Applicant has a sixth grade education and
a Beta IQ of 49.
Evidence of retardation or permanent learning disability
created a presumption that an applicant had difficulties in
coping with his environment. Likewise, we recognized the
less severe but still significant problems faced by
applicants with low education levels and cultural and
language difficulties.
Personal or Family Problems: Mitigating Factor #2
(applied in 9% of civilian cases). Some civilian applicants
had emotional, financial, marital, family, or other personal
problems severe enough to have caused them to commit their
draft offenses.
(Case 4-8)
Applicant told the investigating FBI agent
FORD LIBRARY
that he failed to report because his
mother was suffering from arthritis, was
unemployable, and was dependent upon him
for her financial, physical, and emotional
well-being.
Evidence That Applicant Committed Offense for Obviously
Manipulative and Selfish Reasons: Aggravating Factor #5
(applied in 15% of civilian cases). Sometimes, a civilian
applicant's reasons for his offense were neither
conscientious, justifiable, nor excusable.
(Case 4-9)
Applicant admits that he never gave much
thought to his feelings about war until he
received his induction notice. He was
given the opportunity to serve as a
noncombatant, but he admits that he
procrastinated until he was no longer
eligible.
Alledgedly conscientious motives sometimes, upon further
investigation, were contradicted by an applicant's later
behavior.
(Case 4-10)
Applicant's parents reared their children
in the Moorish faith. The Muslim faith
was the basis of the applicant's refusal
to be inducted. Following high school,
applicant became associated with a group
of other Muslims, who because of their
delinquent ways, were known as Outlaw
Muslims. While a part of this group, he
participated in a bank robbery.
We did not necessarily recommend "no clemency" when this
factor was present, preferring instead to give these
individuals the chance to earn clemency. However, the
presence of this factor generally resulted in increasing an
applicant's baseline period. In rare civilian cases, where
no evidence of reasons for an applicant's offense could be
found or inferred, we applied a "weak" Aggravating Factor
#5. This was only mildly aggravating to an applicant's
case.
Circumstances of the Offense
Because civilian offenses consisted basically of a
failure to perform a specific act, the only pertinent
circumstance of the offense was whether an applicant
surrendered or was apprehended by the authorities before his
trial. We did not weigh this factor heavily, and we ignored
it altogether if there was no clear evidence about it in the
record.
Voluntary Submission to Authorities: Mitigating Factor
# 11 (applied in 59% of civilian cases). If an applicant
voluntarily surrendered to authorities before his trial, we
interpreted this as an indication of good faith acceptance
FORD is LIBRARY GERALD
of the consequences of a draft offense. Since we looked at
the applicant's ultimate intentions, it was immaterial
whether the applicant was formally arrested.
(Case 4-11)
Upon notification by his parents that a
warrant for his arrest was about to be
issued, applicant submitted himself to the
U.S. Marshal in the locale where he was
employed.
Nor was it necessary for the applicant to have appeared
personally at a police station. It was sufficient if the
applicant himself notified the authorities of his
whereabouts.
(Case 4- 12)
Applicant failed to keep the draft board
informed of his address. After 16 months,
he informed the draft board of his address
and was arrested shortly thereafter
without offering resistance.
Apprehension by Authorities: Aggravating Factor #12
(applied in 7% of civilian cases). If the applicant was
apprehended by authorities, we inferred that he did not
intend to cooperate with either Selective Service or the
judiciary.
(Case 4-13)
Applicant was arrested and transported to
the induction center. He refused to be
inducted and left the center. He was
rearrested six months later.
This circumstance applied, although not as strongly, in
cases where the applicant was arrested but did not willfully
evade authorities.
(Case 4-14)
Applicant was aware that he was being
sought by authorities after his indictment
but did not attempt to evade apprehension.
He was arrested six months later.
Overall Record
We did not limit ourselves to a reexamination of an
applicant's offense. We were additionally interested in
conduct in his community prior, during, and after his draft
offense would could reflect his desire to achieve a
reconciliation with his community. For example, an
applicant's previous public service demonstrated his intent
to be a contributing member of the community and indicated
that his offense did not necessarily reflect a lack of civic
responsibility. Conversely, other adult convictions, any
prior refusal to fulfill alternative service, or a violation
of probation or parole reflected his disregard for the law,
the rights of others, and the community in which he lived.
These latter actions caused us to question an applicant's
willingness to fulfill his obligations as a citizen and,
hence, his good faith in applying to us.
Employment and Other Activities of Service to the
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Public: Mitigating Factor #4 (applied in 57% of civilian
cases). We looked with favor upon any work of benefit to
the community, whether performed as alternative service or
as a condition of probation. Any work contributed
voluntarily was particularly appealing whether performed
before or after an applicant's draft offense.
(Case 4- 15)
As a condition of probation, applicant did
volunteer work for a local church under
the supervision of the pastor. He also
volunteered his time to help impoverished
potato farmers harvest their crops.
(Case 4- 16)
Applicant has spent the bulk of his time,
in and out of school, teaching handicapped
and impoverished children.
Other Adult Convictions: Aggravating Factor #1 (applied
in 47% of civilian cases). If a civilian applicant had
committed any non-draft-related offense for which he
received a felony conviction, we questioned his basic
worthiness for a Presidential grant of clemency. Whether
occurring before or after his draft offense, other criminal
behavior by the applicant hardly seemed consistent with his
desire to earn clemency. Only a very small percentage of
civilian applicants had been convicted of felonies involving
bodily harm.
(Case 17)
In addition to his draft offense, this
civilian applicant had three other felony
convictions: sale of drugs; possession of
stolen property; and assault, abduction
and rape.
These cases normally resulted in a "no clemency"
recommendation absent any strong mitigating factors. (See
Chapter 5.) Others had committed less serious offenses, and
we considered recommending clemency in their cases.
(Case 4-18)
This civilian applicant was arrested for
possession of barbiturates. He was
subsequently arrested for his draft
offense, extradited, and convicted on the
charge of possessing barbiturates.
Arrests, trials ending in acquittal, misdemeanors,
juvenile convictions, and convictions later set aside were
not considered by the Board. We directed the staff not to-
bring this kind of information to our attention.
Prior Refusal to Fulfill Court-Ordered Alternative
Service: Aggravating Factor #6 (applied in 4% of civilian
cases). To earn conditional clemency, applicants had to
perform alternative service. Therefore, we were skeptical
about the good faith of applicants who had not fulfilled an
earlier promise to perform alternative service as a
condition of CO status.
(Case 4-19)
Applicant received a conscientious
objector exemption in 1966 and was ordered
to report to his local board for
instructions on how to proceed to an
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alternative service job. He failed to
appear at the local board and was
convicted in 1973 on a guilty plea for
failure to report for alternative service.
Occasionally, applicants failed to perform court-ordered
alternative service imposed as a condition of probation or
parole.
(Case 4-20)
Applicant was ordered to report for
induction. He failed to submit and was
sentenced to five years probation, two
years of which were to be in work of
national importance. After working for
one year in a hospital, the applicant
resigned his job and notified the
sentencing judge that he, could no longer
cooperate in good conscience, and he
requested revocation of his probation.
The judge, therefore, revoked probation
and gave the applicant a one-year jail
sentence. He was released after serving
10 months in prison.
We did look differently at Quakers, Black Muslims, and
Jehovah's Witnesses who refused on religious grounds to
fulfill alternative service ordered by Selective Service,
although they were willing to accept judicially-imposed
alternative service. We did not wish to penalize them for
their conscientious beliefs. We ignored their failure to
perform alternative service at the direction of Selective
Service, unless they refused on other than religious or
conscientious grounds.
(Case 4-21)
Applicant was classified as a
conscientious objector because of his
religious beliefs as a Jehovah's Witness.
When offered alternative civilian
employment, he engaged in dilatory tactics
and made token appearances on the job.
Violation of Probation or Parole: Aggravating Factor #7
(applied in 4% of civilian cases). Similarly, we questioned
an applicant's good faith in applying for clemency when he
earlier had not cooperated with those who had shown
leniency. However, we were only concerned about any
violation of probation or parole serious enough to result in
revocation.
(Case 4-22)
Applicant was convicted for failure to
report for induction and sentenced to five
years probation. While on probation, he
was arrested and pled guilty to state
felony charges. His federal probation was
revoked following his state conviction.
FORD & LIBRARY GERALD
Circumstances Surrounding the Application
We were concerned about whether a civilian applicant had
the ability to find and hold alternative service employment.
If his present personal or family problems or his mental or
physical condition would have impaired his ability to
perform alternative service, we saw no purpose in imposing
such extra burden on him which he could not realistically
satisfy. The one exception to this general rule pertained
to applicants presently incarcerated for other offenses, who
were expected to perform alternative service upon their
release from confinement. Two of the Department of
Justice's mitigating circumstances were closely related to
this problem: "Whether the applicant's immediate family is
in desperate need for his personal presence for which no
other substitute could be found and such need was not of his
own creation," and "whether the applicant lacked sufficient
mental capacity to appreciate the gravity of his action."
While we did not have any specific mitigating factor to
cover this point, it did arise several times. For example,
we applied Mitigating Factor #3 (mental or physical
condition) in the following case:
(Case 4-23)
Applicant states that he started drinking
when he was eleven years old, and he feels
that he has a serious drinking problem.
He attempted to secure assistance, but was
not able to follow through. Most of his
juvenile and adult offenses appear to be
related to excessive drinking.
False Statement by Applicant to the Board: Aggravating
Factor #2 (applied in 0.6% of civilian cases). We were
deeply disturbed by any false statements made by an
applicant to the Clemency Board, since this was a clear
indication of his unwillingness to cooperate with us in a
spirit of openness and honesty. Because we did not require
any applicant to submit information to us under oath, and
because we had few sources of corroborative evidence, we
relied heavily on his good faith.
We looked only for a willful misrepresentation of a
material fact; we were not concerned about an applicant's
false statements to draft boards or courts, unless he
repeated them to us. We specifically warned applicants
about this in our application materials. 21
MILITARY CASES
Reasons for the Offense
There were many reasons why servicemen went AWOL (See
Chapter 3-c). Some committed their offenses for
conscientious reasons or because their requests for in-
service conscientious objector status had been denied. A
greater number committed their offenses either because of
military treatment they considered unfair or because of
personal or family problems. Occasionally, a serviceman's
mental or physical condition or his inability to comprehend
his obligations made his offense understandable under the
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circumstances. We were especially concerned about cases
where an offense appeared to be the result of mental stress
caused by combat. If a military applicant offered no
apparently justifiable reason for his offense, we inferred
that he had selfish reasons.
Evidence that Applicant Acted for Conscientious Reasons
Mitigating Factor #10 (applied by the Board in 27% of
military cases). We applied this factor when a military
applicant committed his offense out of sincere opposition to
war. We did not require that an applicant have applied for
in-service CO status or that he necessarily fit the
traditional conscientious objector mold.
(Case 4-24)
Applicant returned to the United States
from Vietnam with orders to train armor
crewmen going to Vietnam. He did not want
this assignment because he had "come not
to believe in what was going on over
there. " He said, "I was not exactly a
conscientious objector because I had done
my part in the war, but I had decided that
I could not train others to go there to
fight."
(Case 4-25)
Applicant decided he could not
conscientiously remain in the Army, and he
went to Canada where he worked in a
civilian hospital. In a statement prior
to his discharge, applicated stated: "In
being part of the Army, I am filled with
guilt. That guilt comes from the death we
bring, the tremendous ecological damage we
do, the destruction of nations, the
uprooting of whole families, plus the
millions of dollars wasted each year on
scrapped projects and abuse of supplies.
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."
Denial of Conscientious Objector Status on Grounds that
Are Technical, Procedural, Improper, or Subsequently Held
Unlawful by the Judiciary: Mitigating Factor #9 (applied in
0.4% of military cases). The military has procedures for
discharging or reassigning soldiers who come to hold
conscientious objector beliefs. Sometimes, these procedures
did not work to the benefit of some applicants. If an
applicant had been unjustly or unfairly denied CO status, we
considered this strongly mitigating, since had he been
granted CO status, he would not have committed his offense.
(Case 4-26)
For a year and a half after he was
drafted, applicant tried to obtain C.O.
status because he did not believe in
killing human beings. He talked to his
captain and the Red Cross. Neither found
his aversion to taking human life to be
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persuasive. The applicant is minimally
articulate but states that even if someone
was trying to kill him, he could not kill
in return. When he had exhausted his
application for CO status and was
scheduled for Vietnam, he went AWOL.
Case 4-27)
Applicant was inducted in 1967. He
applied for CO status in 1969 and was
given orders for Vietnam before his
application was reviewed. He complained
to his commanding officer who ordered him
to Vietnam nevertheless. Applicant then
went AWOL to seek outside help. He was
advised by civilian counselors that he
should remain AWOL for at least 30 days so
that he would be able to bring to the
attention of a court-martial the
illegality of ignoring the CO application.
The court martial refused to enter copies
of the CO application on the grounds that
the applicant's copies could not be
introduced into evidence because they were
not certified.
Substantial Evidence of Personal or Procedural
Unfairness: Mitigating Factor #8 (applied in 14% of
military cases). Personal or procedural unfairness
occasionally contributed to the reasons for an applicant's
AWOL or disrespect for military regulations.
Understandably, irregularities occur in a large organization
like the military. The Board was careful in evaluating
apparent procedural or personal unfairness, but we were also
conscious that we were exercising a clemency function, and
so could give more weight to evidence of procedural
unfairness than the military authorities had. If the
legitimate demands of the military outweighed the
applicant's personal needs, we looked with less favor upon
his unwillingness to accept some personal inconvenience.
Altogether, there were eight different fact situations in
which we identified personal or procedural unfairness.
(a) Irregularities resulting in the induction or
enlistment of an applicant who should never have been in the
military in the first place because of low mental capacity
or serious physical or psychological infirmities:
(Case 4-28)
Applicant was classified I-Y and then
reclassified 4-F. Applicant states that
he enlisted with the cooperation of his
probation officer and the Army recruiter.
(Case 4-29)
Applicant was inducted under Project
100,000. He had stated that he had
previously been rejected by the Marines
and had failed the Army's mental test, but
claimed that his papers had been changed
so that he would qualify.
(b) Attempts by the applicant to resort to legitimate
remedies to solve his difficulties by applying for
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discharge, reassignment, or leave, followed by a denial of
those remedies on technical, procedural, or improper
grounds:
(Case 4-30)
While in Vietnam, applicant submitted a
request for compassionate reassignment,
which was denied because his demand was
not substantiated by medical evidence.
When the medical evidence was later
submitted, the request was again denied
because the problems were chronic in
nature. However, a 30-day leave was
granted. When home on leave, applicant
discovered that his wife was mentally ill
and unable to care for their child. His
parents were also having serious emotional
problems. Applicant tried again to
arrange a transfer but was told he would
have to return to Vietnam and resolve the
problem from there. Applicant remained in
Puerto Rico in an AWOL status.
(c) Improper denial of pay or other benefits:
(Case 4-31)
Applicant was ordered to report to a new
base for assignment to Europe. While he
was waiting at Fort Dix, his records were
shipped to Europe. He was not paid for 45
days. He reported that his family was
having financial problems, and he
requested Red Cross help and emergency
leave to deal with the difficulty. His
family was put out of its apartment, was
forced to live in its automobile, and had
nc food. He traveled to the Pentagon and
was reportedly told to go home to await
the results of a telegram to Europe
regarding his pay records. He called back
twice, but reportedly no one knew of his
situation or had heard of him. He was
committed to his course of action, so he
continued to stay at home, which resulted
in his being AWOL.
(d) Failure to receive proper leadership, advice, or
assistance:
(Case 4-32)
Applicant was advised to apply for a
hardship discharge and was provided
assistance in filling out the necessary
forms by the Red Cross. When applicant
attempted to file the hardship discharge
papers, the papers were thrown in the
trash by his sergeant, who also
reprimanded him for being a coward. As a
result of such treatment, applicant became
disillusioned with the Army and went AWOL.
(e) Unfair military policies, procedures, or actions
sufficient to produce a reasonable loss of faith in or
unwillingness to serve in the military:
GERALD LIBRARY GERALDR. FORD
(Case 4-33)
Upon entering the Army, applicant
complained of stomach pains, and it was
subsequently discovered that he had a
duodenal ulcer. Shortly thereafter, his
condition worsened, and he was
hospitalized for ten days. Applicant
wanted to remain on the same diet that he
was on in the hospital, but this was not
available at his post mess hall. He was
advised by a doctor to eat in the post
cafeteria, which he did not think was
right. Applicant then went AWOL.
Applicant recently suffered another
bleeding ulcer attack, which required
hospitalization.
(f) Racial or ethnic discrimination:
(Case 4-34)
Applicant's version of his problems is
that he could no longer get along in the
Marine Corps. Other marines picked on him
because he was Puerto Rican, would not
permit him to speak Spanish to other
Puerto Ricans, and finally tried to get
him in trouble when he refused to let them
push him around.
(g) Instructions by a superior to go home and await
orders which never arrived:
(Case 4-35)
Applicant contracted a rash and fever. He
went to Fort MacArthur for medical
treatment and was ordered to stay at home
until he had recovered. He was told to
expect orders following his recovery. No
new orders were received, so he contacted
his Congressman to find out what had
happened. He received a reply that the
Army had no information about his
movement. He then contacted an Army
Inspector General following that, but he
again learned nothing about his orders.
There is some evidence that applicant
thought he would have been eligible for a
medical discharge related to curvature of
the spine.
(h) Inducing or misleading the applicant into requesting
a discharge in lieu of court-martial, such as by promising
him a General Discharge:
(Case 4-36)
A summary statement in applicant's file
indicates he signed a letter requesting
discharge in lieu of court-martial and was
advised of the implications of the
discharge. Applicant states he did no
such thing but that his commanding officer
had told him to sign some papers. His
records contain no copy of a letter
requesting a discharge or a statement
acknowledging that he had been advised of
his rights and the implications of the
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discharge. Applicant submits that he
would have demanded a trial instead. He
appealed his Underdesirable Discharge
within two days of receiving it.
The Board came across many instances in which an
applicant had apparently assumed or had been led to believe
that he would get a General Discharge if he waived his
rights, or that his Undesirable Discharge would be converted
automatically to a General Discharge after a period of time.
The number of these instances, especially involving persons
with lower IQs and education, suggests strongly that many
servicemen do not always understand the consequences of an
administrative discharge.
Behavior which Reflects Mental Stress Caused by Combat:
Mitigating Factor #12 (applied in 5% of military cases). We
looked with particular sympathy on the cases of Vietnam
veterans whose combat experiences had been so taxing or
traumatic that their subsequent absence offenses could be
partially attributed to those experiences. We encountered
some striking examples of this "post-Vietnam syndrome," with
applicants turning to alcohol, drugs, or other erratic
behavior to cope with the present or with memories of the
past. We encountered a number of instances in which
servicemen returning from combat were unable to adjust to
stateside garrison duty with its emphasis on "spit-and-
polish. In some cases, combat veterans felt they were being
treated like recruits by superiors who had not been to
Vietnam. In the absence of seriously aggravating factors,
cases in this category usually were recommended for outright
pardons, often with a special recommendation for veterans'
benefits. (See Chapter 5.)
(Case 4-37)
When applicant arrived in Vietnam, he was
a sergeant, without combat experience. He
was made a reconnaissance platoon leader,
a job normally held by a commissioned
officer. Applicant started going out on
operations immediately, and he began to
take methadrine to stay awake. He noticed
the methadrine made a marked change in his
personality. He began jumping on people
and his nerves were on edge. He started
to take opium tinctura to counteract this
effect, "to mellow him out," and he became
addicted. After being transferred to
Germany, he kept his addiction secret,
although the problem was beginning to grow
out of control. Applicant was sent back
to the U.S. with a 45-day leave
authorized. He planned to enter a private
German drug abuse clinic within 3 or 4
weeks, but the clinic could not accept him
immediately. He made the decision to wait
in an AWOL status rather than go back as
an addict. He was continuously put off by
FORD & LIBRARY GERALD
the clinic until he was finally
apprehended by German police.
(Case 4-38)
Applicant participated in 17 combat
operations in Vietnam. He was medically
evacuated from Vietnam because of malaria
and an "acute drug-induced brain
syndrome." That his behavior reflects
mental stress caused by combat can be
inferred from the fact that applicant
commenced his AWOL offenses shortly after
being released from hospitalization and
that the fact that subsequent to his
discharge he had either been
institutionalized or under constant
psychiatric supervision.
Mental or Physical Condition: Mitigating Factor #3
(applied in 19% of military cases). Any mental problem or
physical disease, injury or disability serious enough to
have caused personal hardship or incapacity may well have
contributed to an applicant's offenses in the military.
Serious alcoholism and drug addiction were included in this
factor because they sometimes created problems beyond an
applicant's control and contributed to his offense.
(Case 4-39)
While applicant was on leave, he was
hospitalized for treatment of infectious
hepatitis. Diagnosis was made by a
civilian doctor, who told him that "his
resistance was low and that he would not
live to be 30 years old. Applicant's
shock and fear at this statement, coupled
with the realization that, if true, he had
only a relatively short time to live,
precipitated his absence. Defense
exhibits admitted at trial confirm
applicant's contraction of viral hepatitis
and the fact that he was treated at a
veterans' hospital after his visit to the
civilian doctor.
The physical or mental problems could have been related
to the quality of medical treatment received by the
applicant while in the military.
(Case 4-40)
Applicant had a history of severe migraine
headaches at times of tension and stress.
He requested medical evaluation for his
headaches during basic training and
advanced infantry training. He did not
receive medical attention. He then went
AWOL.
Lack of Sufficient Education or Ability to Understand
Obligations or Remedies Available Under the Law: Mitigating
Factor # 1 (applied in 32% of military cases). In some
cases, the applicant's low intelligence was an important
factor contributing to his offense.
(Case 4-41)
Applicant has a Category IV AFQT score.
Applicant went AWOL because he was
apparently unaware of or did not
understand the Army drug abuse program.
FORD & LIBRARY GERALD
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.
In most cases, an applicant's lack of intelligence was
not necessarily a cause of offense, but it did raise some
doubt about his ability to understand his military
obligations.
(Case 4-42)
Applicant completed the 10th grade and
quit school because he lost interest. His
GT (IQ) score measures 68 and his AFQT
score is 12 (Category IV).
Personal or Family Problems: Mitigating Factor #2
(applied in 49% of military cases). Rightly or wrongly,
many applicants placed their families above the military.
Recognizing this, we looked for significant emotional,
psychological, financial, marital, or other personal
difficulties faced by the applicant or his family which
could reasonably explain his offense. We were mindful of
the hundreds of thousands of other men who had left their
homes and loved ones but who did not forget their duties.
Most family or personal problems were not of such a nature
as to warrant an outright pardon.
(Case 4-43)
Applicant states that he received a letter
from his family stating that his father's
eyesight was failing and the family was
having financial problems as a result of
his father's inability to work. He
applied for a hardship discharge, but it
was denied. He was transferred back to
his home base, where he learned by mail
that his father's eye condition had
worsened. Subsequently, he went home
where he worked continuously for a
construction company.
(Case 4-44)
Applicant, an American Indian, was raised
by his aunt and uncle in a small community
in the south. During his AWOL he worked
for his tribe, earning $2.00 an hour to
support his aunt and uncle, the latter
being crippled.
(Case 4-45)
Applicant fathered a son born to a
Vietnamese woman. He later sought
permission to marry her, which was denied.
Two days later he received orders to leave
Vietnam when he thought he had four months
left on his tour. After returning to the
U.S. he applied to return to Vietnam but
was not sent there. He attempted to have
his Vietnamese fiancee and his son brought
to the U.S., but was told this was
impossible because he was not married to
the woman. He stated that he went AWOL in
FORD i LIBRARY GERALD
despair.
Evidence that Applicant Committed the Offense for
Obviously Manipulative and Selfish Reasons: Aggravating
Factor #5 (applied in 31% of military cases). Many
applicants left the military for unjustifiable, selfish
reasons. These individuals had not looked upon their
military obligation with the seriousness it deserved. This
factor weighed heavily against an applicant.
(Case 4-46)
Applicant was an infantryman in Vietnam
when he went AWOL. He was picked up in a
rear area by the military police and
ordered back to the field by two
lieutenants. He refused to fly out to
join his company.
(Case 4-47)
Applicant stated that he went AWOL for
approximately three months, knowing that
after that period of time he could come
back and request a discharge.
(Case 4-48)
Applicant went AWOL the first time "just
for something to do"; he left the second
time because he "got involved with a
woman. " The third and fourth times he went
AWOL, he returned home to support his
family, as he was in no-pay status with
the Marine Corps.
(Case 4-49)
Applicant escaped from the stockade by
fleeing a police detail. At the time of
his escape, he was serving a sentence
adjudged by a Special Court-Martial for a
previous AWOL.
Sometimes an applicant went AWOL for apparently
understandable reasons, but remained away after his problems
had been resolved. While this might have reflected fear of
punishment or simple inertia, we believed that a serviceman
who recognized his military duty would return as soon as the
original reason for his absence had disappeared.
(Case 4-50)
A few days before applicant was due to
report to an Army Overseas Replacement
Station, his wife threatened to commit
suicide unless he promised not to report,
as she was positive he was going to
Vietnam and would be killed. Applicant
subsequently divorced his wife but did not
then return to military control.
Occasionally, an applicant's subsequent actions
contradicted or detracted from his initial, understandable
motives:
(Case 4-51)
Applicant met his wife, a Danish citizen,
shortly after arriving in Germany. She
became pregnant and he attempted to obtain
permission to marry her. When he was
GERALE FORD LIBRART
unsuccessful, he went AWOL. After turning
himself in, he was returned to Germany and
placed in pre-trial confinement. Shortly
thereafter, he escaped and went to Sweden,
where he applied for asylum. While in
Sweden, he had numerous arrests on thefts
and narcotic charges, received a sentence
of 10 months imprisonment, and was
deported back to the U.S.
We inferred selfish motives when the applicant stated
that he had no reason for his offense or when there was no
substantion for an asserted justification. Where no
evidence was available to explain the offense, we applied a
"weak" Aggravating Factor #5.
(Case 4-52)
Applicant went AWOL for 4-1/2 years. He
stated that he did not have any concrete
reason for going AWOL.
(Case 4-53)
Applicant's explanation for AWOL is that
he thought he was being unjustly selected
for an overseas assignment. The file does
not contain information either supporting
or denying this feeling.
Circumstances of the Offense
Military applicants went AWOL for different lengths of
time, from diverse locations, and under a variety of
conditions. (See Chapter 3-c.) An applicant who left a
combat zone or failed to report for overseas assignment
showed lack of concern for others who depended on his
presence. If the applicant used force collateral to his
AWOL, he showed that he was willing to risk injury to others
in order to achieve his own ends. If the applicant
committed several AWOLs or was gone for a long period of
time, this was naturally more serious than a single, short-
term AWOL. Voluntary surrender indicated cooperation, while
apprehension did not. We took all of these circumstances
into consideration.
Desertion During Combat or Leaving the Combat Zone:
Aggravating Factor #4 (applied in 2% of military cases).
When a soldier left his unit in a combat zone, he placed an
increased burden on those who remained behind and possibly
jeopardized their lives. We considered it very serious if
the applicant commenced his AWOL from Vietnam. (See Chapter
5).
(Case 4-54)
Applicant commenced the first of three
AWOLs while in Vietnam. He flew back to
California.
(Case 4-55)
Applicant bought orders to return to the
United States from Vietnam.
Failure to Report for Overseas Assignment: Aggravating
Factor # 10 (applied in 7% of military cases). Servicemen
ordered to report to Vietnam fulfilled an extra obligation
FORD if GERALD LIBRARY
of military service. For every man who failed to go to
combat when ordered, another had to go in his place.
Occasionally, an applicant had clearly conscientious reasons
for failing to report to Vietnam. We had to balance this
with the inescapable fact that another soldier had to be
assigned to Vietnam to replace him.
(Case 4-56)
After entering the Army, applicant
requested removal from the Officer
Candidate School list, stating that he was
opposed to killing and did not believe in
the Vietnam war. Shortly thereafter, he
formally applied for a conscientious
objector separation from the service. He
thereafter failed to report to a West
Coast personnel center for movement to
Vietnam.
We were concerned about servicemen who shirked combat
obligations by failing to return while on leave outside of
Vietnam.
(Case 4-57)
Applicant was wounded in Vietnam and sent
to a hospital in Japan and then to a
hospital in the U.S. There he learned
about his marital and financial problems.
Having been told that he would be sent
back to Vietnam after his release from the
hospital, he went AWOL from the hospital.
Even when an applicant was AWOL from overseas service in
a noncombat area, he still was avoiding what for many
servicemen was an unpleasant duty, far away from family and
friends. This was not as serious as an AWOL from Vietnam,
however.
(Case 4-58)
Applicant was stationed in Thailand when
he went home on emergency leave because of
his father's illness. After failing to
obtain a hardship discharge or a
compassionate reassignment, applicant went
AWOL rather than report back to Thailand.
Use of Force by Applicant Collaterally to AWOL,
Desertion or Missing Movement: Aggravating Factor #3
(applied in 0.3% of military cases). We could not condone
any violence by which an applicant effected an escape.
(Case 4-59)
On two occasions, applicant escaped from
confinement by attacking a guard with
either a razor or a knife.
Multiple AWOL Offenses: Aggravating Factor #8 (applied
in 86% of military cases). Many military applicants went
AWOL more than once, indicating an inability or
unwillingness to solve their problems after the first
offense and a persistently casual attitude toward their
military duty.
FORD i GIARTO LIBRARY
(Case 4-60)
Applicant received a Summary Court-Martial
for two periods of AWOL (one day each) and
one charge of missing movement. He then
received a Non-Judicial Punishment (NJP)
for one AWOL (one day); another NJP for
three AWOLs (one, one, and ten days), and
another NJP for two AWOLS (seven and one
days). He then received a Special Court-
Martial for two AWOLs (two months 17 days
and three months 19 days). He accepted an
Undesirable Discharge in lieu of court
martial for one period of desertion (two
years, 10 months, and 20 days), and six
periods of AWOL (eight days three months
28 days; one month two days, two months 13
days, six months 29 days, and three months
28 days). This is a total of 17 periods
of AWOL. He had been AWOL for a total of
five years.
AWOL of Extended Length: Aggravating Factor #9 (applied
in 72% of military cases). We considered long AWOLs more
serious, especially if over one year. AWOLs of less than
six months were not marked as aggravating. In applying this
factor, we looked only to the AWOLs immediately leading to
the discharge.
Voluntary Submission to Authorities: Mitigating Factor
# 11 (applied in 37% of military cases). We looked at only
the last qualifying offense. military authorities. We did
not require that applicant physically turn himself in. It
was sufficient if he informed civilian or military
authorities of his whereabouts.
(Case 4-61)
Applicant was a French Canadian who was
drafted. He twice went AWOL to Canada.
During his second AWOL, he wrote to
request a discharge and was told he would
have to return to the Army. He did so,
was charged, and received an Undesirable
Discharge in lieu of court-martial.
Apprehension by Authorities: Aggravating Factor #12
(applied in 37% of military cases). We only examined the
last qualifying offense. It was not necessary that the
applicant be apprehended specifically for AWOL. If evidence
showed that he did not willfully evade authorities, this
factor carried little weight. In the absence of any
evidence at all, the Board did not apply either voluntary
submission or apprehension.
Overall Record in the Military
The biggest difference between civilian and military
applicants was that the latter had assumed an obligation
arising from taking the military oath.
We examined very closely the quality of the applicants'
military service. Normally, they had satisfactorily
fulfilled a portion of their obligation prior to their
discharges for AWOL. Many had served well in Vietnam. Four
of the Defense Department's program's mitigating
circumstances were analogous to ours: "length of
FORD & GERALD LIBRARY
satisfactory service completed prior to absence, " "awards
and decorations received," "wounds in combat," and "length
of service in Southeast Asia in hostile fire zone."
Tours of Service in the War Zone: Mitigating Factor #7
(applied in 26% of military cases). A surprising percentage
of our military applicants served in the war zone. (See
Chapter 3-c.) Many served their country unusually well.
(Case 4-62)
During his initial enlistment, applicant
served as a military policeman and spent
13 months in that capacity in Korea. He
then served two tours in duty in Vietnam,
as an assistant squad leader during the
first tour and as a squad leader and chief
of an armored car section during the
second.
We gave an applicant credit for Vietnam service if he
served at least three months in Vietnam or was on a naval
vessel off the coast of Vietnam. Likewise, we gave him
credit if his Vietnam tour ended early because of injury.
(Case 4-63)
Applicant served in Vietnam with the 101st
Airborne as a light weapons infantryman.
His tour lasted 4 months and 22 days. He
returned to the United States on emergency
leave for five months. Applicant stated
that he went AWOL because he could not
face going back due to the incompetence of
his officers and the killing of civilians.
(Case 4-64)
Applicant served on the USS Buchanan for
seven months off the coast of Vietnam.
(Case 4-65)
Applicant served in Vietnam for a period
of 2 months, 13 days. He served as a
combat medic. While in Vietnam, he broke
his ankle. He was operated on and was
evacuated for rehabilitation.
Volunteering for Combat or Extension of Service while in
Combat: Mitigating Factor # 13 (applied in 9% of military
cases). Many military applicants volunterred for a first or
subsequent Vietnam tour, extended a Vietnam tour, or
volunteered for a combat assignment while in Vietnam.
(Case 4-66)
Applicant received his second Honorable
Discharge and immediately re-enlisted for
the specific purpose of being transferred
to Vietnam for three years.
Personal Decorations for Valor: Mitigating Factor # 15
(applied in 2% of military cases). Numerous applicants
served in Vietnam with sufficient merit that they earned
such decorations as Bronze stars with "V" Devices,
Commendation Medals with "V" Devices, or Silver Stars. We
also recognized decorations awarded by the Vietnamese, such
as the Vietnam Gallantry Cross with Palm.
(Case 4-67)
Applicant received the Bronze Star with
GERALD FORD LIBRARY
"V" device, the Oak leaf cluster, and the
Vietnamese Gallentry Cross with Bronze
Star.
Service-Connected Disability: Mitigating Factor #5
(applied in 2% of military cases). Some applicants suffered
permanent physical or mental injury resulting from military
duty. Some were wounded in combat, and others were injured
in training. Their sacrifices required that their AWOL
offenses be viewed with a special measure of compassion.
(Case 4-68)
Applicant was wounded in the leg and now
has a permanent disability, with one leg
three inches shorter than the other.
(Case 4-69)
Applicant was injured while operating a
155 mm Howitzer during combat. He was
admitted to an Army hospital for emergency
surgery which resulted in the partial
amputation of a right middle finger.
Wounds in Combat: Mitigating Factor #3 (applied in 3%
of military cases). We gave credit if an applicant had been
wounded in Vietnam.
(Case 4-70)
Applicant served in Vietnam for one year
as an infantryman and grenadier.
Applicant was wounded when he found an
enemy booby-trapped grenade. He told the
men in his platoon to get down, but the
grenade exploded in his hands as he
attempted to destroy it. He was awarded
the Purple Heart.
(Case 4-71)
Applicant received fragment wounds to his
face, right forearm, and thumb for an
exploding shell while in combat. He was
evacuated to Japan and then to the U.S.
Upon his return to the U.S., he was
restricted in the type of assignments he
could perform: no handling of heavy
equipment, no overhead work, and no
pushing or pulling. He continues to
complain of numbness and pain in his right
forearm and thumb.
Extended Period of Creditable Military Service:
Mitigating Factor #6 (applied in 84% of military cases).
Many applicants had good military service to their country
prior to their discharge. We measured the amount of
applicant's military service, minus any time AWOL or in
confinement, looking with greater favor upon applicants who
had at least one year of creditable service. However, we
recognized that an applicant who completed over six months
of creditable service had completed his training, had begun
his first duty assignment, and had tentatively earned
eligibility for veterans' benefits. Therefore, we gave him
some credit for his time in the service.
FORD i LIBRARY GERALD
(Case 4-72)
Applicant had two years, eleven months,
and twenty-two days creditable service,
including tours in Germany and Vietnam.
Above Average Military Conduct and Proficiency or Unit
Citations: Mitigating Factor #14 (applied in 39% of
military cases). We were concerned about the over-all
quality of an applicant's military service. We considered
an applicant's conduct and proficiency ratings, excluding
those poor ratings which resulted from applicant's AWOL
offenses. However, we only gave credit for conduct and
proficiency scores after six months of service, because the
initial ratings given in basic training did not necessarily
indicate the quality of an applicant's service. We gave him
credit for serving with a unit which earned a unit citation.
We also gave credit for letters of commendation, decorations
other than for valor, and other indications that applicant
served well prior to his AWOL offenses.
(Case 4-73)
Every conduct and efficiency rating of the
applicant while in the Army was excellent
until his first AWOL.
Other Military Convictions: military aspect of
Aggravating Factor #1 (applied in 41% of military cases).
We were concerned about military offenses resulting in
special or general court-martial convictions, other than the
last punishment for an AWOL offense.
(Case 4-74)
Applicant was discharged for unfitness.
In addition to his AWOL offenses, he
received a Special Court-Martial for
assault, carrying a concealed weapon and
threatening to kill.
Violation of Probation: military aspect of Aggravating
Factor #2 (applied in 2% of military cases). Occasionally,
an applicant's court-martial discharge was suspended, but
his subsequent misconduct caused the suspension to be
vacated. This reflected an applicant's failure to cooperate
with military authorities, even when those authorities had
been lenient with him.
(Case 4-75)
Applicant received a Bad Conduct Discharge
and six months confinement for an AWOL
offense, but the sentence was suspended
for six months. When applicant realized
his sentence would return him to active
duty, he went AWOL again, and the
suspension was vacated. While such other
offenses did not affect an applicant's
eligibility for clemency, they did reflect
badly on the quality of his military
service.
Other Offenses Contributing to Discharge for Unfitness:
Aggravating Factor #11 (applied in 5% of military cases).
Some applicants committed a combination of AWOL and other
AWOL offenses which led to an Undesirable Discharge for
unfitness.
(Case 4-76)
Applicant received an Undesirable
FORD & LIBRARY SERALD
Discharge for unfitness. In an addition
to a Non-Judicial Punishment for leaving
his duty post and Special Court-Martial
for AWOL, he received a Non-Judicial
Punishment for wrongful possession of four
liberty cards and a Special Court-Martial
for false claims against the government.
(Case 4-77)
Applicant received an Undesirable
Discharge for unfitness. He had one Non-
Judicial Punishment for AWOL, one Special
Court-Martial for three AWOLs, and one
Summary Court-Martial for AWOL and
stealing. He also had three Non-Judicial
Punishments for failure to obey an order,
one Non-Judicial Punishment for
disrespect, one Summary Court-Martial for
disrespect, and one Special Court-Martial
for disrespect and assault.
Overall Record in the Civilian Community
The Board also examined an applicant's actions in to the
civilian community. An adult civilian conviction
represented a disregard for the rights of others just as
much as a military court-martial for the same offense;
public service activities indicated exactly the opposite.
The Department of Defense program also considered the nature
of employment during the period of absence as a mitigating
circumstance.
Employment or Other Activities of Service to the Public:
Mitigating Factor #4 (applied in 2% of military cases).
This circumstance took into account any service to the
public before, during, or after his military service.
(Case 4-78)
While applicant was AWOL, he worked as the
music director for a number of free
concerts and shows which were designed to
attract underprivileged, inter-city youths
and to serve as a preventive measure
against juvenile crime and drug absue. In
addition, he contributed his talents to
projects of his home town's youth
musicians' association.
Other Adult Convictions: non-military aspect of
Aggravating Factor #1 (applied in 12% of military cases).
Generally, persons who were previously convicted of felonies
were not eligible to enter the military. Servicemen who
were convicted of civilian offenses while in the military
were usually discharged for the conviction rather than for
AWOL offenses. Consequently, most civilian convictions
occured after discharge. A violent or heinous crime usually
resulted in a "no clemency" disposition, regardless of the
merits of the applicant's military service: (See Chapter
5.)
(Case 4-79)
After receiving his Undesirable Discharge,
applicant was arrested and convicted by
FORD & GERALD LIBRARY
civilian authorities of arson in the first
degree and was sentenced to six months to
three years in the state penitentiary.
(Case 4-80)
Applicant is now serving a fifteen year
sentence in a civilian penitentiary for
selling heroin.
Other offenses were less serious and did not necessarily
result in "no clemency" dispositions. Mere arrests, trials
ending in acquittals, misdemeanors, and juvenile convictions
were not considered by the Board.
Violation of Probation or Parole: non-military aspect
of Aggravating Factor #7 (applied in 5% of military cases).
We examined the applicant's prior experience with the
criminal justice system. Revocation of probation and parole
weighed heavily against him.
(Case 4-81)
Applicant entered the Army while on parole
from a sentence for several juvenile
offenses. Shortly thereafter, he went
AWOL for the first time. After another
series of juvenile offenses, he was
committed to a youth correction center for
parole violation. The applicant was
subsequently paroled and returned to
military control. He then requested an
Undesirable Discharge in lieu of court-
martial but went AWOL again. Two months
later, he was arrested for possession of
stolen goods and possession of narcotics
paraphernalia. However, after a period of
time which the applicant spent in jail,
the case was not prosecuted. He was again
returned to the youth correction center
for violation of parole stemming from his
juvenile record. Once again he was
paroled and returned to military control,
and once again he went AWOL.
Circumstances Surrounding the Application
By applying various mitigating factors, we took into
account medical or psychological problems which affected a
military applicant's ability to perform alternative service.
(Case 4-82)
Prior to his enlistment, applicant
attempted suicide by shooting himself in
his left chest with a rifle. According to
Army medical reports, he is emotionally
unstable. One doctor stated that he was
not mentally competent during his period
of service. After his discharge, the
applicant went home to his father, who was
so concerned about the applicant's mental
state that he had him committed to a state
mental institution.
(Case 4-83)
Applicant explains that he was sent to
FORD is LIBRARY GERALD
Korea shortly after enlisting and while
there he contracted pneumonia and had a
cold during his entire duty. Applicant
was medically evacuated from Korea to the
United States for lung surgery, which
resulted in partial removal of one of his
lungs.
(Case 4-84)
After being discharged, the applicant
worked several places, the latest being
for a large industrial company. He was
hospitalized for a nervous disorder and
remains under out-patient psychiatric
care. His emotional difficulties caused
him to terminate his employment.
False Statement by Applicant to the Board: Aggravating
Factor #2 (applied in 0.1% of military cases). We looked
only for a willful misrepresentation of a material fact. We
were not concerned about an applicant's false statements to
military authorities, unless he repeated them to us.
(Case 4-85)
In his letter to the Board, the applicant
reports serving in Vietnam and also
reports that he was confined one and a
half years in the stockade without trial.
There is nothing in his military file to
substantiate these claims.
(Case 4-86)
The applicant wrote the Clemency Board and
indicated that he had a clean record with
no prior courts-martial; however, his
military personnel file indicated one
prior court-martial and one non-judicial
punishment for AWOL offenses.
We relied heavily on the good faith and honesty of
military applicants. We were deeply disturbed when we
learned that they had made false statements to us, but
fortunately this occurred in an extremely small number of
cases. 22
* * *
In summary, we believe that we avoided the misfortune of
King Rex. Through careful application of the baseline
formula and the 28 factors, the Board evaluated all relevant
aspects of each of the 14,514 cases we reviewed. Although
this made our process more complicated and time-consuming,
it enabled us to make fair and consistent case
recommendations. Without careful adherence to our
procedural and substantive rules, our case recommendations
would have become arbitrary -- and the major justification
for a case-by-case approach would have been negated.
GERALD
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A. Summary
The products of the year's work of the Clemency Board
were the 14,514 case dispositions. Most Board members
participated in thousands of these decisions, each one
carefully determined through the baseline formula and
designated factors. In hearing SO many cases, some
inconsistencies were bound to occur. However, the process
we followed and the substantive rules we applied reduced
these inconsistencies to a minimum. The different treatment
of different kinds of individuals reflected the contrasting
facts of their cases.
Case recommendations for civilian applicants contrasted
with those for military applicants. The pardon rate for
civilians was over twice that for discharged servicemen,
while the civilian "no clemency" rate was less than one-
fifth of that for discharged servicemen. Actual case
dispositions are listed below:
TABLE 8: CLEMENCY BOARD RECOMMENDATIONS - CIVILIAN CASES
Number
Percent
Cumulative
Pardon
1432
81.5%
81.5%
1-3 months AS
140
8.0
89.5
4-6 months AS
91
5.2
94.7
7-9 months AS
24
1.4
96.1
10-12 months AS
35
2.0
98.1
13 + months AS
9
0.5
98.6
No Clemency
26
1.5
100.1
Total
1757
FORD & LIBRARY UERALD
TABLE 9: CLEMENCY BOARD RECOMMENDATIONS - MILITARY CASES
Number
Percent
Cumulative
Pardon
4620
36.2%
36.2%
1-3 months AS
2555
20.0
56.2
4-6 months AS
2941
23.1
79.3
7-9 months AS
1295
10.2
89.5
10-12 months AS
441
3.5
93.0
13 + months AS
20
0.2
93.2
No Clemency
885
6.9
100.1
Total
12757
TABLE 10: CLEMENCY BOARD RECOMMENDATIONS - ALL CASES
Number
Percent
Cumulative
Pardon
6052
41.7%
41.7%
1-3 months AS
2695
18.6
60.3
4-6 months AS
3032
20.9
81.2
7-9 months AS
1319
9.1
90.3
10-12 months AS
476
3.3
93.6
13 + months AS
29
0.2
93.8
No Clemency
911
6.3
100.1
Total
14514
Case dispositions varied little from week to week,
especially after basic policy decisions had been made.
During the first six months, we reviewed 500 cases,
recommending outright pardons (without alternative service)
to 46% of all cases, denial of clemency to three percent,
and conditional clemency (with alternative service) to the
remainder. During the latter six months, we decided 14,000
cases, recommending outright pardons to 44%, denial of
clemency to six percent, and conditional clemency to the
remainder.
Almost all cases were decided unanimously. However, any
Board member could refer any case to the full Board or
register a formal dissent to a panel decision. (See Chapter
4.) This right was exercised in only about seven percent of
our cases. Most Board members made referrals or registered
dissents in less than three percent of the cases in which
they participated, as shown in Table 11. If a case
disposition was a pardon, the likelihood of dissent or full
Board referral was 1.4%. If the disposition was no
clemency, the likelihood was 2.3%.
Perhaps the best indication of the strong Board
consensus is the similarity among individual Board members'
voting patterns. No Board member voted for outright pardon
recommendations less than 34% or more than 58% of the time.
GERALD FORD LIBRARY
Likewise, no Board member voted for "no clemency"
recommendations less than two percent or more than nine
percent of the time. Recommendations for discharge upgrades
to honorable conditions varied from two percent to six
percent, and average alternative service assignments only
varied from 5.5 months to 6.7 months. On the whole, case
recommendations did not differ much from panel to panel.
The consistency of case recommendations was carefully
monitored through a computer-aided consistency audit. This
audit assured that the Board was evenhanded in the
application of aggravating and mitigating factors. It was a
unique tool for an adjudicative process, and it provided the
basis for much of the discussion below. (See Appendix E.)
B. Impact of Baseline Calculations
Case dispositions hinged greatly on baseline
calculations. Almost all applicants' alternative service
baselines were three months, and less than two percent had
baselines of over six months.
TABLE 12: CLEMENCY BOARD BASELINE CALCULATIONS
Baseline
Civilian
Military
3 months
94.6%
87.8%
4-6 months
2.9
11.5
7-12 months
0.7
0.6
13-24 months
1.9
0.1
The baseline calculation did not affect the basic
decision whether or not to grant clemency, but it was the
single most important factor contributing to the overall 44%
outright pardon rate and the short periods of alternative
service assigned to most of the rest. In civilian and
military cases, the pardon rate was roughly twice as great
for applicants with three month baselines as for applicants
with baselines of four months or more.
C. Impact of Aggravating and Mitigating Factors
The Clemency Board's application of mitigating and
aggravating factors affected the decision whether to
recommend clemency -- and, if so, to go up or down from the
alternative service baseline. We applied these factors with
different frequencies and with different weights. Table 13
shows the relative frequencies of all factors. Note the
difference between the factors most often applied in
civilian and military cases. The typical civilian case had
no aggravating factors, but had Mitigating Factors #4
(public service employment), #10 (conscientious motivation
for offense), and #11 (voluntary submission to authorities)
GERALD FORD LIBRARY
The typical military case had Aggravating Factors #1 (other
court-martial convictions), #8 (multiple AWOL offenses), and
#9 (extended AWOL offenses), along with Mitigating Factor #6
(extended military service).
The weight with which the Board applied all factors is
difficult to assess, even in hindsight. We often designated
factors as "weak" or "strong" when making case dispositions,
and some factors were applied in a variety of ways. For
example, Aggravating Factor #1 was applied if an applicant
had received a prior court-martial for an AWOL offense
before his discharge, but it was applied with much more
significance if he had been convicted for a violent civilian
felony offense. (See Chapter 3 and Appendix D.) The tables
presented here do not distinguish between these two
applications.
Nevertheless, some interpretation of the weights of our
factors can be inferred from Table 14. This table shows the
frequency with which the Board applied each factor in the
three basic types of case dispositions -- outright pardons,
alternative service, and no clemency. For example, we
applied Aggravating Factor #5 in eight percent of the
civilian pardon cases, 58% of civilian alternative service
cases, and 63% of civilian "no clemency" cases. The large
gap between eight percent and 58% indicates that the absence
of Aggravating Factor #5 frequently had a relationship with
the choice between an outright pardon and conditional
clemency, whereas the small gap between 58% and 63%
indicates that the presence of aggravating factor #5 had
only an infrequent relationship with the choice between no
clemency and conditional clemency. Table 15 is an extract
from Table 14, indicating the factors whose presence or
absence was most frequently related to outright pardon and
"no clemency" case dispositions.
The association of Mitigating Factor #7 (Vietnam
service) with "no clemency" decisions presents an apparent
anomaly. The explanation is that the Board rarely
recommended conditional clemency in their cases. They
either received an outright pardon or were denied clemency
because of serious civilian felony convictions.
Table 14 reflects the frequency with which we applied
each factor, but it does not indicate the actual strengths
we gave them. Table 16 below is a rough measure of the
strength of each factor, no matter how frequently it was
applied. It shows the likelihood of each type of case
disposition, given the presence of a given factor. For
example, a civilian case with Aggravating Factor #5 (selfish
motivation for offense) resulted in an outright pardon 42%
of the time, conditional clemency 53% of the time, and "no
clemency" in the other five percent. This must be compared
against the overall civilian disposition rates of 82%
outright pardons, seventeen percent conditional clemency,
and one percent "no clemency. " Therefore, Aggravating Factor
#5 apparently had a strong impact upon civilian case
dispositions. Table 17 is an extract from Table 16,
GERALD FORD LIBRARY
indicating the strength with which each factor was applied.
The preceding tables focus on factors separately, rather
than in combination. Board decisions were based upon all
factors present in each case; the majority consistently
rejected proposals that a single factor be automatically
determinative.
Often aggravating and mitigating factors meant much more
when they were applied in particular combinations. For
example, Mitigating Factor #6 indicated the length of an
applicant's military service, while Mitigating Factor #14
indicated the quality of that service. The two together
told a much different story about a person than did one
without the other. Tables 18, 19, and 20 show how our range
of dispositions varied depending on single-factor changes in
the mix of mitigating and aggravating factors. The mean
case disposition is underlined for each combination of
factors. All factors listed in these tables contributed to
our case recommendations. ("AS" refers to alternative
service assignments, and "NC" refers to "no clemency"
recommendations.)
TABLE 18: IMPACT OF SELECTED AGGRAVATING AND MITIGATING
FACTORS ON CIVILIAN CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
-
4,9,10
14
14
-
-
-
-
-
4,10
144
139
4
1
-
-
-
10
74
69
3
2
-
-
-
-
25
16
5
1
3
-
5
-
20
1
9
8
1
1
1,5
-
4
1
-
-
1
2
1,5,7
-
2
-
1
-
-
2
TABLE 19: IMPACT OF SELECTED AGGRAVATING FACTORS
ON MILITARY CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
-
6
2
-
1
1
-
-
8
6
11
-
5
5
1
-
5,8
6
17
1
2
7
7
-
1,5,8
6
34
2
2
14
6
10
1,5,8,9
6
38
I
2
9
16
11
1,5,8,9,11
6
3
-
-
-
1
2
TABLE 20: IMPACT OF SELECTED MITIGATING FACTORS
ON MILITARY CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
1,8,9,12
1,2,6,7,14
11
11
-
-
-
-
1,8,9,12
2,6,7,14
28
23
3
1
-
1
GERALD FORD LIBRARY
1,8,9,12
2,6,14
79
34
21
18
3
3
1,8,9,12
2,6
114
20
29
47
13
5
1,8,9,12
2
50
2
3
13
26
6
1,8,9,12
-
7
I
-
1
1
5
D. Civilian Case Recommendations
The Board usually recommended civilian applicants for
outright pardons (82%), with a much smaller proportion
recommended for conditional clemency with an assignment of
alternative service (17%), and very few denied clemency
(1%). Table 21 shows the most frequent combinations of
factors in civilian cases. (See Appendix E for a more
complete list.) The cases represented in the table account
for over half of all civilian cases. Aggravating factors
were virtually absent in these cases, and mitigating factor
# 10 (conscientious reasons for offense) appeared in the six
most frequent combinations of factors.
TABLE 21: MOST FREQUENT CIVILIAN CASES
Agg Factors Mit Factors # Cases Pardons AS No Clemency
-
4,10,11
375
370
5
0
-
10,11
161
159
2
0
-
4,10
144
139
5
0
-
10
74
69
5
0
-
4,9,10.11
33
33
0
0
-
9,10,11
32
32
0
0
-
4
31
30
1
0
5
11
26
8
18
0
-
-
25
16
9
0
Civilian cases which received outright pardons typically
had no aggravating factors (or just #12, apprehension),
Mitigating Factor # 10 (conscientious motivation for
offense), and Mitigating Factor #4 (public service
employment). Table 22 below lists the combinations of
factors which had the greatest proportion of outright
pardons.
TABLE 22: CIVILIAN PARDON CASES
Agg Factors
Mit Factors
# of Cases
# of Pardons
-
4,9,10,11
33
33
-
9,10,11
32
32
12
10
16
16
-
4,9,10
14
14
-
3,4,10,11
10
10
-
10,11
161
159
-
4,10,11
375
370
-
4,11
31
30
12
4,10
22
21
FORD & LIBRARY 07VN79
-
10
74
69
-
2,4,10,11
12
11
From our sample of 472 civilian applicants, it appears
that those most likely to receive outright pardons were
Jehovah's Witnesses (96%) who were granted CO status (92%),
who failed to perform draft-board-ordered alternative
service (94%) because of membership in a religion opposed to
war (92%), or who were sentenced to alternative service
(84%), completing over two years of court-ordered
alternative service work (90%).
Also likely to receive an outright pardon was a civilian
applicant with a college education (82%) who had a CO
application denied (82%), refused to submit to induction
(81%) because of ethical or moral opposition to war (78%),
who surrendered (80%), who served more than one year in
prison (78%), who was in school at the time of his clemency
application (85%) who submitted a letter in support of his
application (79%), or whose Selective Service files were
used by our case attorney in preparing his case summary
(82%).
Much less likely to receive an outright pardon was a
civilian applicant of a minority background other than black
(55%) from a severely unstable family background (63%), who
had only a grade school education (59%), an IQ under 90
(59%), who failed to register for the draft (58%) or failed
to keep his draft board informed cf his address (58%), whose
offense was not related to opposition to war (65%) or
involved specific opposition to the Vietnam War (62%), who
fled to a foreign country (55%) before being apprehended
(59%), who served one to twelve months in prison (59%), who
had been convicted for another civilian felony offense (25%)
who was not employed full-time (67%) or was incarcerated
(11%) at the time of his application, or whose records were
incomplete when our case attorney prepared his summary
(60%).
The following case is a typical civilian applicant who
received an outright pardon:
(Case 5-1)
Applicant filed for a CO exemption on the
basis of his ethical conviction that the
preservation of life was a "fundamental
point of my existence." The local board
denied it, presumably because his
convictions were ethical and not
religious. Furthermore, he never received
notice that his request was denied. When
ordered to report for induction, he argued
that he had not been informed of the
denial and requested an appeal. His local
board denied this request, because mailing
the denial of applicant's request to his
home constituted constructive notice of
the contents, and his 30-day appeal period
had expired. Applicant refused induction,
FORD
voluntarily appeared at his trial, pled
guilty, and received a sentence of three
years probation. During his probation he
GERALD
LIBRARY
worked as a pharmacist to satisfy an
alternative service requirement, at the
same time working as a volunteer on a drug
abuse hotline and served on the Board of
Directors of the town's Youth Commission.
The civilian cases resulting in conditional clemency
generally fell into two categories. First, some civilian
applicants apparently committed their offenses for
conscientious reasons and were sentenced to prison, but who
serviced only a portion of their sentences.
(Case 5-2)
Applicant claimed that his refusal to
report for induction was based on his
philosophical convictions regarding life.
He was sentenced to three years in prison;
he had served only six months when he
received a furlough because of the
clemency program.
The second category of conditional clemency cases were
those in which the applicant committed his offense for
slightly selfish reasons, but without any other serious
aggravating circumstances.
(Case 5-3)
Applicant was convicted of failure to
inform the local board of his current
address. At the time, he was drifting
around with no fixed address, so he did
not bother to keep in touch with his local
board.
Civilian cases which received "no clemency" dispositions
almost always had Aggravating Factor #1 (other adult felony
convictions), usually with Aggravating Factor #5 (selfish
reasons for offense) and no mitigating factors. Table 23
below lists the only combinations of factors which accounted
for two or more civilian no clemency cases:
TABLE 23: CIVILIAN "NO CLEMENCY" CASES
Agg Factors
Mit Factors
# of Cases
# No Clemency
1,5,7
-
2
2
1,5
-
4
2
1
-
5
2
From our sample, the civilian applicant most likely to
be denied clemency was black (4.9%), with a grade school
education (3.3%), with an IQ under 90 (5.9%), who failed to
register for the draft (8.3%), who did not commit the
offense because of opposition to war (12.6%), who was
sentenced to probation (2.4%), who performed no alternative
service (2.5%), who had been convicted for another civilian
felony offense (20%) who was incarcerated at the time of his
clemency application (33%), whose lawyer communicated with
us while his clemency application was pending (5.5%), or
whose records were incomplete at the time our case attorney
GERALD FORD LIBRARY
prepared his summary (5.2%).
Two-thirds of the civilian "no clemency" dispositions were
attributable to convictions for violent felony offenses.
The following case is typical:
Case 5-3)
This civilian applicant had three other
felony convictions in addition to his
draft offense. In 1970, he received a
one-year sentence for sale of drugs. In
1971, he received one year of imprisonment
and two years of probation for possession
of stolen property. In 1972, he was
convicted for a failure to notify his
local board of his address. He was
sentenced to three years' imprisonment,
but his sentence was suspended, and he was
put on probation. In 1974, he was
convicted of assault, abduction, and rape,
for which he received a 20-year sentence.
The other "no clemency" case dispositions went to
applicants whose selfish attitude and uncooperativeness
could not be ignored.
(Case 5-4)
Applicant wrote his local board and asked
for a postponement of his induction
because he alleged he had received
injuries in a car accident which
disqualified him for military service. He
did not submit a physician's statement.
Therefore, his local board ordered him to
report. He claimed that the board had
ignored his earlier request, thereafter
submitting a statement from his doctor
showing that he had received some injuries
in a car accident. However, another
doctor examined the applicant and found
him completely healed. Applicant refused
induction and was convicted; he received a
sentence of 30 days in jail and 2 years'
probation. He admitted in an interview
with the probation officer that his reason
for refusing induction was that he did not
want to go into the Army because he had
recently married, and his wife was
pregnant. His probation officer reports
that applicant's adjustment to probation
has been poor; he further reports that
applicant has shown no initiative and has
been out of work most of the time, relying
on his wife for financial support.
Not all civilian cases fell clearly into the categories
described above. In a very few cases, our Board was sharply
divided -- especially where very strong mitigating and
aggravating factors conflicted with one another. Consider
the following case:
(Case 5-5)
Applicant had a very unstable family
FORD is LIBRARY 038400
background, with an alcoholic father who
had a series of wives. Despite this,
applicant graduated near the top of his
class, was senior class president, and
completed two years of college. He
applied for and received conscientious
objector status, but he failed to report
to his alternative service work at a local
hospital. Instead, he traveled through
Europe and the Middle East. He was
arrested for smuggling hashish in Lebanon
and served nine months in a Lebanese
prison. Thereafter, he joined a religious
cult which advocated trepanation (drilling
a hole in one's head). He performed the
operation on himself suffered an
infection, and had to be hospitalized. He
was convicted for his draft offense and
was sentenced to two years imprisonment.
He served seven months before being
furloughed for his clemency application.
A prison psychiatrist indicates that
applicant suffers from paranoid
schizophrenia, said to be caused by his
belief in trepanation.
This case was debated by the full Board on four separate
occasions. Originally, the Board was sharply split between
outright pardon, because of the conscientious nature of his
beliefs and his apparent mental problems, and "no clemency",
because of his hashish smuggling conviction and his failure
to perform his assigned alternative service. After much
discussion, the Board decided to recommend clemency. The
issue then became whether he should perform at least a
minimal period of alternative service, but there was concern
that he was psychologically unable to perform it. Finally,
a divided recommendation was presented to the President, who
approved the majority's recommendation of an outright
pardon.
E. Military Case Recommendations
Most of military applicants were recommended for
conditional clemency with assignment to alternative service
(56%), with a smaller proportion recommended for outright
pardons (38%), and the others denied clemency (6%). Table
24 shows the most frequent combinations of factors in
military cases. All had Aggravating Factor #8 (multiple
AWOL offenses) Aggravating Factor #9 (extended AWOL
offenses), and Mitigating Factor #6 (extended military
service). All but one had Mitigating Factor #2 (personal or
family problems). Because of the great variety of military
cases, these most frequent factor combinations were found in
only four percent of all military cases.
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TABLE 24: MOST FREQUENT MILITARY CASES
Agg Factors Mit Factors # Cases Pardons AS No Clemency
1,8,9,12
2,6
114
20
89
5
8,9,12
2,6
85
12
73
0
1,5,8,9,12
6
81
1
75
5
1,8,9
2,6,11
81
18
56
7
1,8,9,12
2,6,14
79
34
42
3
1,8,9,12
1,2,6
70
16
51
3
Military cases which received outright pardons typically
had Mitigating Factors #2 (personal or family problems), #6
(extended military service), #7 (Vietnam service), and #14
(above-average military performance). Table 25 below lists
the combinations of factors which had the greatest
proportion of outright pardons.
TABLE 25: MILITARY PARDON CASES
Agg Factors
Mit Factors
# of Cases
# of Pardons
1,8,9,12
1,2,6,7,14
11
11
8,9,12
2,6,7,14
11
11
8,9
1,2,6,7,11,14
10
10
1,8,9
2,6,7,11,14
16
15
1,8,9
2,6,7,11,14
13
12
1,8,9,12
1,2,6,8,14
11
10
8,9
2,6,7,14
23
19
1,8,9,12
2,6,7,14
28
23
8,9.12
2,6,7,14
21
17
8,9
1,2,6,8,11
15
12
From our sample of 1009 military applicants, the
individual most likely to receive an outright pardon was
black (47%) or of another minority background (55%), born
before 1945 (52%), with an AFQT score of Category IV (46%),
who had over two years (62%) or over three years (78%) of
creditable military service, including a partial Vietnam
tour (61%) or a full Vietnam tour (83%) or multiple Vietnam
tours (93%), whose last AWOL offense was after 1971 (46%),
whose AWOLs were attributable to post-combat psychological
problems (88%), who was unemployed at the time of his
application (50%), or whose lawyer communicated with us
while his clemency application was pending (78%).
Less likely to receive an outright pardon was a military
applicant with a college education (25%), who had less than
12 months of creditable military service (22%), who never
went to Vietnam (27%), who went AWOL because of
conscientious oppostion to war (15%), who immediately
returned after going AWOL (30%), who had been convicted for
FORD & LIBRARY 038830
a civilian felony offense (28%), or whose records were
incomplete at the time our case attorney prepared his
summary (29%).
The most clear outright pardon cases among military
applicants were those with truly outstanding service records
prior to their AWOL problems. These particularly
meritorious cases (about 3%) were referred to a special
Board panel for possible recommendation to the President
that their discharges be upgraded and that they receive
veterans benefits. At a minimum, applicants must have had
creditable service and a tour in Vietnam to be considered,
but wounds in combat, decorations for valor, and other
mitigating factors were also important. About 80 cases
(0.6%) were recommended by the special panel for discharge
upgrades.
(Case 5-6)
Applicant had four AWOLs totalling over
eight months, but he did not begin his
AWOLs until after returning from two tours
of duty in Vietnam, when his beliefs
concerning the war changed. He came to
believe that the U.S. was wrong in getting
involved in the war and that he "was wrong
in killing people in Vietnam." He had
over three years' creditable service with
14 excellent conduct and efficiency
ratings. He re-enlisted to serve his
second tour within three months of ending
his first. He served as an infantry man
in Vietnam, was wounded, and received the
Bronze Star for Valor.
(Case 5-7)
During applicant's combat tour in Vietnam,
his platoon leader, with whom he shared a
brotherly relationship, was killed while
awakening applicant to start his guard
duty. He was mistaken for a Viet Cong and
shot by one of his own men. This event
was extremely traumatic to applicant, who
subsequently experienced nightmares. In
an attempt to cope with this experience,
he turned to the use of heroin. After
becoming an addict, he went AWOL. During
his AWOL, he overcame his drug addiction
only to become an alcoholic. After
obtaining help and curing his alcoholism,
he turned himself in.
Other military pardon cases had understandable reasons
for their offenses, or committed relatively minor AWOL
offenses and had good service records.
(Case 5-8)
Applicant enlisted in 1960 and had a good
military record. In 1963 he married, but
he began to have marital problems soon
afterwards. He was in a car accident in
1964. The combination of these two
FORD i LIBRARY GERALD
influences drove him to drink, and he
became an alcoholic. His frequent AWOLs
were directly attributable to his
alcoholism.
(Case 5-9)
Applicant had four AWOLs totalling six
days and surrendered after the last two.
He had one year and nine months of
creditable military service with above
average conduct and proficiency ratings.
He served a full tour in a task force
patrolling the waters off Vietnam.
The bulk of the military cases resulted in conditional
clemency recommendations, with assignment to alternative
service. As a general rule, these cases involved both
aggravating and mitigating factors balancing one another.
Where some factors outweighted others, the Board went up or
down from the alternative service baseline, usually by three
to six months.
(Case 5-10)
Applicant commenced his first AWOL after
he was assaulted by a cook while in KP.
After his second AWOL, he was allegedly
beaten by five military police while
confined in the stockade. On the other
hand, he committed four AWOLs, the last
one lasting almost 3 1/2 years, and had
less than one month of creditable service.
(Case 5-11)
Applicant went AWOL because he was
involved with a girl and was using drugs.
He is presently incarcerated in a civilian
prison for a minor breaking and entering
offense. His two AWOLs were each of only
a few days duration, and he has a very low
category IV AFQT.
Military cases which received "no clemency" dispositions
almost always had Aggravating Factor #1 (other adult
convictions), and usually Aggravating Factor #5 (selfish
motivation for offense) and no mitigating factors other than
# 6 (extended military service). Table 26 lists the
combinations of factors most likely to result in "no
clemency" dispositions.
TABLE 26: MILITARY "NO CLEMENCY" CASES
Agg Factors
Mit Factors
# of Cases
# of No Clemency
1,5,8
-
18
9
1,8
6
29
14
1,5,8,9
1
14
6
1,8
-
13
5
1,5,8,9
2,6
18
7
1,8
1,6,11
18
6
1,5,8
6
34
10
1,5,8,9
6
38
11
From our sample, the military applicant most likely to
ERALD FORD LIBRARY
be denied clemency was black (14%) or of another minority
background (11%), born after 1949 (11%), with an AFQT score
in Category III (10%) or Category IV (9%), who had less than
12 months creditable service (11%), who served a partial
tour in Vietnam (13%), whose AWOL resulted from post-combat
psychological problems (12%) or some other reason unrelated
to opposition to war, personal problems, or family problems
(11%), who fled to a foreign country while AWOL (23%), who
was apprehended (10%), who faced non-AWOL charges at the
time of discharge (14%), who had been convicted for a
civilian felony offense (46%), who was incarcerated for that
offense at the time of his clemency applications (61%) and
whose records were incomplete when our case attorney
prepared his summary (12%).
The military applicant relatively unlikely to be denied
clemency was born before 1945 (4%), college-educated (0%),
with an AFQT score of Category I (5%), who was drafted (6%),
who had more than two years (4%) or three years creditable
service (3%) with one full Vietnam tour (6%) or multiple
Vietnam tours (0%), whose AWOL offense resulted from
conscientious objection to war (3%), who lived openly at
home while AWOL (3%) before surrendering (6%), who did not
face non-AWOL charges at the time of his discharge (6%), who
had not been convicted for any civilian felony offenses
(3%), who was in school (0%) or unemployed (0%) at the time
of his clemency application, or whose lawyer communicated
with our case attorney while his clemency application was
pending (0%).
The Board denied clemency if an applicant's military
offenses were simply too serious and numerous to be excused.
(Case 12)
Applicant received a Summary Court Martial
for two periods of AWOL (one day each) and
one charge of missing movement. He then
received a Non-Judicial Punishment (NJP)
for one AWOL (one day), another NJP for
three AWOLs (one, one, and ten days), and
one NJP for two AWOLs (seven and one
days). He then received a Special Court-
Martial for two AWOLs (two months 17 days
and three months 19 days). He accepted an
Undesirable Discharge in lieu of court-
martial for one period of desertion (two
years 10 months and 20 days) and six
periods of AWOL (eight days, three months
28 days, one month two days, two months 13
days, six months 29 days, and three months
28 days). This is a total of 17 periods
of AWOL. He had been AWOL for a total of
five years.
Two-thirds of the military "no clemency" dispositions
were attributable to applicants' convictions for life-
threatening felony offenses. The following cases are
typical:
(Case 5-13)
While in the service, applicant received a
FORD & LIBRARY CERALD
General Court-Martial for robbery with
force. After his discharge, he was
arrested by civilian authorities and found
guilty of armed robbery.
(Case 5-14)
After his discharge, applicant was
convicted for first degree murder and
second degree robbery. He received a
sentence of 25 years to life and will not
be eligible for parole until 1997.
Perhaps the most difficult--and disputed--cases involved
applicants who had been convicted of civilian felony
offenses other than draft offenses, but who had strong
mitigating factors applicable to their cases. Some Board
members argued that we should disregard unrelated felony
convictions, since we were not granting clemency for those
offenses. Others argued that granting clemency to convicted
felons would cheapen the clemency grants to others. The
majority of the Board took the middle view--that a felony
conviction would be viewed as a highly aggravating factor--
but each case would be evaluated individually and decided on
its total facts. Even so, 42% of the applicants with
nondraft-related civilian felony convictions were denied
clemency, either because of the nature of their felony
offenses or because they did not have compensatingly strong
mitigating factors.
In the remaining cases, less serious felony convictions
did not overshadow an applicant's Vietnam service or other
mitigating facts.
(Case 5-15)
Applicant volunteered for the Special
Forces after his first year in the Army.
He re-enlisted to effect a transfer to
Vietnam, where he served as a parachute
rigger and earned excellent conduct and
proficiency ratings. Altogether, he
served for 18 months in Vietnam and over
three years in the Army, with two
Honorable Discharges for re-enlistment
purposes. His AWOL offenses totaled 29
days, did not occur until after his return
from Vietnam, and were attributed to his
problems with alcohol. After his
Undesirable Discharge in lieu of court-
martial, he was convicted of stealing a
television set and served six months in
prison. He was recently paroled.
In a few cases, a clear connection existed between an
applicant's Vietnam service and his felony conviction.
(Case 5-16)
Applicant served eight months in Vietnam
as a supply specialist before his
reassignment back to the United States.
His conduct and proficiency scores had
been uniformly excellent during his
Vietnam service. However, while in
Vietnam he became addicted to heroin. He
could not break his habit after returning
FORD & LIBRARY GERALD
stateside, and he began a series of seven
AWOL offenses as he "got into the local
drug scene. Eventually, he "ran out of
money" and "had a real bad habit," so he
"tried to break into a store with another
guy that was strung out. " He was arrested,
convicted for burglary, and given an
Undesirable Discharge for AWOL while on
bail.
Others rehabilitated themselves after their felony offense,
indicating their desire to be productive and law-abiding
members of their communities.
(Case 5-17)
Shortly after receiving a Bad Conduct
Discharge from the Navy for his AWOL
offenses, applicant was convicted for
transporting stolen checks across state
lines. He was sentenced to a ten-year
term, but was paroled after one year and
four months. During his confinement, he
underwent psychiatric care. Since his
parole, he has re-married and has recently
established a successful subcontracting
business. Currently, he is working with
young people in his community in
connection with church groups, trying to
provide guidance for them. His parole
officer stated that applicant has
straightened out and is a responsible
member of his community.
In each of the above three cases, the Board recommended
that the President grant an outright pardon. Obviously, we
had no jurisdiction to recommend clemency for the other
felony offenses that the applicants had committed.
We denied clemency in a very small number of cases in
which applicants went AWOL in direct combat situations, as
in the following:
(Case 5-18)
Applicant would not go into the field with
his unit, because he felt that the new
commanding officer of his company was
incompetent. He was getting nervous about
going out on an operation; there was
evidence that everyone believed that there
was a good likelihood of enemy contact.
He asked to remain in the rear, but his
request was denied. Consequently he left
the company area because, in the words of
his chaplain, "the threat of death caused
him to exercise his right of self-
preservation."
His
company
was
subsequently dropped onto a hill where it
engaged the enemy in combat. Applicant
was apprehended while travelling on a
truck away from his unit without any of
his combat gear.
FORD is LIBRARY 958870
Most cases of AWOL in Vietnam involved strong mitigating
factors. Often, combat wounds or the psychological effects
of combat led to AWOL offenses. For example, the Board
recommended an outright pardon in the following case:
(Case 5-19)
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 of his inability to
function in an infantry unit, applicant
went AWOL.
Not all military case recommendations were unanimous.
Sharp disagreement occasionally arose over cases which had
very strong mitigating and aggravating factors. Consider
the following case:
(Case 5-20)
Applicant's records were lost or destroyed
and have been only partially
reconstructed. The reconstructed records
cover only the past several years, not
describing the three years which applicant
claimed that he spent in Viétnam as a
rifleman and armored personnel carrier
driver. They do not cover the period of
his alleged leg wounds, Purple Heart, and
Bronze Star. However, they do show that
he was discharged in lieu of court-martial
because of nine AWOL incidents in Vietnam,
six of which were for durations of longer
than one month. Neither applicant nor his
records indicate the reasons or
circumstances of his AWOL offenses,
although almost all of them occurred after
his alleged combat wounds. Applicant is
now disabled and has required
hospitalization for his leg wounds. He is
presently unemployed.
In this case, the applicant went AWOL numerous times in
Vietnam, possibly from combat zones. However, he claims to
be disabled, and his AWOLs may have been related to his
serious wounds. His records are incomplete through no fault
of his own, SO the full story cannot be known. The full
Board was sharply split, some for an outright pardon and
others for no clemency. By a close vote, the final
recommendation to the President was for an outright pardon.
F. Comparison with Other Clemency Programs
Clemency Board applicants -- military and civilian --
had already paid a price before they applied for clemency.
FORD is LIBRARY 978839
Roughly half had been incarcerated, most for several months.
Many had performed alternative service as a condition of
probation. The baseline formula took this into account.
As a result, Clemency Board case dispositions were
naturally different from those of the Justice and Defense
Department programs. At the same time, we were the only
part of the President's program to grant clemency
selectively. Neither the Justice Department nor the Defense
Department denied clemency to any eligible applicant.
Tables 27 and 28 show the alternative service assignments of
the other two parts of the President's clemency program.
TABLE 27: COMPARISON OF CASE DISPOSITIONS FOR
JUSTICE DEPARTMENT AND CLEMENCY BOARD CIVILIAN APPLICANTS
PCB
%
DOJ*
%
None/Pardon
1432
81.5%
0
0
1-3 Mos AS
140
8.0
7
1.0%
4-6 Mos AS
91
5.2
32
4.7
7-9 Mos AS
24
1.4
16
2.3
10-12 Mos AS
35
2.0
45
6.5
13-24 Mos AS
9
0.5
588
85.5
No Clemency
26
1.5
0
0
1757
688
*This breakdown does not correspond with the total number of
cases stated elsewhere in this report because of
miscellaneous dispositions.
TABLE 28: COMPARISON OF CASE DISPOSITIONS FOR
DEFENSE DEPARTMENT AND CLEMENCY BOARD MILITARY APPLICANTS
PCB
%
DOD*
%
None/Pardon
4634
36.3%
48**
0.8%
1-3 AS
2555
20.0
43
0.8
4-6 AS
2941
23.0
172
3.1
7-9 AS
1295
10.1
251
4.5
10-12 AS
441
3.5
383
6.9
13-24 AS
20
0.2
4630
83.8
No Clemency
885
6.9
0
0
12,757
5527
*This breakdown does not correspond with the total number of
cases stated elsewhere in this report because of
miscellaneous dispositions.
**Of the 48 cases in which no alternative service was
required, 46 were immediately granted honorable discharges
because of superior records, and two were returned to active
duty without prejudice.
FORD
GERALD
LIBRARY
Comparing other programs' case dispositions to ours can
be misleading, unless prior punishments are taken into
account. Clemency Board civilian applicants have served an
average of four months in jail and five months of prior
alternative service. When our baseline calculations are
applied, giving three months credit for every one month in
jail and one month credit for every month of alternative
service, Clemency Board dispositions are shown to have been
more severe than those of the Department of Justice. When
our military applicants' time in jail (an average of 2 1/2
months) is taken into account. Clemency Board case
dispositions are shown to be somewhat more generous than the
Defense Department's. Table 29 illustrates these
comparisons.
TABLE 29: ADJUSTED COMPARISON OF CASE DISPOSITIONS
PCB Civilian
DOJ
PCB Military
%
None/Pardon
0%
0%
0%
0.8%
1-3 AS
0
1.0
0
0.8
4-6 AS
0
4.7
0
3.1
7-9 AS
0
2.3
36.3
4.5
10-12 AS
0
6.5
20.0
6.5
13-24 AS
98.5
85.5
55.0
83.8
No Clemency
1.5
0
6.7
0
Therefore, the differences among case dispositions for
the three clemency programs reflect the contrasting
circumstances of applicants.