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Final Report - Draft, Undated (3)
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Final Report - Draft, Undated (3)
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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 4, folder "Final Report - Draft, Undated (3)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 4 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
FORD
C. Our Military Applicants
During the Vietnam War, 7,500,000 individuals served in uniform. Most
served well under difficult circumstances, and 94% received Honorable Discharges.
One-third of them served in Vietnam, where 56,000 lost their lives and 300,000
were wounded. Almost one in twelve Vietnam era service members -- 500,000 --
went AWOL ("Absent Without Official Leave") one or more times. Almost half of
the AWOL offenders were absent for less than 30 days. Usually, they were
reprimanded or given a minor (non-judicial) punishment.
More than one half of these offenders -- 325,000 -- left their units for
more than 30 consecutive days, thereby giving rise to administrative
classification as deserters; over 10,000 never returned. Of those who did
return, about one-third (123,000) faced court-martial charges. Many (55,000)
avoided trial by accepting a "For the Good of the Service" **/ discharge,
while another 68,000 did stand trial, with all but 500 found guilty. The
majority (42,500) of those found guilty were punished and returned to their
units; the others were adjudged Bad Conduct (23,000) or Dishonorable (2,000)
Discharges. The remaining 63,000 had established a pattern of misconduct which
prompted an administrative discharge: 43,000 were given General Discharges
for Unsuitability, and 20,000 received Undesirable Discharges for Unfitness.
The President's clemency program included the 100,000 who had received
Undesirable, Bad Conduct, or Dishonorable Discharges -- plus the 10,115 who
A 30 day absence subjects a serviceman to the maximum punishment authorized
for an Article 86 UCMJ, absence without leave offense. Judicial proof of desertion,
however, requires more than proof of a 30 day absence.
**/ "For the Good of the Service" discharges were commonly known to us as
discharges "in lieu of court-martial" described in service regulations. SEE:
Army Regulation 635-200, Chapter 10.
IV-C-2
were still at large. Their offenses were often very serious -- some AWOLs
were for as long as seven years -- and many were repeat offenders. This
group comprised only one-sixth of all AWOL offenders and one-third of all
desertion offenders during the Vietnam War.
In the discussion which follows, we trace the general experiences of our
military applicants. With few exceptions, our statistics are based upon our
sample of 1,009 military applicants to our program. Illustrating the
discussion and excerpts of our own case summaries. It should be kept in mind
that much of the information in these summaries are based upon the applicants'
own allegations, sometimes without corroboration. In sequence, we look at
the following:
1. Background
2. Induction or Enlistment in the Armed Forces
3. Early Experiences in the Military
4. Requests for Leave, Reassignment, or Discharge
5. Assignment to Vietnam
6. AWOL offenses
7. Experience. with the Military Justice System
8. Effects of a less than Honorable Discharge
1. Background
Our military applicants were raised in small towns or on farms (40%).
Generally, they came from disadvantaged environments. Many (60%) grew up in
a broken home struggling to cope with a low income (57%). A disproportionate
percentage were black (21%) or Spanish-speaking (4%). Approximately 0.1% were
women. Their average IQ was very close to the national average. Nonetheless,
over three-quarters dropped out of high school before joining the service,
while less than one-half of one percent graduated from college. Despite the
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common belief that our applicants resisted the war, our applicants were not
articulate, well-educated opponents of the war; almost none of them (0.2%)
had applied for a conscientious objector draft classification before entering
the military.
2. Induction or Enlistment in the Military
Our applicants began their military careers at an early age. Almost
one-third enlisted at age 17, and over three-quarters were in uniform by
their 20th birthday. Most (84%) enlisted rather than be drafted. Our
applicants represented the Army (63%) the Marines (23%) , and to a lesser degree,
the Navy (12%) and the Air Force (3%).
The reasons for enlistment varied from draft pressure to the desire to learn
a trade, to the simple absence of anything else to do. Others saw the military
as an opportunity to become more mature.
(Case #00148)
Applicant enlisted after high school because he did not
want to go to college or be inducted into the Army.
(Case #02483)
Applicant enlisted to obtain specialized training to become
a microwave technician.
(Case #00179)
Applicant enlisted at age 17 because he wanted a place to
eat and a roof over his head.
(Case #00664)
Applicant enlisted because he was getting into trouble all
the time and felt that service life might settle him down.
As the Vietnam war expanded America's military manpower needs, the pressures
on recruiters became very intense. Many recruiters were helpful to our
applicants by arranging entry into the preferred military occupational speciality
and geographic area of assignment. However, the press for manpower led to
occasional misunderstandings, which some of our applicants claimed were justifi-
cations for their unauthorized absences.
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(Case #00356)
Applicant enlisted at age 17 for motor maintenance
training, but instead was trained as a cook. This action
caused him disappointment and frustration. His grandmother
contended that he was misled by the recruiter.
Before the Vietnam War, the military generally had not accepted persons
for enlistment or induction if they had Category IV scores on their AFQT tests,
imposing an enlistment barrier at the 30th percentile. Some individuals scoring.
between the 15th and 30th percentiles were brought into the service under
project STEP.
In August, 1966, Secretary of Defense, Robert McNamara announced Project
100,000 "to use the training establishment of the Armed Forces to help
certain young men become more productive citizens when they return to civilian
life." Like STEP, Project 100,000 offered the opportunity and obligation
of military service to marginally qualified persons by reducing mental and
medical standards governing eligibility. During its first year, 40,000 soldiers
entered the military under this program. Thereafter, it lived up to its
name by enabling 100,000 marginally qualified soldiers to join the service each
year.
Military studies have indicated that the opportunity for technical
training was the principal motivation for the enlistment of Category IV
soldiers. However, over half enlisted at least party because of the draft
pressure. Other reasons for enlistment were to travel, obtain time to find
out what to do with one's life, serve one's country, and enjoy educational
benefits after leaving the service. Some did learn marketable skills: 13%
of our applicants received a high school equivalency certificate while in the
The Armed Forces Qualification Test (AFQT)
was the basic test for
mental qualification for service in the military administered at the Armed
Forces Entrance and Examination Stations (AFEES).
IV-C-5
service.
Almost one-third of our applicants (32%) were allowed to join the
military despite pre-enlistment AFQT scores at or below the 30th percentile.
(Case #00847)
Applicant had an AFQT of 11 and a GT (IQ score) of
61 at enlistment. He successfully completed basic
training, but went AWOL shortly thereafter.
(Case #0229)
Applicant had an 8th grade education, an AFQT of 11, and
a GT of 62. From a broken home, he was enthusiastic about
his induction into the Army, believing that he would
have financial security and would receive technical training.
His lack of physical ability and difficulties in reading and
writing caused him to fail basic training. He was in
Basic Training for nine months before he was sent to AIT
as a tank driver. He continued to have learning problems
in advanced training. According to applicant, this problem
was compounded by the ridicule of his peers who discovered
that he required several months to complete basic training.
Not all of our Category IV applicants joined the service because of
Project 100,000. Some had other test scores qualifying them for enlistment
under the earlier standards. Nonetheless, we suspect that many of our
applicants would never have been in the service were it not for Project 100,000.
Our Category IV applicants tended to be from disadvantaged circumstances.
Compared to our other applicants, they were predominatly Black or Spanish-
speaking (42% vs. 18%) * and grew up in cities (55% VS. 44%). Their families
struggled with low incomess (72% VS. 49%), and they dropped out of high school
(75% vs. 56%). The quality of their military service was about the same as
that of our other applicants; however, they had no more punishments for non-AWOL
offenses (53% VS. 52%) or non-AWOL charges pending at time of discharge (13% VS.
12%). Despite this, a greater percentage received administrative Undesirable
Discharges (68% VS. 57%).
* The first figure is the percentage of the Category IV soldiers, the second
refers to all others soldiers.
IV-C-6
We saw only the failures of Project 100,000 -- never its successes.
The experiences of our 4,000 + Category IV applicants are not a fair
reflection of the quarter-million men brought into the service by Project 100,000.
Also, many of our Category IV applicants did serve well before committing
their AWOL offenses.
(Case #5144)
Applicant, a Black male from a family of 12 children
completed 11 years of school before his induction into the
Army. His GT was 114 and his AFQT was 18 (Category IV).
Applicant spent 6 years on active duty, including service
as a military policeman in Korea. Following a three month
stint in Germany, he served an 8 month tour in Vietnam as
an assistant platoon leader. On a second tour in Vietnam,
where he served as a squad leader and chief of an armored car
section, he earned the Bronze Star for heroism. He
departed AWOL while on leave from his second tour in Vietnam.
IV-C-7
3. Early Experiences in the Military
Our applicant's first encounter with the military was
in basic training. It was during these first weeks that our
applicants had to learn the regimen and routine of military
life. For many, this was their first experience away from
home and the first time they faced such intense personal re-
sponsibilities. Some of our applicants did not adjust well to
the demands placed on them. Homesickness and emotional trauma
found expression ranging from commonplace complaints and tears,
to the more unusual conduct.
(Case #02483)
Applicant went on aimless wanderings prior
to advanced training. He finally lost
control of himself and knocked out 20
windows in the barracks with his bare hands,
resulting in numerous wounds to himself.
Social and cultural differences among recruits posed prob-
lems for others who did not get along well in the close quar-
ters of the barracks environment.
(Case #0309)
During boot camp, applicant, of Spanish
heritage, was subjected to physical and
verbal abuse. He recalls being called
"chili bean" and "Mexican chili." His
ineptness also made him the butt of his boot
camp unit. He wept at his trial when he
recalled his early experiences that led to
his AWOL.
** Since 63% of our applicants were Army, our discussion will
center (unless otherwise specified) on Army procedures, which
differ in degree from other services, but not in substance.
IT-C-8
(Case #10125)
Applicant's version of his various prob-
lems is that he could no longer get along
in the Marine Corps. Other Marines picked
on him because he was Puerto Rican, and
wouldn't permit him to speak Spanish to
other Puerto Ricans, and finally they tried
to get him into trouble when he refused to
let them "push" him around.
(Case #00704)
Applicant was a high school graduate with
a Category I AFQT score and GT (IQ test)
score of 145. She complained that other
soldiers harrassed her without cause and
accused her of homosexuality. She departed
AWOL to avoid the pressure.
Incidents of AWOL during basic training usually resulted
in minor forms of punishment. Typically, a new recruit would
receive a non-judical punishment resulting in restriction, loss
of pay, or extra duty. Seven percent of our applicants were
discharged because of an AWOL commencing during basic training.
Following basic training, pressures on the average soldier with
family or personal problems may have increased, incidental to
a transfer to another unit for advanced or on the job training.
Altogether, 10% of our applicants were discharged for an AWOL
begun during advanced training. Individual transfers resulted
in breaking up units and frequently intense personal friendships.
The AWOL rate tended to be higher for soldiers "in transit" to
new assignments.
Many of our applicants were trained in jobs which they
found unsatisfying, and others were given details which made no
use of their newly-earned skills.
IV-C-9
(Case #0649)
Applicant enlisted in the Army for a term
of three years, specifying a job preference
for electronics. The recruiter informed
him that the electronics field was full,
but that if he accepted assignment to the
medical corps he could change his job after
entry onto active duty. Once on active duty,
applicant was informed that his MOS could
not be changed. He claimed that he was un-
successful in obtaining the help of his
platoon sergeant, company commander, and
chaplain, so he left AWOL.
Military life, especially for those of low rank required the
performance of temporary duties for which no training was re-
quired, such as kitchen patrol and area cleanups.
(Case #9488)
Applicant found himself pulling details and
mowing grass rather than working in his
military occupational speciality. He then
went home and did not return for over three
years.
After several months in military life, others were still,
having difficulty adjusting to the many demands of military life.
A majority (52%) of our applicants were discharged for AWOL
offenses occurring during stateside duty other than during
training. As in civilian employment, a daily routine had to be
followed, superiors had to be treated with respect, and orders
had to be obeyed. The civilian's or service-member's failure
to comply with these expectations could result in his being
fired, with attendant loss of pay, promotability and status,
or transfer. But the servicemen may have violated military
custom or law which could lead to disciplinary action.
II-C-10
Altogether, over half (53%) of our applicants were punished
for one or more military offenses other than AWOL which would
not have been criminal offenses in civilian life. Only 3%
were punished for military offenses comparable to civilian
crimes (such as theft or vandalism).
(Case #14392)
Applicant had difficulty adjusting to the
regimentation of Army life. While he was
in the service, he felt that he needed to
have freedom of action at all times. He
would not take guidance from anyone, was
rrpeatedly disrespectful, and disobeyed
numerous orders. His course of conduct re-
sulted in his receiving three non-judicial
punishments and three Special Court-Martials.
4. Requests for Leave, Reasignment, or Discharge
Most of our applicants complained of personal or family
problems during their military careers. Parents died, wives
had miscarriages, children had illnesses, houses were re-
possessed, families went on welfare, and engagements were broken.
(Case #3289)
During his 4 months and 19 days of creditable
service, applicant was absent without official
leave on five occasions. He was motivated
in each instance by his concern for his
grandmother who was now living alone and whom
he believed needed his care and support.
The military had remedies for soldiers with these problems.
They could request leave, reassignment (compassionate, or
nor mal change of duty station), and, in extreme cases, dis-
charge due to a hardship. Unit officers, chaplains, attorneys
of the Judge Advocate General's Corps, and Red Cross workers were
IV-C-11
there to render assistance within their means.
(Case #9491)
Applicant requested, and was granted, an
emergency leave due to his mothers death.
Applicant did not return from leave. He
was apprehended one year and 8 months later.
The Department of Defense discovered that 58% of its
clemency applicants did seek help from at least one military
source before going AWOL. However, only 45% approached their
commanding officer, and fewer yet approached an officer above
the Company level. Many applicants never tried to solve their
problems through military channels. Other applicants indicated
that they tried some of these channels but failed to obtain the
desired relief.
(Case #1244)
Applicant's wife was pregnant, in financial
difficulties and being evicted; she suffered
from an emotional disorder and nervous prob-
lems; his oldest child was asthmatic and an
epileptic, having seizures that sometimes re-
sulted in unconsciousness. Applicant re-
quested transfer and a hardship discharge which
were denied.
Request for leave were matters within the Commanding Officer's
discretion. However, leave is earned at the rate of 30 days per
calendar year, and individuals often used leave substantially
in excess of the amount they had earned. Commanding Officers
could not normally authorize "advance leave" in excess of 30 days,
so a soldier who had used up his advance leave would have to go
AWOL to solve his problems. This was especially true if the
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enormity of the problem made one period of leave insufficient
for the applicant's purpose.
(Case # 01336)
While applicant was home on leave to get
married, a hurricane flooded his mother-
in-law's house, in which he and his newly
wed wife were staying. Almost the entire
property and his belongings were lost. He
requested and was granted a 21-day leave
extension, which he spent trying to repair the
house. However, the house remained in an un-
liveable condition, and his wife began to
suffer from a serious nervous condition.
Applicant went AWOL for four days to ease
the situation. He returned voluntarily and
requested a Hardship Discharge or a six-month
emergency leave, both of which were denied.
He then went AWOL.
Of our applicants who requested leave or reassignment,
roughly 15% had their request approved. A total of 1.3% of
our applicants were granted leave or reassignment to help them
solve the problem which led to their AWOL. By contrast, 8.6%
had their leave or reassignment requests turned down.
(Case #74436)
Applicant received information that his
pregnant wife was in the hospital. She had
fainted and fallen on the edge of a coffee
table and had started bleeding internally.
Applicant asked his commanding officer for
permission to return home after informing him
of his wife's difficulty and of the risk of
a miscarriage. This request was denied, so
he went AWOL.
The Hardship Discharge offered a more lasting solution to
the conflict between a soldier's problem and his military obli-
gations, without the stigma of most other administrative
IV-C-13
separations. To get a Hardship Discharge, he had to submit
a request in writing to his commanding officer, explaining
the nature of his problem and how a discharge would help him
solve it. The Red Cross was often asked for assistance in
documenting the request. Higher headquarters was required to
review the request and had the power to make final decisions,
as required by service regulations.
(Case #0269)
Applicant states that his father, who had
suffered for three years from cancer,
committed suicide by hanging. His family's
resources and morale had been severely
strained by the father's illness and death.
Applicant spent a period of time on emer-
gency leave to take care of funeral arrange-
ments and other matters. At the time, his
mother was paralyzed in one arm and unable
to work. Applicant sought a hardship dis-
charge, but after three weeks of waiting
his inquiries into the status of the appli-
cation revealed that the paperwork had been
lost. Applicant then departed AWOL.
The soldier who was conscientiously opposed to war could
apply for in-service conscientious objector status. Very few
of our applicants did: Only 1.1% took any initiative to ob-
tain this in-service status, and only 0.5% made a formal appli-
cation. However, our Board found 4.6% of our applicants to
have committed their offenses for conscientious reasons. Some
of our applicants were unaware of what they had to do to get
such status.
II-C-14
(Case # 8129)
From the time of his arrival at his
Navy base, applicant consulted with medical,
legal, and other officers on how to obtain
a discharge for conscientious objection.
He was told that the initiative for such
a discharge would have to be taken by the
Navy, SO he would have to demonstrate that
he was a conscientious objector. He then
went AWOL to prove his beliefs. Following
his conviction for that brief AWOL, he re-
quested a discharge as a conscientious objector.
His request was denied.
There are two types of conscientious objector applications.
One resulted in reassignment to a non-combatant activity, while
the other provided for a discharge under honorable conditions.
Each type involved separate but similar procedures. Understan-
dably, procedures put the burden of proof on the applicant. He
was required to submit statements on six separate questions con-
cerning the origin, nature, and implications of his conscientious
objection. The applicant had to "conspicuously demonstrate
the consistency and depth of his beliefs. It was difficult
for the inarticulate person to meet this standard.
(Case #10402)
For a year-and-a-half after he was drafted,
applicant tried to obtain conscientious ob-
jector status, because he did not believe
in killing human beings. He is minimally
articulate, but stated that even if some-
one was trying to kill him, he could not
kill in return. He talked to his Captain
and the Red Cross, neither of whom found
his aversion to taking human life to be per-
suasive. When his application was denied
and he was scheduled for Vietnam, he went AWOL.
IV-C-15
After submitting his application, the soldier was inter-
viewed by a chaplain and a military psychiatrist. The Chap-
lain had to comment on the sincerity and depth of the appli-
cant's belief, and the psychiatrist evaluated him for mental
disorders.
(Case#0472)
Three years after enlisting in the Navy,
applicant made several attempts to be re-
cognized 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. Appli-
cant claimed that the psychia rist 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 on his request. The final authority
authority of with the
rested either with the general Court-Martial convening administra-
tive affairs office in the appropriate Service Department
Headquarters.
IV-C-11
IV-C-16
5. Assignment to Vietnam
During the height of the Vietnam War, our applicants were ordered to Vietnam about
six months after entering the service. Just over half (51%) of our applicants volun-
teered or received orders for Vietnam. Most complied with the orders, but many did
not. Twenty-four percent of our applicants were discharged because they went AWOL
when assigned to Vietnam.
(Case # 03584) Applicant received orders to report to Vietnam. While on leave
before he had to report, he requested help from his Congressman so
that he would not be sent overseas. He also applied for an extension
of his departure date on the grounds that his wife was 8 months
pregnant and that he was an alien. His request was denied, and he
went AWOL.
The other 27% did go to Vietnam. Once there, our applicants were less likely to
desert. Roughly one in eight (3.4% of our applicants) deserted from Vietnam, and one-
third of those went AWOL from non-combat situations. In many cases, their reasons re-
lated to personal problems, often of a medical nature.
(Case # 00423) Applicant was assigned to an infantry unit in Vietnam. During his
combat service, he sustained an injury which caused his vision to
blur in one eye. His vision steadily worsened, and he was referr-
ed 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
feaful to his inability to function in an infantry unit, applicant
went AWOL.
Many of our applicants who were sent to Vietnam were assigned to combat units.
Some -- but not many -- actually deserted while serving in a combat assignment.
(Case # 3304) Applicant would not go into the filed with his unit because he felt
the new C.O. of his company was incompetent. He was getting 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 they engaged the enemy in combat). He asked to remain in the
rear but his request was denied. Consequently, he left the company
area because, in the words of his chaplain, "the threat of death caus-
ed 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 U.S. on emergency leave when appropriate. Also, he
IV-C-12
It-c-17
was offered several days of "R&R" (Rest and Relaxation) at a location removed from
combat zones, and frequently outside of Vietnam. It was on these sojourns outside of
Vietnam that some of our applicants departed AWOL.
(Case # 4366) Applicant was granted emergency leave from Vietnam due to his father's
impending death. Applicant failed to return from the leave.
Many of our applicants served with distinction in Vietnam. They fought hard and
well, often displaying true heroism in the service of their country. Of our applicants
who served in Vietnam, one in eight was wounded in action.
(Case # 2065) While in 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 come under intense evening fire,
he moved through a mine field under a hail of fire to aid his
wounded comrades. While in Vietnam, he was made Squad Leader of
nine men, seven of whom (including himself) were wounded in action.
In addition to his Bronze Star, he received the Army Commendation
Medal with Valor Device, the Vietnam Servi ce Medal with devices,
the Vietnam Campaign Medal, and the Combat Medic's Badge.
Others experienced severe psychological trauma from their combat experiences;
some applicants turned to drugs to help them cope.
(Case #00188) During his combat tour in Vietnam, applicant's platoon leader, with
whom he shared a brotherly relationship, was killed while awakening
applicant to start his duty. He was mistaken for Viet Cong and shot
by one of his own men. This event was extremely traumatic to the
applicant, who experienced nightmares. In an attempt to cope with
this experience, he turned to the use of heroin. After becoming an
addict, he went AWOL.
IV-C-13
IV-C-18
Still other applicants indicated that combat experience was a source of
personal fulfillment.
(Case #0423) Applicant, who was drafted, was pleased by his
assignment to Vietnam Bacause of his confidence
in his training and membership in a cohesive,
elite unit.
Our 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 close comradeship of combat situations and felt a sense of
accomplishment from doing a difficult job well. Occasionally, and applicant
indicated he went AWOL because of his inability to extend his tour in Vietnam.
(Case # 8232) While in Vietnam, applicant tried to extend his tour
but his request was never answered. He was told much
later that he would have to wait until he returned
stateside. After he did, he was told that he could
not return, SO he went AWOL. He had derived satis-
faction from his work in Vietnam because he was
respected, and he found the atmosphere close and
friendly.
By contrast, combat experience for some applicants produced a sense of uneasi-
ness about the cause for which they were fighting.
(Case #03697) Applicant was successfully pursuing his military
career until he served in Cambodia assisting the
Khmer Armed Forces. He began to experience internal
conflicts over the legality and morality of Army
operations in Cambodia. This reinforced his feelings
and resulted in disillusionment.
Our Vietnam Veteran applicants, frequently articulated severe readjustment
problems upon returning to the United States. This "combat fatigue" or "Vietnam
syndrome" was partly the result of the incessant stress of life in combat. Our
Board found that 6.4% of our applicants suffered from mental stress caused by combat.
(Case # 2892) After returning from two years in Vietnam, applicant
felt that he was on the brink of a nervous breakdown.
He told his commander that he was going home and could
be located there, if desired. He then went AWOL from
his duty station.
Two-fifths of our Vietnam veteran applicants (11% of all military applicants
IV-C-19
claimed to have experienced severe personal problems as a result of their tour
of duty. These problems were psychological, medical, legal, financial, or
familial. One-third of their psychological and medical problems were permanent
disabilities of some kind. They ofter complained that they had sought help,
received none, and departed AWOL as a consequence.
(Case # 2065) (This is a continuation of the case of the American
Indian who received a Bronz Star for heroism). After
applicant's return to the United States from Vietnam,
he asked his commanding officer for permission to see
a chaplain and a psychiatrist. He claimed that he was
denied these rights, so he decided to see his own
doctor. He was given a psychological examination and
was referred to a VA hospital. After a month of care,
he was transferred back to camp. He again sought
psychiatric care, but could find none. Later, he was
admitted to an Army hospital. One examining psychiatrist
noted that he needed prompt and fairly intensive short-
term psychiatric care avert fourther complications of
his was experience. His many offenses of AWOL were due
to the fact that he felt a need for psychiatric treat-
ment but was not receiving it.
Our Vietnam veteran applicants frequently complained that upon return to
stateside duty, they encountered a training Army and the routine of peacetime duty
lacking the satisfaction of the more demanding combat environment. Some adjustment
problems may have resulted from their injuries.
(Case #08349) After his return from Vietnam, applicant was frustrated
over his inability to perform his occupational speciality
as a light vehicle driver due to his injuries. His work
was limited to details and other menial and irregular
activity that led him to feel "like the walls were closing
in on me." He then went AWOL.
Unfortunately, other soldiers who had never seen combat experience were some-
times unfriendly to our applicants who had, adding to the combat veteran's readjust-
ment problems.
(Case # 8145) While in Vietnam, applicant saw much combat action and re-
ceived numerous decorations. He was an infantryman and
armor crewman who served as a squad and team leader. He
participated in six combat campaigns, completed two tours
in Vietnam, and received the Bronze Stars for heroism.
In one battle, he was wounded -- and all his fellow
soldiers were killed. His highest rank was staff sergeant
(E-6). Upon his return from Vietnam, he went AWOL because
IV-C-10
of harassment from fellow servicemen HAO that he was only a
"rice paddy NCO" who would not have his rank if not for the
war.
Veterans of other wars usually came home as national heroes. The Vietnam
veteran, however, was sometimes greeted coolly. Some of our applicants were disap-
pointed by the unfriendly reception they were given by their friends and neighbors.
Many Vietnam veterans, deeply committed to the cause for which they had been fighting
were unprepared to return home to an America in the midst of controversy over the
war.
(Case #
)
Applicant received a Bronze Star and Purple Heart
in Vietnam. He wrote the following in his appli-
cation for clemency: "While in Vietnam, I didn't
notice much mental strain, but it was an entirely
different story when I returned. I got depressed
very easily, was very moody, and felt as if no one
really cared that I served their country for them.
And this was very hard to cope with, mainly because
while I was in Vietnam I gave it 100%. I saw enough
action for this life and possibly two or three more.
I hope that someone understands what I was going
through when I returned."
(Case # 8145) On his return from combat in Vietnam, applicant found
it difficult to readjust to stateside duty. He was
shocked by the civilian population's reaction to the
war and got the feeling he had been "wasting his time."
I°--21
6. AWOL offenses:
By going AWOL, our applicants committed at least one of three specific
military offenses: AWOL (Article 85, UCMJ), Desertion (Article 86, UCMJ),
and Missing Movement (Article 87, UCMJ). Of the three, desertion was the
most serious offense. To commit desertion, our applicants had to be convicted
of departing with the intent to avoid hazardous duty or shirking important
service (the most serious form of desertion), or departing with the intent to
permanently remain away. Though the military service administratively
classified most of our applicants as deserters, usually because they were
gone for periods of excess of 30 days, only 9.2% of our applicants were
convicted of the offense of desertion. Desertion convictions were infrequent
because of the difficulty in proving intent.
A soldier could be convicted of missing movement when he failed to
accompany his unit- aboard a ship or aircraft for transport to a new position.
Only 0.9% of our applicants were convicted of missing movement.
The majority of our applicants - 90% - were convicted of 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.
Our military applicants went AWOL from different assignments, for different
reasons, and under a variety of circumstances. As described earlier, 7% left
from basic training, 10% from advanced individual training, 52% from other
stateside duty, 24% because of assignment to Vietnam, 3.4% from Vietnam, and
1.3% from Vietnam leave. The remaining 2.3% went AWOL from overseas assignments
in courtries other than Vietnam.
IJ-C-22
As a criminal offense, AWOL is peculiar to the military. If a student
leaves his school, he might be expelled. If an employee leaves his job, he might
be fired and suffer from a loss of income. But if a serviceman leaves his post, he
might not only be fired, but also criminally convicted, fined, and imprisoned.
These extra sanctions are necessary -- especially in wartime -- to maintain
the level of military discipline vital to a well-functioning Armed Forces.
Desertion in time of Congressim ally-declared war carries a possible death
penalty, and most of the offenses committed by our applicants could have
brought them long periods of confinement. Such swift, certain, and severe
penalties are necessary to deter military misconduct even in the fact of
enemy fire.
In light of this, why did all of our applicants go AWOL? Why did an
estimated 500,000 soldiers go AWOL during the Vietnam War? Almost 4,000 of
our applicants were Vietnam combat veterans, yet they risked -- and lost --
many privileges and veterans benefits as a result of their offenses.
Though the general public frequently assumed that many unauthorized
absences during the Vietnam era were motivated by conscientious opposition
to the war, and this was a factor motivating this program, only 4.6% of
our military applicants went AWOL primarily because of an articulated
opposition to the war. *
(Case #03285)
Applicant decided he could not conscientiously remain in
the Army and went to Canada where he worked in a civilian
hospital. Prior to his discharge, applicant stated: "In
being part of the Army, I am filled with guilt. That guilt
comes from the death we bring. I am as guilty as the man
who shoots the civilian in his village. My being part of
the Army makes me just as guilty of war crimes as the
offender.
11
*By coincidence, this 4.6% figure corresponds to the 4.6% of all cases in which
our Board identified conscientious reasons (mitigating factor #10). It is very
close to the 3.6% finding of an earlier AWOL study.
).
IV-C-23
As additional 1.8% went AWOL to avoid serving combat, while another
9.7% left because they did not like the military. In rare cases, either
may have implied an unarticulated opposition to the war. Thus, slightly
more than 4.6% of our applicant's offenses may have fit a broad definition
of conscientious objection.
(Case #1902)
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 left AWOL. Though he was
not discharged until two years later, he only accumulated
18 days of creditable service.
A small but significant 1.8% of our applicants went AWOL because of post-
combat psychological problems.
(Case #8887)
Applicant received a Bad Conduct Discharge for an AWOL
between 16 March and 28 November 1970. This AWOL was
terminated by surrender in California. Applicant went
AWOL because he was "disturbed and confused" upon returning
from Vietnam. He described himself as "really weird, enjoying
killing and stuff like that", and as being "restless".
During the AWOL, he was totally committed to Christ and the
Ministry.
In some instances, an applicant's actions seemed beyond his reasonable
control.
(Case #05233)
Applicant participated in 17 combat operations in Vietnam.
He was medically evacuated because of malaria and an acute
drug induced brain syndrome. He commenced his AWOL offenses
shortly after he was released from the hospital. Since his
discharge, applicant has either been institutionalized or
under constant psychiatric supervision.
Approximately thirteen per cent of our applicants left the military
because of denied requests' for hardship leave, broken promises for occupational
assignments and improper enlistment practices, or other actions by their
superiors which they might not have liked.
IV-C-24
(Case #0751)
Applicant enlisted for the specific purpose of learning
aircraft maintenance, but instead was ordered to Artillery
school. When he talked with his commanding officer about
this, he was told that the Army needed him more as a
fighting man. He later went AWOL.
(Case #4793)
Applicant, a Marine Sergeant (E-5) with almost ten years of
creditable service, requested an extension of his tour in
Okinawa to permit him time to complete immigration paperwork
for his Japanese wife and child. Several requests were denied.
Upon return to the United States, he again requested time
in the form of leave. He was unable to obtain leave for
five months, until it was granted after he sought help from
a Senator. Applicant relates that his First Sergeant warned
him, before he left on leave, that "he was going to make
it as hard for him as he could" when he returned, because he
had sought the assistance of a senator.
Some may have committed their offenses because of their basic unfitness
for military service at the time of their enlistment.
(Case #14813)
Applicant has a category IV AFQT score. He went AWOL because
he was apparently unaware of or did not understand the Army
drug abuse program. The corrections officer at the civilian
prison where he is incarcerated believes that applicant's
retardation, while borderline, makes it impossible for him
to obey rules and regulations.
Sixteen percent committed their offenses because of personal reasons --
usually medical or psychological problems. Half of their problems were
related to alcohol or drugs.
(Case #01371)
Applicant started drinking at age 13 and was an excessive
user of alcohol. Awaiting court-martial for one AWOL
offense, applicant escaped but voluntarily returned shortly
thereafter. He claimed that his escape was partly the result
of his intoxication from liquor smuggled in by another
detainee. A psychiatrist described him as emotionally
unstable, unfit for military service.
The bulk of our military applicants--41%--committed their offenses because
of family problems. Sómetimes these problems were severe; sometimes not.
II-C-25
(Case #00191)
Applicant commenced his absence from a leave status
because of his father's failing health and his mother's
poor economic prospects. He had applied twice for hardship
discharges before his offense. While applicant was AWOL
his father died of a stroke. His mother was left with
a pension of $22 a month; she was a polio victim and unable
to work.
(Case #11835)
Applicant indicated he went AWOL from leave which had been
granted so he could see his wife and newborn child.
Finally, twelve percent of our applicants went AWOL for reasons of
immaturity, borédom, or just plain selfishness. These tended to be people
who could not--or would not-- adjust to military life.*
(Case #14392)
As a youth, applicant experienced numerous conflicts with his
parents and ran away from home on several occasions. He
joined the Army because there was nothing else to do in
the rural community in which he was raised. Applicant had
difficulty adjusting to the regimentaion of Army life, and
he went AWOL four times.
Some of our applicants offered bizarre excuses for their offenses.
(Case #16332)
Applicant states he was traveling across the Vietnamese
countryside with a sergeant, when he and the sergeant were
captured by the Viet Cong. He claimed that he was a POW
for two months before he finally escaped and returned 30 pounds
lighter and in rags to his unit. His unit commander did
not believe his story, and his defense counsel advised him
to plead guilty at his trial.
Our typical applicant went AWOL three times; over four-fifths went AWOL
more than once. They tended to be 19 or 20 when they committed their first
offense, and 20 or 21 when they committed their last offense.
Our applicants' first offense usually occurred between 1968-1970, and their
last between 1969-71. Typically, their last AWOL was their longest, lasting
seven months. One-fourth (25%) were AWOL for three months or less, and 27% were
AWOL for over one year. Only 3% were AWOL for more than four years,
*This 12% figure is considerably less than the 28% of all cases in which our
Board identified selfish and manipulative reasons (aggravating factor #5). The
reason for this discrepancy is that many of the family problems cases involved
such minor difficulties that we had to regard the AWOL offenses as a selfish
neglect of military responsibilities.
IO -C-26
(Case #243)
Applicants 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, they had typically accumulated 14 months
of creditable military service time; 81% had six months or more of creditable
service, enough to qualify them for Veterans benefits. Only 1.1% used any
force to effect their escape from the military.
Over three-quarters (76%) either returned to military control immediately
or settled in their home towns under their own names. Most carried on life
just as they had before they joined the service. Another 13% settled openly
in the United States, and 6% settled in the foreign country where they had
been assigned (often Germany). Only 5% became fugitives: 2% in Canada, 2%
in other foreign countries (often Sweden), and 1% in the United States.
(Case #00847)
Applicant went back to his old job after going AWOL. He
never changed his name or tried to conceal his identity.
While AWOL, most of our applicants (81%) were employed full-time. Only 8%
were unemployed. Often they were working in jobs where they would have been
fired, lost their union membership, or had their trade license revoked if
their AWOL status had been known.
(Case #00230)
During his AWOL, applicant found employment as a title and
carpet installer. He became a union member in that trade.
(Case #08145)
During his AWOL period, applicant worked as a carpenter to
support his sister's family. Later, he worked as a security
guard.
Slightly over half (52%) of our applicants were arrested for their last
AWOL offenses. Some efforts were made to apprehend AWOL soldiers, but those
efforts were startlingly ineffective.*
* Normally, an AWOL offender's commanding officer sent a letter to his address
of record within ten days of his absence. He also completed a form, "Deserter
Wanted by the Armed Forces,' which went to the military police, the FBI, and
eventually the police in the soldier's home of record.
TV-C-27
Either the local police never received bulletins about AWOL. offenders, or
they were unwilling to arrest them. We had countless applicants who lived
openly at home for years until they surrendered or were apprehended by
accident (for example, 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 #03697)
Applicant had a duty assignment at a military office in
Germany. He experienced a great deal of tension, frustration,
and restlessness, culminating in a feeling one day that he
"couldn's 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.
IV-C-28
7.
Experience with the Military Justice System
Upon returning to military control, our applicants had to face some
form of discipline. Some (14%) faced other charges in addition to AWOL or
Desertion. In all cases, their last AWOL offenses factored in their discharge
under other than honorable conditions. Hundreds of thousands of other AWOL
offenders were more fortunate. They received more lenient treatment and
later were discharged under honorable conditions. About twenty-two percent
of our applicants had records reflecting at least one period of unauthorized
absence with no record of punishment.
Most of our Army applicants who were AWOL for over thirty days were
processed, upon their return to military control, through a Personnel Control
Facility (PCF) formerly known as Special Processing Detachments. Life at
these minimum - security facilities was not always easy for our applicants.
(Case #08349) Applicant voluntarily surrendered himself to an Army post
near his home town. He found conditions in the personnel
control facility intolerable due to the absence of regular
work, the prevalence of crime, and the continued lack of
regular pay. He went AWOL again one week later.
While in the PCF, our applicants were processed for administrative or
court-martial action. Also, it was here that the decision was made, in
appropriate cases, to place returning offenders in more secure pre-trial
confinement. At the outset, they were briefed by a JAG officer (a
military attorney) who advised them generally what disciplinary actions to
expect. They were told about their opportunity to request a discharge in
lieu of court-martial.
Some first offenders were quickly re-integrated into military life.
Others faced more uncertainty about their fates. They had to decide, in
most instances, whether to proceed to a trial or accept an administrative
IV-C-29
discharge. The decision to go to trial usually carried the risks of
conviction, a period of confinement, and perhaps a punitive discharge. On
the other hand, a court-martial did not always lead to discharge: A convicted
soldier might be returned to active duty and given an opportunity to serve
our his enlistment (which would be estended by the time he was AWOL and in
confinement). Even if a punitive discharge had been adjudged, a return to
duty was frequently permitted if an individual demonstrated rehabilitative
potential while confined. If no further problems developed, he would
receive a discharge under honorable conditions, with entitlement to
veterans' benefits. In fact, over half (54%) of the courts-martial faced
by our applicants resulted in their return to their units.
(Case #11835) Applicant was convicted of 4 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 trial.
Our applicant's decision to accept an administrative discharge in lieu
of trial amounted to a waiver of trial, a virtual admission of guilt, and
often a discharge under less than honorable conditions. However, the
administrative process was speedier, permitting rapid return home to solve
personal problems. It also involved no risk of imprisonment. However,
although he was avoiding a Federal criminal conviction, he did acquire a
stigmatic discharge. He also lost his opportunity to defend charges against
him. Thus, the choices for our applicants were very difficult.
IV-C-30
If our applicant had established what his commander felt was a pattern of
misconduct, the commander might decide that he was no longer fit for active
duty.
(Case No. 4072) Applicant was discharged for unfitness due to frequent use of
drugs, habitual shirking and repeated AWOL) and demonstrated
inability to conform to acceptable standards of conduct.
The commander would then notify the soldier of his intention to discharge
the soldier, who could choose to fight the action by demanding a Board of
officers, or waive his right to such a Board. If he asked for the Board, the
convening authority would then detail at least three officers to hear the evi-
dence, as presented by the government, and as rebutted by the respondent 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 they believed he should be discharged. (They could also recommend his re-
tention in the service).
If they 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 line between the unsuitability discharge and the unfitness discharge
was often as fine one, yet the choice between them affected an AWOL offender's
reputation and eligibility for veteran's benefits for the rest of his life.
Case #8328)
Applicant was under consideration for an unsuitability discharge.
A military psychiatrist indicated that he suffered from a
character and behavior disorder characterized by "impulsive,
escape-type behavior" and "unresolved emotional needs marked
by evasion of responsibility". Because of this diagnosis of a
severe character and behavior disorder, he expected a General
Discharge. Shortly before his discharge, a racial disruption
occurred in his company, it which applicant took no part. This
disruption led to the rescission of 1 lonient discharge policy,
and applicant was given an Undesirable Discharge for Unfitness.
IV-C-31
The more common administrative procedure, accounting for the discharge
of 45% of our applicants, was the "For the Good of the Service" discharge, in
licu of court martial,* which was granted only at the request of a soldier
facing trial for an offense for which a punitive discharge could be adjudged.
Until recently, it did not require an admission of guilt -- but it did require
that the AWOL offender waive his right to court-martial and acknowledge his will-
ingness to accept the disabilities of a discharge under other than honorable
conditions (e.g. Undesirable Discharge). Unlike our applicants, a few AWOL
offenders received General Discharges through "Good of the Service" proceedings.
Our applicants did not have a right to a discharge in lieu of court-martial;
they could only make a request. To qualify, the AWOL for which the applicant
was facing trial had to range between 30 days and a year and a half, depending
on the standards set by the convening authority where the applicant returned to
military control.
(Case #0664)
Applicant was absent without leave twice for a total of almost
one year and two months. He applied twice for a discharge in
lieu of court-martial for his AWOL's but both requests were
denied.
Occasionally, our applicants indicated that they went AWOL specifically to
qualify for a "Chapter 10" discharge.
(Case 15528)
After his third AWOL, applicant requested a discharge in lieu
of court-martial, which was demied. He then went AWOL three
more times. Ile told an interviewing officer after his 6th
AWOL that he had gone AWOL in order to qualify for a Chapter 10
discharge.
*This is commonly called the "Chapter 10" discharge within the Army, referring
to AR 635-200 Chapter 10.
IO-C-32
AWOL offenders who qualified for a discharge in lieu of trial rarely
chose to face a court-martial. The desire was often strong to leave
PCF or get our of pre-trial
confinement. If a soldier was granted a
Chapter 10 discharge, he was usually allowed to leave the PCF or confine-
ment within one week after his application. One to two months later, he
was given his discharge. Occasionally, our applicants indicated that they
went home expecting to receive a General Discharge, only to get an Un-
desirable Discharge.
(Case #04977)
Applicant's last AWOL ended in a 30-day pre-discharge
confinement, where he refused to sign a Article 15.
He alleged that his First 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. Instead he was
given an Undesirable Discharge. Later, he appealed his
discharge before the Army Discharge Review Board, but
he was unsuccessful.
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, many soldiers
requested discharge, acknowledged that they might be given a UD, but re-
quested that they be furnished a General Discharge in a separate statement.
This may account for some misunderstanding by many applicants as to the
discharge they would receive.
Our applicants who received discharges in lieu of trial generally were
those whose last AWOL ended between 1971 and 1973. The likelihood of re-
ceiving a discharge was greater if their AWOL had been no more than one
year in length.
(Case #612)
Applicant wrote that he looked around for ways to deal
with his personal pressures and finally decided to go AWOL.
I0-C-33
(#612) cont'
After three months living in a "hippie commune" he
returned with the expectation he would be discharged.
He obtained a discharge in lieu of court-martial.
The following two tables relate the effects of year of discharge and length
of last AWOL on the type of punishment which our applicants received.
YEAR OF DISCHARGE
1966
1967
1968
1969
1970
1971
1972
1973
UD - in lieu of trial
3%
1%
11%
37%
34%
67%
62%
56%
UD - Unfitness
26%
25%
27%
19%
10%
12%
6%
32%
Punitive Discharge
(court-martial)
71%
74%
62%
54%
56%
21%
32%
32%
LENGTH OF AWOL
0-6 Months
7-12 Months
over 12 Months
UD - Discharge in Lieu of trial
50%
45%
36%
UD - Unfitness
21%
10%
7%
Punitive Discharge
(court martial)
29%
45%
57%
It is worth noting that 51% of our AFQT Category IV applicants received
discharges in lieu of trial compared to 44% of our Category II and III appli-
cants and only 32% of our Category I applicants. Blacks were about equally
as likely as whites to receive Chapter 10 discharges (46% versus 44%) , but
Spanish-speaking soldiers were much more likely to receive them (66%)
15-C-34
Some of our applicants requested -- or the military insisted -- that
they face court-martial for their offenses. In a court-martial, they had
greater opportunity to deny or explain all charges brought against them,
with benefit of counsel and with full advance knowledge of the prosecution's
case. They also faced the threat of a punitive discharge and imprisonment.
An accused soldier enjoyed at least as many rights at trial as an accused
civilian. Usually, his court-martial took place very promptly, limiting
pre-trial delays (and therefore, confinement or residence at the PCF) to
two or three months at most.
There were three forms of court-martial. The Summary Court-Martial
consisted of a hearing officer (Summary court officer) who called witnesses
for the prosecution and defense, rendered a verdict, and adjudged sentence.
The summary court adjudged no sentence greater then confinement at hard
labor for one month (and then only if the accused was in pay grade E-4 and
below), 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
197_, no confinement could be adjudged unless the accused were represented by
counsel, as a consequence of the ruling by the Supreme Court in Argisinger
V. United States. No transcript of the trial was kept, and there was no
judicial review. However, a summary court never sat in judgment without the
express consent of the accused, who could refuse the court and leave to the
convening authority the decision whether to refer the charges to a higher
court. Altogether, 16% of our applicants faced a summary court-martial
at least once.
*Soldiers in grade E-5 and above could be reduced only to the next inferior
pay grade.
10-C-35
Altogether, 40% of our applicants stood court-martial for their last
AWOL offense. Of those, about 16% pled "not guilty.' All were convicted,
and all but a few received punitive discharges. They were further sentenced
to pay forfeitures, reduction-in-rank, and imprisonment for typically
seven months. Their sentences were often reduced through the automatic
review of the Court of Military Review. Our court-martialed applicants'
final sentences averaged five months, with only 3% having to serve more
than one year in prison.
Our applicants who were punitively discharged had their cases reviewed
for errors of law by a JAG officer responsible to the court-martial con-
vening authority. They were further reviewed for errors of fact or law by
a Court of Military Review (previously known as Boards of Review) and
occasionally by the Court of Military Appeals.
Few of our applicants voiced objection to the fairness of their trials,
but some complaints were heard.
(Case #00423)
Applicant, a Vietnam veteran, sustained some sort of eye
injury (probably in Vietnam) which caused his retina to
become detached. He is now nearly blind in one eye. At
trial, his counsel attempted to introduce the testimony
of his attending ophthalmologist to prove that he
absented himself to obtain medical treatment, not to
desert. The military judge refused to admit the
ophthalmologist's testimony, in the absence of indepen-
dent evidence of its relevancy. His decision was upheld
on appeal.
Sentences under 30 days were usually served at the post stockade. Con-
victed but undischarged AWOL offenders sentenced to more than one month of
imprisonment were transferred to the Army Retraining Brigade at Fort Riley,
Kansas. Efforts were made to rehabilitate the offender and enable him to
*The percentage tallies for the three types of courts-martial add up to more
than 40% because many of our applicants faced court-martial for more than
one AWOL offense.
10-C-36 -C
complete his military service successfully. However, many were habitual
offenders. For other, military life became even more difficult after
confinement.
(Case #356)
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 harrassed, ridiculed,
and assigned to demeaning work. He found this intolerable
and he went AWOL again.
Those who were pending punitive discharges and had received sentences
of over 30 days were sent to the Disciplinary Barracks at Fort Leavenworth,
Kansas. Approximately 170 of our applicants were still serving their terms
when the President's Clemency Program was announced. They were all released
upon their application for clemency.
10-37
The 54% of our applicants who faced a Special Court were tried by a
court of officers unless they specifically requested that at least one-third
of the court be enlisted members.
(Usually of high rank). After 1969,
a military judge normally presided over the trial, and the accused was en-
titled to request that the military judge alone hear the case and adjudge
sentence. In the absence of a military judge, the President of the court of
members (the senior member) presided over the trial.
The 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 grade E-1, and a Bad Conduct Discharge. OF our applicants tried by
a Special Court, 50% received a Bad Conduc t Discharge. The other half were
returned to their unit.
The 13% of our applicants 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.
Of our applicants tried by a General Court, 99% were ordered discharged, al-
most all (85%) with a Bad Conduct Discharge.
The General Court was similiar in composition and procedure to the
Special Court, Our applicants facing Special or General were entitled
to free JAG defense counsel after 1969. The service detailed defense
counsel to them, and permitted them any counsel requested by name, provided
the attorney was "reasonably available." They also could hire a civilian
attorney, but at their own expense. The rules of evidence were followed and
a verbatim record of trial was required if punitive discharge was adjudged.
* In the Army, a Bad Conduct Discharge was adjudged only where
the convening authority expressly authorized the Special Court to
adjudge a punitive discharge.
IV-C-38
Effects of the Bad Discharge
All of our applicants had one experience in common: They all received bad
discharges. Sixteen percent received Undesirable Discharges for Unfitness, and
45% received Undesirable Discharges in lieu of court-martial. * Those who faced
court-martial and received punitive discharges received Bad Conduct Discharges (38%)
or Dishonorable Discharges (2%). In some states a court-martial conviction, parti-
cularly if a discharge or confinement over one year were adjudged, imposed the
same disabilities as a felony conviction in the civilian courts. Thus, some of
our applicants lost their voting and property rights and the opportunity to obtain
certain licenses by virtue of their punitive discharge.*
Civilian courts have taken judicial notice of the less-than-honorable discharge,
calling them
"punitive in nature, since it stigmatizes a serviceman's reputation, impedes
his ability to gain employment and is in life, if not in law, prima facie
evidence against a serviceman's character, patriotism or loyalty.*
*
Before applicants could submit to any proceeding which might result in un-
desirable discharge, each was warned as follows:
"I understand that I may expect to encounter substantial prejudice in
civilian life in the event a general discharge under honorable conditions
is issued me. I further understand that as a result of the issuance of
an undesirable discharge under conditions other than honorable, I may be
ineligible for many or all benefits as a veteran under both federal and
state laws and that I may expect to encounter substantial prejudice in
civilian life."
Stapp V Resor, 314 F. Supp.
; accord Sofranoff V. U.S. ; 165 Ct. C1. 470,
478 (1964), Glidden V. U.S., 185 Ct. C1. 515 (1968), Bland V. Connally,
293 F. 2d. 858 ( Cir 1961)
CHAPTER IV: PCB APPLICANTS
D. Conclusion
SALED B TORD
D-Conclusion
An estimated 113,000 persons could have applied for clemency.
Only 22,300 did apply. Who were the 90,000 who did not? Why did they
fail to apply? What happens to hem now?
Who Were They?
The following table identifies non-applicants in a very general sense:
Percentage of
Total Number of
Clemency Program
Type of Applicants
Non-Applicants
Non-Applicants
PCB
Military -UD
87%
56,600
PCB
Military-BCD/DD
78%
19,400
PCB
Convicted Civilians
77%
6,700
DOD
Military absentees
47%
3,800
DOJ
Fugitive civilians
84%
3,800
Total
80%
90,400
We know little more about their characteristics than what this table
shows. Discharged servicemen with Undesirable Discharges were the least
likely to apply, in terms of percentage and total numbers. This is
probably attributable to the fact that we mailed application materials
to eligible persons with punitive (BCD/DD) discharges, but were unable to
do so for those with Undesirable Discharges.
The Department of Defense had access to the military records of its
eligible non-applicants. Using these records, it could make comparisons
between its applicants and non-applicants. In most ways, they were alike --
family background, AFQT score education, type of offense, circumstances of
offense, and so forth. Only a few clear differences could be found. Non-
applicants committed their offenses earlier in the War, they were older,
and they were more likely to be married. This implies that many may not
have applied because their lives are settled, with their discharges more
a matter of past than present concern.
If the Department of Defense findings are correct --in other words,
if non-applicants are not very different from applicants -- we can make some
estimate as to how many draft resisters of deserters ever were Canadian
exiles. In our program, 2% of our military applicants and 6% of our
civilian applicants had at one time been Canadian exiles. In the Defense
program, 2% had been Canadian exiles, Most of the Department of Justice
applicants had been Canadian exiles, but no real data exists. Even assuming
that all of the Justice applicants had been exiled, this indicates that
only about 7,000 persons eligible for clemency had ever been Canadian exiles.
This amounts to only 6% 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 Canadian
exiles; most are those who declined to apply to the Department of Justice
program. It is unlikely that many of them misunderstood their eligibility
for clemency.
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 inperfect counting methods. For example,
figures of up to 100,000 were derived from the numbers of files on American
emigrants at aid centers. Many emigrants were not draft resisters or
deserters, and many had files at more than one center.
Why did they Fail to Apply?
We can identify five reasons why eligible persons did not apply for
clemency. We have listed them below in order of the significance we attribute
to each of them.
Misunderstanding about eligibility criteria. Despite our public
information campaign, many eligible persons may never have realized
that they could apply for clemency.
Misunderstanding about the offerings of the program. Many prospective
applicants may have been concerned about the usefulness of a Clemency
Discharge. Others may not have known about the Presidential pardons
given to all applicants to our Board -- or they may not have realized
that our applicants were asked to perform an average of only three months
of alternative service.
Settled status. Others may not have cared about the kind of discharge
they had, or they may have been concerned that their application would
have made their discharge public knowledge.
Inability or unwillingness to perform alternative service. Some
individuals might have feared that if they quit their jobs to perform alterna-
tive 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.
General distrust of government. Unfortunately, some may not have
applied because they were afraid that, somehow, they would only get in
trouble by surfacing and applying for clemency. Some might have been
unsuccessful in pursuing other appeals, despairing of any hope that a
new appeal would be of any help.
Opposition to the program. Some might have felt, for reasons of
conscience, that only unconditional amnesty would be an acceptable basis
for them to make peace with the government.
What Happens to Them Now?
Civilians convicted of draft offenses and former servicemen discharged
for AWOL offenses will have to live with the stigma of a bad record. They
still have the same opportunities for appeal that existed before the
President's program -- principally through the United States Pardon Attorney
and the military Discharge Review Boards -- but their prospects for relief
are, realistically, remote.
Military absentees still in fugitive status can surrender 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. If their names are on that
list, they can surrender to the United States Attorney in the district where
they committed their draft offense. They will then stand trial for their
offenses. Although there have been exceptions, convicted draft offenders
have been recently sentenced to 24 months of alternative service and no
imprisonment. But they still have a felony conviction, involving a stigma
and a loss of civil rights.
What Happens to Them Now?
Civilians convicted of draft offenses and former servicemen discharged
for AWOL offenses will have to live with the stigma of a bad record. They
still have the same opportunities for appeal that existed before the
President's program -- principally through the United States Pardon Attorney
and the military Discharge Review Boards - - but their prospects for relief
are, realistically, remote.
Military absentees still in fugitive status can surrender 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. If their names are on that
list, they can surrender to the United States Attorney in the district where
they committed their draft offense. They will then stand trial for their
offenses. Although there have been exceptions, convicted draft offenders
have been recently sentenced to 24 months of alternative service and no
imprisonment. But they still have a felony conviction, involving a stigma
and a loss of civil rights.
Revised Draft
Chapter VII: Conclusions
07/079
CHAPTER VII: CONCLUSIONS AND RECOMMENDATIONS
The President's Clemency Program was, very broadly speaking, an effort
to heal some of the wounds of the Vietnam era. The Presidential Proclamation
gave a clear mandate to our Board and to the Departments of Defense and
Justice to achieve that objective.
Inescapably, we must ask whether the Clemency Program did in fact carry
out the President's mandate. How successfully did we implement the spirit of
each of the President's six principles?
(1) The need for a program
(2) Clemency, not amnesty
(3) A limited, not universal, program
(4) A program of definite, not indefinite length
(5) A case-by-case, not blanket, approach
(6) Conditional, not unconditional clemency
Earlier in this report, we have described what we and other agencies have
done to implement these six principles. On the whole, we are confident that
the program reflected the spirit of the Presidential Proclamation which created
it.
E. The Need for a Program
As requested by the President, the designated agencies did develop a
program which dealt directly with the issue of reconciliation for draft
resisters and military deserters. Therefore, the public need for a Presidential
response to this issue, very clearly felt just one year ago, now no longer
exists. The President's Clemency Program is not the answer that many would
have chosen, but it has been widely accepted as a compromise. A recent survey
of public opinion conducted by the Gallup Organization in August, 1974,
discovered that 47% of the American people approve of a conditional program
such as President Ford's. (The others who offered opinions were almost
equally divided between the 24% who thought he was too generous and the 18%
- 2 -
who thought he was not generous enough). We are confident that the
President's program has helped enable all Americans to put their war-
engendered differences aside and live as friends and neighbors once again.
The same Gallup Poll found that the overwhelming majority of Americans --
85% -- are now willing to accept clemency recipients into their communities
on at least equal terms. We are strongly convinced that an unconditional
amnesty would have achieved much less of a reconciliation among persons who
had strong differences of opinion during the Vietnam War. In fact, such a
policy might have exacerbated those differences.
The discussion of clemency or amnesty in the public forum has abated
with surprising swiftness since the announcement of the program. It once
was the constant subject of Congressional debate, newspaper editorials, and
opinion polls. After the program started, discussion focused more on the
details of the program than on the broader question of clemency versus
amnesty. Today, the issue is virtually dormant. Whether this reflects
positive acceptance, quiet acquiescence, or disinterest on the part of the
public is a question which we cannot answer.
Part of the reasons for the diminished public interest in clemency may
have been the low profile maintained by the other agencies and ourselves.
We do wonder whether a higher profile might have led to an even greater
public acceptance of the program. We believed, at first, that the same
public which had shown such keen interest in the amnesty issue beforehand
would be reasonably well informed about what was in the President's offer
of clemency. During the late winter weeks, we tried to focus more public
*Contrast this with a Gallup/Newsweek poll in
, which found that only
% favored a program of conditional clemency, with
% favoring uncondi-
tional amnesty and
% no program at all. The complete results of the recent
Gallup Poll are included in Appendix
.
- 3 -
interest on the program. As we traveled throughout the country to speak with
local media and counseling organizations, we were boggled by the misconceptions
we found. It was indeed the rare person who already knew of the eligibility
of former servicemen with bad discharges because of desertion offenses -- who
constituted 100,000 of the 125,000 persons covered by the President's program.
We also found that many people who originally had been critics of the program
came away from our meetings as supporters, once their misconceptions had been
corrected. Everyone was astonished to learn that, in the overall clemency
program, there were three times as many applicants who were Vietnam veterans
as there were Canadian exiles. Unfortunately, we suspect that a majority of
Americans still misunderstand what the program offered, who was eligible, and
what the typical clemency applicant was like.
On balance, we consider the program's very low profile from September
through January to have been a mistake. We believe that the program could have
been very popular with the American public. It also could have reached more
eligible persons. Despite this, the need for a program has been satisfied,
and the American people seem reasonably content with the program which evolved.
Along the way, some of the wounds of the Vietnam Era may well have been healed.
Finally, the President's clemency program was not--and should not be
interpreted as--a denigration of the sacrifices of those who served honorably
or lost loved ones in the Vietnam conflict. We are particularly concerned
about the employment opportunities of the 2,500,000 veterans who served in
Vietnam and feelings of the estimated 250,000 parents, wives, brothers, sisters,
and children of soldiers who lost their lives in Vietnam. These are individuals
deserving of our utmost respect. We are confident that the President's
clemency program did them no harm; we are equally confident that a program
of unconditional amnesty would have led many of these people to believe, in
good conscience, that their sacrifices had been downgraded.
Clemency, Not Amnesty
While it was never intended that the clemency program offer reparations or
even a total restoration of status for all its applicants, it was intended that
the program be "clement" and offer something of value to its applicants. Did
applicants in fact receive anything of value?
Beyond question, applicants to the Department of Justice program received
something of value. They are the only clemency recipients who will emerge with
a clean record; once they complete their alternative service, their prosecutions
will be dropped. Thus, their draft offenses should not affect their future
opportunities to find jobs, housing and so fourth. However, their clean record
comes at some risk. If a fugitive draft resister returned from Canada and en-
rolled in the Justice program, he must complete his alternative service. If he
does not, he could be subject to immediate prosecution for his draft offense and
would not be allowed to return to Canada if he so chose.
Applicants to the Defense program were benfited primarily insofar as they
immediately ended their fugitive status and avoided the risk of facing a court-
martial and possible imprisonment. They immediately received Undesirable Dis-
charges. (If he was one of 42 particularly meritorious cases, he received full
entitlement to Veteran's Benefits). Although he can be held accountable for
failure to complete alternative service, he is unlikely to be prosecuted for such
a failure. For such a prosecution to succeed, it must be shown that he did not
intend to do alternative service at the time he enrolled in the program -- a sub-
jective piece of evidence which is difficult to prove. If he does complete
alternative service, he receives a Clememcy Discharge to replace the undesirable
discharge given him when he enrolled in the Defense program.
Almost none of the applicants to the Presidential Clemency Board were fugitives,
the rare exception being the civilian who fled to avoid punishment after his
conviction. As a result, the major benefit of the other two programs -- putting
an end to one's fugitive status -- is of no consequence to our typical applicant.
He had already settled his score with civilian or military authorities. He owed
no Pardon, the highest symbolic Constitutional Act which the President could do on
behalf of any of our applicants. Still, pardons result in no more than a partial
restoration of an applicant's records and rights, blotting out neither the fact
nor the record of conviction. Under present practice, no records are sealed.
The benefits of a pardon lie in its restoration of the right to vote, hold office,
hold trade licenses, and enjoy other rights described earlier. In a recent survey
of employer attitudes, Dr. William Pearman found that 41% of national and local
employers would discriminate against a convicted draft offender who performed
alternative service and received a pardon, versus 75% who would discrimate against
him if he did not reveive clemency. / Local employers would discriminate against
him much more than national employers.
A military applicant to the PCB receives a pardon as well as a Clemency Dis-
charge. If he had any felony Court-Martial conviction, the pardon restores the
same rights to him as to a civilian applicant with a Federal draft offense convic-
tion. If he never had a felony Court-Martial conviction (for example, if he re-
ceived an administrative discharge), the pardon neither restores rights nor immu-
nizes him from further prosecution, since he already enjoys such an immunity by
reasons of his discharge. The usefulness of the pardon is limited to its possible
impact on military discharge review boards, courts, and other agencies which other-
wise would be obligated to take note of his prior Court-Martial conviction and bad
The percentage who would discriminate against if he did no alternative service
would be 57%.
/ The precentage who would refuse to consider hiring him if he did no alternative
service would be 16%.
/ Dr. Pearman's Study is presented in full in Appendix . His findings on
discrimination against Undesirable and General Discharges are corroborated by two
other surveys on the subject. See
.
/ The percentage who would discriminate him if he did no alternative service is 47%.
/
The percentage who would refuse to consider hiring him if he did no alternative
service is 18%.
military record. Whether a Clemency Discharge plus a Presidential Pardon means
more to employers than a Clemency Discharge standing alone is unclear; it is
possible, prehaps even likely, that it adds nothing in tangible terms-- except
where trade license restrictions are involved.
Critics of the President's program contend that a Clemency Discharge is at
best worth nothing, since it is not a discharge under honorable cinditions; and
confers no veterans benefits. They further contend that it may be harmful, since
/
it stigmatizes individuals as having committed AWOL or disertion offenses.
In his recent survey, Dr. William Pearman found that employers view Clemency
Discharges as almost the equivalent of General Discharges / If a job applicant
with a Clemency Discharge earned it through alternative service, the percentage of
employers who would discriminate against him (40%) is about the same as if he had
a General Discharge (39%), and much less than if he had an Undesirable Discharge
(75%)
/ The percentage of employers who would refuse to consider hiring him
(6%) is not much larger than if he had a General Discharge (5%), and much less
than if he had an Undesirable Discharge (34%).
The reasons why some employers discriminated against clemency recipients were
the unfairness of giving him a job when so many veterans with Honorable Discharges
are unemployed, and the likelihood of his untrustworthiness and undependability.
The reasons why some employers discriminated against clemency recipients were the
unfairness of giving him a job when so many veterans with Honorable Discharges are
unemployed, and the likelihood of his untrustworthiness and undependability. The
reasons given for not discriminating against them are his satisfaction of his
national service obligation through alternative service, and the lack of any rela-
tionship between his desertion offenses and his potential performance on the job.
There is no truth to the further allegation that a clemency discharge disqualifies
an individual from ever receiving veterans' benefits; it simply does not alone bestow
benefits. Whatever appeal rights one had with an Undesirable or Bad Conduct Discharge,
one still has with a Clemency Discharge.
National employers would discriminate against Clemency Discharges less often
than local employers.
This study cannot be considered conclusive evidence of the worth of a Clemency
Discharge, but it does indicate that there may be a reservoir of generosity and
good will towards those who sought and earned clemency. If this is true, then
applicants to the Defense program do receive something of value for performing
alternative service. Still, their greatest benefit from applying for clemency,
is the end they put to their fugitive status and to their chances of going to
jail for their AWOL offenses.
However, we realize that most of our applicants were interested in more
tangible benefits--especially veterans benefits. While we do not suggest that most
or our applicants should have rejected these benefits, some of them were combat
veterans. Others had injuries or disabilities resulting from their military service
It is not yet clear whether clemency recipients will be dealt with clemently by
agencies which review their subsequent appeals for discharge upgrades or veterans
benefits.
Beyond this, we are concerned that many of our applicants will not understand
what they have received from the Clemency program. Staff conversations with appli-
cants indicate that there are many applicants who do not understand our telegrams
and letters describing their grants of clemency. Without face-to-face counseling,
it is possible that many of them will never know what to write on employment appli-
cation forms about their discharge. Many others may not realize that they can
still apply to Discharge Review Boards for a discharge upgrade or to the Veterans
Administration for veterans benefits.
Impact on Persons Not Receiving Clemency
It was a consistent principle of the President's Clemency Program that no one
be coerced into applying for clemency--or made worse off as a result of having
applied. To do otherwise would be neither clement nor fair. For this reason,
we are concerned about the impacts of the clemency program on those who did
not apply, did not complete alternative service, or were denied clemency.
The Clemency Program may have stimulated a greater public tolerance for every-
one who committed draft or AWOL offenses during the Vietnam era. If so, those
who did not receive clemency could benefit from the goodwill extended to those
who did, We expect that this will be the case.
Of course, the reverse may be true: Individuals who could have applied for
clemency but failed to do so (out of choice or ignorance) might face greater
public disrespect than ever before. If an individual were eligivle for but did
not receive clemency, it is possible that adjudicative or administrative bodies
will take adverse notice of that fact when dealing with that individual. For
example, a military discharge review board might look with particular skepticism
at an upgrade appeal of a person who might have applied for clemency, but did not.
The Veterans Administration may do the same for former servicemen appealing for
veterans benefits despite their bad discharge. Sentencing judges, law enforce-
ment officials, licensing bodies, credit agencies, and others may likewise
look askance at an eligible person's failure to receive clemency. With over
100,000 of the estimated 125,000 eligible persons not having applied for clemency,
these possibly adverse impacts are of great significance.
We were the only clemency granting agency who denied clemency to some of
our applicants (about 5%--or 800 cases). In making those case dispositions, we
did not intend to leave those individuals in a worse position than before they
applied. It is possible that those to whom we denied clemency--or who fail to
complete alternative service--may be worse off than before they applied. Being
denied clemency may be a personal embarrassment and, perhaps a stigma. We did
not announce the names of those denied clemency, and we are concerned that the
confidentiality of those individuals not be infringed upon by anyone else. We
are equally concerned about the confidentiality of those who fail to complete their
alternative service.
Conditional, Not Unconditional Clemency
The qualities of mercy and forgiveness inherent in the President's program
should not be interpreted as an admission that those who broke the law were correct.
By creating the program, the President never intended to imply that the laws were
wrong or that the clemency applicants were right. We believe that rights and
responsibilities of citizenship are central to the theme of any meaningful clemency
or amnesty program and any such program must be evaluated in terms of its rein-
forcement of those rights and responsibilities.
We realize that there is not now and may never be a national consensus on what
a citizen's responsibilities are during time of war--especially if that citizen
cannot support the war on religious or ethical grounds. We can only take a
position on the subject in the same manner as any citizen (or group of citizens)
might. We represent a cross-section of backgrounds, views, and personal interests,
however, so our own consensus on this point may be of some interest.
We believe that when a citizen breaks a law he considers unjust, it is his
responsibility to accept the designated punishment for his offense. Likewise, it is
the responsibility of his government either to punish him or to change its laws, to
prevent (or deterrent) impact of punishment is no longer important--in other words,
once the unpopular war has ended--it is the govenment's further responsibility to
temper its punishment with compassion and mercy. However, official forgiveness for
an individual's failure to serve his country in time of war does not discharge him
from his outstanding obligation of national service. Only in circumstances where an
individual's punishment could be construed as a fulfillment of his obligations of
national service do we believe that anyone can be officially "forgiven" without per-
forming alternative service in the national interest.
Likewise, we consider it fair for the President to have conditioned his grants
of clemency upon a good faith application form an eligible person. Executive
clemency means more when it is an offer, not just a pre-emptory gift. The President,
speaking for the American people, offered reconciliation. That reconciliation must
be mutual. If the 100,000 non-applicants were to hav knowingly accepted his offer,
this President--and, indeed, this country--would owe them nothing more. Our only
concern about those who did not apply is that many have failed to realize in time
they were eligible.
However, we belive that the conditions must have been reasonable for the program
to have been fair. This means two things: First, applicants must have had a reason-
able opportunity to fulfill the condition of application. They must have recognized
thier opportunity and obligation to apply. As described later, we have some doubts
about whether many of our non-applicants did recognize such an opportunity. If this
is ture, the program's condition of application may have been fair in theory, but
unfair in effect.
Second, applicants must had a reasonable opportunity to fulfill the condition of
alternative service. Understandably, the fulfillment of one's obligation of service
should involve some personal sacrifices, but it need not entail hardship. The cause
of national reconciliation is hardly served if an individual quits his job to do
alternative service for three months, cannot regain his job afterwards, and has to go
on welfare as a result.
Our applicants were typically assigned to 3 - 6 months of alternative service.
We assigned such short periods in recognition that our applicants' obligation of nation-
al service had already been partially fulfilled, and we were asking only for an
additional gesture of service. According to Selective Service, full-time alternative
service jobs of such short duration are hard to find. Also, some of our applicants
are reluctant to risk losing their current jobs through such a brief interruption.
Over half of our applicants have wives, children, or others dependent upon them for
financial support. In performing alternative service, we are concerned that many may
complete their alternative service periods without doing any work -- because of their
inability (and Selective Service's inability) to find appropriate work. Similarly,
we are concerned that many others may be terminated from the program because of their
unwillingness to quit steady jobs for other work of such a short duration.
By recommending short periods of alternative service, it was not our intent to
deny pardons to those individuals. If a sizeable proportion fail to complete
alternative service, an important part of our Board's mission will also have failed.
A Limited, Not Universal, Program
On balcance, we consider the scope of the program to have been quite generous.
Rather than require a test of sincere opposition to the Vietnam War (which would have
been unfair to people less able to articulate their views), the program was designed
to include anyone whose offense may have involved opposition to the war or the military.
Sixteen percent of the military applicants to our program and 81% of the applicants to
the DOD program went AWOL out of opposition to the war or military, demonstrating the
generosity of the program in defining eligibility. However, some categories of in-
dividuals remained ineligible despite the obvious relationship between their offenses
and their opposition to the war. The clearest example of this was the serviceman who
refused to obey an order to go to Vietnam. In his case, the military could have
discharged him either for missing movement (qualifying him for clemency) or for dis-
obeying orders (not qualifying him for clemency).
A Program of Definite, Not Indefinite, Length
The Clemency program was at first scheduled to accept applications fot 4½
months. Because of a surge in our applications, two one month extensions were
granted by the President. His apparent purpose of ending the program was to
put the issue of clemency behind us as quickly as possible, so that we might
also put the War behind us as quickly as possible.
Out of an estimated 123,000 persons eligible for clemency, only 22,500
actually applied to the three separate programs. This 18% application rate seems
disappointing at first glance; however, for a program which accepted applications
for only six months, that percentage is unusually large. To our knowledge, there
has been no other Federal program which has drawn such a rapid response during
its first six months. For example, HEW's Supplemental Income Security program,
offering cash grants for low-income elderly persons, received applications from
only 9% of its eligible target group during its first six months, and it took a
full year for the program to match the clemency program's figure of 18%. This
was true despite SIS's well-financed promotional campaign. Given the short time
span and limited resources of our outreach efforts, we consider our application
rate to be rather high. Unfortunately, we can take little solace from that fact.
The SIS program is still accepting applications, but we are not.
We believed, at first, that those eligible for clemency would be well-educated,
well-informed, and alert to a communications "pipeline" among themselves which
would carry the news about the program. We also believed that veterans counselors
would correctly advise former servicemen with bad discharges about their eligi-
bility for the program. Both of these assumptions were wrong. A late December
survey of twelve persons eligible for clemency showed that not one of them knew
he could apply. In early January, the mother of a Vietnam Veteran with a bad
discharge because of AWOL contacted General Lewis Walt of our Board to ask if
the local Veterans Administration office had been correct when it told her that
her son was not eligible for clemency.
Our Public Information campaign did not begin until mid-January, yet it
stimulated a five-fold increase in applications before the month ended -- and
over a twenty-fold increase before the second deadline extension expired at the
end of March.
The application period was surely sufficient for those who knew from the start
what the program offered them. They had ample time to make up their minds about
applying. We suspect (but we cannot be sure) that virtually all of those eligible
for the Department of Justice had such a sufficient period. However, it is our
understanding that the number of applicants to the Department of Defense program
was less than it might have been because of widespread misunderstandings about
the fairness and decency of the procedures followed by the Clemency Processing
Center at Fort Benjamin Harrison. Likewise, it is our firm belief that the small
percentage of applications to the Presidential Clemency Board was attributable to
the lack of public awareness of our eligibility criteria. The rising monthly tallies
of new Board applications (800 through December, 4000 in January, 6000 in Feburary,
10,000 in March) indicates that even more applications would have been received
had our program (and Public Information campaign) continued. Informal Telephone
Polls conducted by our staff found that even as late as March, 90% of our appli-
cants had only learned of their eligibility within the past few days. Usually
a news article or television announcement had been responsible for their appli-
cantion.
The degree to which the American public still misunderstands the President's
program was illustrated by the recent Gallup poll. A substantial 72% of the
American public had heard of the clemency program; 17% realized that it includ-
ed fugitive draft resisters and deserters in the U.S., and 43% thought that it
was for fugitive draft evaders and deserters in Canada and other countries.
However, very few -- 15% -- understood that convicted draft offenders and discharged
AWOL offenders could apply to the Board. Only 14% thought that a Vietnam Veteran
discharged for a later AWOL could apply for clemency. It is worth noting that the
percentage of the public which understood our eligibility criteria corresponded
almost exactly with the percentage of our eligible persons who applied by the
March 31, deadline.
It is our firm conviction that many eligible persons did not apply because,
even by the end of March they still did not know they could apply. As the Gallup
*
poll indicated, they probably still do not know that the program was for them.
The Gallup Poll discovered that a slight plurality of Americans (48% versus
42%) do not favor a reopening of the President's program. However, the widespread
misunderstanding about our eligibility criteria requires that a different perspective
be taken of these results. In effect, % favor giving eligible persons a second
chance to apply. We expect that a much greater percentage would favor giving un-
informed eligible persons a first chance to make up their minds about applying.
A Case-By-Case, Not Blanket, Approach
Despite the wholly discretionary character of any grants of executive clemency,
our program must be judged in terms of the fairness of our rules and the consistency
with which we followed them. To be worthy of the respect and confidence of all
citizens, we must have observed the basic principles of a fair legal process.
Questions of process arise primarily in any Clemency/Amnesty program which
follows a case-by-case approach. Any blanket amnesty program would raise relatively
few, if any, due process issues. The proper context for any discussion, therefore, is
wether the President's program satisfactorily dealt with this extra burden. Absolute
--- not comparative -- standards apply. Administrative requirements cannot be used as
a justification for any short-cuts of due process.
At the Presidential Clemency Board, we have made every effort to apply fair rules
and follow them with consistency. We occasionally had to modify our rules in mid-course,
sometimes before corresponding changes could be made in our regulations. However, this
was only done when it appeared that the rights and interests of our applicants would
not be affected. The procedures which we imposed upon ourselves--quality control of
casework, codification of policy precedents, the 30-day period for applicants to comment
on their case summaries, and post audit of case dispositions--often--added time and
administrative difficulty to our process, but we considered them essential to maintain
the quality of our work. The seriousness with which we took our responsibilities was
exemplified by our publication of an in-house professional journal, the Clemency Law
Reporter. Our Board and staff of over 300 attorneys maintained a continuous dialogue
about how our procedures were or werenot consistent with due process; when changes
were felt necessary, they were made. Ours was not a perfect process--it certainly was
too time-consuming to suit us--but it was a reasonable one, carried out in good faith.
We consider our baseline formula, mitigating factors, and aggravating factors to
have been fairly developed and fairly applied. Uniformly, they were developed through
a clear process of Board consensus about what was relevant about the backgrounds of our
applicants. Through the publication of policy precedents in the Clemency Law Reporter,
we internally codified our policies. We applied them as consistently as could be
expected, given the fact that all but a few hundred of our cases were decided in three-
person Board panels.
On balance, the case by case approåch offered us a means for making the right
kind of clemency offer to each of our applicants. Without it, we might have been less
generous with Vietnam veterans and persons who committed their offenses because of
conscientious opposition to war. Likewise, we might have been more generous with those
whose offenses resulted from irresponsibility, selfishness, or cowardice. This would
have had the effect of demeaning the President's Constitutional pardoning powers.
Blanket amnesty would have treated all cases alike. This would have been funda-
mentally unfair -- to our applicants and to the American people. Consider the following
two cases:
FURD
(Case # 09067) Applicant did not go AWOL until after returning from two tours
of duty in Vietnam, when his beliefs concerning the war changed.
He came to believe that the 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 #00206)
Applicant met his wife, a Danish citizen, shortly after arriving
in Germany on a military assignment. She became pregnant, and he
went AWOL to marry her. After turning himself in, he was returned
to Germany and placed in pretrial confinement. However, he escap-
ed and went to Sweden, where he applied for asylum. While in
Sweden, he had numerous arrests for theft and narcotics charges,
received a sentence of 10 months imprisonment, and was deported
to the United States
Were the President to grant a Pardon to the second applicant, he would
have cheapened the Pardon granted to the first. His friends and employers
would have been more reluctant to acknowledge that he had earned his Pardon.
Likewise, the American people might have assumed that, since all applicants
would have been treated alike, all applicants would have been alike. Many of the
hard feelings generated during the Vietnam War resulted from such blanket judg-
ments. By fostering such an attitude, blanket amnesty might have perpetuated --
and not healed -- the wounds of an era.
Revised Draft
Chapter VII: Conclusions
&
FOR
WALD
CHAPTER VII: CONCLUSIONS AND RECOMMENDATIONS
The President's Clemency Program was, very broadly speaking, an effort
to heal some of the wounds of the Vietnam era. The Presidential Proclamation
gave a clear mandate to our Board and to the Departments of Defense and
Justice to achieve that objective.
Inescapably, we must ask whether the Clemency Program did in fact carry
out the President's mandate. How successfully did we implement the spirit of
each of the President's six principles?
(1) The need for a program
(2) Clemency, not amnesty
(3) A limited, not universal, program
(4) A program of definite, not indefinite length
(5) A case-by-case, not blanket, approach
(6) Conditional, not unconditional clemency
Earlier in this report, we have described what we and other agencies have
done to implement these six principles. On the whole, we are confident that
the program reflected the spirit of the Presidential Proclamation which created
it.
E. The Need for a Program
As requested by the President, the designated agencies did develop a
program which dealt directly with the issue of reconciliation for draft
resisters and military deserters. Therefore, the public need for a Presidential
response to this issue, very clearly felt just one year ago, now no longer
exists. The President's Clemency Program is not the answer that many would
have chosen, but it has been widely accepted as a compromise. A recent survey
of public opinion conducted by the Gallup Organization in August, 1974,
discovered that 47% of the American people approve of a conditional program
such as President Ford's. (The others who offered opinions were almost
equally divided between the 24% who thought he was too generous and the 18%
- 2 -
who thought he was not generous enough). * We are confident that the
President's program has helped enable all Americans to put their war-
engendered differences aside and live as friends and neighbors once again.
The same Gallup Poll found that the overwhelming majority of Americans --
85% -- are now willing to accept clemency recipients into their communities
on at least equal terms. We are strongly convinced that an unconditional
amnesty would have achieved much less of a reconciliation among persons who
had strong differences of opinion during the Vietnam War. In fact, such a
policy might have exacerbated those differences.
The discussion of clemency or amnesty in the public forum has abated
with surprising swiftness since the announcement of the program. It once
was the constant subject of Congressional debate, newspaper editorials, and
opinion polls. After the program started, discussion focused more on the
details of the program than on the broader question of clemency versus
amnesty. Today, the issue is virtually dormant. Whether this reflects
positive acceptance, quiet acquiescence, or disinterest on the part of the
public is a question which we cannot answer.
Part of the reasons for the diminished public interest in clemency may
have been the low profile maintained by the other agencies and ourselves.
We do wonder whether a higher profile might have led to an even greater
public acceptance of the program. We believed, at first, that the same
public which had shown such keen interest in the amnesty issue beforehand
would be reasonably well informed about what was in the President's offer
of clemency. During the late winter weeks, we tried to focus more public
*Contrast this with a Gallup/Newsweek poll in , which found that only
% favored a program of conditional clemency, with % favoring uncondi-
tional amnesty and
% no program at all. The complete results of the recent
Gallup Poll are included in Appendix
.
- 3 -
interest on the program. As we traveled throughout the country to speak with
local media and counseling organizations, we were boggled by the misconceptions
we found. It was indeed the rare person who already knew of the eligibility
of former servicemen with bad discharges because of desertion offenses -- who
constituted 100,000 of the 125,000 persons covered by the President's program.
We also found that many people who originally had been critics of the program
came away from our meetings as supporters, once their misconceptions had been
corrected. Everyone was astonished to learn that, in the overall clemency
program, there were three times as many applicants who were Vietnam veterans
as there were Canadian exiles. Unfortunately, we suspect that a majority of
Americans still misunderstand what the program offered, who was eligible, and
what the typical clemency applicant was like.
On balance, we consider the program's very low profile from September
through January to have been a mistake. We believe that the program could have
been very popular with the American public. It also could have reached more
eligible persons. Despite this, the need for a program has been satisfied,
and the American people seem reasonably content with the program which evolved.
Along the way, some of the wounds of the Vietnam Era may well have been healed.
Finally, the President's clemency program was not--and should not be
interpreted as--a denigration of the sacrifices of those who served honorably
or lost loved ones in the Vietnam conflict. We are particularly concerned
about the employment opportunities of the 2,500,000 veterans who served in
Vietnam and feelings of the estimated 250,000 parents, wives, brothers, sisters,
and children of soldiers who lost their lives in Vietnam. These are individuals
deserving of our utmost respect. We are confident that the President's
clemency program did them no harm; we are equally confident that a program
of unconditional amnesty would have led many of these people to believe, in
good conscience, that their sacrifices had been downgraded.
Clemency, Not Amnesty
While it was never intended that the clemency program offer reparations or
even a total restoration of status for all its applicants, it was intended that
the program be "clement" and offer something of value to its applicants. Did
applicants in fact receive anything of value?
Beyond question, applicants to the Department of Justice program received
something of value. They are the only clemency recipients who will emerge with
a clean record; once they complete their alternative service, their prosecutions
will be dropped. Thus, their draft offenses should not affect their future
opportunities to find jobs, housing and so fourth. However, their clean record
comes at some risk. If a fugitive draft resister returned from Canada and en-
rolled in the Justice program, he must complete his alternative service. If he
does not, he could be subject to immediate prosecution for his draft offense and
would not be allowed to return to Canada if he so chose.
Applicants to the Defense program were benfited primarily insofar as they
immediately ended their fugitive status and avoided the risk of facing a court-
martial and possible imprisonment. They immediately received Undesirable Dis-
charges. (If he was one of 42 particularly meritorious cases, he received full
entitlement to Veteran's Benefits). Although he can be held accountable for
failure to complete alternative service, he is unlikely to be prosecuted for such
a failure. For such a prosecution to succeed, it must be shown that he did not
intend to do alternative service at the time he enrolled in the program -- a sub-
jective piece of evidence which is difficult to prove. If he does complete
alternative service, he receives a Clememcy Discharge to replace the undesirable
discharge given him when he enrolled in the Defense program.
Almost none of the applicants to the Presidential Clemency Board were fugitives,
the rare exception being the civilian who fled to avoid punishment after his
conviction. As a result, the major benefit of the other two programs -- putting
an end to one's fugitive status -- is of no consequence to our typical applicant.
He had already settled his score with civilian or military authorities. He owed
no Pardon, the highest symbolic Constitutional Act which the President could do on
behalf of any of our applicants. Still, pardons result in no more than a partial
restoration of an applicant's records and rights, blotting out neither the fact
nor the record of conviction. Under present practice, no records are sealed.
The benefits of a pardon lie in its restoration of the right to vote, hold office,
hold trade licenses, and enjoy other rights described earlier. In a recent survey
of employer attitudes, Dr. William Pearman found that 41% of national and local
employers would discriminate against a convicted draft offender who performed
alternative service and received a pardon, versus 75% who would discrimate against
him if he did not reveive clemency. / Local employers would discriminate against
him much more than national employers.
A military applicant to the PCB receives a pardon as well as a Clemency Dis-
charge. If he had any felony Court-Martial conviction, the pardon restores the
same rights to him as to a civilian applicant with a Federal draft offense convic-
tion. If he never had a felony Court-Martial conviction (for example, if he re-
ceived an administrative discharge), the pardon neither restores rights nor immu-
nizes him from further prosecution, since he already enjoys such an immunity by
reasons of his discharge. The usefulness of the pardon is limited to its possible
impact on military discharge review boards, courts, and other agencies which other-
wise would be obligated to take note of his prior Court-Martial conviction and bad
The percentage who would discriminate against if he did no alternative service
would be 57%.
-/The precentage who would refuse to consider hiring him if he did no alternative
service would be 16%.
/ Dr. Pearman's Study is presented in full in Appendix
.
His findings on
discrimination against Undesirable and General Discharges are corroborated by two
other surveys on the subject. See
.
/ The percentage who would discriminate him if he did no alternative service is 47%.
/
The percentage who would refuse to consider hiring him if he did no alternative
service is 18%.
military record. Whether a Clemency Discharge plus a Presidential Pardon means
more to employers than a Clemency Discharge standing alone is unclear; it is
possible, prehaps even likely, that it adds nothing in tangible terms-- except
where trade license restrictions are involved.
Critics of the President's program contend that a Clemency Discharge is at
best worth nothing, since it is not a discharge under honorable cinditions; and
confers no veterans benefits. They further contend that it may be harmful, since
/
it stigmatizes individuals as having committed AWOL or disertion offenses
In his recent survey, Dr. William Pearman found that employers view Clemency
Discharges as almost the equivalent of General Discharges. / If a job applicant
with a Clemency Discharge earned it through alternative service, the percentage of
employers who would discriminate against him (40%) is about the same as if he had
a General Discharge (39%), and much less than if he had an Undesirable Discharge
/
(75%)
The percentage of employers who would refuse to consider hiring him
(6%) is not much larger than if he had a General Discharge (5%), and much less
than if he had an Undesirable Discharge (34%).
The reasons why some employers discriminated against clemency recipients were
the unfairness of giving him a job when so many veterans with Honorable Discharges
are unemployed, and the likelihood of his untrustworthiness and undependability.
The reasons why some employers discriminated against clemency recipients were the
unfairness of giving him a job when so many veterans with Honorable Discharges are
unemployed, and the likelihood of his untrustworthiness and undependability. The
reasons given for not discriminating against them are his satisfaction of his
national service obligation through alternative service, and the lack of any rela-
tionship between his desertion offenses and his potential performance on the job.
/ There is no truth to the further allegation that a clemency discharge disqualifies
an individual from ever receiving veterans' benefits; it simply does not alone bestow
benefits. Whatever appeal rights one had with an Undesirable or Bad Conduct Discharge,
one still has with a Clemency Discharge.
National employers would discriminate against Clemency Discharges less often
than local employers.
This study cannot be considered conclusive evidence of the worth of a Clemency
Discharge, but it does indicate that there may be a reservoir of generosity and
good will towards those who sought and earned clemency. If this is true, then
applicants to the Defense program do receive something of value for performing
alternative service, Still, their greatest benefit from applying for clemency,
is the end they put to their fugitive status and to their chances of going to
jail for their AWOL offenses.
However, we realize that most of our applicants were interested in more
tangible benefits--especially veterans benefits. While we do not suggest that most
or our applicants should have rejected these benefits, some of them were combat
veterans. Others had injuries or disabilities resulting from their military service
It is not yet clear whether clemency recipients will be dealt with clemently by
agencies which review their subsequent appeals for discharge upgrades or veterans
benefits.
Beyond this, we are concerned that many of our applicants will not understand
what they have received from the Clemency program. Staff conversations with appli-
cants indicate that there are many applicants who do not understand our telegrams
and letters describing their grants of clemency. Without face-to-face counseling,
it is possible that many of them will never know what to write on employment appli-
cation forms about their discharge. Many others may not realize that they can
still apply to Discharge Review Boards for a discharge upgrade or to the Veterans
Administration for veterans benefits.
Impact on Persons Not Receiving Clemency
It was a consistent principle of the President's Clemency Program that no one
be coerced into applying for clemency--or made worse off as a result of having
applied. To do otherwise would be neither clement nor fair. For this reason,
we are concerned about the impacts of the clemency program on those who did
not apply, did not complete alternative service, or were denied clemency.
The Clemency Program may have stimulated a greater public tolerance for every-
one who committed draft or AWOL offenses during the Vietnam era. If so, those
who did not receive clemency could benefit from the goodwill extended to those
who did. We expect that this will be the case.
Of course, the reverse may be true: Individuals who could have applied for
clemency but failed to do so (out of choice or ignorance) might face greater
public disrespect than ever before. If an individual were eligivle for but did
not receive clemency, it is possible that adjudicative or administrative bodies
will take adverse notice of that fact when dealing with that individual. For
example, a military discharge review board might look with particular skepticism
at an upgrade appeal of a person who might have applied for clemency, but did not.
The Veterans Administration may do the same for former servicemen appealing for
veterans benefits despite their bad discharge. Sentencing judges, law enforce-
ment officials, licensing bodies, credit agencies, and others may likewise
look askance at an eligible person's failure to receive clemency. With over
100,000 of the estimated 125,000 eligible persons not having applied for clemency,
these possibly adverse impacts are of great significance.
We were the only clemency granting agency who denied clemency to some of
our applicants (about 5%--or 800 cases). In making those case dispositions, we
did not intend to leave those individuals in a worse position than before they
applied. It is possible that those to whom we denied clemency--or who fail to
complete alternative service--may be worse off than before they applied. Being
denied clemency may be a personal embarrassment and, perhaps a stigma. We did
not announce the names of those denied clemency, and we are concerned that the
confidentiality of those individuals not be infringed upon by anyone else. We
are equally concerned about the confidentiality of those who fail to complete their
alternative service.
Conditional, Not Unconditional Clemency
The qualities of mercy and forgiveness inherent in the President's program
should not be interpreted as an admission that those who broke the law were correct.
By creating the program, the President never intended to imply that the laws were
wrong or that the clemency applicants were right. We believe that rights and
responsibilities of citizenship are central to the theme of any meaningful clemency
or amnesty program and any such program must be evaluated in terms of its rein-
forcement of those rights and responsibilities.
We realize that there is not now and may never be a national consensus on what
a citizen's responsibilities are during time of war--especially if that citizen
cannot support the war on religious or ethical grounds. We can only take a
position on the subject in the same manner as any citizen (or group of citizens)
might. We represent a cross-section of backgrounds, views, and personal interests,
however, so our own consensus on this point may be of some interest.
We believe that when a citizen breaks a law he considers unjust, it is his
responsibility to accept the designated punishment for his offense. Likewise, it is
the responsibility of his government either to punish him or to change its laws, to
prevent (or deterrent) impact of punishment is no longer important--in other words,
once the unpopular war has ended--it is the govenment's further responsibility to
temper its punishment with compassion and mercy. However, official forgiveness for
an individual's failure to serve his country in time of war does not discharge him
from his outstanding obligation of national service. Only in circumstances where an
individual's punishment could be construed as a fulfillment of his obligations of
national service do we believe that anyone can be officially "forgiven" without per-
forming alternative service in the national interest.
Likewise, we consider it fair for the President to have conditioned his grants
of clemency upon a good faith application form an eligible person. Executive
clemency means more when it is an offer, not just a pre-emptory gift. The President,
speaking for the American people, offered reconciliation. That reconciliation must
be mutual. If the 100,000 non-applicants were to hav knowingly accepted his offer,
this President--and, indeed, this country--would owe them nothing more. Our only
concern about those who did not apply is that many have failed to realize in time
they were eligible.
However, we belive that the conditions must have been reasonable for the program
to have been fair. This means two things: First, applicants must have had a reason-
able opportunity to fulfill the condition of application. They must have recognized
thier opportunity and obligation to apply. As described later, we have some doubts
about whether many of our non-applicants did recognize such an opportunity. If this
is ture, the program's condition of application may have been fair in theory, but
unfair in effect.
Second, applicants must had a reasonable opportunity to fulfill the condition of
alternative service. Understandably, the fulfillment of one's obligation of service
should involve some personal sacrifices, but it need not entail hardship. The cause
of national reconciliation is hardly served if an individual quits his job to do
alternative service for three months, cannot regain his job afterwards, and has to go
on welfare as a result.
Our applicants were typically assigned to 3 - 6 months of alternative service.
We assigned such short periods in recognition that our applicants' obligation of nation-
al service had already been partially fulfilled, and we were asking only for an
additional gesture of service. According to Selective Service, full-time alternative
service jobs of such short duration are hard to find. Also, some of our applicants
are reluctant to risk losing their current jobs through such a brief interruption.
Over half of our applicants have wives, children, or others dependent upon them for
financial support. In performing alternative service, we are concerned that many may
complete their alternative service periods without doing any work -- because of their
inability (and Selective Service's inability). to find appropriate work. Similarly,
we are concerned that many others may be terminated from the program because of their
be mutual. If the 100,000 non-applicants were to hav knowingly accepted his offer,
this President--and, indeed, this country--would owe them nothing more. Our only
concern about those who did not apply is that many have failed to realize in time
they were eligible.
However, we belive that the conditions must have been reasonable for the program
to have been fair. This means two things: First, applicants must have had a reason-
able opportunity to fulfill the condition of application. They must have recognized
thier opportunity and obligation to apply. As described later, we have some doubts
about whether many of our non-applicants did recognize such an opportunity. If this
is ture, the program's condition of application may have been fair in theory, but
unfair in effect.
Second, applicants must had a reasonable opportunity to fulfill the condition of
alternative service. Understandably, the fulfillment of one's obligation of service
should involve some personal sacrifices, but it need not entail hardship. The cause
of national reconciliation is hardly served if an individual quits his job to do
alternative service for three months, cannot regain his job afterwards, and has to go
on welfare as a result.
Our applicants were typically assigned to 3 - 6 months of alternative service.
We assigned such short periods in recognition that our applicants' obligation of nation-
al service had already been partially fulfilled, and we were asking only for an
additional gesture of service. According to Selective Service, full-time alternative
service jobs of such short duration are hard to find. Also, some of our applicants
are reluctant to risk losing their current jobs through such a brief interruption.
Over half of our applicants have wives, children, or others dependent upon them for
financial support. In performing alternative service, we are concerned that many may
complete their alternative service periods without doing any work -- because of their
inability (and Selective Service's inability) to find appropriate work. Similarly,
we are concerned that many others may be terminated from the program because of their
unwillingness to quit steady jobs for other work of such a short duration.
By recommending short periods of alternative service, it was not our intent to
deny pardons to those individuals. If a sizeable proportion fail to complete
alternative service, an important part of our Board's mission will also have failed.
A Limited, Not Universal, Program
On balcance, we consider the scope of the program to have been quite generous.
Rather than require a test of sincere opposition to the Vietnam War (which would have
been unfair to people less able to articulate their views), the program was designed
to include anyone whose offense may have involved opposition to the war or the military.
Sixteen percent of the military applicants to our program and 81% of the applicants to
the DOD program went AWOL out of opposition to the war or military, demonstrating the
generosity of the program in defining eligibility. However, some categories of in-
dividuals remained ineligible despite the obvious relationship between their offenses
and their opposition to the war. The clearest example of this was the serviceman who
refused to obey an order to go to Vietnam. In his case, the military could have
discharged him either for missing movement (qualifying him for clemency) or for dis-
obeying orders (not qualifying him for clemency).
A Program of Definite, Not Indefinite, Length
The Clemency program was at first scheduled to accept applications fot 4½
months. Because of a surge in our applications, two one month extensions were
granted by the President. His apparent purpose of ending the program was to
put the issue of clemency behind us as quickly as possible, so that we might
also put the War behind us as quickly as possible.
Out of an estimated 123,000 persons eligible for clemency, only 22,500
actually applied to the three separate programs. This 18% application rate seems
disappointing at first glance; however, for a program which accepted applications
for only six months, that percentage is unusually large. To our knowledge, there
has been no other Federal program which has drawn such a rapid response during
its first six months. For example, HEW's Supplemental Income Security program,
offering cash grants for low-income elderly persons, received applications from
only 9% of its eligible target group during its first six months, and it took a
full year for the program to match the clemency program's figure of 18%. This
was true despite SIS's well-financed promotional campaign. Given the short time
span and limited resources of our outreach efforts, we consider our application
rate to be rather high. Unfortunately, we can take little solace from that fact.
The SIS program is still accepting applications, but we are not.
We believed, at first, that those eligible for clemency would be well-educated,
well-informed, and alert to a communications "pipeline" among themselves which
would carry the news about the program. We also believed that veterans counselors
would correctly advise former servicemen with bad discharges about their eligi-
bility for the program. Both of these assumptions were wrong. A late December
survey of twelve persons eligible for clemency showed that not one of them knew
he could apply. In early January, the mother of a Vietnam Veteran with a bad
discharge because of AWOL contacted General Lewis Walt of our Board to ask if
the local Veterans Administration office had been correct when it told her that
her son was not eligible for clemency.
Our Public Information campaign did not begin until mid-January, yet it
stimulated a five-fold increase in applications before the month ended -- and
over a twenty-fold increase before the second deadline extension expired at the
end of March.
The application period was surely sufficient for those who knew from the start
what the program offered them. They had ample time to make up their minds about
applying. We suspect (but we cannot be sure) that virtually all of those eligible
for the Department of Justice had such a sufficient period. However, it is our
understanding that the number of applicants to the Department of Defense program
was less than it might have been because of widespread misunderstandings about
the fairness and decency of the procedures followed by the Clemency Processing
Center at Fort Benjamin Harrison. Likewise, it is our firm belief that the small
percentage of applications to the Presidential Clemency Board was attributable to
the lack of public awareness of our eligibility criteria. The rising monthly tallies
of new Board applications (800 through December, 4000 in January, 6000 in Feburary,
10,000 in March) indicates that even more applications would have been received
had our program (and Public Information campaign) continued. Informal Telephone
Polls conducted by our staff found that even as late as March, 90% of our appli-
cants had only learned of their eligibility within the past few days. Usually
a news article or television announcement had been responsible for their appli-
cantion.
The degree to which the American public still misunderstands the President's
program was illustrated by the recent Gallup poll. A substantial 72% of the
American public had heard of the clemency program; 17% realized that it includ-
ed fugitive draft resisters and deserters in the U.S., and 43% thought that it
was for fugitive draft evaders and deserters in Canada and other countries.
However, very few -- 15% -- understood that convicted draft offenders and discharged
AWOL offenders could apply to the Board. Only 14% thought that a Vietnam Veteran
discharged for a later AWOL could apply for clemency. It is worth noting that the
percentage of the public which understood our eligibility criteria corresponded
almost exactly with the percentage of our eligible persons who applied by the
March 31, deadline.
It is our firm conviction that many eligible persons did not apply because,
even by the end of March they still did not know they could apply. As the Gallup
*
poll indicated, they probably still do not know that the program was for them.
The Gallup Poll discovered that a slight plurality of Americans (48% versus
42%) do not favor a reopening of the President's program. However, the widespread
misunderstanding about our eligibility criteria requires that a different perspective
be taken of these results. In effect, % favor giving eligible persons a second
chance to apply. We expect that a much greater percentage would favor giving un-
informed eligible persons a first chance to make up their minds about applying.
A Case-By-Case, Not Blanket, Approach
Despite the wholly discretionary character of any grants of executive clemency,
our program must be judged in terms of the fairness of our rules and the consistency
with which we followed them. To be worthy of the respect and confidence of all
citizens, we must have observed the basic principles of a fair legal process.
Questions of process arise primarily in any Clemency/Amnesty program which
follows a case-by-case approach. Any blanket amnesty program would raise relatively
few, if any, due process issues. The proper context for any discussion, therefore, is
wether the President's program satisfactorily dealt with this extra burden. Absolute
not comparative -- standards apply. Administrative requirements cannot be used as
a justification for any short-cuts of due process.
At the Presidential Clemency Board, we have made every effort to apply fair rules
and follow them with consistency. We occasionally had to modify our rules in mid-course,
sometimes before corresponding changes could be made in our regulations. However, this
was only done when it appeared that the rights and interests of our applicants would
not be affected. The procedures which we imposed upon ourselves--quality control of
casework, codification of policy precedents, the 30-day period for applicants to comment
on their case summaries, and post audit of case dispositions--often--added time and
administrative difficulty to our process, but we considered them essential to maintain
the quality of our work. The seriousness with which we took our responsibilities was
exemplified by our publication of an in-house professional journal, the Clemency Law
Reporter. Our Board and staff of over 300 attorneys maintained a continuous dialogue
about how our procedures were or werenot consistent with due process; when changes
were felt necessary, they were made. Ours was not a perfect process--it certainly was
too time-consuming to suit us--but it was a reasonable one, carried out in good faith.
We consider our baseline formula, mitigating factors, and aggravating factors to
have been fairly developed and fairly applied. Uniformly, they were developed through
a clear process of Board consensus about what was relevant about the backgrounds of our
applicants. Through the publication of policy precedents in the Clemency Law Reporter,
we internally codified our policies. We applied them as consistently as could be
expected, given the fact that all but a few hundred of our cases were decided in three-
person Board panels.
On balance, the case by case approach offered us a means for making the right
kind of clemency offer to each of our applicants. Without it, we might have been less
generous with Vietnam veterans and persons who committed their offenses because of
conscientious opposition to war. Likewise, we might have been more generous with those
whose offenses resulted from irresponsibility,
selfishness, or cowardice. This would
have had the effect of demeaning the President's Constitutional pardoning powers.
Blanket amnesty would have treated all cases alike. This would have been funda-
mentally unfair -- to our applicants and to the American people. Consider the following
two cases:
(Case # 09067) Applicant did not go AWOL until after returning from two tours
of duty in Vietnam, when his beliefs concerning the war changed.
He came to believe that the 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 #00206) Applicant met his wife, a Danish citizen, shortly after arriving
in Germany on a military assignment. She became pregnant, and he
went AWOL to marry her. After turning himself in, he was returned
to Germany and placed in pretrial confinement. However, he escap-
ed and went to Sweden, where he applied for asylum. While in
Sweden, he had numerous arrests for theft and narcotics charges,
received a sentence of 10 months imprisonment, and was deported
to the United States.
Were the President to grant a Pardon to the second applicant, he would
have cheapened the Pardon granted to the first. His friends and employers
would have been more reluctant to acknowledge that he had earned his Pardon.
Likewise, the American people might have assumed that, since all applicants
would have been treated alike, all applicants would have been alike. Many of the
hard feelings generated during the Vietnam War resulted from such blanket judg-
ments. By fostering such an attitude, blanket amnesty might have perpetuated --
and not healed -- the wounds of an era.