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Final Report - Draft, 10/28/75 (1)
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Final Report - Draft, 10/28/75 (1)
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Charles E. Goodell Papers
Presidential Clemency Board Subject Files
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
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The original documents are located in Box 5, folder "Final Report - Draft, 10/28/75 (1)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 5 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
TODAY'S DATE 10/28/75
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Summary
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FORD
&
GERALD
1. Introduction
In the years before President Ford assumed office,
public opinion was sharply divided over what the government
policy should be toward those who had committed Vietnam-era
draft violations and military absence offenses. Many
believed that these actions could not be forgiven in light
of the sacrifices endured by others during the war. Yet,
many citizens believed that only unconditional amnesty was
appropriate for offenders who had acted in good conscience
to oppose a war they believed wrong and wasteful.
Something had to be done to bring Americans together
again. The rancor that had divided the country during the
Vietnam War still sapped its spirit and strength. The
national interest required that Americans put aside their
strong personal feelings. Six weeks after taking office,
President Ford announced a program of clemency, offering
forgiveness and reconciliation to Vietnam-era draft and
military absence offenders.
2. The President's Clemency Program
In his Proclamation of September 16, 1974, President
Ford created a program of conditional clemency for roughly
13,000 civilians and 100,000 servicemen who had committed
draft or military absence offenses between the adoption of
the Gulf of Tonkin Resolution (August 4, 1964) and the day
the last American combatant left Vietnam (March 28, 1973).
He authorized the Departments of Justice and Defense,
respectively, to review applications from the 4,522 draft
offenders and the 10,115 undischarged servicemen still at
large. He created the Presidential Clemency Board to
consider applications from the 8,700 convicted and punished
draft offenders and the estimated 90,000 servicemen given
bad discharges for absence offenses. He gave all eligible
persons 4-1/2 months (later extended to 6-1/2 months) to
apply. He promised that their cases would be reviewed
individually. He further indicated that applicants would be
asked to earn clemency where appropriate, by performing up
to 24 months of alternative service in the national
interest, under the supervision of the Selective Service
System.
Under the Justice Department program, unconvicted
draft offenders would have their prosecutions dropped,
enabling them to avoid imprisonment and the stigma of a
felony conviction. Under the Defense Department program,
fugitive servicemen were offered an immediate Undesirable
Discharge as a permanent end to their fugitive status,
similarly enabling them to avoid imprisonment and the stigma
of a Bad Conduct or Dishonorable Discharge. They were also
offered the chance to earn a Clemency Discharge. Under the
Clemency Board program, convicted draft offenders were
offered full and unconditional Presidential pardons for
their draft offenses. Former servicemen who had received
bad discharges were offered clemency discharges and full
Presidential pardons for their absence offenses.
By granting pardons to convicted or discharged
offenders, President Ford was exercising the most potent
constitutional form of executive clemency available to him.
The Presidential pardon connotes official forgiveness for
designated draft or military offenses, restoring all Federal
civil rights lost as a result of those specific offenses.
Likewise, a full and unconditional pardon indicates that
government agencies should disregard all pardoned offenses
in any subsequent actions they take involving clemeny
recipients.
By directing that the military services upgrade bad
discharges, substituting Clemency Discharges in their place,
the President was indicating to employers and creditors that
they should not discriminate against individuals who had
received clemency. As a "neutral" discharge, the Clemency
Discharge appears to be working: A recent survey of large
national employers and local (Pennsylvania) employers found
that they view it as almost identical to a General Discharge
under honorable conditions and much better than an
Undesirable Discharge under other-than-honorable conditions.
A Clemency Discharge does not confer veterans'
benefits, but it leaves an individual with the same appeal
rights that were available to him before. Indeed, the
receipt of a Presidential pardon and a Clemency Discharge
should improve an individual's chances for further upgrade.
Altogether, 21,729 eligible persons applied for
clemency.
2
TABLE 1: PERSONS ELIGIBLE FOR THE
PRESIDENT'S CLEMENCY PROGRAM
Number
Number
Percent
Agency
Applicants
Eligible
Applying
Applying
Defense Fugitive AWOL offenders 10,115
5,555
55%
Justice Unconvicted draft
offenders
4,522
706
16%
P.C.B.
Discharged AWOL
offenders
90,000
13,589
15%
P.C.B.
Convicted draft
offenders
8,700
1,879
22%
TOTAL
113,337
21,729
19%
Through the first the Clemency Boardek in January, we
had received only 850 applications, with the initial January
31 deadline just a few weeks away. At that time, the public
did not realize that the program included not only fugitives
but also punished offenders--including servicemen who had
served in Vietnam. Very few people realized that the
President's program included the following sort of
individual:
(Case 1)
While a medic in Vietnam, this military
applicant (an American Indian) received
the Bronze Star for Heroism because of his
actions during a night sweep operation.
When his platoon came under intense enemy
fire, he moved through a minefield under a
hail of fire to aid his wounded comrades.
While in Vietnam, he was made Squad Leader
of nine men, seven of whom (including
himself) were wounded in action. After
returning to the United States, he
experienced post-combat psychiatric
problems. He went AWOL several times to
seek psychiatric treatment. He received a
bad discharge for his absences.
Because of this widespread public misunderstanding, we
began public service announcements on thousands of radio and
television stations, held meetings and press conferences at
over two dozen cities, met with thousands of veterans'
counselors throughout the country, and circulated bulletins
to agencies in direct contact with eligible persons--such as
Veterans' Administration offices, employment offices, post
offices, and prisons. Given a limited budget of $24,000,
the results were dramatic. During the rest of January, we
GERALD
received over 4,000 new applications. Because of this
response, the President extended the application deadline
another month. We received 6,000 in February and, after a
final extension, another 10,000 before the March 31st final
deadline--for a total of about 21,500, of whom 15,468 turned
out to be eligible. This increase in applications was
directly attributable to our public information campaign.
3
By asking applicants when they learned they were eligible,
we discovered that over 95% did not realize they could apply
until after the January 8 start of the campaign; 90% applied
within days or even hours of their discovery they were
eligible. The Departments of Defense and Justice did not
experience a similar increase in applications, because it
was already widely understood that fugitive draft and
military absence (AWOL) offenders could apply for clemency.
Despite our information efforts, public understanding
of the program has not changed appreciably. An August, 1975
Gallup Poll found that only 15% of the American people
understood that convicted draft offenders and discharged
AWOL offenders could also apply for clemency. Virtually the
same percentage--16%--of eligible persons in those
categories actually did apply. We are convinced that most
of the remainder still do not know that they were eligible
for the program. Others may not have applied because their
lives are settled, with their draft offense convictions or
bad discharges of no present consequence to them. We
believe that very few failed to apply to the Clemency Board
because of their opposition to our program.
The press and the public were, and indeed still are,
preoccupied with anti-war fugitives who fled to Canada.
However, we found that only 6% of our civilian applicants
and 2% of our military applicants had ever gone to Canada.
Virtually all of them subsequently returned to the United
States long before they applied for clemency. of the 15,468
Clemency Board applicants, less than 400 (3%) ever went to
Canada. This stands in marked contrast to the 3,700 (24%)
who were Vietnam veterans. In recent years, many estimates
have been made of the number of fugitive draft and AWOL
offenders in Canada, usually on the basis of very limited
data. Based on our own data and our understanding of
applicants to the Justice and Defense programs, we estimate
that a maximum of 7,000 persons eligible for clemency were
ever Canadian exiles. We further estimate that only 4,000
(less than 5%) of the 91,500 who were eligible but did not
apply for clemency are still in Canada, contrary to the
usual public impression.
What happens next to those who did not apply? The
8,300 who are still fugitives should surrender to
authorities. While they will probably receive a bad
discharge or felony conviction, they will end their fugitive
status. The 90,000 who have already been punished can apply
to the Pardon Attorney in the Department of Justice or to
the appropriate military discharge review boards, avenues of
relief which are not related to the President's clemency
program and are not affected by the program's end.
3. Applicants to the Presidential Clemency Board
Chance and circumstance had much to do with the
sacrifices faced by each individual during the Vietnam War.
Conscription is selective. Only 9% of all draft-age men
4
served in Vietnam. Less than 2% ever faced charges for
draft or desertion offenses, and only 0.4%--less than one
out of two hundred--were convicted or remained charged with
these offenses at the start of the clemency program.
Many Clemency Board applicants fell into common
categories: The civilian war resister who had his
application for conscientious objector (CO) status denied
and who stood trial rather than leave the country; the
Jehovah's Witness who, although granted a CO exemption and
went to jail because his religious convictions prohibited
him from accepting an alternative service assignment from
Selective Service; the Vietnam veteran who went AWOL because
of his difficulties in adjusting to post-combat garrison
duty; the serviceman with a low aptitude score who could not
adjust to military life; the serviceman who went AWOL to
find a better-paying job to get his family off welfare.
The civilian applicants were not unlike most young men
of their age. They grew up in stable middle-class families.
Eleven percent were black, and 1.3% were Spanish-speaking.
Over three-quarters graduated from high school, and their
average IQ was 111. Roughly one in four was a Jehovah's
Witness or member of another religious sect opposed to war.
Almost half applied for conscientious objector exemptions,
which were usually denied. The typical draft offense was
failure to report for or submit to induction. Three-
quarters committed their offense because of their opposition
to war in general or the Vietnam War in particular. For
96%, it was their only felony offense, committed at an
average age of 21.
Most civilian applicants surrendered immediately, and
most who were ever fugitives lived openly at home. Only 6%
ever sought exile in Canada. After indictment, most pled
guilty. Two-thirds were sentenced to probation, usually on
the condition that they perform alternative service. The
other one-third went to prison, usually for periods of less
than one year. Less than 1% served prison terms of two
years or longer, but some were in prison for as long as five
years.
At the time of their applications for clemency, almost
all were either working full-time or in school. Only 2%
were unemployed, with another 2% in prison for unrelated
felony offenses. Approximately 100 were still imprisoned
for their draft offenses when the President announced his
clemency program. They were released upon the condition
that they apply for clemency.
Unlike the civilian applicants, the vast majority of
our military applicants were not articulate, well-educated,
or motivated explicitly by opposition to the war. Almost
none had applied for a conscientious objector exemption
before entering the service, and less than 5% committed
their AWOL offenses because of opposition to the war. Most
grew up in broken homes, with parents struggling to cope
with a low income. Roughly one in five were black, and 3.5%
were Spanish-speaking. Despite an average IQ of 98, over
three-quarters dropped out of high school before entering
military service at the age of 17 or 18. Almost one in
5
three were tested at below the 30th percentile of
intelligence (Category IV on the Armed Forces Qualifying
Test), making them only marginally qualified for military
service.
Most military applicants enlisted rather than be
drafted, usually joining the Army or the Marines. Slightly
over one-third were ordered to Vietnam. Seven percent
failed to report. The other 27% did serve in Vietnam and
half either volunteered for a Vietnam assignment,
volunteered for a combat mission, or re-enlisted while in
Vietnam. Very few went AWOL in Vietnam; only four percent
of all applicants went AWOL from an apparent combat
situation. However, almost one in four suffered from mental
stress caused by combat, and two in five have experienced
severe personal problems as a result of their Vietnam tour.
Two percent all military applicants returned from Vietnam
with disabling injuries.
AWOL offenses usually occurred after training and in
stateside bases. Over half committed their offenses because
of serious personal or family problems. Other common
reasons for AWOL offenses included resentment of some action
by a superior or a general dislike of military service.
Typically, they went AWOL two or three times. Most returned
to their home towns, where they lived openly. Only 2% of
the military applicants ever sought exile in Canada. Almost
half surrendered voluntarily after their last AWOL offense.
At the time of their last AWOL, they were typically 20 or 21
years old and had accumulated 14 months of creditable
service.
Upon their return to military control, about 15% were
given administrative Undesirable Discharges for Unfitness.
The other 85% faced court-martial charges, roughly half
accepting an Undesirable Discharge in lieu of court-martial.
This was a particularly frequent practice among applicants
discharged after 1970. The remaining 40% stood general or
special court-martial, were convicted, and received Bad
Conduct or Dishonorable Discharges. All court-martialed
applicants spent at least some time in confinement, with
their sentences averaging five months in length. About 170
were still confined when the clemency program started, and
they were released upon application.
The bad discharges have seriously affected the current
employment status of military applicants. Seventeen percent
were unemployed at the time of their clemency applications,
whereas only 8% were unemployed during their last AWOL
offenses. Another 7% were presently incarcerated for
civilian felony offenses. Altogether, 12% had been
convicted for at least one civilian felony offense at one
point in their lives.
6
4. Procedural and Substantive Rules
The Clemency Board was the only new entity created by
President Ford for the special purpose of reviewing the
cases of clemency applicants. Originally, the President
named nine members to the Board, designating former U.S.
Senator Charles E. Goodell as the Chairman. After the great
increase in applications, the President expanded the Board
to eighteen members. Both the original Board and the
expanded Board were representative of a cross-section of
views on the Vietnam War and on the issue of clemency. The
Board consisted of 13 veterans of military service, three
women, and two priests. The Board included five Vietnam
veterans, two of whom were severely disabled in combat.
Another member has a husband who still is listed as missing
in action. Our policies and case dispositions reflected a
synthesis of the different backgrounds and experiences of
our members.
The Board worked hard during the spring and summer to
fulfill the President's requirement that we give each case
individual attention before his September 15 deadline. The
consensus was remarkable, given the wide range of views
represented on the Board. What we sought to maintain was a
reasoned, middle ground. The President's goal of national
reconciliation found, expression in the spirit of compromise
and accommodation that guided the Board.
To assure the fairness and consistency of our case
dispositions, we developed a case-by-case review procedure
consistent with the President's goal of clemency. Because
this was a program of clemency, not law enforcement, we
unanimously decided not to seek the assistance of the FBI in
preparing our cases. We limited our file acquisition to the
official military or court records. Similarly, we kept case
files confidential to protect the rights of applicants and
to preserve the spirit of reconciliation. We promise strict
confidentiality to all who applied to the Board. For each
case, staff attorneys prepared narrative summaries which
were carefully checked for accuracy. Each applicant was
sent his summary and encouraged to identify errors and to
provide additional information. Staff attorneys presented
cases in oral hearings before panels consisting of three or
four Board members who had read the summaries in advance.
The attorneys' supervisors were present as panel counsels to
assure staff objectivity. They also served as legal
advisors to ensure that Board policy precedents were applied
correctly. Every Board member had the right to refer any
case to the full Board. This right was exercised in only
about 700 (5%) of our cases. The Chairman referred some
cases to the full Board with the assistance of a computer-
aided review which flagged case dispositions for being
either too harsh or too lenient.
Case dispositions varied little from week to week,
especially after our basic policy decisions had been made.
During our first six months, we decided 500 cases,
recommending outright pardons (without alternative service)
to 46% of all cases, denial of clemency to 3%, and
alternative service to the remainder. During our latter six
7
months, we decided 14,514 cases, recommending outright
pardons to 44%, denial of clemency to 6%, and alternative
service to the remainder.
Contributing to the fairness and consistency of our
process were the clear rules we established and published
for deciding cases. Our alternative service "baseline"
formula took account of the fact that all of our applicants
had been punished for their offenses. We started with 24
months, deducting three months for every one month spent in
confinement, and deducting one month for every month spent
in satisfactory performance of court-ordered alternative
service. In cases where military officials and Federal
judges had adjudged short sentences, we reduced the baseline
figure to match the sentence actually given. Our minimum
baseline was three months, and almost 98% of our applicants
had baselines of six months or less.
To determine whether an applicant deserved clemency--
and, if so, whether his assigned period of alternative
service should be different from his working baseline--we
applied 28 specific aggravating and mitigating factors. As
with our baseline formula, we developed our list of factors
by consensus. We were especially concerned about the
reasons for an applicant's offense and the circumstances
that had prompted it. Likewise, we considered his overall
record as a serviceman and as a member of his community.
Almost all of our designated factors were established very
early. Only two totally new aggravating factors were
established by the expanded Board, although all factors were
continually clarified as new fact situations arose. Each
factor was codified, with illustrative case precedents,
through publication of five issues of an in-house policy and
precedent journal called the Clemency Law Reporter.
Our final list of aggravating factors consisted of the
following:
1. Other adult convictions;
2. False statement to the board;
3. Use of physical force in comming offense;
4. AWOL in Vietnam;
5. Selfish motivation for offense;
6. Failure to do alternative service;
7. Violation of probation or parole;
8. Multiple AWOL offenses;
9. Extended AWOL offenses;
10. Missed overseas movement;
11. Non-AWOL offenses contributing to discharge for
unfitness; and
12. Apprehension by authorities.
8
Our final list of mitigating factors consisted of the
following:
1. Inability to understand obligations or remedies;
2. Personal or family problems;
3. Mental or physical condition;
4. Public service employment;
5. Service-connected disability;
6. Extended creditable military service;
7. Vietnam service;
8. Procedural unfairness;
9. Questionable denial of conscientious objector
status;
10. Conscientious motivation for offense;
11. Voluntary submission to authorities;
12. Mental stress from combat;
13. Combat volunteer;
14. Above average military performaning ratings;
15. Decorations for Valor; and
16. Wounds in Combat.
5. Case Dispositions
We did not apply each factor with equal weight. For
example, conscientious motivation or serious personal or
family problems often led to outright pardon
recommendations. The following two cases are typical:
(Case 2)
This civilian applicant had participated
in anti-war demonstrations before refusing
induction. He stated that he could not
fight a war which he could not support.
However, he does believe in the need for
national defense and would have served in
the war if there had been an attack on
United States territory. He stated that
"I know that what is happening now is
wrong, so I have to take a stand and hope
that it helps end it a little sooner."
(Case 3)
This military applicant's wife was
pregnant, in financial difficulties, and
faced with eviction; she suffered from an
emotional disorder and nervous problems;
his oldest child was asthmatic and an
epileptic, having seizures that sometimes
resulted in unconsciousness. Applicant
requested transfer and a hardship
discharge, both of which were denied.
Creditable Vietnam service was also a highly
mitigating factor, usually resulting in an outright pardon.
In particularly meritorious cases, we recommended to the
President that he direct the military to upgrade the
applicant's discharge to one under honorable conditions,
with full entitlement to veterans' benefits. We were
particularly concerned about the eligibility of wounded or
9
disabled veterans for medical benefits. Ne made upgrade
recommendations in the following two cases,
ABOUT Elevery CASES,
of WHICH THE fourmerns TWO ARE
(Case 4)
This applicant did not go AWOL until after
TYPICAL:
returning from two tours of duty in
Vietnam, when his beliefs concerning the
war changed. He came to believe that the
The The
U.S. was wrong in getting involved in the
war and that he "was wrong in killing
THAT EVERY WOUNDED SHORO of ,N
people in Vietnam." He had over three
years' creditable service, with 14
excellent conduct and efficiency ratings.
He re-enlisted to serve his second tour
within three months of ending his first.
He served as an infantry man in Vietnam,
was wounded, and received the Bronze Star
for Valor.
(Case 5)
During applicant's combat tour in Vietnam,
his platoon leader, with whom he shared a
brotherly relationship, was killed while
awakening applicant to start his guard
duty. The platoon leader was mistaken for
a Viet Cong and shot by one of his own
men. This event was extremely traumatic
to applicant, who subsequently experienced
nightmares. In an attempt to cope with
this experience, applicant turned to the
use of heroin. After becoming an addict,
he went AWOL. During his AWOL, he
overcame his drug addiction only to become
an alcoholic. After obtaining help and
curing his alcoholism, he turned himself
in.
On the other hand, some aggravating factors were
considered very grave, generally leading to "No Clemency"
decisions. There were a few applicants who clearly went
AWOL from combat situations.
(Case 6)
This military applicant would not go into
the field with his unit, because he felt
that the new commanding officer of his
company was incompetent. He was getting
nervous about going out on an operation;
there is evidence that everyone believed
that there was a good likelihood of enemy
contact. He asked to remain in the rear,
but his request was denied. Consequently,
he left the company area because, in the
words of his chaplain, "the threat of
death caused him to exercise his right to
self-preservation." His company was
subsequently dropped onto a hill, where it
engaged the enemy in combat. Applicant
was apprehended while traveling on a truck
away from his unit without any of his
combat gear.
FORD is 9ERALD LIBRARY
We denied clemency in the above case, but other cases
of AWOL in Vietnam involved strong mitigating factors.
10
Often, combat wounds or the psychological effects of combat
led to AWOL offenses. For example, we recommended an
outright pardon in the following case:
(Case 7)
Applicant was assigned to an infantry unit
in Vietnam. During his combat service, he
sustained an injury which caused his
vision to blur in one eye. His vision
steadily worsened, and he was referred to
an evacuation hospital in DaNang for
testing. An eye doctor's assistant told
him that the doctor was fully booked and
that he would have to report back to his
unit and come back to the hospital in a
couple of weeks. Frustrated by this
rejection and fearful of his inability to
function in an infantry unit, applicant
went AWOL.
Applicants who had been convicted of felony offenses
involving serious bodily harm were generally denied
clemency, as in the following case:
(Case 8)
This civilian applicant had three other
felony convictions in addition to his
draft offense. In 1970, he received a
one-year sentence for sale of drugs. In
1971, he received one year of imprisonment
and two years of probation for possession
of stolen property. In 1972, he was
convicted of failure to notify his local
board of his address. He was sentenced to
three years' imprisonment, but his
sentence was suspended and he was put on
probation. In 1974, he was convicted of
assault, abduction, and rape, for
which he received a 20-year sentence.
Perhaps our most difficult and disputed cases involved
applicants who had been convicted of a civilian felony
offense other than a draft violation, but who had strong
mitigating factors applicable to their case. Some Board
members argued that this was a program of clemency for
Vietnam-related offenses, and the Board should disregard
other, unrelated convictions. Others argued that granting
clemency to convicted felons would cheapen the clemency
grants. The majority of the Board took the middle view--
that a felony conviction would be viewed as a highly
aggravating factor, but each case sould be decided on its
total facts, in accordance with the President's policy of
case-by-case review. Even so, 42% of our applicants with
other convictions were denied clemency because of the
serious nature of their offense or because they did not
present strong mitigating factors.
Less serious felony convictions did not overshadow an
applicant's Vietnam service or other mitigating facts.
(Case 9)
This applicant volunteered for the Special
Forces after his first year in the Army.
He re-enlisted to effect a transfer to
11
Vietnam, where he served as a parachute
rigger and earned excellent conduct and
proficiency ratings. Altogether, he
served for 18 months in Vietnam and over
three years in the Army, with two
Honorable Discharges for re-enlishment
purposes. His AWOL offenses totalled 29
days, did not occur until after his return
from Vietnam, and were attributed to his
problems with alcohol. After his
Undesirable Discharge in lieu of court-
martial, he was convicted of stealing a
television set and served six months in
prison. He was recently paroled.
In a few cases, a clear connection existed between an
applicant's Vietnam service and his civilian conviction:
(Case 10)
This military applicant served eight
months in Vietnam as a supply specialist
before his reassignment back to the United
States. His conduct and proficiency
scores had been uniformly excellent during
his Vietnam service. However, while in
Vietnam he became addicted to heroin. He
could not break his habit after returning
stateside, and he began a series of seven
AWOL offenses as he "got into the local
drug scene." Eventually, he "ran out of
money" and "had a real bad habit," so he
"tried to break into a store with another
guy that was strung out." He was
arrested, convicted for burglary, and
given an Undesirable Discharge for AWOL
while on bail.
Others rehabilitated themselves after their offenses,
indicating their desire to be productive and law-abiding
members of their communities:
(Case 11)
Shortly after receiving a Bad Conduct
Discharge from the Navy for his AWOL
offenses, this military applicant was
convicted for transporting stolen checks
across state lines. He was sentenced to a
ten-year term, but was paroled after one
year and four months. During his
confinement, he underwent psychiatric
care. Since his parole, he has re-married
and established a successful
subcontracting business. Currently, he is
working with young people in his community
in connection with church groups, trying
to provide guidance for them. His parole
officer stated that applicant had
straightened out and is a responsible
member of the community.
In each of the above three cases, the Clemency Board
recommended that the President recommend an outright pardon.
12
Obviously, we had no jurisidiction to grant clemency for the
unrelated conviction.
Our case disposition tallies are listed below.
Civilian applicants received a greater proportion of
outright pardons because they involved a higher frequency of
conscientious reasons for the offense and a much smaller
number of other criminal convictions.
TABLE 2: CLEMENCY BOARD RECOMMENDATIONS: CIVILIAN CASES
Number
Percent
Outright pardons
1432
82%
Alternative Service:
3 months
140
8%
4-6 months
91
5%
7+ months
68
4%
No Clemency
26
1%
TOTAL:
1757
100%
TABLE 3: CLEMENCY BOARD RECOMMENDATIONS: MILITARY CASES
Number
Percent
Outright pardon
4620
36%
Alternative Service:
3 months
2555
20%
4-6 months
2941
23%
7+ months
1756
14%
No Clemency
885
7%
TOTAL:
12,757
100%
6. Management Process
During the first months of the Board's existence, we
experienced little difficulty in organizing our work and
reviewing our small number of cases. However, after our
late winter flood of applications, we were faced with a
seemingly impossible task. Through mid-April, the original
nine-member Board had heard 500 cases. To meet the
President's deadline of September 15, we had to experience a
40-fold increase in our case resolution rate. We met that
deadline--to the day--with the Board deciding every one of
the 14,514 cases for which we had enough information. After
September 15, 1975, 900 additional cases with partial or
recently arriving files were referred to the Department of
Justice for action in accordance with Board precedents.
Meeting the President's deadline would have been
impossible without a competent and dedicated staff. We and
our staff emerged from this process with an experience in
crisis management which we think may be useful to managers
of comparable entities in the future. The senior staff
13
developed solutions to management problems which enabled us
to act upon over a thousand cases per week. At the same
time, it maintained high standards of quality and integrity
in our legal process. All policy decisions were made by the
Board and implemented by the staff. Having to manage an
organization which mushroomed from 100 to 600 employees
during a six-week period, it is remarkable that our process
involved as little confusion as it did.
7. Historical Perspective
To place the President's clemency program in its
proper perspective, one must take note of the manner in
which Presidents Washington, Lincoln, and Truman applied
their powers of executive clemency in dealing with persons
who had committed war-related offenses. President Ford's
program is the most generous ever offered, when equal
consideration is given to the nature of the benefits
offered, the conditions attached, the number of individuals
benefitted and the speed with which the program followed the
war. Yet the President's program does not break precedent
in any fundamental way. The only new features of President
Ford's program are the condition of alternative service and
the use of a neutral Clemency Discharge.
8. Conclusions
We are proud of what the President has accomplished in
his clemency program. He implemented his program
courageously, in the face of criticism from those who
thought he did too much and those who though he did too
little.
When the program started, a Gallup Poll found that
only 19% of those polled approved of a conditional clemency
program. The overwhelming majority preferred either
unconditional amnesty or no program of any kind. By
contrast, an August 1975 Gallup Poll found that a majority
of those expressing an opinion are now in favor of
conditional clemency, with only a small minority equally
split on the extremes. The same poll found that almost nine
out of ten people would accept a clemency recipient as at
least an equal member of their community. Likewise, a
survey of employer attitudes has discovered that a Clemency
Discharge and Presidential Pardon would have real value when
a clemency recipient applies for a job. The clemency
program is in fact accomplishing the President's objective
of reconciling Americans.
While we are confident that history will regard this
program as a success, much of the work remains unfinished.
As of September 1975, only a very small percentage of our
applicants have as yet been required to contact Selective
14
Service to begin performing alternative service. of the 52%
of our applicants who received conditional clemency, three
quarters were assigned six months or less of alternative
service. We hope that most will complete this assignment
and receive clemency. The responsibility for implementing
the alternative service portion of the program in a fair and
flexible manner, fully in accord with the clemency spirit of
the President's program, rests with the Selective Service
System
Likewise, are pleased that the United States
Pardon
Attorney, entrusted with the carry-over
responsibility for our program, has applied the policies and
spirit of the Clemency Board. Finally, we hope that other
government agencies which will later come in contact with
clemency recipients--especially the Veterans Administration
and the discharge review boards of the Armed Forces--will
deal with them as clemently as their responsibilities
permit.
In conclusion, we consider ourselves to have been
partners in a mission of national reconcilation, wisely
conceived by the President. A less generous program would
have left old wounds festering; blanket, unconditional
amnesty would have opened new wounds. We are confident. that
the President's clemency program provides the cornerstone
for national reconciliation at the end of a turbulent and
divisive era. We are proud to have played a role in that
undertaking.
Accordingly, the Clemency Board has recommended to Selective
Service that applicants be permitted to work on a part-time,
vodunteer basis to complete short periods of alternative
service -- for example, by working sixteen hours per week for
a Boys' Club or church group. This way, they can earn clemency
within three or six months without losing steady jobs and without
taking jobs away from others in their communities.
FORD & LIBRARY GERALD
15
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Current problems often have parallels in history, and
modern solutions may reflect decisions of earlier leaders.
In studying President Ford's Clemency Program, one need only
look back a hundred years to observe a similar situation
confronting another President of the United States. Just
days after the Civil War ended, President Andrew Johnson
considered declaring an amnesty to heal the wounds of the
newly reunited nation. The President sought advice from
Attorney General James Speed, who counseled moderation:
The excellence of mercy and charity in a national
trouble like ours ought not to be undervalued.
Such feelings should be fondly cherished and
studiously cultivated. When brought into action
they should be generously but wisely indulged.
Like all the great, necessary, and useful powers in
nature or government, harm may come of their
improvident use, and perils which seem past may be
renewed, and other and new dangers be
precipitated.¹
Only six weeks after he become President, Johnson
followed Attorney General Speed's advice. He declared a
limited and conditional amnesty. To many it was inadequate,
while to others it was too generous. To the President, it
was a reasonable approach which citizens of all persuasions
could find acceptable. Had the President's program not
approached the middle ground, the perils and dangers
identified by Attorney General Speed might well have come to
pass.
Over a century later, President Gerald Ford was
concerned about the need to heal America's wounds following
another divisive war. Like President Andrew Johnson, he
announced a clemency program six weeks after succeeding to
office. Like Johnson, he pursued a course of moderation.
No program at all would have left old wounds festering.
Unconditional amnesty would have created more ill feeling
than it would have eased. Reconciliation was what was
needed, and reconciliation could only come from a reasoned
middle ground.
To the members of the Presidential Clemency Board, the
President's program assumed a greater meaning. We came to
the Board as men and women whose views reflected the full
spectrum of the public opinion. on the war and on the
question of amnesty. As we discussed the issues, a
consensus began to emerge. We all came to see the
President's program as more than mere compromise. It was an
appropriate and fair solution to a very difficult problem.
As we examined the President's program, it appeared to
us that it was anchored by six principles. Taken together,
they provide an excellent means of understanding the spirit
behind his clemency proclamation. These principles were
implicit in the exercise of our Board's responsibilities
under the President's program.
The first principle was one about which there should be
little disagreement: the need for a program. After almost
nine years of war and nineteen months of an acrimonious
debate about amnesty, President Ford decided it was time to
act. America needed a Presidential response to the issue of
amnesty for Vietnam era draft resisters and deserters. As
he created the program, the President authorized three
entities -- the Department of Justice, the Department of
Defense, and the Presidential Clemency Board -- to review
cases of different categories of draft and Military Absence
offenders. He appointed nine persons to the newly-created
Clemency Board, later expanding its membership to 18 (see
Appendix A). He designated a fourth entity, the Selective
Service System, to implement the alternative service aspect
of the program.
Second, this was to be a limited, not universal,
program. Had he included only those who could prove that
their offenses had resulted from opposition to war, he would
have been unfair to less educated persons. Had he included
all persons convicted of military or draft offenses, no
matter what the nature of the crime, he would have seriously
impaired respect for the law. Instead, the President listed
several draft and desertion offenses which automatically
made a person eligible to apply for clemency if committed
during the Vietnam era. On balance, our data on applicants
indicates that he drew the eligibility line generously; of
the 113,000 persons eligible, relatively few actually
committed their offenses because of a professed
conscientious opposition to war.
The third principle was that the program should offer
clemency, not amnesty. Too much had happened during the war
to permit Americans to forget. The President often stated
that he did not want to demean the sacrifice of those who
served or the conscientious feelings of those who chose not
to serve. But the desire not to forget does not preclude
the ability to forgive. President Ford declared that he was
placing "the weight of the Presidency in the scales of
justice on the side of mercy. #2 He requested that fugitive
draft offenders be relieved from further prosecutions, that
military absentees be discharged without court-martial, that
persons punished for draft offenses receive Presidential
pardons, and that servicemen discharged for absence offenses
receive Clemency Discharges and Presidential pardons.
His fourth principle was that he would offer
conditional, not unconditional, clemency. Eligible persons
had to apply to the program for their cases to be
considered. Also, most applicants would have to earn
clemency through performance of several months of
2
alternative service in the national interest. Regardless of
the motives behind their draft or desertion offenses, they
still owed a debt of service to their country. Performance
of that service was the prerequisite for clemency.
Fifth he decided that this was to be a program of
definite not indefinite, length. There would be an
application deadline, giving everyone more than four months'
time from the program's inception to apply (later extended
by two months). This would permit all cases to be decided
within one year, and -- even more important -- it would put
an end to the amnesty issue. He hoped that reconciliation
among draft resisters, deserters, and their neighbors would
take place as quickly as possible. Altogether, about 21,800
eligible persons applied for clemency.
His final principle was the cornerstone of the program:
All applicants would have their cases considered through a
case-by-case, not blanket, approach. Clemency would not be
dispensed or denied automatically, by category, or by any
rigid formula. The review of clemency applications would be
based upon the merits of each applicant's case, with full
respect given to his rights and interests. Case
dispositions had to be fair, consistent, and timely.
During our twelve months of existence, the Presidential
Clemency Board decided close to 14,500 cases. We tried to
apply the spirit of these principles to every case. In this
report, we explain what actions we took, what we learned
about our applicants, and what we think we accomplished.
Where possible, we also try to put the President's entire
clemency program in some perspective.
Chapter two consists of a discussion of how each of the
President's six principles was implemented. In Chapter
three, we describe what we learned about the experiences of
the civilian and military applicants to the Clemency Board.
We discuss our procedural and substantive rules in some
detail in Chapter four, followed by an analysis of our case
dispositions in Chapter five. In Chapter six we describe
how we managed what was often a "crisis" operation. In
Chapter seven we try to put the President's program into an
historical perspective through a comparative analysis of
other acts of executive clemency in American history. The
Report closes with Chapter eight with a discussion of what
we think the President's program accomplished. Illustrated
this discussion are excerpts from actual Clemency Board
cases, plus statistics from a comprehensive survey we
conducted from the case summaries of almost 1,500
applicants. Some particularly illustrative cases are
presented in more than one chapter.
3
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A. The Need for a Program--and Its Creation
Regardless of political or philosophical perspective,
all will agree that the war in Vietnam had a significant
impact on our country and on the lives of most American
citizens. The war resulted in the loss of hundreds of
thousands of lives, including the lives of fifty-six
thousand American servicemen. It forced many more people to
leave their homes and countries. Nightly, television
brought the war into American living rooms. For the first
time, the average citizen witnessed the reality of war,
almost at first hand. Conflict between pro-war and anti-war
advocates increased dramatically. Slogans such as "America,
Love It or Leave It," "Peace with Honor," and "Unconditional
Amnesty Now" came to be symbolic of the divisions in our
country. Patriotism meant different things to different
people. Many believed that love of country could best be
demonstrated by defending America's interest on the
battlefield. Others insisted that love of country required
a crucial reversal of national policy. They felt that by
opposing the war and resisting military induction, they
could serve America best by influencing changes in its
foreign policy.
Overshadowing the political consequences of the war were
the personal tragedies. Thousands of Americans lost their
lives, and thousands of American families lost their loved
ones. Untold hundreds of thousands must bear physical and
psychological scars for the remainder of their lives.
Nothing can ever be done to compensate for the supreme
sacrifice of those who die or lose their loved ones.
Nonetheless, this does not preclude a subsequent decision to
be merciful toward those who did not serve.
After the war ended, it remained clear that America had
suffered other casualties as well. The war affected the
lives of tens of thousands of young Americans who had chosen
not to serve. Their families and friends shared their
burden of exile, imprisonment, and separation.
Shortly after assuming office, President Ford sensed the
need to "bind the Nation's wounds and to heal the scars of
divisiveness. As one of his first initiatives as
President, he issued Proclamation 4313, creating the
Clemency Program. The President believed that "in
furtherance of our national commitment to justice and
mercy, it was time to achieve a national "reconciliation"
with the greatest degree of public cooperation and
understanding.² To outline how his program was to be
implemented, he issued Proclamation 4313 and an accompanying
Executive Order. (See Appendix B.) When the program began
on September 16, 1974, a year and a half had passed since
the last American combatant had left Vietnam.
President Ford recognized that desertion and draft
evasion and unauthorized military absence are serious
offenses which, if unpunished, might have an adverse effect
on military discipline and national defense. Nevertheless,
he recognized that "reconciliation among our people does not
require that these acts be condoned. 113 It did require,
however, that these offenders have an opportunity "to
contribute a share to the rebuilding of peace among
ourselves and with all nations, (and) to earn return to
their country. He entrusted the administration of the
Clemency program to three existing government agencies --
the Department of Justice, the Department of Defense, and
the Selective Service System -- and created the Clemency
Board within the Executive Office of the President to
consider applications from people not already under the
jurisdiction of the Departments of Justice and Defense.
These four governmental units were ordered to implement a
program offering forgiveness and reconciliation to
approximately 113,000 draft resisters and military
deserters.
Unconvicted draft evaders were made the responsibility
of the Justice Department. 5 Members of the Armed Forces who
had remained at large as unauthorized absentees came within
the purview of the Defense Department's program.6 The vast
majority who had already been convicted or otherwise
punished for Vietnam-era draft or military absence offenses
became the responsibility of the newly created Presidential
Clemency Board.
On September 16, 1974, the President appointed nine
persons to this Board. Former United States Senator Charles
E. Goodell was designated as Chairman.
Beginning in September, the Board met on a regular basis in
Washington, D.C. As the number of applications swelled from
860 in early January to 21,500 by the end of March, it
became apparent that the nine original Board members and the
initial staff of less than 100 could not complete the
Board's work within the twelve-month deadline set by the
President. In May 1975, the President expanded the Board to
eighteen members and authorized a staff of over 600 to
complete the work on time.
The original nine-member Board was broadly
representative of national feelings on the war and on the
issue of amnesty and clemency. The expanded Board of
eighteen was carefully selected to preserve this balance,
including members with widely ranging experiences and points
of view. Many had spoken out strongly against the war, some
having advocated unconditional amnesty. Others believed
that our mistake lay in not pursuing the war effort more
vigorously.
2
All Clemency Board members were aware that the
President's program had to be implemented carefully to avoid
having a serious impact on military discipline and to avoid
impairing our strength in a future military emergency. The
Board consisted of thirteen veterans of military service,
three women, and two priests. Five were Vietnam veterans,
two of whom were seriously disabled in combat. Another
commanded the Marine Corps in Vietnam. One Board member had
a husband listed among those missing in action. Two Black
men, one Black woman and one Puerto Rican woman were on the
Board. We also had a former local draft Board member, an
expert in military law, and others with special backgrounds
and perspectives which contributed to a well-balanced
Board.⁷ (See Appendix A.)
B. A Limited, Not Universal, Program
When the President announced his clemency program, he
had to draw a line between those who were eligible and those
who were not. That line was drawn in a generous manner. In
order to encompass Vietnam-era offenders who opposed the war
on conscientious grounds, the President enumerated a
sizeable list of offenses. He decided not to impose a test
of conscience. It would have been improper to regard those
who could articulate their opposition to the war as the only
persons with a legitimate claim to clemency. The complex
Selective Service procedures tended to favor the better-
educated and the sophisticated. Those who were not able to
express themselves may still have had strong feelings about
the war, but may not have been successful in pursuing their
legal opportunities. A fair program of clemency could not
be restricted to those already favored by education, income,
or background.
In a broader sense the atmosphere of division, debate,
and confusion about the war had an impact on all those
called upon to serve. If the war had been universally
regarded as critical to the survival of the United States,
it is unlikely that many of these Americans would have
placed their personal needs or problems above those of the
country. This war was not universally regarded as such, and
many of those who failed to serve did so, consciously or
not, because the needs of the country were not as evident to
them as were the personal sacrifices they or their families
faced.
For these reasons, the President's definition of those
eligible for clemency was phrased in terms of offenses
committed, not in terms of the reasons for the offense. The
President extended this clemency offer to veterans who went
AWOL (absent without official leave) to find medical
assistance to treat their combat wounds, to cope with
readjustment problems after returning from Vietnam, or to
support families forced to go on welfare. Likewise, he
extended it to civilians from disadvantaged backgrounds
whose ignorance and itinerancy led to their failure to keep
their draft boards informed of their whereabouts. In the
3
thousands of cases we have reviewed, we found that the list
of victims of the Vietnam War was of much greater variety
than we had originally thought.
Eligibility Criteria for the Program
The Presidential Proclamation established three criteria
for eligibility. First, the program applied only to
offenses that occurred during the war period. This was
defined as extending from the passage of the Gulf of Tonkin
Resolution (August 4, 1964) through the day the last
American combatant left Vietnam (March 28, 1973). Second,
an applicant must have committed one of the offenses
specifically listed in the Proclamation. Military
applicants must have violated Article 85 (desertion) of the
Uniform Code of Military Justice, Article 86 (absence
without leave), or Article 87, (missing movement). Civilian
draft offenders must have committed one of the following
violations of Section 12 of the Selective Service Act: (1)
failure to register for the draft or register on time; (2)
failure to keep the local draft board informed of his
current address; (3) failure to report for or submit to
preinduction or induction examination; (4) failure to report
for or submit to induction; or (5) failure to or complete
alternative service. Third, an applicant must not have been
an alien precluded by law from reentering the United
States.
The eligibility tests set by the President no doubt
excluded some fugitives, convicted offenders, and discharged
servicemen whose offenses were motivated by their opposition
to the war. For example, there were a few military
applicants who, out of conscientious objection to the war,
refused to report to Vietnam. Instead of going AWOL, these
men faced court-martial for willful disobedience of lawful
order. Had they gone AWOL, they could have applied
clemency; because they remained on their bases and accepted
the punishment for their actions, they still have their bad
discharges. Also, persons convicted of or charged with
other Selective Services offenses, such as draft card
mutilation or aiding and abetting draft evasion were
ineligible for clemency because these were not among the
offenses listed in the Executive Order.
Before the President announced his program, there had
been considerable debate in Congress and elsewhere about the
kinds of offenses that properly should be included in a
clemency or amnesty program. As with most disputes on the
subject, opinions varied greatly. There was general
agreement, however, that absence and induction offenses
should be included because the vast proportion of Vietnam-
related offenses were of this type. Had the President's
program included categories of offenses involving calculated
i
FORD
interference with the draft system or with military
discipline, or involving violence or destruction of
property, it would have had a far more serious impact on
GERALD
LIBRARY
respect for law and military discipline.
4
Eligibility for the Presidential Clemency Board
Applicants eligible to apply to our Board included only
those who had been convicted or punished for the above
offenses.' For a civilian to be eligible, he must have been
convicted of one of the Selective Service violations listed
above. For a former serviceman to be eligible, he must have
received an Undesirable, Bad Conduct, or Dishonorable
Discharge as a consequence of his absence offenses. Anyone
discharged with either an Honorable or a General Discharge
was not eligible.
The Proclamation prevented our Board from accepting
cases in which the underlying facts of the offense may have
supported a charge over which we had jurisdiction, but in
which the individual was in fact prosecuted for a
nonqualifying offense. The Executive Order clearly stated
that the discharge must have been based on unauthorized
absence. Thus, a conviction for failure to obey an order to
go to an appointed place must have also been charged as an
AWOL. 10 A serviceman discharged for a civilian conviction
could also have been discharged for unauthorized absence
while in civilian custody. 11 There were numerous gray areas
in which difficult jurisdictional determinations had to be
made.
The other agencies had accurate counts of individuals
eligible for their programs; 4,522 were eligible for the
Justice program, and 10,115 for the Defense program. We had
to rely entirely on estimates which these agencies gave us.
Our 8,700 total for civilian eligibles came directly from
Department of Justice records. Our 90,000 figure for
military eligibles is 80% of the 111,500 originally
estimated by the Department of Defense from their records of
AWOL-related discharges. We reduced that later figure by
20% because the Department of Defense found that its
original estimate of persons eligible for its own program
was 20% too high; they reduced it from 12,600 to 10,115
through a closer inspection of records. We expect that the
same attrition would result from a close inspection of our
own eligible persons' records.
We recognized that this was a clemency program,
requiring us to interpret our jurisdictional boundaries
broadly. To be narrow and unduly legalistic in determining
eligibility would have been contrary to the spirit of the
program.
The military cases presented difficult questions of
interpretation. For example: "The Board shall consider
the case of persons who have received punitive or
undesirable discharges as a consequence of violations of
Articles 85, 86, or 87 "12 The phrase "as a consequence
of" gave us particular difficulty. We decided that the
phrase did not mean "as a consequence of" an AWOL only. In
many cases, individuals had been administratively discharged
for unfitness or frequent involvement with authorities based
on a pattern of offenses, including AWOLS, none of which
warranted a court-martial. The AWOL had to be viewed as a
contributing factor, if not the sole cause of the discharge.
5
This occasionally meant that an individual might have been
administratively discharged for unfitness for a very short
AWOL, plus numerous other minor infractions. It was
impossible to devise any objective method to separate the
reasons for the discharge. The military services leave
administrative discharges for unfitness to the discretion of
commanders. They do not have binding rules on the character
of misconduct necessary to warrant an Undesirable Discharge.
We recognized the dual need to have clear and objective
jurisdictional rules, while at the same time retaining
flexibility to make correct dispositions in cases in which a
short AWOL was an insignificant factor in the discharge. We
decided that the need for clear and consistent
jurisdictional rules required us to accept these marginal
cases, since the right to have one's case heard should be
broadly granted. However, the fact that an applicant had
committed military offenses other than AWOL sometimes
resulted in a denial of clemency, a consequence perhaps more
detrimental than a denial of jurisdiction.
The court-martial cases presented similar difficulties
because sentences were not rendered separately when an
individual was convicted on several different charges, one
of which was an AWOL. Since an individual might well have
been court-martialed for a major felony together with a very
short AWOL, it was obvious that the discharge would have
been awarded regardless of the AWOL offense. In court-
martial cases, however, military regulations define the
maximum punishments for different offenses. Thus, we
consulted the Manual for Courts Martial, Table of Maximum
Punishments13 to formulate simple rules to determine when we
had jurisdiction in cases involving court-martial
discharges. We applied the same rules to administrative
discharges given in lieu of court-martial. As a general
rule, we determined that:
1. We had jurisdiction if the AWOL offenses that
commenced within the qualifying period standing
alone were sufficient to support the discharge that
the applicant received;
2. We had jurisdiction if neither the AWOL offenses
that commenced within the qualifying period nor the
non-AWOL offenses, considered independently, were
sufficient for the discharge that the applicant
received;
3. We did not have jurisdiction if the AWOL offenses
that commenced within the qualifying period were
insufficient and any one of his other offenses,
considered independently, was sufficient for the
discharge that the applicant received.
The exclusion from the program of persons who were
precluded by law from re-entering the United States also
posed difficult problems. If an order of a court or the
Immigration and Naturalization Service had already decided
GERALD R. FORD
the question, we were bound by that determination. But we
considered it not within our province to decide complex
questions of immigration and citizenship law. For that
6
reason, we provisionally accepted the cases of persons for
whom no such determination had yet been made. We made
tentative decisions on these cases, forwarding them to the
President with a recommendation that he not act until proper
judicial or administrative determinations had been made by
the Justice Department.
Altogether, we received approximately 6,000 applications
from ineligible persons. Many had committed offenses during
other wars, had received General Discharges, or had been
discharged for offenses not listed in the Proclamation.
While we could not help them directly, we informed each one
by letter of other legal and administrative remedies
available to them.
C. CLEMENCY, NOT AMNESTY
In the years before President Ford assumed office,
opinion was sharply divided over whether there should be any
restoration of the rights and benefits offered by the
government to Vietnam-era draft and AWOL offenders. Many
citizens believed that the offenders' rights and benefits,
including full veterans benefits, should be restored.
Others insisted that they be given nothing. President Ford
chose the middle course.
To unconvicted draft offenders, the President offered
the promise that they would not be punished for their
actions, enabling them to avoid the lifetime stigma of a
felony conviction. Their prosecutions would be dropped.
All others whose cases had not yet resulted in a decision to
prosecute were relieved of any future danger of prosecution.
To undischarged military absence offenders, the
President offered an immediate end to their fugitive status,
with the promise that they would not be court-martialed or
imprisoned for their offenses. They would receive an
immediate Undesirable Discharge and an opportunity to earn a
Clemency Discharge. To a small number of fugitive
servicemen with exceptionally good records or other special
circumstances, application to the program could also result
in reinstatement in the military or an immediate discharge
under honorable conditions through normal military channels.
To convicted draft offenders, the President offered
official forgiveness for their actions through the highest
constitutional act available to him. They would receive a
full Presidential pardon.
To military absence offenders who had received bad
discharges, the President offered official forgiveness in
the form of a full Presidential pardon, and an upgrade to a
Clemency Discharge.
To those who were still serving prison terms for
GERALD FORD LIBRARY
desertion or evasion, the President directed an immediate
furlough for each person who applied for clemency. With the
7
exception of one person who chose not to participate, each
of the roughly 100 incarcerated civilians and 170
incarcerated servicemen who applied to the Presidential
Clemency Board were released. Under the President's
direction, the Presidential Clemency Board gave priority to
those cases, and all had their sentences permanently
commuted.
In the remainder of this section, we describe in more
detail the dimensions of the President's program, and
compare it to the relief which might have been available
under an "amnesty" program. In doing so, we explore the
sources of the President's power to grant executive
clemency.
"Clemency"
Clemency can be defined as the tendency or willingness
to show forbearance, compassion, or forgiveness in judging
or punishing, or as an act of mercy or lenience. 14 The
President's authority to grant clemency is derived from a
number of powers given him by the Constitution. His
Constitutional authority to grant pardons¹⁵ permits him to
grant clemency to a particular person or group of persons.
In granting a pardon, a President is often prompted by the
desire to show compassion or leniency. It is not necessary
that the individual be convicted of, or even charged with,
an offense. 16 He may commute sentences and fines, but he may
not order the return of sums already paid. 17 Also he may
grant stays or relief from execution of sentence -- a
constitutional "reprieve" or commutation. Although only the
President can grant pardons, the Pardon Attorney in the
Department of Justice administers the process in his behalf.
The President, as Commander-in-Chief of the Armed
Forces; 18 may request any branch of military service to
upgrade a bad discharge. Through the executive power vested
in him, the President may request subordinate federal
officers not to enforce criminal statutes against an
individual to whom he wants to grant clemency. 19
The Constitution grants the President the sole
discretion to exercise his pardoning power. He is not
answerable to the judiciary or to the Congress for his
decision to grant or to refuse to grant a particular pardon.
He may not be ordered to grant pardons, nor may his pardons
be revoked. 20 Barring an impeachable abuse of his powers,
the President is answerable in his exercise of this power
only to his conscience, to his understanding of the national
welfare, and to the public -- whose acceptance is necessary
to give full meaning to his act of executive clemency.
The Presidential pardon is the supreme constitutional
act of forgiveness or mercy. It is an expression of
society, through the Chief Executive, signifying that it
will disregard the offense for which an individual was
originally prosecuted. It thus removes the social blot of a
criminal conviction and relieves any continuing impairment
BERALD FORD LIBRART
of federal civil rights. Because a pardon is an act of
8
executive grace, it may be given to right a wrong, to
correct an injustice, or to excuse a repentant wrongdoer.
It may be offered to ease the harshness of the law when
personal hardship or the public good is involved.
A Presidential pardon restores Federal civil rights lost
as a result of the conviction, such as the right to hold
federal office or to sit on a federal jury. Also, most
states recognize a Presidential pardon as a matter of
comity, restoring the right to vote, to hold office, and to
obtain licenses for trades and professions from which
convicted felons are often barred. A pardon does not change
history, and it does not compensate for any rights or
benefits, legal or economic, that the individual has already
lost before his pardon. It operates prospectively only. A
pardon is a Presidential expression that the stigma of
conviction has been removed, and that its recipient should
no longer be discriminated against when seeking jobs,
credit, housing, or any other opportunities. However, a
pardoned offender is not considered as though he never
committed the offense. 21 A full pardon removes most of the
legal disabilities of the offense, but it does not bring its
recipient treatment equal to that accorded a person who has
never committed an offense. 22
Although the Executive Order did not state explicitly
that a Presidential pardon was to be the form of clemency
offered to applicants to the Clemency Board, the President
soon made it clear to us that this was his intent. The
President confirmed the Board's understanding that he wished
a pardon to be the form of clemency offered to convicted
evaders and to military absentees, whether they had been
discharged by court-martial or by administrative action. No
other form of clemency action would have had meaning. The
grant of a pardon to a person who had been discharged
without a court-martial conviction was a generous gesture,
but not a break from precedent. A President pardons the
act, not merely the judicial consequences that may have
flowed from it. Previous Presidents granted pardons to
persons who had suffered administrative penalties for a
wrongful act, even though they had never been convicted of a
crime. President Ford therefore decided that he would offer
pardons to the persons who had been given Undesirable
Discharges for AWOL offenses but who had not been convicted
in a military court. This group comprised 60% of the
military applicants to the Presidential Clemency Board.
The penalties for violation of military discipline
differed from those for violation of civilian law. A
military offender not only could receive a conviction and a
sentence of imprisonment or a fine, but he also could be
released with a discharge which characterizes his military
service as unsatisfactory. While a pardon affects the
conviction, it has no impact on the type of discharge
granted. For that reason, the President provided that a
recipient of clemency should also have his discharge
recharacterized as a Clemency Discharge, a new designation
created specially for this program.
GERALD FORD LIBRARY
The Clemency Discharge was intended by the President to
be a "Neutral" discharge, to be considered neither under
9
"Honorable Conditions" nor under "Other than Honorable"
conditions. Military records are recharacterized with the
new Clemency Discharge, which is in substitution for the
earlier Bad Conduct or Undesirable Clemency Discharge (under
other than honorable conditions) or Dishonorable Discharge
(under dishonorable conditions). A Clemency Discharge is
neutral, better than the discharge it replaces but not as
good as a General Discharge, which is given affirmatively
under honorable conditions.²3 By express direction in the
Proclamation, a Clemency Discharge bestows no veterans'
benefits itself. Nor, however, does it adversely affect the
conditional availability of veterans' benefits to holders of
Undesirable or Bad Conduct Discharges. Otherwise, the
President's act of clemency would have had the effect of
impairing and not improving an applicant's status. Neither
common sense nor the language of the Proclamation supports
such a result.
The President's program was intended as a unique and
supplemental form of relief to certain classes of former
servicemen. It did not deny pre-existing statutory or
administratively granted avenues of relief that While
perhaps the relinquishment of those rights could have been
made a condition of the President's program, no such
condition was expressed in his Proclamation. For that
reason, all military applicants who receive a Clemency
Discharge can still apply for a further upgrade through the
appropriate military review boards. Likewise, they can
still appeal for benefits to the Veterans' Administration.²
Their chances for success should be much better with a
pardon and Clemency Discharge than with their original
discharge and record of unpardoned offenses.
While the Clemency Board recommended most applicants for
pardons and Clemency Discharges, the Department of Justice
and Department of Defense also provided applicants with
important benefits. Every person eligible to participate in
the Defense and Justice program was in jeopardy of a
conviction. The Department of Justice program had the
effect of dropping pending federal criminal prosecutions
against fugitive civilians who were indicted or had
investigations pending for a specific draft evasion offense.
The Department of Defense program gave relief from possible
court-martial proceedings against military absentees.
In some respects, the Department of Justice program
offered the greatest restoration of rights. Fugitive
civilians charged with draft evasion offenses faced the
possibility of a criminal conviction, a maximum of five
years in prison, and a $10,000 fine25. In return for up to
two years of alternative service, their prosecutions were
dropped. They were also freed from the enduring stigma of a
felony conviction. Therefore, applicants to the Justice
program could emerge with better records than their
counterparts in the Clemency Board program, since it is
better to have no felony conviction than to have one which
has been pardoned.
The Justice program also resulted in the closing of case
files of all civilians who may have committed specific
GERALD FORD LIBRARY
Vietnam-era draft offenses but who had not yet been
10
indicted. After the program began, the Department of
Justice directed all United States Attorneys to submit a
list of all persons against whom they either had or would
soon have indictments issued. Prior to this request, 6,239
prosecutions had been commenced by the United States
Attorney, and thousands of other investigations were
underway which could have resulted in indictments. As the
lists were submitted, 1,717 active prosecutions were
dismissed. The Attorney General declared that the
Department of Justice would not prosecute Vietnam-era draft
violators who were not on the final list of 4,522 persons,
except for persons who never registered for the draft. The
other 1,717 individuals with prosecutions pending had their
cases permanently dropped. If they were in exile and had
committed no other offenses, they were free to come home. 26
If they were in the United States, they could plan for the
future without worry. The same was true for an
indeterminant number of other individuals who had been cited
for a possible draft violation by Selective Service, and
whose cases had been referred to the Justice Department for
further action.
By participating in the Defense program, fugitive AWOL
offenders automatically ended their fugitive status and were
relieved of the prospect of up to five years imprisonment
and a Dishonorable or Bad Conduct Discharge. They spent one
to three days at Fort Benjamin Harrison and received an
Undesirable Discharge. They could then perform alternative
service in order to earn a Clemency Discharge. Even if they
subsequently fail to complete alternative service, no
changes can be brought against them unless it can be shown
that they did not intend to perform alternative service when
they received their Undesirable Discharge. At a minimum,
they re-enter society in vastly improved circumstances.
The Defense program provided a special form of clemency
to forty-eight applicants. Most of these individuals had
served meritoriously in Vietnam or had been the victims of
serious administrative errors which led to their offenses.
Forty-six received immediate discharges under honorable
conditions, thereby qualifying for full veterans' benefits.
Two were allowed to return to military service with no
penalty. They were much like the individuals whom the
Clemency Board had recommended to receive upgraded
discharges by the President for discharge upgrades to
honorable conditions.
Not "Amnesty"
The debate over the President's program was often framed
in terms of whether the President should have granted
"amnesty" and not merely "clemency." The word amnesty
derives from amnestia, the Greek word for forgetfulness. It
connotes full official forgetfulness, an obliteration of the
fact that a past offense ever existed. It restores rights
and benefits lost on account of the past offense to the
maximum effect possible under law.
GERALD FORD LIBRARY
11
"Its effect is to obliterate the past, to leave
no trace of the offense, and to place the offender
exactly in the position which he occupied before
the offense was committed -- or in which he would
have been if he had not committed the offense. 1127
The difference between amnesty and clemency is as much a
semantic dispute as anything else. The terms amnesty and
clemency have been used interchangeably in American history.
Indeed, there is no significant legal difference between a
pardon and an amnesty:
"some distinction has been made, or attempted to be
made, between pardon and amnesty. It is sometimes
said that the latter operates as an extinction of
the offense of which it is the object, causing it
to be forgotten, so far as the public interests are
concerned, whilst the former only operates to
remove the penalties of the offense. This
distinction is not, however, recognized in our law.
The Constitution does not use the word "amnesty,
and, except that the term is generally employed
where pardon is extended to whole classes of
communities instead of individuals, the distinction
between them is one rather of philological interest
than of legal importance. 1128
The differences between advocates of clemency and
advocates of amnesty do not involve exercise of the
President's pardon powers, but rather rights or
benefits that should be offered in a reconciliation
program. Under the President's program, civilian
participants who were not yet prosecuted could receive
as much as could be offered -- release from further
prosecution. Those who already been prosecuted and
convicted were offered a pardon, which is the most a
President could give to a convicted offender. Even
though the President may grant a particular group of
convicted individuals an "amnesty," each member of the
group would receive nothing more than a pardon. To
return any fines paid, compensate for time spent in
prison or expunge and erase all records of a
conviction, Congressional action would be required.
However, the President could have directed that
Executive Branch records of conviction be sealed.
Also, he legally could have offered more benefits to
military participants. Through his authority as
Commander-in-Chief, he could have directed that they
receive discharges under honorable conditions, with
full entitlement to veterans' benefits.
In effect, the President offered most, although not
all, of the benefits which the law and the Constitution
permitted him to dispense.
FORD i LIBRARY GERALD
12
D. Conditional, Not Unconditional, Clemency
The President extended his offer of clemency in a
spirit of reconciliation. He expected those to whom
his offer was made to accept it in the same spirit.
This meant two things: first, the individual had to
step forward and apply for clemency; second, he had to
be willing to perform a period of alternative service.
The conditional nature of the President's Program most
clearly distinguished it from proposals for
unconditional amnesty.
The constitutional power to pardon and grant
reprieves carries with it the power to condition these
forms of clemency upon the performance of certain
conditions before or after any grant. The Supreme
Court of the United States recently stated:
this Court has long read the Constitution as
authorizing the President to deal with individual
cases by granting conditional pardons. The very
essence of the pardoning power is to treat each
case individually.29
Condition of Application
The President could have directed the Board to review
the cases of all those eligible without the requirement of
an application. The condition of application required that
individuals had to take some initiative to show their
interest in reconciliation. Further, the grant of a pardon
must be accepted by the recipient to be effective. It would
have been a useless gesture to review the cases of persons
who would have later declined the President's offer.
The Executive Order gave the Board discretion to
determine acceptable applications, and we decided to make
the process as easy as possible. To make a timely initial
filing, the applicant or a person acting in his behalf had
to contact any agency of the Federal government not later
than the application deadline of March 31, 1975, and express
an interest in participating. Written inquiries were
acceptable if mailed not later than March 31.
Sparl
We accepted no applications submitted after the
President's deadline. We strictly construed this rule,
rejecting approximately 500 late applications.
Applications misdirected to consulates, probation
offices, and Congress were all considered acceptable,
because many applicants were confused about the division of
FORD i LIBRARY GERALD
responsibility among the four agencies implementing the
program. If this contact was in writing by the applicant
himself or his attorney, it was a valid application. If the
initial filing was made over the telephone or by someone
30
other than his attorney, the applicant was given until May
31, 1975, to confirm the contact in writing.29 Individual
FN
cases sometimes presented difficult questions of proof,
13
especially when persons made uncorroborated oral
applications to other federal officials.
Living in Canada at the time, applicant alleged
that he telephoned a U.S. Consulate prior to March
31 and had been told that the deadline did not
apply to his case. Unfortunately, the Consulate
kept no records of inquiries about the clemency
program. The applicant re-entered the United
States in early April after completing his Canadian
employment obligations. He immediately appeared at
a United States Attorney's office.
In the above case, the question of timeliness turned on
the credibility of the applicant. After a personal
appearance, the Board was persuaded of the applicant's
truthfulness, and the members voted unanimously to accept
his application.
Where the application contained insufficient information
for us to obtain the facts necessary for our case-by-case
determination, we tried to contact the applicant and obtain
these facts. We made repeated phone calls and mailings to
thousands of applicants who had submitted timely but
incomplete applications. Despite repeated efforts to obtain
more information, we ended our work on September 15, 1975,
with 900 applications for which we were unable to obtain the
facts necessary to make our decision. These cases were
returned to the Pardon Attorney for further investigation
and processing in accord with Clemency Board standards and
precedents.
The application requirements of the Justice and Defense
Programs of the Program were specified in the Executive
Order. Their applicants had to appear in person to
participate. Both the Departments of Justice and Defense
required that an individual return to the United States if
in another country, report to a Department office,
acknowledge allegiance to the United States, 31 and pledge to
perform alternative service. The Department of Justice
required that, upon entering the United States, a convicted
draft evader had fifteen days to present himself to the
United States Attorney in the judicial district in which his
draft evasion offense had occurred. This had to occur not
later than March 31, 1975. If an unconvicted evader failed
to comply, he remained subject to prosecution for his draft
evasion offense. In fact, no one was prosecuted during the
application period for failing to report within fifteen
days.
To receive clemency through the Department of Defense's
segment of the program, an undischarged AWOL offender had to
return to the United States, surrender to any military base
not later than March 31, 1975, and travel to the Joint
Clemency Processing Center in Indiana. When he affirmed his
allegiance and agreed to perform alternative service, he was
given an Undesirable Discharge. He then could perform his
GERALO, FORD LIBRARY
assigned alternative service to earn an upgrade to a
Clemency Discharge.
14
Condition of Alternative Service
Those who were required to perform alternative service
under any part of the President's program came under the
jurisdiction of the Selective Service System. Clemency
Board applicants had thirty days from the date that we
informed them of the President's clemency offer in which to
enroll with Selective Service. Department of Defense and
Department of Justice applicants had fifteen days in which
to enroll.
All individuals assigned to alternative service were
informed that under Selective Service rules they could work
anywhere in the United States. To enroll, they had to
travel to their desired area of residence and contact the
nearest office of Selective Service. There are now about
650 such offices throughout the United States. Initially,
the applicant had the opportunity of finding a job of his
own choosing. He was encouraged by Selective Service to
find work which utilized his special talents. If he found a
suitable job himself, his state Selective Service Director
had to determine if the job met the following criteria:
a. The job must be full-time (forty hours per week) and
must promote the national health, safety, or interest.
b. The enrollee cannot fill a job for which there were
more qualified applicants than there were spaces available.
C. The job must be with a non-profit organization.
d. Unless he obtains a waiver from his State Selective
Service Director, his pay must provide him with a standard
of living that was at least equivalent to that which he
would have enjoyed had he gone into or stayed in the
military. 32
If the enrollee did not find a suitable job, the State
Selective Service Director had to find one for him by the
end of the thirty day period.
Because of local economic situations, it has often been
difficult for enrollees to find their own jobs, and it has
not always been possible for Selective Service to place
every enrollee within the thirty day period. To be fair to
the enrollee, Selective Service rules specified that if
through no fault of his own the enrollee had not been placed
in a job within the thirty day period, time would begin to
be credited to his alternative service commitment on the
thirty-first day following his enrollment. While this
GERALD, FORD LIBRARY
provision has permitted some an individuals to earn clemency
without having a job, it has avoided penalizing a person
willing to serve but for whom no job has been available.
To avoid this problem, our Board recommended to
Selective Service that individuals in our program be able to
fulfill their alternative service by performing volunteer
work in the national interest for 16 hours per week for the
designated period--three or six months in most cases.
15
According to Selective Service, alternative service jobs
have offered some individuals the beginning of a new career:
A former Marine's alternative service consisted of
assisting a jailer. He adapted well to his job,
attended school on his own time, and is now a deputy
sheriff.
An Army veteran was assigned as a rodent and insect
control inspector for the city's health department. His
supervisor is so pleased with his work that he hopes to
retain him after his alternative service is over.
As of October 1, 1975, 128 enrollees completed their
periods of alternative service under the President's
program. As the table below indicates, the Department of
Defense program has the highest number of applicants in this
category. Others have begun their jobs, but --
unfortunately -- many others have not.
TABLE 4: INFORMATION ON ALTERNATIVE SERVICE PERFORMANCE
Status*
DoD
DOJ
PCB
Total
New Enrollees
66
46
212
324
Referred to Jobs
342
71
87
500
At Work
1269
480
102
1851
Job Interruption
135
30
4
169
Referred to Second
Job
56
21
1
78
Postponed
60
17
7
84
Completed
100
21
7
128
Terminated
2479
41
10
2530
Total*
4507
727
430
*Some applicants are classified in more than one category.
The success of the Department of Justice in having its
applicants do alternative service probably reflects the
threat of prosecution facing those terminated from the
program. Many Department of Defense applicants may have
applied for clemency just to end their fugitive status and
receive an Undesirable Discharge. This may explain the
FORD
large number of Defense applicants who either never enrolled
with Selective Service or were later terminated for failing
to accept the designated employment.
GERALD
LIBRARY
So far, very few of our applicants have had to enroll
with Selective Service. Since almost all of our applicants
16
were informed of the President's decision in their cases
after August 1975, we do not yet have adequate information
on the number of persons in our program who have begun
alternative service. Unlike the other two agencies
administering the programs, we were unable to counsel our
applicants in person. What contacts we had with them
suggest that many may not understand some basic facts about
their alternative service obligation. Others may not
appreciate their rights with respect to job selection or
termination. The generally low level of education and
sophistication of our applicants, and their previous
failures to abide by draft board or military rules,
underline this possibility. Also, the short alternative
service assignments of three to six months may make it
harder for Clemency Board applicants to find jobs.
According to Selective Service, many employers are unwilling
to offer jobs to individuals willing to work for only a few
months.
We believe that the true measure of our work lies not in
the number offered clemency, but rather in the number who
successfully fulfill the conditions we recommended and
actually earn their pardons.
E. A Program of Definite, not Indefinite, Length
When President Ford announced the establishment of his
clemency program, his Proclamation specifically limited the
period of time in which applications could be accepted.
Originally, he set January 31, 1975, as the application
deadline. Due to the publicity and press coverage that
heralded the announcement of the Clemency Program, we and
the others newly involved in its administration assumed that
all eligible people would quickly learn about the program
and understand what benefits could be derived from applying
for clemency. Therefore, we thought that four and one-half
months gave potential applicants ample opportunity to decide
if they wished to apply.
For the first three months of its existence, the
Presidential Clemency Board maintained a low profile. We
reasoned that people should not be pressured while making up
their minds whether to apply and that it would be improper
for us to solicit their applications. Because we assumed
that those covered by the program knew about their
eligibility, we decided to process our applications without
trying to encourage anyone to apply to us.
FORD
We soon learned, however, that our assumptions were
incorrect. After reviewing the first several hundred cases,
LIBRARY
we discovered that most of our applicants were not well-
educated, articulate persons, but rather were poorly-
educated, disadvantaged individuals who were not likely to
be informed about the President's program. Our military
applicants, in particular, did not fit the stereotype of the
knowledgeable, educated war resister. In the middle of
December, when only about 800 people had applied to the
17
Clemency Board, a limited survey of potential military
applicants took place in Seattle, Washington. A veterans'
counseling organization located twelve former servicemen
eligible for our segment of the program. All twelve knew
about the President's offer, but none of them knew that it
applied to former servicemen.
This misconception was reinforced by much of the early
media attention given the program, highlighting the
activities of those who fled to Canada. It was the self-
exiled draft evader and military deserter who formed the
basis of the stereotype which most Americans perceived as
eligible for the program. Because they had fled, they
generally knew that charges were pending against them and
that returning without applying for clemency meant
apprehension, trial, and possible conviction. In contrast,
the vast majority of our applicants had already completed
the punishment for their offense and were trying with
varying success to rehabilitate their lives. Many had heard
about the clemency program, mistakenly thinking that it was
only for those who had gone to Canada.
Once we realized that many of those eligible to apply to
the Clemency Board us knew nothing about their eligibility,
we began an extensive public information program. On
January 7, 1975, through the cooperation of the
Administrative Office of the U.S. Courts and U.S. Probation
and Parole Offices throughout the country, 7,000 information
kits were mailed to convicted draft evaders. Throughout the
month of January, similar kits were mailed to government
agencies that had some contact with the Board's applicants,
such as the Veteran's Administration, employment offices,
welfare offices, penal institutions, and post offices.
Clemency Board members Walt and Hesburgh taped public
service radio and television announcements explaining how
one could apply to the Clemency Board. On January 14, 1975,
these announcements were mailed to 2,500 radio and
television stations across the United States. During
January, seven members of our Board participated in one-day
"blitzes" in sixteen of the major cities across the country.
These visits consisted of a Board member going to a city for
one day, holding press conferences, participating in various
radio and television talk shows, and giving interviews to
reporters from the city's major newspapers. To keep
national media focused on the program, Chairman Goodell held
numerous press conferences in Washington, D.C., and
elsewhere during January.
The result of our public information campaign was a
dramatic increase in our application rate. Applications to
the Board increased from 870 on January 7, 1975, to 5,403
before expiration of the January 31st deadline. Due to this
increase, the President extended the application deadline to
March 1, 1975.
The public information campaign was continued in
earnest. On February 17, 1975, the Department of Defense
mailed 21,000 information kits to discharged military
CENALE FORD LIBRARY
personnel with punitive discharges who appeared eligible for
the program. Kits were not sent to the 75,000 eligible
persons with administrative discharges because of the
18
excessive costs of obtaining their addresses and the
difficulty of identifying which among hundreds of thousands
of administrative discharges during the Vietnam era had
resulted from AWOL-related offenses.
More information kits were sent to government agencies,
and radio and television announcements were distributed to
another 6,500 stations. Several Board members made
additional one-day visits to eight key cities, some of which
had previously been visited. Chairman Goodell continued to
hold press conferences in order to draw attention to prior
misunderstandings concerning our eligibility criteria.
Finally, the media began to recognize the difficulties we
were having in communicating with our potential applicants.
Again there was a dramatic increase in our application
rate. An additional 6,000 applications were received during
February, with our total exceeding 11,000. At our request,
the President extended the application deadline for one last
time. Knowing that March 31, 1975 was going to be the final
deadline, we intensified our efforts to reach our
applicants. We sent staff members across the country to
regional offices of the Veterans Administration. Workshops
in thirty-three cities were attended by over 3,000 veterans'
counselors -- most of whom, surprisingly, had not yet
learned that former servicemen with bad discharges were
eligible for clemency.
We received over 10,000 applications during March,
making a total of 21,500 by the time we finished counting.
We had ten or twenty times what we once thought possible.
Eventually, we determined that 15,468 of those 21,500 were
eligible for our program.
The administrators of the Departments' of Justice and
Defense Department programs also attempted to inform their
potential applicants. Letters were sent by the Department
of Justice to the last-known address of each person subject
to indictment, and many applicants used these letters to
facilitate their re-entry across the border. In December,
the Department of Defense mailed 7,000 letters to the
parents of known military absentees.
The final application tallies were 706 out of 4,522
eligible for the Justice program (a 16% response) ; 33 5,555
out of 10,115 eligible for the Defense program (a 55%
response) ; 34 1,879 out of 8,700 convicted civilians eligible
for the Clemency Board program (a 22% response) ; and 13,589
out of approximately 90,000 former servicemen also eligible
for the Clemency Board program (a 15% response)
Altogether, 21,729 applied to the President's program, 19%
of the 113,300 believed eligible to apply.
CERALO FORD LIBRARY
19
F. A Case-By-Case, Not Blanket, Approach
The President specifically requested that each agency
act upon clemency applications on a case-by-case basis. His
Proclamation declared that
"in prescribing the length of alternative service
in individual cases, the Attorney General, the
Secretary of the appropriate Department, and the
Clemency Board shall take into account such
honorable service as an invidual may have rendered
prior to his absence, penalties already paid under
law, and such other mitigating factors as may be
appropriate to seek equity among those who
participate in this program."
The very essence of the pardoning power is to treat each
case individually. The Supreme Court of the United States
has consistently read the Constitution to authorize the
President to exercise his pardon power on a case-by-case
basis34.
A case-by-case approach was more costly, requiring
greater time and staff to administer, but it was the heart
of the President's program. It permitted the Clemency Board
and the other agencies to distinguish among individuals with
differing backgrounds, offenses, and circumstances. While
more difficult to administer, the case-by-case approach
enabled the program to render justice by fashioning results
to fit the many differing people who applied to the program.
Advocates of a blanket approach often believed that the
stereotype of the articulate pacifist who acted on principle
was the only type of individual involved in the program. In
fact, only 13% of applicants to the Clemency Board committed
their offenses primarily because of opposition to war. (See
Chapter 3.)
Treating applicants by classes or groups, with automatic
dispositions for each category, would have demeaned the
value of a Presidential pardon; it would have treated the
individuals who applied as groups of objects, rather than as
human beings with whom reconciliation was the goal.
1. Clemency Board Procedures
The Clemency Board desired to make the procedure as
simple as possible, with a minimum of technical requirements
with which an individual had to comply. We wanted the
procedure to be open, so that the applicant would be aware
of how we were proceeding with his case and what we were
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using as the basis for our actions. We encouraged the
fullest possible participation by applicants. Above all,
the Board and the staff wished to make the Presidential
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Clemency Board a model of fair and open administration in
keeping with the Presidential nature of our responsibilities
and the importance of our task. The Board's procedural and
substantive rules are described in detail in Chapter 4; an
overview is presented below.
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Clemency Board Procedures
In brief, our process began with a telephone call or
letter from an individual inquiring about clemency. We
accepted any affirmative expression of interest as a
provisional application, whether oral or written, and we
accepted applications made on an individual's behalf by
third parties. While these were sufficient to satisfy the
application deadline, we required a perfected application
before we would complete action on a case³⁵. Any
application could be withdrawn at any time, without penalty.
When an application was received, we mailed back a full
set of instructions explaining the program, the individual's
rights, and information on other avenues of relief he might
wish to pursue in addition to the clemency program. To make
the process as unthreatening as possible, we required from
the individual only the minimum amount of information
necessary for us to order pertinent government records. We
encouraged the applicant to send in as much additional
information as he wished, and we informed him of the
important factors which the Board would consider in
reviewing his case. We encouraged the applicant to seek
legal counseling, and we informed him of possible sources
for counseling. We assured him of the confidentiality of
our process.
We then began his case file and give him a case number.
Preliminary questions of jurisdiction were resolved by the
staff under Board guidance. The information-gathering
process then began. First, the staff ordered official
records and files. After they had been received, a case
attorney was assigned to prepare a case summary, which would
later be used as the basis of our case disposition. This
case summary was the key element of the entire case-by-case
approach. When the case summary had been prepared, the
quality control staff reviewed it carefully for fairness and
accuracy. The case was then ready for presentation to the
Board, and the summary was mailed to the applicant for his
comment. Because of this reliance on government files, we
counted heavily on the individual's review of his summary
for corrections and additions. We also wanted the
individual to know the exact materials the Board would
consider in reviewing his case. Finally, we used the
mailing of the summary as another opportunity to encourage
the applicant to send further information to us on his own
behalf.
A panel consisting of three or four Board members then
received copies of the applicant's case summary a few days
before the actual case presentation. Each panel member read
the case summary, making notes and tentative personal
evaluations. When the panel acted on the applicant's case,
the staff attorney who prepared the summary was present with
the entire file to answer questions and make additional
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comments on the case. Also present were a staff scribe to
keep records and a panel counsel (usually the case
attorney's supervisor) to advise the case attorney and panel
members on Clemency Board rules and precedents.
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In deliberations, Board panels had to decide the
following: first, did the applicant deserve clemency of any
kind? If the answer was "yes," panel members determined the
applicant's baseline or starting point for the calculation
of his alternative service assignment, identifying which
aggravating and mitigating factors applied in his case.
(See Chapter 4.) Panel members then decided what period of
alternative service, if any, he had to perform to earn his
clemency. (See Chapter 5.) If he were a military applicant
with combat experience, the panel considered whether to
recommend him for an immediate discharge upgrade and
veterans' benefits. The staff attorney, scribe, and panel
counsel were present during all deliberations; Board
meetings were closed to the public to ensure privacy, unless
an applicant expressly waived his right to privacy. The
Board granted personal appearances when necessary for a full
understanding of the case.
To attain as much consistency in decisionmaking as
possible, any member of the Board could refer a case for
reconsideration by the Full Board. A computer-aided review
of panel dispositions identified cases which the Chairman
wished to be reconsidered by the full Board.
Our final disposition was sent to the President as a
recommendation. He then indicated his positions on a signed
warrant, which was returned to the Clemency Board so we
could notify the applicant of the President's decision. The
applicant had the right to ask for reconsideration within 30
days. If he did not file such a motion, he either accepted
or refused the President's offer of clemency. Because the
program was voluntary, a refusal left him no worse off than
before he applied.
Department of Justice Procedures
The Department of Justice program was implemented by the
Attorney General's directive of September 16, 1974, to all
United States Attorneys. 38 In addition to instructing the
U.S. Attorneys on how to calculate the length of alternative
service for their eligible applicants, the Attorney General
required them to follow certain procedures. Section V of
his directive stated:
"In the determination by the United States
Attorney of the length of service
an applicant
shall be permitted to: (1) have counsel present;
(2) present written information on his behalf; (3)
make an oral presentation; and (4) have counsel
make an oral presentation.
An applicant shall not have access to
investigatory records in the possession of the
United States Attorney except as provided by 32
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C.F.R. 160.32. The United States Attorney shall
make his decision on the basis of all relevant
information. No verbatim record of the proceeding
shall be required."
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Each of the ninety-four United States Attorneys was
responsible for carrying out this directive. The Department
of Justice took several steps to ensure uniform
implementation of its program. All U.S. Attorneys were
instructed to apply four specific mitigating factors. They
received a model alternative service agreement and a model
letter to send to eligible draft evaders. In addition, the
Deputy Attorney General personally examined and reviewed the
first twenty-six alternative service agreements before
giving final approval.
The procedures followed by the Department of Justice
were discussed by Kevin T. Maroney in his testimony before a
Sub-committee of the House Committee on the Judiciary:
"
individuals who may have been located outside
the country when the President announced the
program were given a 15-day opportunity to re-enter
and report to United States Attorneys without fear
of arrest. Morever, upon reporting to the United
States Attorneys, no prospective enrollee was
expected to execute an agreement immediately
=
(In those instances where the individual was
without financial resources, the United States
Attorney assisted in making arrangements for legal
representation.)
"As a further demonstration of flexibility, not
every prospective enrollee has been required to
execute an agreement in the judicial district where
he was charged. In those cases where compelling
reasons were evident, such as an ensuing family or
financial hardship, exceptions were made and
individuals permitted to sign agreements in other
geographical areas. Likewise, with respect to
those individuals who were pursuing educational
endeavors either in or outside the country,
arrangements were made permitting them to execute
agreements with the understanding that the actual
performance of work would be delayed, pending the
completion of their studies
Following these procedures U.S. Attorneys dropped
prosecutions or discontinued investigations of eligible
draft evaders in return for the satisfactory completion of a
specific amount of alternative service.
Department of Defense Procedures
In response to the Presidential Proclamation, the
Secretary of Defense issued a memorandum on September 17,
1974, to the Secretaries of the Military Departments. 41 This
memorandum indicated that the period of alternate service
for servicemen who apply under the President's program would
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be determined in individual cases by designees of the
various Military Departments. Pursuant to this grant of
authority, the Secretaries established a Joint Alternate
Service Board. Each of the four military services appointed
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an officer in the grade of colonel or captain to serve on
the Board.
The Secretaries granted the Joint Alternate Service
Board broad authority to determine procedures for the
resolution of its cases, except that the Presidency of the
Board had to be shared in such a way as to be held by a
member of the same service as the applicant whose case was
being considered. The vote of the Board President was to
prevail in case of a tie.
The members of the Joint Alternate Service Board agreed
upon the following procedures for the processing of its
applications:
a. To comply with the above directives, each
individual participating in the President's program
is offered the opportunity during his processing to
submit to the Board additional documentation that
he desires the Board to consider on his behalf.
Conversely, he must so indicate that he does not
desire to make a statement if that is his decision.
This provides the individual an opportunity to
state his reasons for unauthorized absence, to
indicate the nature of his employment or service
while absent, and to provide any other statements
or matters he wishes considered by the Board.
b. The military services are required to
provide a summary of each individual's record to
highlight service related factors to be
considered
C. The total available service record,
statements submitted by the individual, and the
service provided summary sheet are reviewed and
evaluated independently by each member of the
Board. Records which contain conflicting or
questionable data are returned to the service for
verification of the information. Each Board member
considers all available information and makes an
independent judgment to determine if there is
appropriate justification for reducing required
alternative service below 24 months. He then
records the number of months which he considers
appropriate for the individual to serve. When all
Board members have reviewed a case and made an
independent determination of alternative service
time, Board member votes are compared. In the
event of a tie or split vote, the case is openly
discussed by the Board members to resolve
differences. In the event of a tie vote during
arbitration, the President of the Board votes to
break the tie. This decision on the number of
months of alternative service is considered the
final decision of the full Board.
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d. The decision is annotated on the summary
sheet, signed by a Board member and returned to the
applicable service for separation processing⁴⁰.
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The Department of Defense program processed its
applicants through the Joint Clemency Processing Center at
Fort Benjamin Harrison, Indiana. In addition to being a
clemency program for military deserters, the Defense program
was also a discharge process. Applicants filled out a
series of administrative forms and participated in group
legal counseling sessions and could see a military lawyer
for individual counseling. They could apply for one of
three options concerning participation in the program.
Option 1 made him a participant in the Clemency program,
requiring him to sign a Reaffirmation of Allegiance, a
Pledge of Public Service, and accept an Undesirable
Discharge. Option 2 offered him an opportunity not to
participate in the President's clemency program and to have
his case decided under current military law. Option 3
represented a return to active duty for qualified Army
applicants. Only two of the four who chose Option 3 were
restored to active duty. Although not an explicit option,
46 applicants were diverted from the clemency program and
immediately discharged under honorable conditions. 43 All
applicants reserved the right to withdraw his selection of a
particular option before their cases were forwarded to the
Joint Alternate Service Board for disposition.
Those who applied for clemency could then submit a
"Statement to the Board for Alternative Service." Each
absentee had the opportunity to explain his reasons for
absence from military service, employment during his
absence, and other matters he wished the Board to consider.
Personal appearances were allowed only in exceptional
circumstances. The Board felt that the availability of
applicants' military records and the applicants' right to
supplement their records with further information made
appearances unnecessary. No opportunities for appeal were
provided. Altogether, most applicants generally spent no
more than three days at the Joint Clemency Processing
Center.
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