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Senate Hearings on Clemency Board Practices and Procedures (Published Report)
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Senate Hearings on Clemency Board Practices and Procedures (Published Report)
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Charles E. Goodell Papers
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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 10, folder "Senate Hearings on Clemency Board
Practices and Procedures (Published Report)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 10 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
CLEMENCY PROGRAM PRACTICES AND
PROCEDURES
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURE
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-THIRD CONGRESS
SECOND SESSION
ON
REVIEW OF AGENCY PRACTICES AND PROCEDURES IN THE
ADMINISTRATION OF THE PRESIDENTIAL CLEMENCY
PROGRAM
DECEMBER 18 AND 19, 1974
Printed for the use of the Committee on the Judiciary
GERALD TOSD
U.S. GOVERNMENT PRINTING OFFICE
55-550 o
WASHINGTON : 1975
CONTENTS
WEDNESDAY, DECEMBER 18, 1974
STATEMENTS
Page
Opening statement of Senator Kennedy
1
Opening statement of Senator Mathias
4
COMMITTEE ON THE JUDICIARY
Opening statement of Senator Thurmond
3
JAMES O. EASTLAND, Mississippi, Chairman
TESTIMONY
JOHN L. McCLELLAN, Arkansas
ROMAN L. HRUSKA, Nebraska
SAM J. ERVIN, Jr., North Carolina
HIRAM L. FONG, Hawaii
Goodell, Charles E., director, Presidential Clemency Board
5
PHILIP A. HART, Michigan
HUGH SCOTT, Pennsylvania
Panel consisting of John Schulz, editor in chief, Military Law Reporter;
EDWARD M. KENNEDY, Massachusetts
STROM THURMOND, South Carolina
Henry Schwarzschild, director, American Civil Liberties Union Project
BIRCH BAYH, Indiana
MARLOW W. COOK, Kentucky
on Amnesty, accompanied by Edwin J. Oppenheimer, ACLU; and James
QUENTIN N. BURDICK, North Dakota
CHARLES McC. MATHIAS, Jr., Maryland
Wilson, director of national security, American Legion
ROBERT C. BYRD, West Virginia
EDWARD J. GURNEY, Florida
Schwarzschild, Henry
70
JOHN V. TUNNEY, California
Wilson, James
79
PETER M. STOCKETT, Chief Counsel and Staff Director
Schulz, John
84
Meis, William
120
PREPARED STATEMENTS
SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE
Goodell, Charles E.
61
EDWARD M. KENNEDY, Massachusetts, Chairman
Jones, Col. Phelps, U.S.A. (Ret.), with attachments
66
PHILIP A. HART, Michigan
STROM THURMOND, South Carolina
Schulz, John E
93
BIRCH BAYH, Indiana
CHARLES McC. MATHIAS, JR., Maryland
Schwarzschild, Henry
113
QUENTIN N. BURDICK, North Dakota
EDWARD J. GURNEY, Florida
Wilson, James R
119
JOHN V. TUNNEY, California
ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD OF DECEMBER 18, 1974
THOMAS M. SUSMAN, Chief Counsel
MARK L. SCHNEIDER, Investigator
Administrative procedures and standards of Presidential Clemency Board
STEPHEN L. JONES, Minority Counsel
(title 2, Clemency, chapter II)
24
JANET F. ALBERGHINI, Staff Member
Announcement of clemency program by President Gerald R. Ford
9
Cover letter and attachments from Attorney General Saxbe to U.S. attor-
(II)
neys re implementation of Presidential Clemency Program, Sept. 16,
1974
103
Cover letter to be sent to inquiring candidates for Presidential Clemency
Program by chairman of Presidential Clemency Board
33
Executive Order 11803 establishing Presidential Clemency Board
7
Executive Order 11804 delegating powers of President re military deserters
to Director, Selective Service System, Sept. 16, 1974
11
Fact sheet concerning Presidential Clemency Program
12
Graph submitted by John Schulz re disposition of alleged draft offenders,
1964-1973
112
Letter from ACLU Foundation's director, Project on Amnesty, to Senator
Edward M. Kennedy, declining participation in or acting as referral
agency for Presidential Clemency Program, Dec. 23, 1974
44
Letter from Attorney General Saxbe to Lima Draft Information Center
re granting amnesty to draft evaders and deserters, Feb. 28, 1973
111
Letter and background outline for summary on individual applicants for
Presidential Clemency Program with instructions to staff attorneys of
Board
39
Letter from Committee on Military Justice of Harvard Law School to
Senator Kennedy, challenging accuracy of Mr. Goodell's statement re
committee to act as a referral agency for Board, Jan. 21, 1975
43
(III)
IV
V
Page
Page
Kennedy, Senator Edward M. to Gerald R. Ford, President of the United
Letter from Henry E. Petersen, Assistant Attorney General to Henry
States, Jan. 27, 1975
269
Schwarzschild re 15-day grace period extension for draft law violators,
Kennedy, Senator Edward M. to Hon. Edward H. Levi, Attorney General,
Nov. 7, 1974
110
Department of Justice, Feb. 12, 1975
271
Presidential Proclamation 4313 establishing program for return of Vietnam-
Kennedy, Senator Edward M. to Hon. Edward H. Levi, Attorney General,
era draft evaders and military deserters, Sept. 16, 1974
10
Department of Justice, Mar. 11, 1975
272
Procedures to be followed for unconvicted draft evaders and military
Kennedy, Senator Edward M. to Hon. Laurence N. Silberman, Deputy
deserters
13
Attorney General, Department of Justice, Jan. 13, 1975
267
Questions to Presidential Clemency Board from Senator Hart with accom-
Levi, Hon. Edward H. to Senator Edward M. Kennedy, Feb. 27, 1975
272
panying answers from the Board, Feb. 10, 1975
54
McConnell, A. Mitchell, Jr., Acting Assistant Attorney General, Depart-
Sample application form and instruction sheets for admission to Presi-
ment of Justice to Senator Edward M. Kennedy, Apr. 18, 1975
273
dential Clemency Program
34
Public Law Education Institute to Senator Edward M. Kennedy, Jan. 21,
268
1975
Schulz, John E., editor in chief, Military Law Reporter to Senator Edward
M. Kennedy, Apr. 4, 1975
275
THURSDAY, DECEMBER 19, 1974
Silberman, Laurence H., Deputy Attorney General to Senator Edward M.
Kennedy, Jan. 24, 1975
269
STATEMENTS
ADDITIONAL MEMORANDUMS
Opening statement of Senator Kennedy
127
Keeney, John S. to all U.S. attorneys re list of Selective Service violators,
TESTIMONY
Mar. 6, 1975
275
Hoffmann, Martin R., General Counsel, Department of Defense, accom-
Levi, Edward H. to all U.S. attorneys re final list of draft evaders eligible
129
for clemency program, Feb. 27, 1975
275
panied by Capt. William O. Miller, USN
Maroney, Kevin, Assistant Attorney General, Department of Justice ac-
Saxbe, William B., Attorney General to all U.S. attorneys re Robert W.
companied by Bruce Fein and Robert Vayda, Office of Justice Planning
Vayda, Nov. 21, 1974
276
and Policy, DOJ
Saxbe, William B., Attorney General to all U.S. attorneys re Robert W.
179
Pepitone, Byron V., Director, Selective Service System, accompanied by
Vayda, Dec. 16, 1974
277
Peter Straub, General Counsel, Samuel R. Shaw, Legislation and Liaison
Saxbe, William B., Attorney General to all U.S. attorneys re Robert W.
195
Vayda, Dec. 29, 1974
278
Officer, and John W. Barber, Reconciliation Service Division Manager
Saxbe, William B., Attorney General to all U.S. attorneys re Robert W.
Vayda, Jan. 13, 1975
278
PREPARED STATEMENTS
Silberman, Laurence H., Deputy Attorney General to all U.S. attorneys re
Robert W. Vayda, Jan. 29, 1975
279
Hoffmann, Martin R
176
Maroney, Kevin
281
Pepitone, Byron V
203
ADDITIONAL PREPARED STATEMENTS
American Veterans Committee, The
212
Association of the Bar of the City of New York:
Weiss, Peter, chairman, Committee on Military Justice and Military
Affairs, Task Force on Amnesty
224
Weller, George, chairman
263
Committee for a Healing Repatriation
218
Land, Stuart J., chairperson, Clemency/Amnesty Law Coordinating Office
Steering Committee
220
Killmer, Richard L., Rev., director, Special Ministries/Vietnam Generation
216
Olsen, Jerel W., director, National Campus Alliance for Amnesty
209
ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD OF DECEMBER 19, 1974
Cover letter and prosecutive policy guidelines from Attorney General Saxbe
to all U.S. attorneys, Sept. 16, 1974
184
Department of Defense implementation plan of Presidential Proclamation
No. 4313, Sept. 16, 1974
157
Department of Defense responses to statement of Senator Edward M.
Kennedy, Dec. 19, 1974
175
Questions for Department of Defense by Senator Hart, and responses
151
APPENDIX
ADDITIONAL CORRESPONDENCE
Keeney, John C., Acting Assistant Attorney General to Senator Edward
M. Kennedy, Jan. 28, 1975
274
CLEMENCY PROGRAM PRACTICES AND PROCEDURES
WEDNESDAY, DECEMBER 18, 1974
U.S. SENATE,
SUBCOMMITTEE ON ADMINISTRATIVE
PRACTICE AND PROCEDURE,
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:15 a.m., in room
2228, Dirksen Office Building, Senator Edward M. Kennedy (chair-
man of the subcommittee) presiding.
Also present were Senators Hart, Burdick, Thurmond, and Mathias.
Also present: Thomas M. Susman, chief counsel, Mark Schneider,
investigator, and Janet Alberghini, staff assistant.
OPENING STATEMENT OF SENATOR EDWARD M. KENNEDY
Senator KENNEDY. The subcommittee will come to order.
The Senate Subcommittee on Administrative Practice and Proce-
dure opens hearings this morning into the procedures and practices of
the President's clemency program.
This hearing continues this subcommittee's history of concern with
the administration of the Selective Service System during the Vietnam
War, a concern which led to both administrative and legislative re-
form in the procedural protections to individual registrants. It also
follows a 1972 3-day subcommittee inquiry into the administrative
possibilities for amnesty available to the President.
At that time, the subcommittee heard from witnesses representing
Federal agencies, veterans groups, Gold Star parents, POW wives,
individual resisters, and eminent historians and theologians.
They debated the implications for the Nation of amnesty after
Vietnam. They disputed the advantages and disadvantages of the vari-
ous forms of amnesty. And they explored the long tradition of amnesty
in America.
That tradition is clear. Two hundred years ago at Philadelphia, the
First Continental Congress had set in motion the forces that were to
lead to revolution. The wrenching experience of civil turmoil that fol-
lowed divided families, friends, and communities.
Reconciliation was an essential part of the war's aftermath when
George Washington chose not to pursue either those who had fought
against the revolution or those who had deserted the revolutionary
ranks. A short time later, he showed the same compassion and mercy
when he offered unconditional amnesty to those who had participated
in the Whiskey Rebellion.
Three-quarters of a century later came the trial of the Civil War.
At its conclusion, after President Lincoln and then President Johnson
chose reconciliation, with a final declaration by President Johnson
(1)
2
3
on Christmas Day 1868, extending unconditional amnesty to all those
Since its inauguration only 2.5 percent of the minimum estimate of
who had participated in the rebellion.
131,000 persons potentially eligible for the clemency program have
Yet, during the 1972 Presidential campaign, following those hear-
been processed. We intend to ask in these hearings as well what are the
ings, the issue of amnesty became a political issue, the subject of
reasons for the low response to the program. The proclamation also
demagoguery and derision by the former Chief Executive.
Disregard for our Nation's history of compassion, disregard for the
national commitment to justice and mercy. * *
stated that the program was being conducted "In furtherance of our the
Yet
since
state of the Nation, and disregard for the deep divisions among our
program began, critics have questioned whether the agencies admin-
people, characterized his widely publicized statements, and I believe
istering it are sensitive to these objectives. We intend to learn whether
represented a failure of Presidential leadership.
this program and its operations are fulfilling the President's goals of
In one of his first public speeches after taking office, President Ford
"justice and mercy."
separated himself from his predecessor by announcing an intention to
The President stated in his proclamation that "reconciliation calls
offer some form of amnesty. I supported his decision then as a vital
for an act of mercy to bind the Nation's wounds and to heal the scars
first step away from the tragedy of Vietnam. Many, including myself,
of divisiveness."
questioned the conditional nature of the amnesty as well as its limita-
How far has the program gone to achieve those goals? How much
tion on those who would be eligible to receive it. But we welcomed it
farther must it travel to achieve the goal of reconciliation?
as a step in the direction of reconciliation.
These are questions which concern many Americans. They should
Ultimately, that process must grow both from an understanding of
concern all Americans. Yet, they are questions which remain
the need for national reconciliation and from a renewal of respect for
unanswered.
the individual act of conscience.
In the next 2 days, we hope to obtain information from the Chair-
Reconciliation must encompass all of the victims of Vietnam: the
man of the Presidential Clemency Board, former Senator Charles E.
young men who lost their limbs, the young men who risked their lives,
Goodell, from legal experts familiar with the program, from in-
the widows and dependents of the 55,000 Americans killed in Viet-
dividuals with a personal interest in its working, and from representa-
nam, the families of the MIA's.
tives of Justice and the Defense Department and the Selective Service
For too many veterans the return to America was a return to a land
System.
that wanted desperately to forget them.
Our objective is to bring before the Congress and the American
Reconciliation must be even more. For if we have done too little for
people additional information about the current clemency program,
the veteran, until a few months ago, we had done nothing for the
its record, its successes, and its failures. In SO doing, we hope to achieve
young men who became outcasts from this land.
a more equitable, more effective, and more successful program to bind
On September 16, 1974, President Gerald Ford issued a Presi-
the Nation's wounds.
dential Proclamation establishing a clemency program designed as the
proclamation stated "to afford reconciliation to Vietnam era draft
OPENING STATEMENT OF SENATOR THURMOND
evaders and military deserters upon the following conditions.
"
Tim Kendall is one who has not participated. A 25-year-old Notre
Senator THURMOND. Mr. Chairman, I think my position is well
Dame graduate in theology, Tim Kendall refused to cooperate with
known on clemency. I am in favor of following the law, and the
the draft system when he was ordered for induction, according to his
law has been that one who evades the draft and deserts the service
father's testimony. He expressed his total unwillingness to participate
will be tried by court. That is the only fair way you can handle it.
in any aspect of the Vietnam war and his readiness to follow in the
It is not right for some people to serve their country in answer to the
tradition of Thoreau to bear witness to that opposition. He turned
law and others to be allowed to evade it. If we don't enforce this law
himself in to Federal law authorities and ultimately was sentenced to
you won't be able to enforce other laws. Respect will be lost for the
41/2 years in prison, a term later reduced to 2 years. He was released
law, and therefore, I don't think we provide equal protection to the
finally a year ago.
citizens if we pick out this particular class of people and say although
His father, Sam Kendall, a World War II veteran, told our subcom-
you didn't agree with the law when the law required you to serve, and
mittee 2 years ago of his son's actions and the reasons for them. Sam
therefore since you didn't agree with it, you don't have to be punished.
Kendall unfortunately is now in a hospital in Richmond. Tim is now
There are some people who don't believe in liquor laws. There are
married and attempting to help support his 12 brothers and sisters as
some people who don't believe in highway laws. There are some people
well as his own family. However, his felony conviction for a Selective
who don't believe in other kinds of laws. But whether they agree
Service violation has affected his ability to obtain a job.
with it or not, if it is the law I think that has to be observed or
Presumably, Tim Kendall would be a perfect candidate for the
people have to be tried in court for violations.
Presidential clemency program. Yet he has never been informed about
I just wanted to mention this point. I mentioned it before when the
the program. We intend in this hearing to find out why not and to find
Civil War was referred to. Individuals who fought on the side of the
out as well what is being done to let others like him know of this
South fought with their States unless they voluntarily came down
program.
from the other States. People from my State and the other States
fought with their States. My State joined the Union voluntarily, as
did the other States. The people from my State decided to withdraw
4
5
from the Union voluntarily. They thought they had the right to do so,
I am mindful, however, that there are many facets in the Lincoln
and only force prevented that, the force of arms prevented that.
legend, many aspects of Abraham Lincoln's Presidency that have
All of the States of the South who fought on the side of the South
become part of the fabric of American life, and that one of the strong
thought they had a right to voluntarily withdraw from the Union
recurrent notes in the Lincoln legend are his acts of clemency, his
since they voluntarily joined the Union. It would seem they had that
way of dealing with soldiers who fought in the U.S. Army and were
right under our form of government, because each State in this Nation
for one reason or another found to be afoul of the rules and regula-
is a sovereign power, each State in this Nation has all the powers of
tions. Lincoln's ability to perform acts of clemency without weaken-
a foreign nation except those specifically denied it by the Union, and
ing the will of the fabric or the strength of the Union cause is one of
this was not denied in the Constitution to the States.
the enduring parts of the Lincoln that we all know today. I think
So these people who fought for my State or other States in the
it is an important part of the tradition that should help guide the
South were fighting with their States, whole States. They didn't
Clemency Board in its activities.
individually withdraw. They were not traitors to the Nation, they
Thank you, Mr. Chairman.
were merely standing by their States which withdrew, and they would
Senator KENNEDY. Thank you very much.
have been untrue to their States if they took any other course under
Mr. Goodell, I want to welcome you here today. You served with
the circumstances.
great distinction in the U.S. Senate. These hearing rooms are not
So, speaking of clemency for people of that category is a different
strange to you. You have perhaps seen them from a different vantage
situation entirely from someone who violates the law when they
point. We feel the President chose wisely when he chose you to head
are called to serve in time of war or to answer to the draft.
up this Board, and we look forward to your comments this morning.
Those are just a few comments I make at this time. I may have
We extend a warm welcome to you.
some others to make as we go along. I understand this program hasn't
gotten a tremendous response, and that those people who evaded the
STATEMENT OF CHARLES E. GOODELL, DIRECTOR, PRESIDENTIAL
service or evaded the draft and deserted the service don't want to
CLEMENCY BOARD
take advantage of it. That is their privilege, and nobody is going- to
compel them to take advantage of the program. They have a right
Mr. GOODWELL. Thank you, Mr. Chairman. members of the subcom-
to stay in Sweden or Canada. They have a right to refuse to take
mittee. It is a great pleasure to be here, and I particularly appreciate
advantage of it. Simply because it hasn't been a popular thing is no
the opportunity you are affording the Clemency Board and the other
reason why we should change our form of Government to suit a
agencies that are undertaking to implement the President's clemency
certain class of people. What about these 50,000 men who lost their
program, to explain the program further and to inform the subcom-
lives in Vietnam and what about their families? How do they feel
mittee, the Congress, and the people as to the nature of this program.
about this? What about the 300,000 wounded there who have come
My name is Charles Goodell and I am an attorney in private prac-
back and are now citizens of this country, how would they feel about
tice in Washington, and I am Chairman of President Ford's Presi-
excusing those who would refuse to serve. After all, they have a great
dential Clemency Board, which is a part of the White House Office.
country, but to preserve it and defend it and protect it we have got to
The program that I am going to discuss is part of the operations of
be willing to fight if we are called. If our country needs us and we
the President's Clemency Board. The program suffers from insufficient
don't answer the call then we have got to pay the penalty of the law.
public awareness and from confusion among potential applicants.
It is merely enforcing the law equally upon all citizens.
These hearings will broaden understanding of what the program is
Thank you, Mr. Chairman.
about and in doing SO will be of service to those young people who will
Senator KENNEDY. Senator Burdick.
decide whether or not to participate in the program.
Senator BURDICK. No questions.
With the subcommiteee's consent, I would like to submit the entire
Senator KENNEDY. Senator Mathias.
statement for the record and read highlights and then answer your
OPENING STATEMENT OF SENATOR MATHIAS
questions. At the outset, let me share with you several observations about the
program, some of which I have come to appreciate only after becoming
Senator MATHIAS. Thank you, Mr. Chairman.
immersed in it.
I would just very briefly like to welcome Senator Goodell and the
The Clemency Board has been continually impressed with the depth
members of the President's Clemency Board to this hearing and to
of feeling that the President has about this program, and with the
thank them for undertaking a pretty enormous job, a job of great
personal attention that he gives to it. He was personally involved in
difficulty because of the kind of emotions that are bound to be in-
the rewriting of the initial proposals, and devoted a considerable
volved, because of the difficulty of doing justice in a situation in which
amount of time to that. At the Board's first meeting, he met with us
it is essential that exact equal justice be done, because of the nature
in the Cabinet room for a lengthy discussion of his hopes for the clem-
of the task itself.
ency program. He met with us in the Cabinet room again for the
Senator Thurmond has mentioned history. I think history is import-
signing of the first pardons and conditional pardons and conditional
ant, because this involves not only the traditions of this country, but
it involves our will and our capacity to deal with future crises. It is
a prospective as well as a retrospective task.
6
7
clemencies under the Board's part of the program. He has spoken with
the clemency program have united on the local level in one common
me several times to give guidance to the Board about how it should
goal: Helping the human being involved with the major personal de-
treat applicants coming to it.
cisions which they have to face if they are to come home to the Presi-
In August, in his first days in office, the President replaced two of
dent's program.
the portraits in the Cabinet room with portraits of Presidents Truman
Nearly everyone who could potentially help these young people
and Lincoln. He told his staff then that he particularly admired those
has said, "We may not entirely agree with the way that the program
Presidents because they were the ones who took substantial political
was set up, but the important thing is to help these boys who are
risks in granting clemency in order to reunite the country in times
of bitterness and strife.
thinking about coming back to us. Let's concentrate on them, not on
our differences with each other."
The President cares deeply about this program, asks about its
We have learned that people in this country really do want to have
progress frequently, participates in shaping it even now. Its goals
a reconciliation which will bring former draft evaders and deserters
are critical to his vision of what this country should be.
back into full integration in the community. We have been humbled
The members of the Presidential Clemency Board have been im-
and touched by the stream of offers of help from people in all parts
pressed also by the degree to which the applicants coming before
of the country.
us do not fit the stereotypes we had assumed.
Let me now describe to you, if I may, what the Clemency Board's
Many of the draft and military law violations which we have
jurisdiction is, what remedies we offer to prospective applicants,
examined were not at all consciously and directly related to opposi-
what administrative procedures we have established, and what sub-
tion to the Vietnam war. For the most part, we have seen applicants
stantive criteria we apply in weighing applications for clemency.
with wives who were about to leave them, whose fathers had died
The Presidential Clemency Board was created by Executive order
leaving a family without any means of support, or whose mother, wife,
on September 16, 1974, to implement part of President Ford's procla-
or child had become acutely ill. Personal problems overwhelmed them
mation on clemency issued that same day. The Board, organizationally
and led to violations of the law. We have many applicants who are
within the White House, is composed of nine part-time members. Each
not from educated and middle-class backgrounds, certainly not with
member is in private employment and is compensated by the Federal
college educations. Rather, they are generally unsophisticated, in-
Government only for time spent on Board business.
articulate people who were unable to pursue their remedies properly
[The Executive order referred to above follows:]
within the legal system. Had they been able to do so, many of these
applicants would have received hardship deferments or conscientious
[Office of the White House Press Secretary]
objection deferments, or compassionate reassignments or hardship
[THE WHITE HOUSE]
discharges in the military. They just did not know how to proceed.
We have seen some cases in which there has been genuine con-
[EXECUTIVE ORDER 11803]
scientious objection to killing. For the most part, however, even these
September 16, 1974.
people tend to be ones who did not understand how to pursue their
ESTABLISHING A CLEMENCY BOARD TO REVIEW CERTAIN CONVICTIONS OF PERSONS UNDER
rights properly through the selective service system. They are pre-
SECTION 12 OR (j) OF THE MILITARY SELECTIVE SERVICE ACT AND CERTAIN DIS-
dominantly Jehovah's Witnesses, Muslims, and a few others who have
CHARGES ISSUED BECAUSE OF, AND CERTAIN CONVICTIONS FOR, VIOLATIONS OF AR-
TICLE 85, 86 OR 87 OF THE UNIFORM CODE OF MILITARY JUSTICE AND TO MAKE
clear religious or ethical beliefs which are evident to the Board from
RECOMMENDATIONS FOR EXECUTIVE CLEMENCY WITH RESPECT THERETO
the letters which they write to us, from their probation records, and
from other files predating even their conviction.
By virtue of the authority vested in me as President of the United States by
section 2 of article II of the Constitution of the United States, and in the interest
Our applicants have often proven to be the unfortunate orphans
of the internal management of the Government, it is ordered as follows:
of an administrative system in which success was determined by
Section 1. There is hereby established in the Executive Office of the President
being educated, clever, articulate, and sophisticated, whether sincere
a board of 9 members, which shall be known as the Presidential Clemency Board.
or not. The applications which the Presidential Clemency Board has
The members of the Board shall be appointed by the President, who shall also
received indicate to us with overwhelming force that the image which
designate its Chairman.
Sec. 2. The Board, under such regulations as it may prescribe, shall examine
we have had of the typical Vietnam-era draft "evader" is simply
the cases of persons who apply for Executive clemency prior to January 31, 1975,
wrong. We have been surprised and impressed, finally, by the extraor-
and who (i) have been convicted of violating section 12 or 6(j) of the Military
dinary received. public support which the President's clemency program has
Selective Service Act (50 App. U.S.C. section 462), or of any rule or regulation
promulgated pursuant to that section, for acts committed between August 4, 1964
and March 28, 1973, inclusive, or (ii) have received punitive or undesirable dis-
Without great fanfare, many employers, church groups, veterans'
charges as a consequence of violations of article 85, 86 or 87 of the Uniform Code
groups, and lawyers' groups have written and called us and asked,
of Military Justice (10 U.S.C. sections 885, 886, 887) that occurred between Au-
"What can we do to help?" The church groups and veterans' groups,
gust 4, 1964 and March 28, 1973, inclusive, or are serving sentences of confine-
in particular, have established counseling programs for potential ap-
ment for such violations. The Board will only consider the cases of Military
Selective Service Act violators who were convicted for unlawfully failing (i) to
plicants to the various parts of the clemency program. Numerous
register or register on time, (ii) to keep the local board informed of their cur-
employers have offered opportunities for alternate service under the
rent address, (iii) to report for or submit to preinduction or induction examina-
program. Other organizations which are not in total agreement with
tion, (iv) to report for or submit to induction itself, or (v) to report for or
8
9
submit to, or complete service under section 6(j) of such Act. However, the
Board will not consider the cases of individuals who are precluded from
Washington, D.C. He is a graduate of Bridgewater College, Bridgewater, Va.,
re-entering the United States under 8 U.S.C. 1182(a) (22) or other law.
and received his master's degree from Virginia Commonwealth University.
Sec. 3. The Board shall report to the President its findings and recommenda-
AIDA CASANAS O'CONNOR, 52, is a woman lawyer with a master of laws degree
from George Washington University, Washington, D.C. She is a member of
tions as to whether Executive clemency should be granted or denied in any case.
If clemency is recommended, the Board shall also recommend the form that such
the Bar of the State of New York, the Supreme Court of Puerto Rico, U.S.
District Court of Puerto Rico, and the Supreme Court of the United States.
clemency should take, including clemency conditioned upon a period of alternate
Presently she is assistant counsel to the New York State division of housing
service in the national interest. In the case of an individual discharged from the
and community renewal in New York City.
armed forces with a punitive or undesirable discharge, the Board may recom-
GEN. LEWIS W. WALT, USMC (Ret.), 61, retired after 34 years in the Marine
mend to the President that a clemency discharge be substituted for a punitive
Corps and is a veteran of the Second World War, the Korean and Vietnamese
or undesirable discharge. Determination of any period of alternate service shall
war. He was an Assistant Commandant of the Marine Corps. He has received
be in accord with the Proclamation announcing a program for the return of
the Navy Cross, Silver Star, Legion of Merit, Bronze Star, the Purple Heart,
Vietnam era draft evaders and military deserters.
and numerous other military decorations.
Sec. 4. The Board shall give priority consideration to those applicants who are
presently confined and have been convicted only of an offense set forth in section
2 of this order, and who have no outstanding criminal charges.
Sec. 5. Each member of the Board, except any member who then receives other
[From Presidential Documents]
compensation from the United States, may receive compensation for each day he
PROGRAM FOR THE RETURN OF VIETNAM-ERA DRAFT EVADERS AND
or she is engaged upon the work of the Board at not to exceed the daily rate now
MILITARY DESERTERS
or hereafter prescribed by law for persons and positions in GS-18, as authorized
Good morning:
by law (5 U.S.C. 3109), and may also receive travel expenses, including per diem
In my first week as President, I asked the Attorney General and the Secretary
in lieu of subsistence, as authorized by law (5 U.S.C. 5703) for persons in the
of Defense to report to me, after consultation with other Governmental officials
government service employed intermittently.
and private citizens concerned, on the status of those young Americans who have
Sec. 6. Necessary expenses of the Board may be paid from the Unanticipated
been convicted, charged, investigated, or are still being sought as draft evaders
available. Personnel Needs Fund of the President or from such other funds as may be
or military deserters.
On August 19, at the national convention of Veterans of Foreign Wars in the
Sec. 7. Necessary administrative services and support may be provided the
city of Chicago, I announced my intention to give these young people a chance
Board by the General Services Administration on a reimbursable basis.
to earn their return to the mainstream of American society SO that they can,
Sec. 8. All departments and agencies in the Executive branch are authorized
if they choose, contribute, even though belatedly, to the building and the better-
and directed to cooperate with the Board in its work, and to furnish the Board
ment of our country and the world.
all appropriate information and assistance, to the extent permitted by law.
I did this for the simple reason that for American fighting men, the long and
Sec. 9. The Board shall submit its final recommendations to the President not
divisive war in Vietnam has been over for more than a year, and I was deter-
later than December 31, 1976, at which time it shall cease to exist.
mined then, as now, to do everything in my power to bind up the Nation's
wounds.
GERALD R. FORD.
I promised to throw the weight of my Presidency into the scales of justice
on the side of leniency and mercy, but I promised also to work within the exist-
NOTE: The White House announced the appointment of the following persons
ing system of military and civilian law and the precedents set by my predecessors
as members of the Presidential Clemency Board:
who faced similar postwar situations, among them Presidents Abraham Lincoln
DR. RALPH ADAMS, 59, educator, has been president of Troy State University
and Harry S. Truman.
in Troy, Ala., for 10 years. He is a graduate of Birmingham-Southern College
My objective of making future penalties fit the seriousness of each individual's
with LL.B. and J.D. degrees from the University of Alabama, and a brigadier
offense and of mitigating punishment already meted out in a spirit of equity
general, Air National Guard of Alabama.
has proved an immensely hard and very complicated matter, even more difficult
JAMES P. DOUGOVITA, 28, is a full-time teaching aide of minority students in
than I knew it would be.
the department of applied technology, Michigan Technological University. Mr.
But the agencies of Government concerned and my own staff have worked with
Dougovita is a veteran and has been awarded the Combat Infantryman Badge,
me literally night and day in order to develop fair and orderly procedures and
Silver Star, Bronze Star, Purple Heart, and is now a captain in the Michigan
completed their work for my final approval over this last weekend.
National Guard.
I do not want to delay another day in resolving the dilemmas of the past, SO
ROBERT H. FINCH, 51, is a lawyer and partner in the firm of McKenna, Fitting
that we may all get going on the pressing problems of the present. Therefore,
& Finch in Los Angeles, Calif. He was formerly Secretary of Health, Educa-
I am today signing the necessary Presidential proclamation and Executive orders
tion, and Welfare and Counsellor to President Nixon.
that will put this plan into effect.
CHARLES E. GOODELL, 48-Chairman-is a former Senator from New York
The program provides for administrative disposition of cases involving draft
who is currently in the private practice of law. He was a Ford Foundation
evaders and military deserters not yet convicted or punished. In such cases, 24
Fellow at Yale and was a graduate of Williams College.
months of alternate service will be required which may be reduced for mitigating
REV. THEODORE M. HESBURGH, 57, is president, University of Notre Dame, and
circumstances.
holds honorary degrees from numerous colleges and universities. He is a perma-
The program also deals with cases of those already convicted by a civilian or
nent Vatican delegate. He has served as Chairman of the U.S. Commission on
military court. For the latter purpose, I am establishing a Clemency Review
Civil Rights and as a member of the Committee on an All-Volunteer Armed
Board of nine distinguished Americans whose duty it will be to assist me in
Force.
assuring that the Government's forgiveness is extended to applicable cases of
VERNON E. JORDAN, 39, is executive director of the National Urban League,
prior conviction as equitably and as impartially as is humanly possible.
an organization concerned with the advancement of the minority groups. Mr.
The primary purpose of this program is the reconciliation of all our people
Jordan is a lawyer by profession and served previously as the executive direc-
and the restoration of the essential unity of Americans within which honest
tor of the United Negro College Fund, director of the voter education project,
differences of opinion do not descend to angry discord and mutual problems are
Southern Regional Council, and as Attorney-Consultant in the U.S. Office of
not polarized by excessive passion.
Economic Opportunity.
My sincere hope is that this is a constructive step toward a calmer and cooler
JAMES MAYE, 31, is executive director of Paralyzed Veterans of America in
appreciation of our individual rights and responsibilities and our common pur-
pose as a nation whose future is always more important than its past.
10
11
At this point, I will sign the proclamation that I mentioned in my statement,
directly related thereto if before January 31, 1975 (i) he takes an oath of alle-
followed by an Executive order for the establishment of the Clemency Board,
giance to the United States and (ii) executes an agreement with the Secretary of
followed by the signing of an Executive order for the Director of Selective Serv-
the Military Department from which he absented himself or for members of the
ice, who will have a prime responsibility in the handling of the matters involving
Coast Guard, with the Secretary of Transportation, pledging to fulfill a period of
alternate service.
alternate service under the auspices of the Director of Selective Service. The
Thank you very much.
alternate service shall promote the national health, safety, or interest.
The period of service shall be twenty-four months, which may be reduced by the
Secretary of the appropriate Military Department, or Secretary of Transportation
PROGRAM FOR THE RETURN OF VIETNAM-ERA DRAFT EVADERS AND MILITARY
for members of the Coast Guard, because of mitigating circumstances.
DESERTERS
However, if a member of the armed forces has additional outstanding charges
pending against him under the Uniform Code of Military Justice, his eligibility to
[Proclamation 4313.]
participate in this program may be conditioned upon, or postponed until after,
September 16, 1974.
final disposition of the additional charges has been reached in accordance with
The United States withdrew the last of its forces from the Republic of Vietnam
law.
on March 28, 1973.
Each member of the armed forces who elects to seek relief through this program
In the period of its involvement in armed hostilities in Southeast Asia, the
will receive an undesirable discharge. Thereafter, upon satisfactory completion
United States suffered great losses. Millions served their country, thousands died
of a period of alternate service prescribed by the Military Department or Depart-
in combat, thousands more were wounded, others are still listed as missing in
ment of Transportation, such individual will be entitled to receive, in lieu of his
action.
undesirable discharge, a clemency discharge in recognition of his fulfillment of the
Over a year after the last American combatant had left Vietnam, the status of
requirements of the program. Such clemency discharge shall not bestow entitle-
thousands of our countrymen-convicted, charged, investigated or still sought
ment to benefits administered by the Veterans Administration.
for violations of the Military Selective Service Act or of the Uniform Code of
Procedures of the Military Departments implementing this Proclamation will
Military Justice-remains unresolved.
be in accordance with guidelines established by the Secretary of Defense, pre-
In furtherance of our national committee to justice and mercy these young
sent Military Department regulations notwithstanding.
Americans should have the chance to contribute a share to the rebuilding of
3. Presidential Clemency Board.-By Executive Order I have this date estab-
peace among ourselves and with all nations. They should be allowed the oppor-
lished a Presidential Clemency Board which will review the records of individ-
tunity to earn return to their country, their communities, and their families, upon
uals within the following categories: (i) those who have been convicted of draft
their agreement to a period of alternate service in the national interest, together
evasion offenses as described above, (ii) those who have received a punitive or
with an acknowledgement of their allegiance to the country and its Constitution.
undesirable discharge from service in the armed forces for having violated Ar-
Desertion in time of war is a major, serious offense; failure to respond to the
ticle 85, 86, or 87 of the Uniform Code of Military Justice between August 4, 1964
country's call for duty is also a serious offense. Reconciliation among our people
and March 28, 1973, or are serving sentences of confinement for such violations.
does not require that these acts be condoned. Yet, reconciliation calls for an act
Where appropriate, the Board may recommend that clemency be conditioned
of mercy to bind the Nation's wounds and to heal the scars of divisiveness.
upon completion of a period of alternate service. However, if any clemency dis-
Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to
charge is recommended, such discharge shall not bestow entitlement to benefits
my powers under Article II, Sections 1, 2 and 3 of the Constitution, do hereby
administered by the Veterans Administration.
proclaim a program to commence immediately to afford reconciliation to Vietnam
4. Alternate Service.-In prescribing the length of alternate service in individ-
era draft evaders and military deserters upon the following terms and conditions
ual cases, the Attorney General, the Secretary of the appropriate Department, or
1. Draft Evaders.-An individual who allegedly unlawfully failed under the
the Clemency Board shall take into account such honorable service as an indi-
Military Selective Service Act or any rule or regulation promulgated thereunder,
vidual may have rendered prior to his absence, penalties already paid under law,
to register or register on time, to keep the local board informed of his current
and such other mitigating factors as may be appropriate to seek equity among
address, to report for or submit to preinduction or induction examination, to re-
those who participate in this program.
port for or submit to induction itself, or to report for or submit to, or complete
IN WITNESS WHEREOF, I have hereunto set my hand this sixteenth day of Sep-
service under Section 6(j) of such Act during the period from August 4, 1964 to
tember in the year of our Lord nineteen hundred seventy-four, and of the Inde-
March 28, 1973, inclusive, and who has not been adjudged guilty in a trial for such
pendence of the United States of America the one hundred and ninety-ninth.
offense, will be relieved of prosecution and punishment for such offense if he:
GERALD R. FORD.
(i) presents himself to a United States Attorney before January 31, 1975,
(ii) executes an agreement acknowledging his allegiance to the United States
and pledging to fulfill a period of alternate service under the auspices of the
PROGRAM FOR THE RETURN OF VIETNAM ERA DRAFT EVADERS AND MILITARY
Director of Selective Service, and
DESERTERS
(iii) satisfactorily completes such service.
The alternate service shall promote the national health, safety, or interest. No
DELEGATION OF CERTAIN FUNCTIONS VESTED IN THE PRESIDENT TO THE DIRECTOR OF
draft evader will be given the privilege of completing a period of alternative
SELECTIVE SERVICE
service by service in the Armed Forces.
However, this program will not apply to an individual who is precluded from
[Executive Order 11804]
re-entering the United States under 8 U.S.C. 1182 (22) or other law. Addi-
September 16, 1974.
tionally, if individuals eligible for this program have other criminal charges out-
By virtue of the authority vested in me as President of the United States,
standing, their participation in the program may be conditioned upon, or post-
pursuant to my powers under article II, sections 1, 2 and 3 of the Constitution,
poned until after, final disposition of the other charges has been reached in ac-
and under section 301 of title 3 of the United States Code, it is hereby ordered
cordance with law.
as follows:
The period of service shall be twenty-four months, which may be reduced by
SECTION 1. The Director of Selective Service is designated and empowered,
the Attorney General because of mitigating circumstances.
without the approval, ratification or other action of the President, under such
2. Military Deserters.-A member of the armed forces who has been adminis-
regulations as he may prescribe, to establish, implement, and administer the
tratively classified as a deserter by reason of unauthorized absence and whose
program of alternate service authorized in the Proclamation announcing a pro-
absence commenced during the period from August 4, 1964 to March 28, 1973, in-
gram for the return of Vietnam era draft evaders and military deserters.
clusive, will be relieved of prosecution and punishment under Articles 85, 86 and
87 of the Uniform Code of Military Justice for such absence and for offenses
55-550 O 75 2
12
13
SEC. 2. Departments and agencies in the Executive branch shall, upon the
c) Air Force-U.S. Air Force Deserter Information Point, (AFMDC/
request of the Director of Selective Service, cooperate and assist in the imple-
DPMAK) Randolph Air Force Base, Tex. 78148.
mentation or administration of the Director's duties under this Order, to the
d) Marine Corps-Headquarters, U.S. Marine Corps, (MC) Washington, D.C.
20380.
extent permitted by law.
GERALD R. FORD.
Those who make such an election will be required to execute a reaffirmation
of allegiance and pledge to perform a period of alternate civilian service. Those
against whom other charges under the Uniform Code of Military Justice are
pending will not be eligible to participate in the program until these other charges
FACT SHEETS CONCERNING THE PROGRAM
are disposed of in accordance with the law. Participants in the program will
be separated with an undesirable discharge. Although these discharges will not
The President has today issued a proclamation and Executive orders establish-
be coded on their face in any manner, the Veterans Administration will be advised
ing a program of clemency for draft evaders and military deserters to commence
that the recipients were discharged for willful and persistent unauthorized ab-
immediately. This program has been formulated to permit these individuals
sence. They will thus not be eligible for any benefits provided by the Veterans
to return to American society without risking criminal prosecution or incarcera-
Administration.
tion for qualifying offenses if they acknowledge their allegiance to the United
The length of required alternate civilian service will be determined by the
States and satisfactorily serve a period of alternate civilian service.
parent Services for each individual on a case-by-case basis. The length of service
The program is designed to conciliate divergent elements of American society
will be 24 months but may be reduced for military service already completed or
which were polarized by the protracted period of conscription necessary to sustain
for other mitigating factors as determined by the parent Service. After being
United States activities in Vietnam. Thus, only those who were delinquent with
discharged each individual will be referred to the Director of Selective Service
respect to required military service between the date of the Tonkin Gulf Resolu-
for assignment to prescribed work. Upon certification that this work has been
tion (August 4, 1964) and the date of withdrawal of United States forces from
satisfactorily completed, the individual may submit the certification to his former
Vietnam (March 28, 1973) will be eligible. Further, only the offenses of draft
Service. The Service will then issue a special new type of discharge-a clemency
evasion and prolonged unauthorized absence from military service (referred
discharge-which will be substituted for the previously awarded undesirable
to hereinafter as desertion) are covered by the program.
discharge. However, the clemency discharge shall not bestow entitlement to
Essential features of the program are outlined below.
benefits administered by the Veterans Administration.
1. Number of Draft Evaders. There are approximately 15,500 draft evaders
5. Alternate Civilian Service.-Determining factors in selecting suitable alter-
potentially eligible. Of these some 8,700 have been convicted of draft evasion.
nate service jobs will be:
Approximately 4,350 are under indictment at the present time, of whom some
(a) National health, safety or interest.
4,060 are listed as fugitives. An estimated 3,000 of these are in Canada. A further
(b) Noninterference with the competitive labor market.-The applicant cannot
2,250 individuals are under investigation with no pending indictments. It is
be assigned to a job for which there are more numerous qualified applicants than
estimated that approximately 130 persons are still serving prison sentences for
jobs available.
draft evasion.
(c) Compensation.-The compensation will provide a standard of living to the
2. Number of Military Deserters. Desertion, for the purposes of this program,
refers to the status of those members of the Armed Forces who absented them-
applicant reasonably comparable to the standard of living the same man would
enjoy if he were entering the military service.
selves from military service without authorization for 30 days or more. During
the Vietnam era it is estimated that there were some 500,000 incidents of desertion
(d) Skill and talent utilization.-Where possible, an applicant may utilize his
special skills.
as SO defined. Of this 500,000 a number were charged with offenses other than
In prescribing the length of alternate service in individual cases, the Attorney
desertion at the time they absented themselves. These other offenses are not
General, the military department, or the Clemency Board shall take into account
within the purview of the clemency program for deserters. Approximately 12,500
such honorable service as an individual may have rendered prior to his absence,
of the deserters are still at large of whom about 1,500 are in Canada. Some 660
deserters are at present serving sentences to confinement or are awaiting trial
penalties already paid under the law, and such other mitigating factors as may
be appropriate to seek equity among participants in the program.
under the Uniform Code of Military Justice.
3. Unconvicted Evader. Draft evaders will report to the U.S. attorney for the
6. No Grace Period.-There will not be a grace period for those outside the
country to return and negotiate for clemency with the option of again fleeing
district in which they allegedly committed their offense.
the jurisdiction. All those eligible for the program and who have no additional
Draft evaders participating in this program will acknowledge their allegiance
criminal charges outstanding who re-enter the United States will have 15 days
to the United States by agreeing with the United States attorney to perform
to report to the appropriate authority from the date of their re-entry. However,
alternate service under the auspices of the Director of Selective Service.
The duration of alternate service will be 24 months, but may be reduced for
this 15-day period shall not extend the final date of reporting of January 21,
1975, as set forth in the proclamation.
mitigating factors as determined by the Attorney General.
The Director of Selective Service will have the responsibility to find alternate
7. Inquiries.-Telephone inquiries may be made to the following authorities:
service jobs for those who report. Upon satisfactory completion of the alternate
Evaders:
service, the Director will issue a certificate of satisfactory completion to the
Department of Justice
(202) 739-4281
individual and U.S. attorney, who will either move to dismiss the indictment if
Military Absentees:
one is outstanding, or agree not to press possible charges in cases where an
U.S. Navy
(202) 694-2007
indictment has not been returned.
(202) 694-1936
If the draft evader fails to perform the agreed term of alternate service, the
U.S. Marine Corps
(202) 694-8526
U.S. attorney will be free to, and in normal circumstances will, resume prosecu-
U.S. Army
(317) 542-3417
tion of the case as provided in the terms of the agreement.
U.S. Air Force
(512) 652-4104
Aliens who fled the country to evade the draft will be ineligible to participate
U.S. Coast Guard
(202) 426-1830
in the program.
4. Unconvicted Military Absentees.-Military absentees who have no other
pending charges may elect to participate in the program. Military deserters may
seek instructions by writing to:
PROCEDURES To BE FOLLOWED, UNCONVICTED DRAFT EVADER AND MILITARY ABSENTEE
a) Army-U.S. Army Deserter Information Point, Fort Benjamin Harrison,
Ind. 46216.
DRAFT EVADER
b) Navy-Chief of Naval Personnel, (Pers 83), Department of the Navy,
Washington, D.C. 20370.
Report to United States attorney where offense was committed
Acknowledge allegiance to the United States by agreeing with the United States
14
15
attorney to perform 24 months alternate service or less based on mitigating
Each form of executive clemency may be offered unconditionally, or
circumstances
Perform alternate service under the auspices of the Director of Selective Service
conditioned upon a specified period of alternate service.
Director of Selective Service issues certificate of satisfactory completion of al-
When the President accepted the unanimous recommendation of the
ternate service
Board that clemency be granted to the initial 18 civilian cases, he
Receipt by United States attorney of a certificate of satisfactory completion of
granted eight full and unconditional pardons effective immediately,
alternate service
and ten conditional clemencies which will become full and uncondi-
Dismissal of indictment or dropping of charges
tional pardons upon completion of the specified alternate service. Of
MILITARY ABSENTEE
those who received conditional clemencies, the lengths of alternative
service were 3 months of alternate service for three applicants, 6
(including Coast Guard)
months for five applicants, 10 months for one applicant, and 12 months
Report as prescribed by the military department concerned or for members of the
for one applicant.
Coast Guard report to the Secretary of Transportation
While we cannot reveal the Board's recommendations prior to the
Oath of allegiance to United States
Agree with the concerned military department to perform 24 months alternate
President's decision on them, I can tell you that the distribution of 32
service or less based upon mitigating circumstances
other recommendations which are shortly to go to the President on
Upon request, military department forgoes prosecution and issues undesirable
civilian cases is roughly similar to the distribution in the first 18 cases.
discharge
A pardon restores to an applicant his Federal civil rights. Just as
Perform alternate service under the auspices of the Director of Selective Service
Director of Selective Service issues certificate of satisfactory completion of al-
importantly, it is the custom in most States to remove most civil dis-
ternate service
abilities, as well as licensing restrictions which prevent ex-convicts
Receipt of a certificate of satisfactory completion of alternate service by the con-
from working in a variety of occupations. Without a pardon, the
cerned military department
typical ex-offender cannot work in any professional occupation or, in
Clemency discharge substituted for undesirable discharge
many States, as an ambulance attendant, a watchmaker, a tourist camp
operator, a garbage collector, a barber or beautician, a practical nurse,
or a plumber.
The Executive order covers three major categories of persons. First,
Since most States honor Federal pardons as a matter of comity,
there are those who are presently absent without authority from a
although they are not required to do SO as a matter of law, the real
military service, but who have not been convicted of an offense or dis-
effect of a pardon is to make the ex-offender employable again.
charged. They must return to their military service, which processes
The military applicant for clemency comes to us worse off than the
them and issues them an undesirable discharge. At the completion of
civilian applicant. Not only does he frequently have Federal felony
alternate service of up to 24 months, they are issued a clemency
conviction for violation of military law, but he also has the stigma and
discharge.
the employment problems attached to a "bad paper" discharge.
Second, unconvicted persons who have violated the selective service
To the former military applicant, we offer a full pardon, plus an
laws must return to a U.S. attorney. Through a process very similar
upgrading of his discharge to at least a clemency discharge, either
to plea-bargaining or pretrial diversion, they are offered up to 24
unconditionally or conditioned upon a specified period of alternate
months alternate service. Upon satisfactory completion, charges are
service.
dropped.
Some of the military applicants have wounds from service in Viet-
The Presidential Clemency Board's jurisdiction is entirely different
nam, decorations for valor, and multiple tours of honorable military
than these first two programs. We recommend clemency for persons
service. They went AWOL after this honorable service, and received
who have already been convicted for or have admitted an offense,
bad discharges. Some of them even went AWOL or deserted after they
whether civilian or military; and who have already received punish-
had volunteered for second and third tours of duty in Vietnam.
ment. The Board has jurisdiction over civilian draft evasion offenses,
The Board has decided that in such special cases we will recommend
and over military unauthorized absence, desertion and missing move-
ment offense. Our jurisdiction over military personnel extends both to
to the President that he immediately upgrade their punitive or unde-
those courtmartialed and to those administratively discharged. We
sirable discharges to a general discharge or, in exceptional cases, to an
honorable discharge.
recommend to the President how he should exercise his discretion
Senator KENNEDY. On that point it appears to me to be at least a
under article II, section 2 of the Constitution.
The Board has received more than 800 written applications, of
significant departure from what you have been willing to recommend
in the past. Are you then prepared under certain circumstances to rec-
which 150 have already become ripe for decision under the administra-
ommend that some young people would even receive an honorable
tive procedures we have established. Eighteen have been referred to
discharge?
the President thus far, all civilian cases; others have been decided by
the Board and will be forwarded to the President in the next several
Mr. GOODELL. It is not a departure from what we have recommended
in the past.
days. Within the next 2 weeks we estimate the President will receive
Senator KENNEDY. Have you recommended previously to the Pres-
more than 200 additional applicants to the Board.
To the civilian applicant for clemency, the Board can offer, on be-
ident that individuals receive honorable discharge?
half of the President, executive clemency in the form of a full pardon.
16
17
Mr. GOODELL. We are recommending to the President in this first
Mr. GOODELL. For those the President upgrades immediately to a
batch of military cases. We have been making our first batch. That in
general discharge or an honorable discharge, it is likely they would be
at least three instances that the discharge itself be upgraded by the
eligible for veteran's benefits. This is another reason why we think the
President to "under honorable conditions."
bulk of these cases should be determined by the military.
These are the first military cases that we have sent forward to the
In order to be eligible for veteran's benefits an individual must have
President. The reason for that was it took longer to get the military
served at least 180 days. I would estimate that not half would qualify.
files, they had to come from three or four different sections of the
The military service itself and the President can upgrade discharges
country. In many instances they were in the hands of the military
and make it clear that individuals, although they have discharges un-
services themselves. In addition, the civilian cases were already in
der honorable conditions, are not eligible. That is a decision that the
prison at the time of the proclamation and given priority because they
President or the services can make. The value of that is that you would
had to be given 30-day furloughs from prison, and we wanted to reach
be upgrading the certificate in the nature or categorization of the man's
a decision and a recommendation for the President without the neces-
military service but you would not be giving him veteran's benefits.
sity of these individuals having to go back to prison until the decision
The bulk of these cases overwhelmingly would not receive veteran's
had been made.
benefits and the board would not recommend that they do.
So it is not a departure. It is our first recommendations on military
Senator BURDICK. Mr. Chairman.
Senator KENNEDY. Yes.
cases. The cases which we request the President to upgrade immediately
Senator BURDICK. Welcome to the subcommittee.
will be the unusual ones, the ones in which justice unambiguously
Mr. GOODELL. Thank you.
demands immediate corrective action. We will recommend pardons
Senator BURDICK. I will refer to the last sentence which you read
and clemency discharges in many more cases, however. In all of those
which is as follows: "We will recommend that the de novo review be
other cases, we will recommend that the President direct the military
conducted without reference to the offense for which a pardon has been
discharge review boards or other appropriate military tribunal to
granted-as if that AWOL or desertion were not on the record."
review the cases anew in order to determine whether there should be
Are you recommending expungement?
further upgrading of discharges beyond a clemency discharge.
Mr. GOODELL. No, the President does not have the power to expunge,
Senator KENNEDY. Why can't the Board do this at the time of their
even if we were recommending.
initial decision? Why would you turn this over to a military board?
Senator BURDICK. What do you mean, as if the AWOL and desertion
Why would you recommend separate proceeding?
offense were not in the record?
Mr. GOODELL. A board could do it, at least the President could do it
Mr. GOODELL. The individual may have been in the service for 10 or
upon the recommendation of the board.
12 months. He may have honorable service. In some instances, as I
It is the board's feeling that for the most part, the President con-
mentioned, he may have fought in Vietnam. We had one individual
ceived of this program upgrading through the clemency board through
who volunteered as a helicopter doorgunner, perhaps the most danger-
a clemency discharge. That is the way it was written in the Executive
ous position in Vietnam.
order and in the proclamation.
Senator THURMOND. Volunteered as what?
We have departed from that only in these exceptional cases where
Mr. GOODELL. Helicopter doorgunner. He came back to the United
we feel the President himself would want to take the action of
States, and after being here a short while wanted to go back to Viet-
upgrading. We also feel that the discharge is peculiarly a military function. A
nam, because he said he couldn't take the shoeshining and spit and
polish. He wanted to go back and fight. He was denied that oppor-
discharge is a characterization of a man's military service. We feel that
tunity and he went AWOL two or three times. He was picked up and
for the most part the military should have the responsibility of up-
given a general court martial and originally sentenced to a dishonor-
grading those discharges beyond the clemency discharge if they feel
able discharge, later upgraded to a bad conduct discharge.
they are justified.
I am talking this kind of example to make clear to you what we
I would point out that in reviewing these cases the military would
mean. In that instance, if he went before a military discharge review
be looking at the man's military record, absent the offenses for which
board the President would have pardoned his AWOL's, and therefore
he has been pardoned by the President. We feel that is more com-
the military discharge review board would examine his military record
mensurate with the procedures of the military, will disturb the proce-
without reference to those AWOL's and see if they feel it deserves an
dures of the military the least and is peculiarly appropriate under
upgrading beyond a clemency discharge. That is what I mean by
these circumstances.
ignoring the AWOL offenses.
And we will recommend that de novo review be conducted without
The military discharge review board would look at the character
reference to the offense for which a pardon has been granted, as if that
of that man's military service, his honorable service, service overseas,
AWOL or desertion offense were not on the record.
decorations for valor, whatever else, and they would make a determi-
Senator KENNEDY. In this area there are some points that come to
nation whether it ought to be upgraded further, setting aside the
mind. For example, what would that mean in terms of eligibility for
AWOL's which have been pardoned by the President.
veteran's benefits?
18
19
Senator BURDICK. Then there is no physical expungement in any
Mr. GOODELL. That is correct. Might I make one other point in refer-
phase of this?
ence to this. The President very carefully created a program in which
Mr. GOODELL. There is no expungement in any phase of it, that is
there would be no attempt to have a hearing and a determination of the
correct. All that happens is a man has a dishonorable discharge and a
degree of conscientious feeling that was involved. Individuals who
conviction in the military record or if he has been convicted in Fed-
came on this program were offered the opportunity and are offered the
eral Government, draft evasion, his record is stamped pardoned and
opportunity automatically to get alternate service and to qualify either
the record remains the same.
for a discharge from the military or have the charges dropped in
Senator KENNEDY. In this particular example, if that same person
Federal court.
deserted, would he be eligible for the clemency program?
When an individual comes back, for instance, on the other phase of
Mr. GOODELL. If he deserted?
the program from Canada to the U.S. attorney, there is no discussion
Senator KENEDY. Yes.
about his motivation. The only discussion is whatever he might have
Mr. GOODELL. If he had been deserted from the military service, if
been doing to reduce the 24-month period, the length of that alternate
he had been picked up and punished, he had been convicted, he would
service. The President intended it that way. He didn't want people to
be eligible. If he had not been picked up he goes back through the
come back to forums and bring in their ministers and their friends and
military.
say I was conscientious. They qualify automatically. The same is true
Senator KENNEDY. What if he stays in the service but refuses to
under the clemency program if we feel their overall record justifies it.
fight?
We do consider it mitigating if there are conscientious factors clear in
Mr. GOODELL. He is not eligible for the program.
the record. We consider it aggravating if there are minipulative, de-
Senator KENNEDY. What is the distinction in terms of the people?
ceptive aspects in the record.
How does that make any sense? You have the same background. If the
Senator KENNEDY. Before we leave this point on the procedural
guy stays in the service, he isn't eligible for clemency, but, if he goes
ability to upgrade the discharge on the recommendation of the
over-the-hill, then he is eligible?
Clemency Board, I want to determine if that same procedure is avail-
Mr. GOODELL. I can give a good many other examples.
able if the individual runs through a DOD procedure and gets a
Senator KENNEDY. Can you help me on this one first, and then give
clemency discharge?
me the other examples?
Mr. GOODELL. He is eligible to apply to these boards, discharge review
Mr. GOODELL. What I would hasten to point out to you is that all
boards after he gets an undesirable clemency discharge.
kinds of examples of that nature are not covered. The President limited
Senator KENNEDY. Are the procedures the same, whether they come
the program to absence-related offenses which were the most direct
from a Clemency Board being able to upgrade his discharge or go
ways of protesting or the most direct ways that individuals who were
through the DOD?
confused or got involved with the law, and for those draft evasion
Mr. GOODELL. The only difference is we are recommending to the
offenses that were specifically covered.
President that he request the Board to automatically review the ones
As far as the difference in the President's program and the case you
that come from ours.
give, there is no difference in terms of the conscientious motivation.
Senator KENNEDY. And it is not automatic-
There is a difference in the form of protest that he chose to express his
Mr. GOODELL. Not automatic in the case of the military. They would
opposition, and in that example you can make an argument that there
have to apply.
is danger of undermining military discipline more and refusing to
Senator KENNEDY. Why shouldn't it be the same?
obey orders than there is to leave.
Mr. GOODELL. We don't control the Defense Department's program.
I wouldn't make that argument particularly. I think when you start
They may actually intend to do that. I am not aware it if they do.
drawing lines here you have to draw them somewhere, and the Presi-
Senator KENNEDY. We will get to this point a little later. The fact
dent drew them on the absence-related and draft offenses.
is that we do have three different channels working on this and some
Senator KENNEDY. I would think that from a military point of view,
difference in the procedures are apparent in each.
it is more dangerous to have deserters than individuals who are re-
In the minds of most Americans you are the prime mover in this
fusing to obey, particularly if they have an ongoing battle.
area, as I believe quite frankly you are and should be; yet, you have
Mr. GOODELL. Quite conceivably. That would depend on the nature of
these differences in terms of procedures or regulations which obviously
the offense and where they did it. I would suspect if somebody refused
will have a real impact on the type of justice that individuals will
to shoot his guns on the front lines that would be a very serious offense.
receive.
Senator KENNEDY. I suppose this gets back to part of the problems
Mr. GOODELL. Well, there are differences in the procedure, no question
you are faced with when attempting to delineate through a set of cir-
about it. These applicants, however, are in different situations. They
cumstances and motivations in any particular case. But I also suppose
have a different history.
it raises some questions as to how that particular dilemma fits into the
In the case of the individuals who go to the U.S. attorney, these
more general comment of the President and what he hoped to be able
are civilians who never went into the military, they went underground
to achieve with the clemency procedure. But obviously you are limited
to Canada or Sweden or whatever. Now they want to go back and they
in terms of the order itself.
go to the U.S. attorney. They are subject to indictment and prosecu-
20
21
tion. They have in many instances charges pending against them. So
dealing with this very small number of individuals who got involved
they are treated differently.
in this system, and most of them, I say to you from what we have seen
In the case of the military, these are cases of individuals who were
of the nature of them who come here, were low in education, relatively
in the services who deserted and left and have never been picked up,
low income with a multiplicity of family problems, emotional prob-
12,500 of them out there, according to the Defense Department's esti-
lems which occur in every war period, and as a matter of fact, in
mate and they can come back and the military handles them.
In our case, we are handling either military or civilians who have
peacetime. You as Senators see them, have them apply to you constantly, and
been picked up, punished, stayed here either out of conscientious feel-
we found that the veterans' groups, now that they see the nature of
ing and went to prison or because they were mixed up and confused
most of the applicants, are helping. They help them, as the American
about trying to conform to the Selective Service, or they had family
Legion, go before the military in various existing tribunals to get
problems if they were in the service.
various upgraded discharges.
Senator KENNEDY. A point I thought you made quite effectively
Senator HART. What is the circumstance of that one case? What
earlier is that many of the applicants are not from educated or middle-
kind of individual is the American Legion assisting? I speak not
class backgrounds and are generally unsophisticated, inarticulate peo-
critically of the Legion.
ple. What we are saying is that it makes a rather significant difference
Mr. GOODELL. That individual's application has not been presented
whether the young man having problems makes up his mind to avoid
to the Board as yet, SO I can't tell you in detail the nature of his
the draft before he gets in the Selective Service System. If he decided
situation.
to avoid the draft system altogether and consequently went to prison,
I can tell you that when informed by the staff of the American
then he would have to apply for amnesty through the Clemency Board.
Legion that they were representing one, it was on the basis that
On the other hand, if he registered for the draft and then opted to
his circumstances were very similar to thousands of others that the
leave the country, he would apply for clemency through the Depart-
American Legion regularly tries to help in dealing with the VA or
ment of Justice and later face the U.S. attorney, who in many situations
the military in upgrading discharges. But I can't give you the details.
may be a hard-driving prosecutor in what he believes are the regula-
I am sorry, Senator Hart.
tions. And third, if he went into the military, he is now required to
Senator HART. Well, I am glad that they are taking that attitude.
follow the clemency procedures established by the Department of
Mr. GOODELL. We are, too, as a matter of fact. I can't obviously speak
Defense. There are obviously three distinctive procedural avenues to
for those groups, they will speak for themselves, but I think we have
follow for consideration of one offense.
benefited greatly, and I hope they have, since the creation of the
You can point out that you are consolidating them, coordinating
Clemency Board.
them, and getting a similar kind of plan, but one of the things gen-
Senator KENNEDY. I'm glad you mentioned that, Mr. Goodell. I
erally of concern to me and others is that you are getting a lot of
think there have been a lot of questions as has been pointed out. The
different applications of these rules and regulations as we saw all
enormous amount of emotion involved in this whole kind of question
the way through the draf system. The mechanic in Boston never got
results in a wide variety of differences about how to proceed, all
an occupational deferment, but he did in Detroit. One of them was
across the population. I think when a group of individuals are attempt-
slugging around in Vietnam while the other one was sipping beer.
ing to play a constructive role in working our way through a very
We have seen a lot of these differences because procedures and the
thorny problem, they ought to be recognized for it.
regulations were different. I am concerned that with three diverse
Mr. GOODELL. It probably is appropriate for me to interrupt my
agencies handling this program, you will get a dissimilarity in the
own statement. I made reference to the 9-member Clemency Board.
kinds of justice they receive.
We have on that Board Commander Walters, Commanding General
Mr. GOODELL. I understand your concern, and I will say to you it
in Vietnam in the Marines, retired now. We have an individual who
is absolutely true. We had some 3,000 draft boards around the country.
lost the use of his leg in Vietnam, an individual who won the Silver
That is the way the system was set up and centralized to have those
Star in Vietnam, we have representatives from a variety of other
individuals make the decisions.
points of view, Father Hesburgh and Mr. Jordan. We started out
I would point out to you another factor that should be understood
with some pretty tempestuous sessions. We started to go through the
when we are talking about a clemency program. The college youngster
cases individually and just kept discussing the approach that we
had a big advantage. We know that during the great deferment, the
should take to dispose of these cases. I am very proud to tell you that
sixties, a great deal of that occurred on the college campuses. Most of
the Board is unanimous on the substantive regulations, on the ap-
those men did not go. They had educational deferments. They had
proaches we take, the results we recommend. We have some divided
advisory committees set up to help them.
votes, which is really 3 months up or down in the length of alternate
Senator KENNEDY. They got married and were able to pyramid
service. But the Board has been virtually unanimous in its approach.
their deferments.
This has been an outgrowth of the educational process that we went
Mr. GOODELL. There were a variety of things that happened. The
through as we looked at these cases and discussed what was the fair
bulk of the young people who were eligible, voting age, I mean age-
and just thing to do. I am very proud that has been the option.
wise, did not go. So we have to keep that in mind when we talk about
I hope there can be enough enlightenment to the people generally
22
23
in the country as to the nature of the program for the same thing to
they are in right now. There is no prosecution, no punitive aspect. If
happen in the country.
we give them clemency and say do 12 months of alternate service and
Senator HART. Mr. Chairman, could I ask Mr. Goodell if one or more
get a pardon, if they don't want to they don't get their pardon. They
Board members have discussed the point raised earlier that only about
can stay right where they are. We don't have any more than the other
10 percent of those eligible actually went into service; that 90 percent,
two programs.
for many reasons, didn't. Why should the few who went and who are
Interestingly enough, it is the Defense Department that is getting
before us now under this program be required to do still extra service?
the largest number, percentagewise. They are close to 20 percent of the
Mr. GOODELL. Well, let me address myself directly to that, Senator
eligible applicants to the military program.
Hart.
Senator HART. I was just curious as to whether the suggestion had
As you know, I was one of those opposed to the war in Vietnam and
been made explicitly in Board discussions.
argued very strenuously against it. I felt from a conservative viewpoint
Mr. GOODELL. It was. It was discussed at some length in our Board.
this was a terrible mistake, and I say that advisedly. I felt we were
Senator HART. I respect the position that you maintained here in
spending our American lives and our American fortune and decimating
the Congress over those years very greatly.
a country and a people for no good reason to serve national security.
Mr. GOODELL. Thank you.
During that period, I was asked frequently what would I do if I
Sorry I diverted.
were a young man and I got orders to go in the service, and I said
Senator KENNEDY. Just to carry on the point that Senator Hart
consistently I would go. That is the law. That is my obligation, even if
made, is the reason for the alternate service, as you view it,
I differ with my country. I respect those who as a matter of conscience
punishment?
feel they cannot go, but I would.
Mr. GOODELL. No; not any more than it is punishment when you are
I feel, Senator Hart, that even though any system you have for Se-
called to serve your country in the first place. Maybe you call it a
lective Service is inevitably unfair. There is no way of selecting out
patriotic duty or privilege. We had the situation in this country at
of 27 million people 500,000 or 750,000 to go and to say that this is
least until the sixties with a war that was very unpopular and unjusti-
100 percent fair. The country makes some arbitrary judgments. They
fied, but in World War II it was not punishment. You had the oppor-
feel it is valuable to the country that an individual have an education,
tunity to go and serve your country. I know I and many others tried
for instance, more valuable for the service that they go in after educa-
very hard to get into the service.
tion than before. The country makes decisions about hardship defer-
Senator KENNEDY. Is it your position that if the reason is not punish-
ments, about physical qualifications which are necessary. It is not very
ment, it is in our national interest to have these men serve in this kind
fair if an individual happens to have a lame foot or bad back or some
of employment?
other disability that he does not have to go and somebody else goes
Mr. GOODELL. Yes; I think it is.
over and gets shot and dies; this is inevitable.
Senator KENNEDY. We have 8.4 percent unemployment in Massa-
I think those who are called do have an obligation. I feel very deeply
chusetts. It is extremely difficult for returning veterans to get jobs.
about President Ford's program. What he has done here with this pro-
If we have these young men taking jobs away from other people, if
gram is say to these individuals. all right, we had our divisions
that is really in our national interest, if that is what we are consider-
throughout the period of war in Vietnam. I don't think you were right,
ing, and if alternate service is not viewed as punishment, then should
and you don't think the country was right. But now we are offering
we be looking at it from a job market point of view and saying that
you the opportunity to come back and discharge your continuing
it is the most effective way to meet some of our needs, or the best way
obligation to your country that you as a matter of principle said you
to find hospital attendants, librarians, or other community assistants?
couldn't do in the military during the war in Vietnam. I think that is
Mr. GOODELL. As you know, the President was very explicit. Under
eminently fair. If they want to come back and discharge that continu-
no circumstances would any of these jobs be in a competitive market
ing obligation, it is a neutral approach, not a punitive one. in my view,
or taking jobs from others who are out there trying to get jobs and
but they do have the obligation and they must discharge it. That is the
getting help, veterans particularly, of course. That is a phase of the
President's program.
program that is handled by the Selective Service System, and I recom-
Now, there is no way that my friends who believe in unconditional
mend to you-I know you will question them when they appear. They
amnesty are going to be persuaded by my comments, obviously. I am
have appeared before the Clemency Board twice to brief us. They
sure a great many peonle who are sincere in principle who went to
have assured us that none of the jobs in the competitive market are
Sweden or Canada are not going to be persuaded and I respect them.
being taken away from anybody else. These are relatively low-paying
The Clemency Board is not in the business of trying to recruit or so-
jobs or noncompetitive type jobs.
licit or persuade. We are in the business of trying to be fair in ad-
Senator KENNEDY. They are extremely low-paying jobs, aren't they ?
ministering a program that is available for those who want to use it.
Mr. GOODELL. Some are not very low-paying, but they are not very
My biggest concern is that a bulk of the people who are eligible
competitive. They have one doctor.
who got picked up and punished, who I am convinced don't know
Senator KENNEDY. What do they receive in compensation
they are eligible or they would be applying. They have nothing to
Mr. GOODELL. The language is a comparable standard of living to
lose to apply. If we say no clemency they remain in exactly the status
what they would have in the military. It does not limit the wages as
24
25
such. So technically this is something that Selective Service should
and in Part 202 the substantive standards to be used by the Presidential Clem-
testify on. Technically I presume a man who would be a lieutenant
ency Board (hereinafter "the Board") in accepting and processing applications
from individuals subject to the jurisdiction of the Board and in the deter-
in the military, his comparable standard of living outside would be
mination of its recommendations to the President concerning those individuals.
significantly higher. I don't know whether they have very many of
The Presidential Clemency Board has made every reasonable effort to assure
those.
to both applicants and those individuals who may be subject to the jurisdic-
Senator BURDICK. Mr. Chairman, just SO I get this thing clear-
tion of any of the three parts of the Presidential clemency program every pro-
cedural consideration. Applicants will be sent notice concerning the procedures
Mr. GOODELL. We are getting the questions over early here.
and standards used by the Board; their privacy will be respected in every way
Senator KENNEDY. I am sorry. I have been the guilty one.
possible within the bounds of the law. All information concerning the applicant
Senator BURDICK. This is purely an executive program?
which is sought by the Board from governmental sources will be open to inspec-
tion by the applicant or his representative. The records and files concerning
Mr. GOODELL. That is correct.
the applicant will be summarized by an attorney on the staff of the Board,
Senator BURDICK. Your Board was appointed by the President and
and sent to the applicant for his amendment and correction. A sure process
you have no other powers than recommendation?
for the appeal of adverse determinations has been established. In the Board's
Mr. GOODELL. Yes.
discretion, the applicant or his representative may be allowed to present an
Senator BURDICK. The legislative branch is not involved?
oral statement to the Board prior to its determination of his case. Each appli-
cant will have an opportunity to petition for reconsideration of the decision to
Mr. GOODELL. That is correct.
recommend, grant, or deny executive clemency in his case.
Senator BURDICK. Your recommendations are acted upon favorably
Individuals who may be subject to the jurisdiction of the Department of Justice
or unfavorably by the President?
or the Departments of Defense or Transportation will be assisted in confidence in
determining their status with respect to the clemency program.
Mr. GOODELL. Yes.
Finally, it cannot be too often stated that an applicant may apply to the Clem-
Senator BURDICK. You have no input into the judiciary?
ency Board without risk. His application will be held in confidence, and he may
Mr. GOODELL. None whatsoever.
withdraw his application at any time.
Senator BURDICK. I know the young man who must have been in
It is the intent of the Presidential Clemency Board to provide notice to appli-
Canada in my home State appeared before the court and said here I
cants, and to maximize public certainty and predictability, about the substantive
standards which the Board will apply in recommending to the President pro-
am, no recommendation available for your Board for that reason?
posed dispositions of applications for executive clemency under Proclamation
Mr. GOODELL. No; that matter is entirely in the hands of the Justice
4313 (published in the FEDERAL REGISTER on September 17, 1974, 39 FR 33293).
Department and the court.
It is further the intent of the Board to ensure equity and consistency in the way
Senator BURDICK. So there is nothing the legislative branch has to
that similarly situated applicants are treated.
The Presidential Clemency Board therefore herein publishes the substantive
do with this at all?
standards to which it has committeed itself in the implementation of the clem-
Mr. GOODELL. Well, you may be called upon to give us a little financ-
ency program. Applicants for executive clemency under the program are invited
ing down the road, but other than that, nothing else.
to submit evidence suggesting that one or more of the mitigating circumstances
listed below apply to their case, or that one or more of the aggravating circum-
Senator BURDICK. That is all.
stances listed do not apply to their case. Applicants are also invited to submit
Thank you.
letters from third parties containing such evidence, or to ask other people to
Mr. GOODELL. We have received a firm indication from the Depart-
write directly to the Board on their behalf.
ment of Defense that it is amendable to the procedures which we pro-
It is contemplated that the Board will weigh the factors listed below in each
individual case. It is not contemplated, however, that any one of these factors
pose for upgrading discharges.
will necessarily be dispositive of a particular case.
Let me now turn to the Board's procedures, a copy of which is at-
Actions taken and determinations made by the Presidential Clemency Board
tached to my statement. We have sent copies for comment to every
and members of the Board's staff prior to the issuance of these regulations have
Member of Congress, to veterans' and civil liberties groups, to antiwar
been in substantial compliance with the provisions thereof.
Because of the short duration of the Presidential clemency program, and for
organizations, to every State and major local bar association and to a
other good cause appearing, it is hereby determined that publication of this
number of private attorneys. I am pleased to say that for the most
chapter in accordance with normal rule-making procedure is impracticable and
part, the proposed rulemaking appears to have been well-received.
that good cause exists for making these regulations effective in less than thirty
Suggestions and criticisms will be reflected in final rulemaking which
(30) days. Notwithstanding the abbreviated rulemaking procedure, however, com-
ments and views regarding the proposed chapter are solicited, and may be filed
we will issue in a few days.
to be received no later than 5 p.m. d.s.t., December 12, 1974. Comments should be
[The document referred to above follows:]
submitted in five (5) copies, and directed to:
Office of the General Counsel
TITLE 2-CLEMENCY, CHAPTER II-PRESIDENTIAL CLEMENCY BOARD, PART 201-
Presidential Clemency Board
ADMINISTRATIVE PROCEDURES, PART 202-SUBSTANTIVE STANDARDS OF THE PRESI-
The White House
DENTIAL CLEMENCY BOARD
Washington, D.C. 20500
(Executive Order 11803, 39 FR 33297)
PROCEDURES AND STANDARDS
In consideration of the foregoing, this chapter will become effective
immediately.
In order to accommodate new regulations being issued by the Presidential
Issued in Washington, D.C., on November 25, 1974.
Clemency Board, the heading of Title 2 of the Code of Federal Regulations is
CHARLES E. GOODELL,
changed to read Title 2-Clemency. In addition, a new Chapter II, Presidential
Chairman,
Clemency Board, is added, reading as set forth below.
Presidential Clemency Board.
This notice of rulemaking sets forth in Part 201 the administrative procedures
26
27
1. Part 201 is added to read as follows:
(2) Information about the Presidential Clemency program and instructions
Sec.
for the preparation of the application form (see appendix "B") ;
201.1
Purpose and scope.
(3) A statement describing the Board's procedures and method of determining
201.2
General definitions.
cases.
201.3
Initial filing.
(d) The applicant will be urged to return the completed application form to
201.4
Application form.
the Board as soon as possible. In the absence of extenuating circumstances,
201.5
Assignment of Action Attorney and case number, and determination of
completed application forms must be received by the Board within thirty (30)
jurisdiction.
calendar days of receipt.
201.6
Initial summary.
201.7
Final summary.
§ 201.5 Assignment of Action Attorney and case number, and determination
201.8
Consideration before the Board.
of jurisdiction.
201.9
Recommendations to the President.
(a) Upon receipt of all necessary information, the applicant's case will be
201.10
Reconsideration.
assigned to an Action Attorney, who will make a preliminary determination of
201.11 Referral to appropriate agencies.
the Board's jurisdiction. If the Action Attorney determines that the Board has
201.12 Confidentiality of communications.
jurisdiction over the applicant, a file for the applicant's case will be opened and
201.13 Representation before the Board.
a case number for that file will be assigned. With the opening of the file, the
201.14 Requests for information about the clemency program.
Action Attorney shall request from all appropriate government agencies the
Appendix A.
relevant records and files pertaining to the applicant's case before the Board.
AUTHORITY E.O. 11803, 39 FR 33297.
(b) In normal cases, the relevant records and files will include for civilian
§ 201.1 Purpose and scope.
cases the applicant's files from the Selective Service System and the Bureau of
Prisons, and for military cases the applicant's military personnel records, mili-
This subpart contains the regulations of the Presidential Clemency Board,
tary clemency folder, and record of court martial. Applicants may request that
created pursuant to Executive Order 11803 (39 FR 33297) concerning the pro-
the Board consider other pertinent files, but such applicant-requested files will
cedures by which the Board will accept and process applications from individuals
not be made available to the applicant and his representative as of right.
who avail themselves of the opportunity to come within its jurisdiction. Certain
(c) Where the initial filing contains adequate information, Board staff may
other matters are also treated, such as the assistance to be given to individuals
assign a case number and request records and files prior to receipt of the com-
requesting determinations of jurisdiction, or requesting information respecting
pleted application form.
those parts of the Presidential Clemency Program which are administered by
(d) If the Action Attorney determines that probable jurisdiction does not
the Department of Defense and the Department of Justice under Presidential
exist, he will promptly notify the applicant in writing, stating the reasons
Proclamation 4313 (39 FR 33293).
therefor.
§ 201.2 General definitions.
(e) An applicant who questions this adverse determination of jurisdiction
"Action attorney" means an attorney on the staff of the Board who is assigned
should write the General Counsel of the Board in accordance with the provisions
an applicant's case and is thereafter responsible for all information-gathering
of § 201.4(a).
and communications concerning that applicant's case from the applicant's initial
§ 201.6 Initial summary.
filing until final disposition has been made by the Board.
(a) Upon receipt of the necessary records and files, the Action Attorney
"Applicant" means an individual who is subject to the jurisdiction of the
will prepare an initial summary of the applicant's case. The files, records, and
Board, and who has submitted an initial filing.
"Board" means the Presidential Clemency Board as created by Executive
any additional sources used in preparing the initial summary will be noted there-
upon; no material not so noted will be used in its preparation. The initial sum-
Order 11803, or any successor agencies.
mary shall include the name and business telephone number of the Action
§ 201.3 Initial filing.
Attorney who prepared it, and who may be contacted by the applicant or his
In order to comply with the requirements of Executive Order 11803 as to
representative.
timely application for consideration by the Board, an individual must make an
(b) The initial summary shall be sent by certified mail to the applicant. The
initial filing prior to January 31, 1975. The Board will consider sufficient as an
summary will be accompanied by an instruction sheet describing the method by
initial filing any written communication received from an individual or his repre-
which the summary was prepared, and by a copy of the guidelines that have
sentative which requests consideration of the individual's specific case or which
been adopted by the Board for the determination of cases. Applicants will be
demonstrates an intention to request consideration. Oral initial filings will be
requested to review the initial summary for accuracy and completeness, and ad-
considered sufficient if reduced to writing and received by the Board within
vised of their right to submit additional sworn or unsworn material. Such addi-
thirty (30) calendar days.
tional material may be submitted in any length, but should be accompanied by a
summary of not more than three (3) single-spaced, typewritten, letter-sized
§ 201.4 Application form.
pages in length. If a summary of suitable length is not submitted with the addi-
(a) Upon receipt of an initial filing a member of the Board's staff will make a
tional material, the Action Attorney will prepare such a summary.
determination of probable jurisdiction. Applicants who are clearly beyond the
(c) At any time after the mailing to the applicant of his initial summary, the
Board's jurisdiction will be SO notified in writing. An applicant who questions this
applicant's complete Board file, and the files from which the summary was pre-
adverse determination of probable jurisdiction should promptly write the Gen-
pared, may be examined at the offices of the Board by the applicant, his repre-
eral Counsel, Presidential Clemency Board, The White House, Washington, D.C.
sentative, or by any member of the Board. An applicant or his representative
20500, stating his reasons for questioning the determination. The General Counsel
may submit evidence of inaccurate, incomplete, or misleading information in
of the Board shall make the final determination of jurisdiction.
the complete Board file.
(b) An applicant who has been notified that probable jurisdiction does not lie
(d) An applicant's case will be considered ready for consideration by the
in his case will be considered as having made a timely filing should the final
Board not earlier than twenty (20) days after the initial summary has been re-
decision be that the Board has jurisdiction over his case.
ceived by the applicant. Material which amends or supplements the applicant's
(c) Applicants who are within the probable jurisdiction of the Board will be
initial summary must therefore be received by the Board within twenty (20)
sent by mail:
days to insure that it will be considered, unless within that period the applicant
(1) An application form (see appendix "A"¹) ;
requests and receives permission for an extension. Permission for late filing shall
be liberally granted, if the request is received prior to Board action.
1 Filed as part of the original document.
55-550 0 75 3
28
29
§ 201.7 Final summary.
No personal information concerning an applicant or potential applicant to
(a) Upon receipt of the applicant's response to the initial summary, the Action
program. and related to the Presidential clemency program will be made known any dis-
Attorney will note such amendments, supplements, or corrections on the initial
summary as are indicated by the applicant.
closure agency, is necessary for the normal and proper functioning of the viola-
organization, or individual, whether public or private, unless Presidential such
(b) The final summary shall then consist of the intial summary with appro-
Clemency Board. However, information which reveals the existence of a
priate amendments and additions, and the summary of the materials submitted
tion of law (other than an offense subject to the Presidential clemency program)
by the applicant as described in 201.6(b).
will of necessity be forwarded to the appropriate authorities.
(b) In order to have his case considered by the Board, an applicant need submit
§ 201.8 Consideration before the Board.
information sufficient for a determination of jurisdiction, and for the re-
(a) At a regularly scheduled meeting of the Presidential Clemency Board, a
trieval only of necessary official records and files. The application form will therefore
quorum of at least five (5) members being present, the Board will consider the
require the applicant's name; date of birth; selective service number; military draft
applicant's case.
evasion offenses or absence-related military offenses and the disposition thereof; If the
service and service number, if applicable; information concerning the
(b) The Action Attorney will present to the Board, a brief statement of the
final summary of the applicant's case. The Action Attorney will then stand
and the mailing address of either the applicant or his representative.
ready to answer from the complete file any questions from the members of the
applicant submits such information as part of his initial filing, the completion
Board concerning the applicant's case.
of the application form itself is not necessary.
(c) At the Board's discretion, it may permit an applicant or his representative
to present before the Board an oral statement, not to exceed ten (10) minutes in
§ 201.13 Representation before the Board.
length. Neither applicant nor his representative may be present when the Board
begins deliberations, but should remain available for further consultation im-
sentative or legal counsel, each applicant is entitled to representation and will be
(a) Although an applicant may bring his case before the Board without a repre-
mediately thereafter for a period not to exceed one hour.
encouraged to seek legal counsel experienced in military or selective service law.
(d) After due deliberation, the Board will decide upon its recommendation to
Upon request, Board staff will attempt to refer an applicant to a skilled volunteer
the President concerning the applicant's case, stating the reasons for its recom-
mendation.
representative. (b) An applicant who does not wish to file his application in person may have
§ 201.9 Recommendations to the President.
his representative do SO on his behalf.
(a) At appropriate intervals, the Chairman of the Board will submit to the
§ 201.14 Request for information about the clemency program.
President certain master warrants listing the names of applicants recommended
consideration concerning an individual who is clearly beyond the jurisdiction of
(a) Upon receipt by the Board of an oral or written request for information or
for executive clemency, and a list of names of applicants considered by the
Board but not recommended for clemency. The Chairman will also submit such
the Board, a member of the Board's staff shall inform the individual:
terms and conditions for executive clemency if any, that have been recommended
(1) That jurisdiction does not lie;
in each case by the Board.
(2) Whether jurisdiction may lie within the Presidential clemency program,
(b) Following action by the President, the Board will send notice of such
and if so, with which agency;
action in writing to all persons whose names were submitted to the President.
(3) That in the event the individual prefers not to contact personally such
Persons not receiving executive clemency will be SO notified.
other agency that an Action Attorney will obtain from such other agency informa-
§ 201.10 Reconsideration.
tion concerning the individual's status with respect to the Presidential clemency
program, and provide to the individual that information.
(a) An applicant may petition the Board for reconsideration of his grant or
(b) The Action Attorney shall submit to the Executive Secretariat of the
denial of executive clemency, or of the terms and conditions thereof.
Presidential Clemency Board a summary of the communication with, and infor-
(b) Such petitions for reconsideration, including any supplementary material,
mation provided to, such individuals.
must be received by the Board within thirty (30) days of the mailing of the no-
tification in $ 201.9(b).
APPENDIX A
(c) At a regularly scheduled Board meeting, a quorum being present, the
Board will consider the applicant's petition for reconsideration.
INSTRUCTIONS FOR APPLICATION FOR CLEMENCY
(d) In appropriate cases, the Board may permit an applicant or his repre-
sentative to present before the Board an oral statement not to exceed fifteen (15)
On September 16, 1974 the President announced a program of clemency. Depend-
minutes in length.
ing on your case, you may apply to the Presidential Clemency Board, the
(e) After due deliberation, the Board may either:
Department of Justice, or the Department of Defense.
(1) As to any person granted executive clemency, let stand or mitigate the
You may be eligible for clemency by the Presidential Clemency Board if you
have been convicted of a draft evasion offense such as failure to register or
terms and conditions upon which executive clemency was granted;
(2) As to any person denied executive clemency, recommend to the President
register on time; failure to keep the local board informed of current address;
failure to report for or submit to pre-induction or induction examination; failure
that he grant executive clemency in accordance with such terms and conditions
to report for or submit to or complete service, during the period from August 4,
as may be appropriate; or
1964 to March 28, 1973; or if you have received an undesirable, bad conduct, or
(3) As to any person denied executive clemency, again not recommend the
dishonorable discharge for desertion, absence without leave, or missing move-
applicant for executive clemency.
ment, and for offenses directly related, between August 4, 1964 to March 28, 1973.
201.11 Referral to appropriate agencies.
If you are now absent from military service or have a charge against you for a
After the expiration of the period allowed for petitions for reconsideration,
Selective Service violation and have not been convicted or received a discharge,
the Chairman of the Board shall forward for further action to the Secretaries of
you may still be eligible for elemency under another part of the President's pro-
the Army, Navy, and Air Force, the Secretary of the Department of Transporta-
gram. If you have any questions, please contact the Board and we will try to
tion, the Director of the Selective Service System, and the Attorney General,
answer your questions.
as appropriate, the President's determination as to each recipient of executive
If you believe that you are eligible to be considered by the Presidential
clemency.
Clemency Board but are not sure, you should apply to the Board. If it turns out
that you are not eligible for consideration by the Board, you may possibly
201.12 Confidentiality of communications.
qualify under another part of the clemency program. You do not have to identify
(a) The Board has determined that it will take all steps possible to protect the
your current location. We will then be able to notify you of the proper agency
privacy of applicants and potential applicants to the Presidential clemency
30
31
to contact. If you are appealing a conviction or a military discharge you may
continue your appeal, and still apply to the Board at the same time.
upon a length of alternative service exceeding the applicant's "baseline period
I. The Board will not give its files to any other federal agency. It will keep any
of alternative service," as determined under § 202.5.
information you provide in strictest confidence, except evidence of a serious crime
(b) Aggravating circumstances of which the Board will take notice are:
which is not covered in the Presidential Clemency program.
(1) Prior adult criminal convictions.
II. Although you may apply to the Board without attorney or any other repre-
(2) False statement by applicant to the Presidential Clemency Board.
sentative if you wish, we encourage you to obtain the help of legal counsel. If you
(3) Use of force by applicant collaterally to AWOL, desertion, missing move-
do not have a counsel but desire one, we will be glad to refer you to a lawyers'
ment, or civilian draft evasion offense.
organization which will help you find one. These organizations will help you get
(4) Desertion during combat.
legal assistance even if you cannot afford to pay.
(5) Evidence that applicant committed the offense for obviously manipulative
III. To apply to the Board, you need only supply the information necessary to
and selfish reasons.
find your file from other departments. If you do not wish to file your application
(6) Prior refusal to fulfill alternative service.
personally, you may select a representative of your own choice to do it for you,
(7) Prior violation of probation or parole requirements.
but you must tell us that he is authorized. The Board will maintain its own
file on your case and that file will be available for examination by you or your
§ 202.4 Mitigating circumstances.
own attorney.
(a) Presence of any of the mitigating circumstances listed herein will be
IV. You are encouraged to submit evidence which you feel helps your case, and
considered by the Board as cause for recommending that the President grant
to submit letters from other people on your behalf. You may submit evidence in
executive clemency to a particular applicant, and will in exceptional ceases be
order to correct inaccurate, incomplete, or misleading information to the Board's
further considered as cause for recommending clemency conditioned upon a period
file.
of alternative service less than the applicant's "baseline period of alternative
V. A personal appearance by you before the Board will not be necessary.
service," as determined under § 202.5.
If you have any questions, please call or write the Presidential Clemency Board.
(b) Mitigating circumstances of which the Board will take notice are:
The White House, Washington, D.C. 20500, (202-456-6476). If application is
(1) Applicant's lack of sufficient education or ability to understand obligations,
made by a representative on your behalf, it is not necessary that your home
or remedies available, under the law.
address and telephone number be included. Your representative should indicate
(2) Personal and family hardship either at the time of the offense or if the
number. his capacity (attorney, friend, etc.) and give us his address and telephone
applicant were to perform alternative service.
(3) Mental or physical illness or condition, either at the time of the offense
Application for people not in custody should be completed and mailed to the
or currently.
Board no later than midnight, January 31, 1975. Special procedures will be
(4) Employment or volunteer activities of service to the public since con-
established for persons incarcerated whether or not they have been released on
viction or military discharge.
furlough.
(5) Service-connected disability, wounds in combat, or decorations for valor in
2. Part 202 is added to read as follows:
combat.
(6) Tours of service in the war zone.
Sec.
(7) Substantial evidence of personal or procedural unfairness in treatment of
202.1 Purpose and scope.
applicant.
202.2 Board decision on whether or not to recommend that the President grant
(8) Denial of conscientious objector status, of other claim for Selective Service
executive clemency.
exemption or deferment, or of a claim for hardship discharge, compassionate
202.3 Aggravating circumstances.
reassignment, emergency leave, or other remedy available under military law,
202.4 Mitigating circumstances.
on procedural, technical, or improper grounds, or on grounds which have sub-
202.5 Calculation of length of alternative service.
sequently been held unlawful by the judiciary.
(9) Evidence that an applicant acted in conscience, and not for manipulative
AUTHORITY E.O. 11803, 39 FR 33297.
or selfish reasons.
§ 202.1 Purpose and scope.
(10) Voluntary submission to authorities by applicant.
This part articulates the standards which the Presidential Clemency Board will
$ 202.5 Calculation of length of alternative service.
employ in deciding whether to recommend that the President grant executive
(a) Having reached a decision to recommend that the President grant ex-
clemency to a particular applicant, and in then deciding whether that grant of
ecutive clemency to a particular applicant, the Board will then decide whether
clemency should be conditional, and, if so, upon what specified period of
clemency should be conditioned upon a specified period of alternative service
alternative service.
and, if so, what length that period should be.
§ 202.2 Board decision on whether or not to recommend that the President
(1) The starting point for calculation of length of alternative service will
grant executive clemency.
be 24 months.
(a) The first decision which the Board will reach, with respect to an applica-
(2) That starting point will be reduced by three times the amount of prison
time served.
tion before it, is whether or not it will recommend to the President that the appli-
(3) That starting point will be further reduced by the amount of prior alter-
cant be granted executive clemency. In reaching that decision, the Board will
take notice of the presence of any of the aggravating circumstances listed in
native service performed, provided that a prescribed period of alternative service
has been satisfactorily completed.
§ 202.3, and will further take notice of whether such aggravating circumstances
(4) That starting point will be further reduced by the amount of time served
are balanced by the presence of any of the mitigating circumstances listed in
§ 202.4.
on probation or parole, provided that a prescribed period of alternative service
has been satisfactorily completed.
(b) Unless there are aggravating circumstances not balanced by mitigating
(5) The remainder of those three subtractions will be the "baseline period of
circumstances, the Board will recommend that the President grant executive
alternative service" applicable to a particular case before the Board Provided,
clemency to each applicant.
That the baseline period of alternative service shall not exceed a judge's sentence
§ 202.3 Aggravating circumstances.
to imprisonment in any case: And provided further, That the baseline period
(a) Presence of any of the aggravating circumstances listed herein either will
of alternative service shall be, notwithstanding the remainder of the calculation
disqualify an individual for executive clemency or may be considered by the
above, not less than a minimum of three (3) months.
Board as cause for recommending to the President executive clemency conditioned
(6) In exceptional cases in which mitigating circumstances are present, the
Board may consider such mitigating circumstances as cause for recommending
32
33
clemency conditioned upon a period of alternative service less than an appli-
cant's baseline period of alternative service.
(7) In cases in which aggravating circumstances are present and are not, in
PRESIDENTIAL CLEMENCY BOARD
the Board's judgment, balanced by mitigating circumstances, the Board may con-
THE WHITE HOUSE
sider such aggravating circumstances as cause for recommending clemency con-
ditioned upon a period of alternative service exceeding, either by three (3) ad-
WASHINGTON
ditional months or by six (6) additional months, the applicants' baseline period
of alternative service.
[FR Doc. 74-27863 Filed 11-26-74; 8 :45 am]
Dear Sir:
It took some time to develop these regulations. In part, this is ex-
plained by the fact that the Presidential Clemency Board has no
We understand that you may be interested in.applying for
precise historical model to follow, and no clear precedents in assisting
clemency under the President's clemency program. Enclosed is
the President in what is a unique executive function. We also wished
an application form which you must return to us if you want your
to become very familiar with the types of cases before us, prior to
case considered by the Presidential Clemency Board. We have
issuing any rules. Even now we find new aspects in the cases which re-
also enclosed materials which describe the procedure that the
quire further elaboration of our rules. Let me describe briefly how
Board intends to use and some of the factors which it will consider
the Board operates.
in examining your case.
First, when we receive a communication expressing interest by or
on behalf of a possible applicant in any part of the President's pro-
If you wish to apply, please complete the application form as
gram, we mail out an instruction kit.
soon as possible. You should also send us any information you con-
[The instruction kit referred to above follows:]
sider favorable to your case. You can send it with your application,
or as quickly afterwards as you can. When we receive your appli-
cation and any additional papers you may want to submit, the Board
will begin to review your. case.
You will not have to appear personally before the Board. You
may, however, call or see one of our staff and you are invited to
add to your file whatever you think helpful. You do not need an
attorney to apply for clemency, but we do suggest that you seek the
advice of one. If you do not know how to get an attorney, we can
tell you.
Sincerely,
Charles E. Hoodell
Charles E. Goodell
Chairman
Enclosures
34
35
PRESIDENTIAL CLEMENCY BOARD
PRESIDENTIAL CLEMENCY BOARD
APPLICATION
THE WHITE HOUSE
I hereby apply to the Presidential Clemency Board for consideration.
WASHINGTON
INSTRUCTIONS FOR APPLICATION FOR CLEMENCY
NAME
Last
First
Middle
On September 16, 1974 the President announced a program of clemency.
Depending on your case, you may apply to the Presidential Clemency
Mailing Address
City
State
Zip Code
Board, the Department of Justice, or the Department of Defense.
You may be eligible for clemency by the Presidential Clemency Board
Phone & Area Code
Social Security No.
Date of Birth
if you have been convicted of a draft evasion offense such as failure to
register or register on time; failure to keep the local board informed
of current address; failure to report for or submit to pre-induction or
If you were convicted in federal civil court, or military court-martial,
induction examination; failure to report for or submit to or complete
please describe the offense, give date of offense, and the date and place
service, during the period from August 4, 1964 to March 28, 1973; or
of conviction:
if you have received an undesirable, bad conduct, or dishonorable dis-
charge for desertion, absence without leave, or missing movement,
and for offenses directly related, between August 4, 1964 to March 28,
1973.
If you are now absent from military service or have a charge against
you for a Selective Service violation and have not been convicted or
received a discharge, you may still be eligible for clemency under
Location of prison where last confined
another part of the President's program. If you have any questions,
Former military personnel who were court-martialed or administratively
please contact the Board and we will try to answer your questions.
discharged from a military service please complete the following:
If you believe that you are eligible to be considered by the Presidential
Branch of Service
Military Service No.
Clemency Board but are not sure, you should apply to the Board. If
If Soc. Sec. No., please indicate
it turns out that you are not eligible for consideration by the Board,
you may possibly qualify under another part of the clemency program.
Year entered military
Date of Discharge
You do not have to identify your current location. We will then be
able to notify you of the proper agency to contact. If you are appealing
Type of Discharge
How awarded (check one):
a conviction or a military discharge you may continue your appeal, and
still apply to the Board at the same time.
Court-martial ( ) Admin. Discharge Board ( )
L
The Board will not give its files to any other federal agency. It
Own request to avoid trial ( )
will keep any information you provide in strictest confidence, except
evidence of a serious crime which is not covered in the Presidential
Offenses on which Administrative Discharge based:
Clemency program.
II.
Although you may apply to the Board without attorney or any other
representative if you wish, we encourage you to obtain the help of legal
counsel. If you do not have a counsel but desire one, we will be glad
to refer you to a lawyers' organization which will help you find one.
These organizations will help you get legal assistance even if you can
Date
Signature
not afford to pay.
36
37
- 2 -
- 3
III. To apply to the Board, you need only supply the information
10) Personal statement regarding the reasons for the offense.
necessary to find your file from other departments. If you do not
wish to file your application personally, you may select a representa-
11) Any other information the applicant may wish to submit.
tive of your own choice to do it for you, but you must tell us that he
is authorized. The Board will maintain its own file on your case
These factors will not necessarily be the only ones which the Board
and that file will be available for examination by you or your own
will consider. If you feel there are other facts about your case that
attorney.
should be considered, please submit evidence about them. ANY
FALSE STATEMENT TO THE BOARD WILL BE CONSIDERED AN
IV. You are encouraged to submit evidence which you feel helps
AGGRAVATING FACTOR HIGHLY UNFAVORABLE TO YOUR CASE.
your case, and to submit letters from other people on your behalf.
You may submit evidence in order to correct inaccurate, incomplete,
If you have any questions, please call or write the Presidential
or misleading information to the Board's file.
Clemency Board, The White House, Washington, D. C. 20500,
(202 456-6476). If application is made by a representative on
V. A personal appearance by you before the Board will not be
your behalf, it is not necessary that your home address and telephone
necessary.
number be included. Your representative should indicate his capacity
(attorney, friend, etc.) and give us his address and telephone number.
THE FOLLOWING ARE SOME OF THE FACTORS THE
BOARD WILL CONSIDER IN EXAMINING YOUR CASE:
Application for people not in custody should be completed and mailed
to the Board no later than midnight, January 31, 1975. Special
1)
Education and ability to understand obligations under the law.
procedures will be established for persons incarcerated whether
or not they have been released on furlough.
2)
Personal and family circumstances at the time of offense and
afterwards.
3)
Mental or physical condition.
4) Employment and other activities since conviction or
military discharge.
5)
Service-connected disability, wounds in combat or decorations
for valor in combat.
6)
Tours of service in the war zone.
7)
Substantial evidence of personal or procedural unfairness in
your case.
8)
Denial of conscientious objector status on procedural,
technical or improper grounds.
9)
Period of imprisonment for the offense.
38
39
This kit describes the program, the Board's procedures, and other
aspects of the Board's operations. If the individual is not under the
THE PRESIDENTIAL CLEMENCY BOARD
Board's jurisdiction, but falls within the jurisdiction of the Depart-
OLD EXECUTIVE OFFICE BUILDING
ment of Justice or the Department of Defense, we tell him how to
WASHINGTON, D.C. 20500
pursue his case with them. If he is not under the jurisdiction of any
BOARD MEMBERS
October 5, 1974
PHONE: (202) 456-6476
part of the clemency program, we try to suggest other avenues for the
Charles E. Goodell. Chairman
relief he seeks.
Raiph W. Adams
James P. Dougovito
Robert H. Finch
Once the necessary information is obtained from an applicant, and
Theodore M. Hesburgh. C.S.C.
Vernon E. Jordsn
his files are obtained from Justice or the military services, a Board
James A. Maye
Aida Casanas Connor
Lewis W. Walt
attorney prepares a summary of the files. The instructions to Board
MEMORANDUM
attorneys have been submitted to you. We have an elaborate internal
procedure to ensure that the summaries are properly prepared.
TO:
Staff Attorneys
[The instructions referred to above follow
Presidential Clemency Board
FROM:
General Counsel
SUBJECT:
Preparation of Initial Summaries
of cases
The purpose of the Initial Summary is to pull together a short
statement from existing governmental files summarizing all informa-
tion on an applicant that may be relevant to the Board's decision
regarding clemency. This form should be sent to the applicant for
additions and corrections. It will be given to the Board for their
detailed review, and will be the basic document for all further
Presidential Clemency Board action concerning the applicant. It
may well become public; this should be kept in mind when preparing
the Summary.
It is crucial that the completed form contain a narrative which
identifies the individual as a person and allows the Board to look
behind the welter of dates and offenses. The Background paragraph
especially should be carefully written to present the individual in
human terms.
I.
Detailed Instructions
A. Offense and Present Status. The offense should be stated
in correct, but not legalistic terms. Do not cite applicable
statutes, regulations, or Code. Present status should be
similarly clear. The remaining blocks are self-explanatory.
The purpose of these blocks is to give a first impression of
the individual in terms of the factors directly affecting his
case before the Board.
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41
- 2 -
3 -
B. The Background blocks are to provide a narrative picture
II.
Possible "Background" entries (in approximate order):
of the applicant as an individual, as mentioned above. Use
as many of the entries as necessary from II. Possible
Age
"Background" entries with whatever additional information
Family size and birth order
you feel helps to present the applicant. The list of
Family background/stability
"possibles" is neither inclusive nor exclusive, but should
Place where raised
Educational level and test scores
form the nucleus of the paragraph. Try to follow a roughly
chronological order in presentation, such as is provided in
Physical health and mental health
Marital status and present residence
the list of "possibles". Use only information taken from
Number of dependents
official files. Keep it factual - make no personal conclusions.
Employment history
Cite judgments by source. Example: Comes from broken
Parole recommendation
home (probation report).
Custody level
Type of C.O. and brief statement of belief
C. Mitigating and Aggravating circumstances have been defined
by the Board, and are listed in III. Additional pertinent
III. Additional pertinent circumstances.
circumstances. Include any information concerning any event
in the life of the applicant which is pertinent to the defined
The following mitigating and aggravating circumstances have been
circumstances. Be brief but use complete sentences.
defined by the Board, and should be highlighted in each summary.
Minimize or omit non-criminal offenses in prior record,
such as traffic offenses. Do not make subjective judgments
A. Mitigating circumstances
concerning either mitigating or aggravating circumstances.
1. Lack of sufficient education or ability to understand
All entries on the Initial Summary form must be directly
traceable to an official file, in both form and content.
obligations under the law.
2. Personal hardship, either at the time of the offense or now.
Derivative judgments should always be cited.
3. Acute mental or physical illness.
4. Employment of service to the public since conviction or
D. The Chronology should be as detailed as space permits.
military discharge.
Start with Date of Birth and proceed through the last recorded
5. Service-connected disability, wounds in combat, or decorations
date of interaction with the legal or military system. This
for valor in combat.
date may be in the future for such events as "expiration of
6. Tours of service in the war zone.
full term" for incarcerated prisoners, "expiration of probation"
7. Substantial evidence of personal or procedural unfairness
for those out on probation, and so forth. IMPORTANT: When-
in applicant's case.
ever an entry is made reflecting sentencing of the applicant,
8. Denial of conscientious objector status on procedural,
provide the name of the court in standard form, "DCNC(MD)"
technical, or improper grounds.
for District Court, North Carolina, Middle District. Present
9. Period of imprisonment for the same offense.
the Chronology in two columns, date first. Use two lines only
10. Personal statement regarding the offense.
when necessary for clarity. All entries must be non-technical
11. Any other information the applicant may wish to submit.
and transparently clear, as "graduated high school" or "jumped
B. Aggravating circumstances
bail. " The event, not its location, is usually of primary im-
portance (with the exception of the sentencing court, as noted
1. Desertion under fire.
above). It is not unusual for conflicts to emerge from the con-
2. Use of force collateral to the desertion.
struction of the Chronology. Asterisk possible errors and
3. Other criminal record.
contraditions with brief explanatory note at bottom of Chronology.
4. False statement to the Board.
It is usually helpful to construct the Chronology prior to writing
the Background paragraph.
42
43
This summary is then mailed to the applicant along with the
has agreed that with this exception, we may keep our own records
preparation instructions. The applicant is encouraged to review the
completely sealed to other agencies.
summary, submit any additions or corrections, and to send the Board
Since most evaders and deserters within our jurisdiction apparently
anything he believes the Board should consider when it reviews the
do not read the New York Times or watch Walter Cronkite frequently,
case.
we have taken pains to communicate to them that they are eligible
Once this process is completed, the case is presented to the Board
for the President's program. We are mailing information about the
together with the material the applicant has sent in. We urge in-
program to the last addresses of each person convicted of draft evasion
dividuals to get attorneys and other kinds of assistance. We refer
and eligible for Board consideration, thanks to the very fine coopera-
them to those organizations which are available, and make attorneys
tion of the Federal Probation Service and the Administrative Office
available.
of the U.S. Courts. Assuming that such addresses are available from
After the Board examines the case and makes a recommendation,
the Department of Defense and the Coast Guard, we will do a mailing
the President reviews that recommendation and issues his decision on
to over 114,000 convicted AWOL's and deserters as well. Everyone
clemency. Under the Board's rules, an applicant then has 30 days after
who applies or inquires to the Board is advised of the advantages of
the President's action to ask for reconsideration if he feels dissatisfied
legal assistance. We give to any person who needs counsel the names
with the decision. He next passes to the jurisdiction of the Selective
of organizations which provide volunteer services.
Service for the performance of any required alternate service.
The American Legion, the Los Angeles County Bar, the New York
Once the service is satisfactorily completed, the Board confirms
County Bar, the American Bar Association and the Harvard Military
that the clemency has been earned, and a pardon is issued.
Justice Committee have either offered their services as volunteer rep-
The President's proclamation contemplates a case-by-case evalua-
resentatives or expressed a strong interest in doing so.
tion of the applications to the Board, rather than a blanket treatment
[A letter from Havard Military Justice Committee follows:]
of whole classes of people. We have carefully drawn our substantive
COMMITTEE ON MILITARY JUSTICE,
standards SO that they are a tool to assist the Board in weighing
HARVARD LAW SCHOOL,
each case on its merits. The standards help us to separate out cases
Cambridge, Mass., January 21, 1975.
which should be treated differently, and to treat with consistency and
Hon. EDWARD M. KENNEDY
Washington, D.C.
equity those which are similarly situated.
DEAR SENATOR KENNEDY It has recently come to our attention that during the
We give special weight to time already spent in prison, and to
course of the December hearings of the Senate Judiciary Committee's Subcom.
alternate service and probation or parole already satisfactorily com-
mittee on Administrative Practice and Procedure, Charles Goodell indicated
pleted under judicial order in deciding appropriate lengths of alter-
in his testimony that the Committee on Military Justice has agreed to act as a
nate service.
referral agency for legal counseling on behalf of the Presidential Clemency
Board. This information supplied by Mr. Goodell was incorrect. The assistance
Equity compels us to consider factors beyond simply time spent
of the Committee on Military Justice was sought by the Presidential Clemency
in prison. For this reason, for example, Jehovah's Witnesses who
Board shortly after the Clemency/Amnesty Law Coordinating Office (CALCO)
have served a little time in prison, but whose violations of law were
withdrew its assistance from the program on November 25, 1974. On December
motivated by deeply held religious beliefs, typically have been offered
16th, 1974, several days before Mr. Goodell's unfortunate misrepresentation, this
Committee sent a letter to Lawrence Baskir, General Counsel for the Clemency
outright pardons, or have been asked to serve minimal amounts of time
Board, indicating that the Committee had declined, by a vote of 27 to 0 with
where aggravating circumstances have existed in particular cases.
two abstentions, to act as referral agency for the board. Citing the deficiencies
On the other hand, persons who acted from no apparent sincerely held
in due process in the administration of the program, the program's lack of ulti-
mate value to the applicant, and the program's shortage of funds with which to
ethical or religious convictions about the war have received clemency
effectuate legal assistance; the Committee decided it cannot, under present
contingent upon longer lengths of alternate service, even when those
circumstances, participate as a general referral counsel for the Presidential
persons may have served more time in prison.
Clemency Board. This remains to this day the position of the Committee.
The Board has been diligent in creating procedural and substantive
Sincerely,
JOHN NERAL,
rules which can be readily understood by a layman who gives them a
(For the Committee).
careful reading, as well as by a lawyer or other counselor who has
not specialized in selective service or military law. We have tried to
use simple and clear language, and we have tried to bring the greatest
But with the application period over half-completed, many poten-
practical degree of due process to a procedure which is, constitution-
tial applicants are undecided on how to proceed. I would like to see
ally, inherently discretionary on the part of the President.
everyone of the 800 who have already applied put in touch with a
Anyone calling or writing into the Presidential Clemency Board is
volunteer attorney. I cannot hide my disappointment that a number
guaranteed that his name, address, telephone number, and any other
of legal organizations have declined to help because of political or
information which he gives us will be held in the strictest confidence,
philosophical differences with the program. I urge them to put aside
unless he has committed a serious nondraft-related or nonAWOL-
these differences in favor of the needs of the applicants.
[A letter from ACLU follows:]
related criminal offense such as homicide. The Justice Department
55-550 75 4
44
45
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
This is a particularly serious problem because, as I mentioned
New York, N.Y., December 23, 1974.
earlier, many persons eligible for the program, both civilian and mili-
Hon. EDWARD M. KENNEDY,
Chairman, Subcommittee on Administrative Practice and Procedure, U.S. Senate,
tary, are not highly sophisticated, well-educated individuals who
Washington, D.C.
opposed the war for articulate, well-thought out reasons. Typically,
DEAR SENATOR KENNEDY: The American Civil Liberties Union is grateful to
we have a man who found his family ill, or in dire financial straits, or
the subcommittee, and especially to you and to Senator Hart, for the thoughtful
who had domestic problems. Often we find veterans with good and
and effective fashion in which the hearings last week examined some of the
faithful service, often in combat, scarred psychologically by their war
problems and failures of the Presidential clemency program.
Permit me to supplement the record of the hearings with respect to the com-
experiences and unable to adjust to garrison duty back home. Many
plaints voiced by Senator Charles E. Goodell in his testimony as Chairman of
of these veterans went AWOL only after being refused a request to
the Presidential Clemency Board about the refusal of a number of lawyers'
return to combat. The President's program offers very real benefits.
group to let the Board refer to those applicants for clemency who seek legal
Criticism that the program does not go far enough only hides the fact
counsel and representation. If my memory is correct, Mr. Goodell expressed
his "outrage" at the failure of these groups, many of whose leaders he counted
that it does go very far indeed. An individual can receive a full pardon
as personal friends, to serve as the "clemency bar" to the Board.
restoring his civil rights: His right to vote, his right to apply for a
The shoe fits here. The American Civil Liberties Union, through its project on
license to be a bartender, a plumber, a barber, a practical nurse or a
amnesty and through its participation in the Clemency/Amnesty Law Coordinat-
lawyer.
ing Office (CALCO) in Washington, has SO far declined the request by the Board
For those who were in the military service the program may offer
systematically to refer clemency applicants to us for legal representation. We
have not, however, altered in the slightest our commitment, publicly made and
not only a clemency discharge, but a full pardon as in the civilian
systematically implemented, to provide such counsel and such representation to
cases, and an automatic review by the military Discharge Review
every war resister who wishes to apply for clemency or to pursue other legal
Boards that could lead to a discharge under honorable conditions.
options. Our clemency litigation director, Edwin J. Oppenheimer, who is attached
These exceptional cases include, among others, men who were wounded
to this office, our military rights project attorneys in Washington, and our lawyers
concerned with the military clemency operation at Ft. Benjamin Harrison, Indi-
or decorated for valor in Vietnam, had several tours of honorable mili-
ana (Professor Edward Sherman of the Indiana University School of Law and
tary service, or volunteered for combat duty and subsequently got into
Gerald Ortman of our staff), together with ACLU staff and volunteer attorneys,
personal problems.
represent a goodly number of elemency applicants. They have not and will not
In the light of this, I think, that it is outrageous for any volunteer
refuse an inquiry or a request for legal counsel from war resisters, whether or
not the matter is directed to the Presidential clemency program.
legal group which is concerned about the rights of citizens, and their
What we have SO far refused is the desire of the Clemency Board to use ACLU
right to counsel, to refuse to offer legal aid to applicants. It grieves
and other groups working with CALCO as legal referral services. We have made
me to say that some very well known groups who differ with the pro-
the reasons for that abundantly plain to the Board and its staff in a lengthy
gram are refusing to cooperate with the Clemency Board in allowing
series of meetings, letters, and memoranda. Until late in November, better than
us to advise applicants that they will provide counsel. We have pleaded
halfway through the application period for clemency, the Board had failed to
issue rules and regulations for its own operation and had not even made clear
with these groups, not for ourselves, but for the people who have
what the remedies and relief would be that it might ultimately offer to appli-
applied to the Clemency Board and need help. They, not the Board,
cants. This fundamental failure was so injurious to the interests of the appli-
lose by the obstinacy of these members of the bar.
cants and so crippling to the functioning of responsible lawyers that we felt it
Let me close with a final comment about the program.
essential not to lend ourselves as an emblem of the Board's public respectability
President Ford has acted in the tradition of Presidents Truman,
by becoming the organized "clemency bar." To have neither a humane and just
amnesty nor even minimal due process from the Board within the clemency pro-
Wilson, Lincoln, and Washington. I hope that this hearing today will
gram but to be able to say that they were doing their level best to be decent-
help make more American aware of the deep historical roots of clem-
look, even SO far out an organization as the ACLU is working with us-that was
ency and of the country's need for it now. Perhaps, if it serves that
the intent of the Board which we opposed. ACLU and CALCO set forth certain
minimal procedural and substantive demands, short of which we could not co-
purpose, our being here today will make it just a little bit easier for
operate with the Presidential Clemency Board. The Board since then has pub-
those who do come back to integrate themselves fully, with dignity
lished certain guidelines, which yield to some of those demands, and the Chair-
and with pride, as Americans and as members of their community
man of the Board announced at your hearings other, totally new, procedures
again.
with respect to clemency processing and remedies. We shall promptly consider
Thank you, Senator.
these, as we gave careful and meticulous attention to the Board's published
guidelines, to which we filed lengthy comments. It is now less than six weeks from
Senator HART. Thank you very much. I apologize for being late.
the expiration of the period in which persons may apply for clemency, and the
Before turning to my colleagues may I clarify one point which we
Board's procedures and the nature of the clemency offered are still in flux. If out-
approached but didn't nail down. You say the record is not expunged.
rage is in order, surely it must be at the Board, not at those who assert the rights
It is sealed or is it still a public record with the overstamp
and interests of the war resisters but refused to dignify the Board's failures by
becoming publicly associated with it.
"pardoned"!
We reciprocate Mr. Goodell's confirmation of personal friendship. He cannot
Mr. GOODELL. It is a public record with the overstamp "pardoned."
wish that friendship to supersede our commitment to due process of law or to the
Senator HART. Would you require authorization to seal the record?
interests of those who continue to suffer the injuries that the Vietnam War in-
Mr. GOODELL. I believe we could. I believe it is possible the Presi-
flicted on the American people. To the measure to which the Board's operations
approach these commitments, we shall offer it our cooperation.
dent could order sealing in these cases. We have undertaken to explore
Sincerely yours,
that situation. Certainly it would take legislation to expunge the rec-
HENRY SCHWARZSCHILD,
ord. Certainly it is conceivable the President could seal it by his own
Director, Project on Amnesty.
authority.
47
46
Mr. GOODELL. It is somewhat comparable to the Justice Department
Senator HART. One more observation from personal experience
program now. Individuals who come back are offered an alternative
which I imagine Senator Thurmond might confirm, is that even in
service and they do not actually get prosecuted-maybe indicated at
popular wars dishonorable discharges might have been given for
reasons of expediency. For example, a commander and an AWOL
the time-withhold the charges, and if they complete it, all charges are
dropped.
soldier cut a deal: the commander doesn't want the soldier, and the
Senator BURDICK. This is making use of the judicial system.
doesn't want to be there SO he gets a dishonorable discharge. The sol-
Mr. GOODELL. I have enough problems without getting into legisla-
dier is happy to get the discharge because he can't foresee the damage
tion, but I generally appreciate the legislative approach.
that will do him in the future. The commander is preoccupied with
Senator BURDICK. This is done in the judicial system where they
the need to have men who perform instead of someone who is always
have merit.
jamming things up.
I am sure that situation occurred with great frequency during the
Mr. GOODELL. Yes, there are many cases where an individual can be
prevented from going through the process of incarceration, which in
Vietnam war.
some instances may lead to a higher rate of recidivism than the
As I gather, that fellow is not eligible for this clemency program
diversion.
unless the discharge was assigned for reason of desertion?
Senator BURDICK. Thank you.
Mr. GOODELL. Absence related, that is correct.
Senator KENNEDY. As you pointed out in your testimony, in terms
Senator HART. Doesn't the situation I have described include an
of percentages the program has not been enormously successful. As I
awful lot of young who now regret deeply cutting the deal that seemed
understand, the Clemency Board has the lowest participation rate
so easy from everybody's point of view at the time he cut it, what can
with only 800 out of 112,000 qualified persons applying. To what do
we do for him?
you attribute this low level of participation, specifically with regard to
Mr. GOODELL. Let me say first of all that an individual of that nature
the Clemency Board
would not get a dishonorable discharge. That is given only after a
Mr. GOODELL. I am sure there are individuals out there who are
general court martial, convicted after a major offense. He would get
going to come back and say they will not ask for pardon because they
an undesirable discharge for the good of the service.
didn't do anything wrong. They feel they are right and they have paid
Senator HART. But that ticket does cause trouble.
Mr. GOODELL. An undesirable discharge is an undesirable thing for
the penalty and they are not going to apply. I would, however, believe
they are in the minority.
an individual. It is a stigma upon him, it is a burden, very difficult to
I think overwhelmingly the reason individuals are not applying for
overcome. All administrative charges are not under our jurisdiction. This is a
the Clemency Board program is their lack of information and under-
standing about the program. They don't know they are eligible. A
program designed to meet these discharges and court martials which
great many out there between 1964 and 1973 who had draft offenses
were related to Vietnam in some way. The President has chosen in-
of one nature or another who had an AWOL offense and were dis-
evitably and to a degree arbitrarily offenses and violations which
charged just do not think they are eligible. This is very difficult to com-
would apply them to this program.
There have been for many years discharge review boards. The indi-
municate with them. We are doing our best, but I am absolutely con-
vinced that that is the case. That has been even more reinforced by the
vidual may apply and try to get his discharge upgraded. There is a
nature of the applications we have had thus far, which I indicated tend
board of correction, record correction and the military themselves
to be the lower educated people in the country who didn't know how
have the authority to do it in some instances.
to cope. I might say they come from all over the country. There are a
Senator KENNEDY. Senator Burdick.
Mr. GOODELL. Senator Burdick, before you ask the question, may I
great many from the South, Southwest, Midwest. They certainly
aren't centered in the major cities. If I estimate, I think there are
ask the subcommittee's consent to place the material referred to in the
probably more from the rural areas than there are from the cities. It is
record?
lack of information. They have nothing to lose in applying to the
Senator KENNEDY. It will be SO included.
Clemency Board.
Senator Burdick.
Senator BURDICK. I developed that this was an executive program. I
I don't think that is the case with the response of those who went to
Canada. It would be my guess that those who went to Canada know
just want your opinion of a program that we have developed in the
Subcommittee on Penitentiaries of the Judiciary Committee. The
about this program and they are making a conscious decision about
whether to come back or not.
Senate has passed a bill called the diversion bill, which would apply
Senator KENNEDY. You commented briefly in your statement on a
mostly to first offenders, and at the option of the prosecuting attorney
program through which you have sent out some letters recently. Could
and the judge a man could be diverted from trial without having to
you elaborate on that?
plead guilty or not guilty, and if, during a period of time, he worked
out well, then his charge could be dismissed. The bill is still resting
Mr. GOODELL. The letters to potential applicants?
Senator KENNEDY. Yes.
over in the House. and I was wondering what you think of this ap-
Mr. GOODELL. We have sent letters to all the 8,000 civilians who went
proach of the use of the judicial system. In this way, if an offender does
have a record, gets a chance to rehabilitate himself, would this be
through the Federal criminal system for draft evasion. We are in the
an avenue that might be acceptable, not in competition with you but
in concert with you?
49
48
process of trying to get the addresses of the roughly 180,000 military,
the program are keeping a great number of young people from
and if we get them we are going to send them directly there.
applying.
Senator KENNEDY. But you haven't gotten those yet, correct?
I personally believe that is the greatest hindrance to their partici-
Mr. GOODELL. Right.
pation. There obviously are different views about whether there should
Senator KENNEDY. When did these 8,000 letters go out
be or shouldn't be, but I think that is a very powerful deterrent to
Mr. GOODELL. They are not all done because they are getting ad-
having a number of people participate.
dresses from probation offices around the country. They are in the
Why should a young person who perhaps has served a prison term
process of going out now as quickly as we get the addresses.
for not serving in the war, come before the Clemency Board, when the
Senator KENNEDY. Well, given the Christmas mail, given the fact
possibility of the Board's recommendation is that they serve more time
that one of the greatest percentages, the 180,000 still have not gone out,
in alternate service. Knowing that after they serve additional time,
does it make much sense for the program to expire in the middle of
maybe 3 months, 6 to 12 months, they will receive a clemency discharge.
January?
Let me point out that there are many who wonder about the real sig-
Mr. GOODELL. Let me say, Mr. Chairman, that I don't know what is
nificance of the clemency discharge and about how that is going to
going to happen with reference to the expiration date. To my knowl-
help them to be a useful part of their community or their society.
edge there will not be an extension. I think it would be irresponsible
Don't you think that the possibility of additional service, after they
for me in my position to in any way intimate that there might be an ex-
have already been in jail or prison, is a hinderance to young people
tension, because those individuals out there who are eligible ought to
coming to the Board!
apply before January 13. As far as I am aware, there will be no
Mr. GOODELL. Well, what you are saying is that if there were uncon-
extension.
ditional amnesty just for application, I am sure you would get many
Senator KENNEDY. Realizing that we are pretty close to Christmas,
more applications, there is no question about that. That is not the
and that if you only notified part of the 180,000 then contacting others
Prseident's program. The President's program is earned reentry. What
the Clemency Board has done in our deliberations is work out a for-
which will affect the greatest majority, will run into the first of the
year. Part of the problem, as you have just testified, is the lack of
mula for credit time in person. The instance you described, for instance,
information and knowledge. What sense will it make to have the clem-
the formula would work, we give 3 days' credit alternate service for
ency program terminate on January 31 without people receiving noti-
every day in prison, which means in essence anybody who served 8
fication until the end of January
months or more ends up with no alternate service.
We then have a 3-month minimum alternate service and the Board
Mr. GOODELL. You have a good point. We are going to do our best
deliberates as to whether to move that up or down from the 3-month
to inform them through the media. We are, General Walt and Father
point. The Board makes an independent determination that if there
Hesburgh have each done radio and television spots which we hope
are mitigating circumstances that justify it to pardon it or move it up.
will be broadcast as a public service and will be emphasized. These are
In normal circumstances we don't go up more than 3 month increments,
not recruitments, but solicitations, spots to tell people that they are
that is 3 months or 9 months. We also take as a maximum whatever
eligible, or if they think they may be, to inquire. We will do our best.
sentence the individual receives. We feel we should accord that much
I must say to you if the program were extended a year I don't think
respect.
sending them to the latest addresses we get will accomplish that job,
You say what do they have to gain. They have a great deal to gain.
either. You take the latest addresses that the Army or one of the other
One gets not only a clemency discharge but a pardon by the President
services have for a man discharged in 1964 or 1965 your chances are
of the United States. Whatever arguments we make about the effect
not very good.
of a clemency discharge, it is my strong belief that an individual out
Senator KENNEDY. That is why I am wondering what the sense of
there in Paducah who has a Presidential pardon has something that
terminating the program really is. It doesn't make much sense to ter-
is worth something in going for a job, going for licenses, whatever else
minate the program, given the efforts that you are making now.
Mr. GOODELL. Well, I intend to make a recommendation to the Presi-
it be. I think it is something that they should be aware of. It is of great
value. In some instances they may even be upgraded further, as I men-
dent. I must say I don't think people need to count on anything.
Senator KENNEDY. Can you tell us what your recommendation will
tioned, by the military tribunal.
Senator KENNEDY. Let's take the formula that you have outlined
be
Mr. GOODELL. I think that would be rather unwise.
here, giving credit for the amount of time that a person served in
prison. For example, in one case, there mav have been mitigating cir-
Senator KENNEDY. Can you speculate that it won't be for termina-
cumstances for a lighter sentence. If the judge took that into considera-
tion?
Mr. GOODELL. I will leave the speculation to you, if I may, Mr.
tion, and therefore gave a lesser term, why should you be second guess-
ing that decision?
Chairman.
Mr. GOODELL. That is another one of our precedural rules we agreed
Senator KENNEDY. It seems to me, quite frankly, Mr. Goodell, with
the greatest personal respect of your opinion in terms of understanding
on unanimously, we agreed the length of the judge's sentence also be-
comes a maximum for us.
the motivation of young people, because obviously you have been deal-
Senator KENNEDY. The individual is found guilty, but the judge
ing with them in a very direct way, that the conditional provisions of
finds there are mitigating circumstances and gives him a lighter sen-
tence. Then you apply your formula and say he got a lighter sentence,
51
50
Senator KENNEDY. In the regulations one of the areas we have been
and therefore, he will have to serve more alternative service. What
interested in making some recommendations on the past Selective
sense does that really make in terms of dividing the degree of justice?
Service Act was the opportunity for personal appearances before local
If there were sufficient mitigating circumstances in the first place,
boards. You don't, as I understand, guarantee the right for any
in view of the judge's sentencing procedure, why are you saying that
personal apperance for any of the applicants, do you?
because he got a lesser sentence, you will require more alternative
Mr. GOODELL. That is correct. We guarantee we will consider any
service for him to get the pardon?
requests for personal appearances and make a determination if justice
Mr. GOODELL. The first thing I would like to emphasize in responding
compels an opportunity be afforded.
to that is, to give you an example, if a judge gave an individual a 6-
Senator KENNEDY. Shouldn't there be an opportunity as a matter
month sentence because he felt there were strong mitigating circum-
of right for a person to appear in a case of this importance?
stances in that instance, then 6 months is the maximum we take on
Mr. GOODELL. Let me say that the Clemency Board is an advisory
the Board for alternate service on the Board. That is the judge's de-
committee of the President of the United States and advises him how
termination. So we do give credit for that and we do respect the ju-
to use his clemency powers under the Constitution. The Clemency
diciary's decision on clemency itself and leniency.
Board has gone far beyond what I believe any board in the history
In addition, if there are mitigating circumstances which came to
of this country has gone in guaranteeing the rights. They can look
the attention of the judge presumably they will come to the attention
at their files, they have attorneys, their attorneys can look at the files,
of the Board, also. So we purposely do move down and up, depending
they have ample opportunity to correct the record. These rights are
upon the degree of mitigation or aggravation that is involved. I must
normally not guaranteed with an advisory committee advising the
say we also have aggravating conditions which causes the Board to
President on how to use his discretionary power. We have not had a
increase the base amount after we go through these processes for credit-
single request for an attorney, for an individual to appear before the
ing time served and crediting the judge's sentence.
Board as yet. I don't know what the Board's decision will be when
Senator KENNEDY. If the person avoided induction 5, 8, or 9 years
we get such a request.
ago, and there were particular circumstances then, it seems to me that
But the procedures we have are abundantly fair to these individuals,
those mitigating circumstances could be easily brought up to date to
and I don't think it is encumbent for the Board to grant an appear-
appeal to a modern board. It would certainly be more difficult, and
ance as a matter of right.
may very well, I would think, prejudice a situation.
Senator KENNEDY. Do they get a decision after the Board meets
Let me ask you this. What really is the effect of the pardon or a
as to the reason they may have turned it down? Do they get a written
clemency discharge? Does that erase the record of a conviction? Does
report?
it prevent employment discrimination or overcome any obstacles to
Mr. GOODELL. If the Board turns down clemency, yes. They will re-
Government employment, security clearances or bar association entry ?
ceive a notification from the Clemency Board that they have been
Does it really return any lost civil rights?
turned down and the reasons have been listed as aggravating in their
Mr. GOODELL. It restores the individual's Federal civil rights. In
case.
most instances it restores-his other civil rights are determined by
I might say to you, Mr. Chairman, in our deliberations thus far, al-
State and local governments, licensing, professions all the way down
though we may have required some additional alternate service for
to a variety of other activities of jobs. In some States a convicted felon
aggravating circumstances, the Board has generally granted consid-
is deprived of his right to vote, and normally a Presidential pardon
erable clemency.
will restore that right to vote.
Senator KENNEDY. Do they have a right to appeal that decision at
A Presidential pardon is not binding on the States, but generally
all?
the States give comity to that pardon and restore the rights of the in-
Mr. GOODELL. After the President announces his decision they have a
dividual. There are not a great many Presidential pardons. As far
right to apply within 30 days for reconsideration and give any reasons
as employers are concerned, the Federal Government as an employer,
why they don't agree with the decision and the Board will reconsider.
it wipes it out. The Federal Government's rights are restored.
Senator KENNEDY. Is that procedure spelled out in the regulations?
As far as other employers are concerned I presume it would vary
Mr. GOODELL. Yes.
tremendously. But I would not underrate the importance of an in-
Senator KENNEDY. Senator Thurmond.
dividual having considered by the President of the United States and
Senator THURMOND. Senator Goodell, I have a page of questions
be given a pardon. I think that will have major impact on potential
here. It would save time if you would like to take them and answer
employers.
them for the record.
Senator KENNEDY. It varies though, in different jurisdictions,
Mr. GOODELL. All right. We will be delighted to do that, Senator.
doesn't it It is unclear in many States and local communities what
Senator THURMOND. There are a few more questions I have.
their reaction is going to be, and again, it will be a situation, almost
Anyone who evades the draft violates the law, doesn't he?
by accident of birth, that determines what is going to be the restora-
Mr. GOODELL. That is correct.
tion of those rights.
Senator THURMOND. Whether he remains in this country, goes to
Mr. GOODELL. All we can go on is the record of the past with refer-
Canada, Sweden, or wherever he goes?
ence to comity given with respect to pardon. They have generally
given comity to Presidential pardon.
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53
Mr. GOODELL. I can only say-you say, violates the law-the Govern-
What is the advantage of our Board The President of the United
ment has the obligation to follow the proper procedure to due process
States has recognized that from 1964 to 1973 this country was in
and SO forth, and there have been a great many instances where in-
tumult, torture, we were a divided Nation, there were many differences
dividuals have been indicted for what appeared to be violations and
of opinion among our people as reflected in the Constitution of the
they were acquitted because the Selective Service System or some other
United States and elsewhere, and that the time has come to recognize
aspect of the system did not follow due process and the courts, there-
these individuals who were caught up in this process as a matter of
fore, dismissed the cases.
conscience or as a matter of their own inability to cope, because of
Last year I believe one-third of those indicted for draft evasions
educational background, or whatever else, to be given clemency, to
were convicted. The year before it was 28 percent were convicted.
bring the country into a new era of looking forward and forget about
What we should keep in perspective when we say it is in violation of
that past that has divided us SO horribly.
the law, it certainly is-on the face of it.
That is the nature of the program. That is the function of the Cle-
Senator THURMOND. Is it a violation of the law to evade the draft
mency Board as the Justice Department and Defense Department
Mr. GOODELL. If you evade the draft under circumstances and pro-
phases of the program.
cedures which the courts feel is your constitutional rights the courts
Senator THURMOND. If a case is tried before the judge will he take
feel it is a crime.
this into consideration?
Senator THURMOND. So it is a violation of the law if one intention-
Mr. GOODELL. The judge is not in a position to take that into consid-
ally evades the draft, is that right?
eration. If a man is technically guilty he must find him guilty and
Mr. GOODELL. Under the assumptions that I have stated, and of
sentence him. He can reduce the sentence some, and in some cases he
course you have some other exceptions. The law provides for conscien-
did. He must find him guilty of a crime. He has a criminal record.
tious objector status.
Senator THURMOND. The judge will take into consideration his back-
Senator THURMOND. If one was away and didn't hear about it until
ground, his lack of education, his stamina, if he is ill, if he is support-
later that is an excuse. That is one thing. But if he intentionally evades
ing other people. What facts of your Board can be brought to your
the draft to avoid service when he is called that is a clear violation of
attention that cannot be brought to a judge's attention?
the law, isn't it?
Mr. GOODELL. I will take a number of cases and read you a back-
Mr. GOODELL. Not necessarily. If he is in a conscientious objector
ground.
status the law provides for that. Our first eight pardons, the first of
This applicant is white, mid-twenties, raised in the Midwest, a Je-
them were gentlemen who have as-
hovah's Witness, after graduating he devoted full time to church work.
Senator THURMOND. If he is a conscientious objector he is in another
He married and worked steadily as a carpenter. His draft board grant-
category. He can come up and take that position and explain it and
ed him conscientious objection status. He refused to work. His religion
possibly be classified that way. He couldn't just ignore the law and
does not allow him to obey an order from his draft board. He would
claim, himself, "I am a conscientious objector" and refuse to appear?
have performed alternative service if ordered by a judge. He was sen-
Mr. GOODELL. That is correct.
tenced to 3 years in prison. He has spent almost a full year in confine-
Senator THURMOND. Now, when one evades the draft and violates
ment. That was an outright pardon by the President.
the law then he is tried in court, and the judge who hears the case can
Senator THURMOND. In each of the cases—
hear both sides of it and hear everything he has to say and if he proves
Mr. GOODELL. But each case is different.
he is a conscientious objector and SO forth he will take that into con-
Senator THURMOND. Did you say the judge allowed him to serve
sideration and he will take into consideration all facets. I was a circuit
somewhere, or what did you say about that?
judge once, and in trying cases I would certainly want to hear every-
Mr. GOODELL. He said he would have served alternate service if
thing about one charge of a crime, because there are many factors that
ordered by the judge, but not the Selective Service Board because he
enter into the trial of such an offense and as to the sentence that will be
considered it part of the military and his religion prevented him from
imposed, whether there should be a parole and SO forth.
obeying alternate service from the military. So the judge didn't take it
So the judge would go into each case carefully and then determine
into consideration. He obviously didn't. He sentenced him to 3 years
what the sentence, if any, should be meted out to the violator; that is
in prison.
correct, isn't it?
Senator THURMOND. Any violator, if they claim conscientious objec-
Mr. GOODELL. Yes, that is correct.
Senator THURMOND. I would like to ask you this, now. Since a judge
tion, they will be excused if they can prove it, but if they can't that is
another thing. Isn't that what the courts are set up for?
would do that in each case, carefully in each case, then what special
Mr. GOODELL. There were injustices that resulted from this. The
advantage is there in your Board? I want you to bring that out and
explain what is the advantage?
President's Board is there to try to ameliorate what injustices were
imposed.
Mr. GOODELL. First of all, I would emphasize it is obviously not a
single judge. Thousands of judges are doing this around the country.
Senator THURMOND. Was it an injustice In your opinion it may have
Second, in this period the law has been changing, not only the law
been an injustice, but if a judge tried the case I wouldn't construe that
was changed by Congress, but the law was changed by interpretation
he meant to mete out an injustice, would you?
of the higher courts. But generally what you said is true.
55
54
Question 3.-What could be done to change the structure of the Clemency Pro-
Mr. GOODELL. I would not assume any judge is trying to mete out
gram to achieve more effectively the President's stated objective of healing the
injustice.
wounds of the war and of bringing about some national reconciliation?
Senator THURMOND. Don't you think judges who are trained to hear
Answer.-As I stated in my testimony, I believe the program is well-suited to
the President's objective. Rather than changes in structure, I believe that what
thousands of cases, they go into every case carefully, don't you think
the program needs most is more widespread information to those who are eligible.
they do the best they can to mete out justice?
The Board has found that most persons do not understand that the program
Mr. GOODELL. I also think they do the best they can, and I also
offers not only clemency discharges but pardons to over 100,000 persons who have
already been punished for absence or draft-offenses.
think the end result is very uneven.
Question 4a.-There has always been a question about whether-if offered—
Senator THURMOND. You mentioned a few moments ago if he was
a "conditional amnesty" would be accepted by those in need of amnesty. The
tried and convicted, then I believe your Board could recommend a
response SO far seems to indicate a negative answer. Why do you feel they are
pardon?
not availing themselves of your part of the program?
Mr. GOODELL. That is correct.
Answer.-At least insofar as the Presidential Clemency Board's jurisdiction is
concerned, I believe the low turnout is a product of ignorance or confusion about
Senator THURMOND. Is that the difference your Board would have
the program. Since applicants to the Board have already been punished, and can
where he would get a pardon if he didn't otherwise?
freely reject any offer of clemency without additional penalty, these persons lose
Mr. GOODELL. That is correct.
nothing by applying. This has been confirmed by the extraordinary upsurge in
Senator THURMOND. Couldn't the Parole Board that is set up now,
applications in January following the Board's extensive information campaign.
Applications have increased by 7 or 8 times in the last three weeks.
couldn't they recommend a pardon?
Question 4b.-What is to be gained for the ultimate binding of our nation's
Mr. GOODELL. In the first place, the cases we have considered SO far,
wounds by allowing such pain and hardship to continue without relief-a direct
the normal pardon procedures would not apply. They were still in
product of the agony of the Vietnam War?
prison at the time. The pardon attorney normally only considers indi-
Answer.-I disagree with the premise. It is a mistake to ignore the fact that
viduals who have been out of prison for 3 years. They would have to
those who apply to the Presidential Clemency Board do get relief in the
guise of a Presidential pardon and, for those with courts-martial discharges at
finish their prison term and apply. These individuals could apply for
least, the removal of their punitive discharges.
pardons after 3 years under the pardon attorney's authority to recom-
Question 5.-The Clemency Board regulations provide for consideration of
mend to the President. The President determined there were a very
cases based on summaries only. The Action Attorney assigned to a case will
prepare a summary of the file, which will be sent to the applicant for correc-
large number of individuals who were in that category, having been
tion; then the case will be presented in summary to the Board. The applicant or
caught up with the great divisions that occurred in our country in
the Board can inspect the file, but there is no provision for copies of the file to
the sixties, and they deserved to have this program designed especially
be made. This raises a number of questions. Often an attorney can only find good
for them, to operate to give clemency and try to bring this country
defenses by an inspection of the entire file. How detailed will the summaries be?
For example, will they include all physical disabilities claimed at the time of
back together and heal those wounds.
physical examination?
Senator THURMOND. There have been divisions in this country of
Answer.-Staff attorneys are instructed to include any mention of physical
people not agreeing, many times, many times; the Selective Service
or mental condition, as well as all other details as set forth in the instructions
Act was barely passed. There was a division in the Senate. But because
for preparing summaries. The summaries are very detailed and contain every
relevant fact about the individual's background and offense. They also will con-
there is a division, we have to abide by the authority.
tain every comment, addition or correction submitted by the applicant. The best
Isn't it true that the Parole Board could recommend a pardon to
analogy is to that of a court "master" who is charged with collating facts on
the President, and the President could grant it if he saw fit?
behalf of the judge, who then decides the issues in the case. All attorneys
Mr. GOODELL. The pardon attorney in the Justice Department can
support the program and they are carefully instructed to be thoroughly fair and
recommend a pardon after the individual has been out of prison for
objective in extracting all relevant information. Should there be gaps in the
records, attorneys are instructed to obtain the necessary missing information.
3 years or more.
Of course, the full file is always available for inspection by a representative of
Senator THURMOND. I am going to have to go to the floor now, and
the applicant.
if you will kindly answer these for the record to save time.
Question 6a.-The role of the Action Attorney seems at best ambiguous. Just
who will the Action Attorney represent? The applicant? The Board? Or neither!
Mr. GOODELL. Yes; I will be glad to.
If neither, how can he be expected to do an adequate job for either side?
Senator THURMOND. Thank you very much. We are glad to see you.
Answer.-The Action Attorney performs a reporting function for the Board. He
Senator HART. Just as Senator Thurmond, I have a number of
"represents" neither the Board nor the applicant as that term is understood in
questions, which in order to save time, I will submit to you and ask
adversary proceedings.
Question 6b.-What is the procedure by which the Clemency Board will make
for responses for the record.
its decisions? What will the summaries include? Who will decide this?
Mr. GOODELL. I will certainly do that.
Answer.-These questions are best answered by reference to sections 101.3 and
[The questions and answers referred to above follow
11.4 of the regulations, and appendix A of the instructions for preparing sum-
maries. In both instances, these documents represent Board decisions.
THE WHITE HOUSE,
Question 6c.-How will it be possible for an applicant to know whether the
PRESIDENTIAL CLEMENCY BOARD,
summary is a fair representation of the material in his file? Memories of draftees
Washington, D.C., February 10, 1975.
and AWOLs for events years in the past will probably not be accurate.
Hon. PHILIP A. HART,
Answer.-The applicant has both his memory and the opportunity to review
U.S. Senate,
his complete file. It is highly unlikely that the individual will have forgotten
Washington, D.C.
relevant information about what is a significant episode in his life.
DEAR SENATOR HART: At the conclusion of my testimony on December 18, you
submitted some 19 questions, numbered from 3-22, with subparts. I am supply-
ing my answers to them below.
57
56
but does not obliterate its existence. The individuals' official records are marked
Question 7.-It is not clear just when or how a man could argue that he was
as having received a Presidential pardon, and this act is given comity by the states.
in fact illegally processed and that the Clemency Board should-effectively-
Question 12c.-R.B. is not eligible for any aspect of the Clemency Program. He
reverse a bad court decision. The only provision for personal appearance is for
was granted C.O. status by his northern New England draft board, but felt he
ten minutes at the Board's discretion. It is possible that the man's attorney could
could not accept alternative service because it also violated his conscience by im-
submit a brief, but how meaningful would this be without access to a copy of
plied cooperation with the war effort. He spent a year in a Federal penitentiary,
the full file? What opportunity will there be for this kind of argument?
with his wife and child on welfare during his incarceration. He is now out of
Answer.-Since the applicant and his attorney have access to the complete
prison and trying to earn enough money to go to graduate school. Query Since
file, the premise of this question is fautly. No line of argument is improper, and
this young man represents the most courageous type of civil disobedience, should
the Board has noted already some cases of apparent legal or administrative
not any Clemency Program address itself to an expunging from his record of all
error. Any questions raised by the applicant are investigated and verified to
legal disabilities and stigma resulting from a felony conviction?
the greatest extent possible. Thus far the Board has received less than a dozen
Answer.-The Board, even if it wished, would have no power to change history
requests for a personal appearance out of hundreds of cases being processed. It
or erase the judicial record of R.B.'s conviction. But he is eligible under the
will decide those requests at the next Board meeting in February.
Presidential Clemency Board part of the program and could get a pardon. For
Question 8.-In the case of many veterans with other-than-honorable dis-
other cases with similar facts, applicants like R.B. have received pardons with
charges, draft records may be relevant. These have often, however, been destroyed
minimal if any alternate service.
(in our experience). What provision is being made to deal with this problem?
Question 13.-Legally, what if any value does a pardon or "clemency discharge"
Where the file has been destroyed, will the presumption be that the Selective Serv-
have? Practically, in terms of job placement and admission to professions, what
ice System made no errors (if the man claims they did), or will claims of Selec-
effect do they have?
tive Service errors themselves be mitigating where a file has been destroyed?
Answer.-A Presidential pardon, as stated above, restores the federal civil
Answer.-Thus far, no such instance has arisen. It is difficult to see how a
rights lost upon conviction. Its acceptance by private persons, states, and profes-
draft board error could be relevant in an AWOL situation. However, the Board
sions is a matter of custom and comity. At the minimum, the conviction would
most likely would adopt the usual legal rule of accepting the prima facie case
no longer be an automatic disqualification for many jobs. A clemency discharge
of the applicant if the Government is unable to produce rebutting evidence.
is a significant improvement for any person with a bad conduct discharge or
Question 9.-The regulations appear to make the "aggravating circumstances"
dishonorable discharge as the result of a court-martial conviction. And we believe
applicable in all cases, but to make "mitigating circumstances" applicable only
it is also an improvement over an administrative undesirable discharge.
in "exceptional cases." Was this the intent? If so, why?
Question 14.-Of what value is forced labor in the national interest? (For
Answer.-This is not the intent of the regulations. Obviously, mitigating
PCB, of what possible value are 3 months of such service?)
factors are applicable in any case wherein they appear.
Answer.-I disagree with the premise. Persons participating in the program
Question 10.-How are judgments made as to whether the applicant's three-
are being asked to discharge an obligation of citizenship which is usually satisfied
month baseline of service will be waived? Response to any answer: It seems as
by military service. It is an alternative which is compatible with an individual's
ultimately arbitrary as any case-by-case review must be, given the impossibility
moral objections to war or military service and it is an alternative which has
of determining absolutely a man's motives.
been successfully and acceptable employed for conscientious objectors throughout
Answer.-The Board reviews the applicable factors and determines whether,
our nation's recent history. By no proper means could it be termed "forced labor."
in its judgment, the baseline period-whatever it may be-should be waived.
Question 15.-Given economic realities, what justification is there for giving
This evaluation is not based exclusively on motives; it may be for any mitigating
these men returning any job-hiring preference? What jobs are not competitive in
factor. A reduction or increase may be based on the Board's evaluation and
today's market?
weighing of any factor or combination of factors.
Answer.-Alternate service does not grant job preferences of any sort. The
Question 11.-How is your means of evaluating motive superior to that used
Selective Service informs us that there are noncompetitive jobs available.
by the Selective Service System, when they denied C.O. status to some 81 per-
Question 16.-Isn't it difficult to imagine that persons would now accept the
cent of all such applicants during at least one of the later Vietnam War years?
alternative service offered, when it was not offered 4, or 5, or more years ago
How are you getting over the obvious lack of trust problem posed by any govern-
when many of these same individuals requested it but were denied their requests?
mental agency dealing with these men?
Answer.-Since it is offered now, and can earn a Presidential pardon, there
Answer.-Motive is not the decisive factor in the Board's determinations.
is every reason to believe alternate service will be attractive. For those who
If the record shows a nonselfish motive and there is no contradictory evidence,
improperly were denied C.O. status, the Board has quite consistently not re-
this will be accepted as an additional mitigating factor. Obviously overcoming
quired alternative service as a pre-condition to a pardon.
this distrust is not easy. But the Board has devised its procedures with this in
Question 17.-Not included in list.
mind and has strived to be fair, honest and candid with all applicants. Its dis-
Question 18.-The President's Executive Order 11803 eliminates from con-
positions have also reflected this attitude, and we hope that knowledge of its
sideration for clemency any individuals who are precluded from reentering the
record will go far towards restoring confidence.
United States under 8 U.S.C. 1182(a) (22). Do you think it is equitable, in the
Question 12a.-What will happen to the men who were furloughed and haven't
context of clemency, to exclude people who, rightly or wrongly, felt compelled
applied for clemency? Does the Clemency Board have jurisdiction over them? If
to acquire foreign citizenship rather than participate in the Vietnam War?
not, who does? And is the policy of that agency that these men will be forced to
Answer.-The President believes, I think rightly, that anyone who deliberately
return to prison if they fail to apply for "clemency"?
renounced his American citizenship should not be eligible for the program.
Answer.-The Board requested two 30-day extensions of the furlough. It did
Indeed, it is difficult to see why anyone who did SO would wish to participate
not request a third extension on December 17 for those who had failed to apply
since it would not have the effect of restoring the lost citizenship. Of course,
to the Board. Only 3 persons fell in this category who had unexpired terms to
under recent court rulings, it is difficult to prove a deliberate renunciation of
serve. One was in state custody. Another did not wish to apply, and the third
citizenship if contested.
could not be contacted despite the best efforts of the Board and his probation
Question 19.-Only already discharged veterans with "undesirable" or punitive
officer. Of course, the Board has no jurisdiction over the furlough question, but
discharges for absenteeism offenses are now eligible for consideration by the
it has worked closely with the Bureau of Prisons of the Justice Department in
PCB. Given this clemency option for the worst offense the military knows,
working out the problems of individuals incarcerated for draft offenses.
shouldn't all veterans with bad discharges be permitted redress by the Board?
Question 12b.-Does a pardon expunge the record of the conviction from the
We note, for example, that most minority group veterans with bad discharges
applicant's record or does it seal the record? What protection does a pardon have
did not get them for absenteeism offenses.
if neither of those possibilities occur? Doesn't the applicant still have a "record"?
Answer.-The program focuses on absence offenses since this was the most
Answer.-A pardon neither seals nor expunges a prior conviction. It is an act
common form of offense committed by those who opposed the war. To offer the
of executive grace which removes the future legal disabilities of the conviction
58
59
program to anyone with a bad discharge would change it from a Vietnam recon-
from the Indochina War that simply would not be swept under the rug. Do you
ciliation program to a military discharge reform program, an entirely different
view "earned reentry" as the final solution to the amnesty problem, or rather
do you see further developments in the future?
proposition. Question 20.-Case A: W. L. enlisted in the Navy upon graduation from high
Answer.-The clemency program does not pretend to answer the other Viet-
school, and three weeks after entering the service came down with spinal
nam questions such as veterans' benefits, MIAs, and the like. It is, I believe, the
meningitis. He was hospitalized for 12 weeks and ended up with rheumatoid
proper approach to the amnesty problem.
arthritis of the knee. At this point in his Navy career, he applied for a discharge
I hope these answers satisfy your needs. If I or the Board staff can be of
as a C.O., but his application was torn up in his presence. He spent eight
further help, please do not hesitate to call on us.
months sea duty on an Auxiliary Tug between Vietnam and Japan, and
Sincerely,
when the ship was decommissioned, he applied again for a C.O. discharge. When
CHARLES E. GOODELL,
it was again denied, he went AWOL. Soon after, he turned himself back in,
Chairman.
spent three weeks in a county jail, and the Navy finally gave him the choice of
staying in the Navy with 30 days imprisonment, of a Special Courts Martial,
Senator HART. Several of them bear on procedural items, only one
or an undesirable discharge. He chose the latter, and since then he has not
of which I will raise now because there was some discussion about it.
been able to find any steady job, and has had two mental breakdowns. He is
This is the issue of the right of the individual who seeks to proceed
eligible for consideration by the Clemency Board, and probably even for Navy
before your Board and personally to appear. This is not a question.
disability benefits, but he has been too bruised by his experiences to trust any
Government representative, and there are no funds for professional legal help.
This is just a comment.
His parents feel that the tension of waiting for a Clemency Board decision would
I remember, and have a hunch that you probably join us here in the
destroy the delicate mental stability he has now.
Senate, that during the sixties some of us felt that the selective service
Case B: M. C. applied for C.O. status in New Jersey, but was turned down
boards should be required to have a hearing at which the applicant
and accepted induction. He managed to get an assignment to play in an Army
band, but continued overtly his anti-war protest activities which had begun
and his lawyer could present pleas for disability, conscientious objec-
prior to his induction. The Army finally gave him an undesirable discharge if
tion, or other claims. It would seem to me logical that if we sought to
he would just go quietly. Now of course, he is virtually unemployable. Unlike
ensure that opportunity prior to entry into service, a person should
most veterans with bad discharges, he is white and middle class and has a
also now have that right to make his case.
wife who is successfully employed. It is unlikely that he will suffer the same
disability of the others, a large percentage of whom end up in prison because
Mr. GOODELL. Your hunches are usually pretty good. I join you on
of lack of education and employment opportunity. He is not eligible for con-
that. I do believe it worked out quite well with the selective service
sideration by the Clemency Board because his discharge is for other reasons than
boards. They do have a right to appear before a board, particularly
desertion.
on a question of conscientious objection, for a hearing.
Query.-Is it just for a society to make no provision to alleviate the economic
disability of hundreds of thousands of veterans with bad discharges for reasons
I do think, however, the nature of these cases is quite different. I
other than desertion, but still not crimes according to civilian standards? Should
would give them a complete opportunity to complete that record. We
not the society recognize that its demand for military service, SO easily avoided
may very well grant those requests that appear personally before the
by 90 percent of the draft-age young men, created a situation whereby the men
Board, 832 cases thus far; there has not been a request to appear before
who served, already from the poorest sector, reenter the society more dis-
the Board.
advantaged than before induction by reason of their military service?
Answer.-This question relates more to the inequities of the draft or of the
I must say that if we get anywhere near the 111,000 applicants
military justice system than to the Vietnam elemency program. As to case A,
that are eventually eligible, if we did get a large number of personal
W. L. very likely would receive a pardon without any requirement of alter-
appearances, we are going to be in existence until probably 1980.
native service. If the fact supported such a result, the Board might well recom-
Senator HART. Well, that is inherent in the system that has been
mend a general or honorable discharge to the President, as it has done in a
number of other especially deserving cases. Of course, there is no way the Board
chosen to decide this on a case-by-case basis.
can deal with W. L.'s desire not to apply. But with greater cooperation from
Mr. GOODELL. Right, it is not an argument against granting oppor-
volunteer-lawyer organizations, we could refer his case to private counsel.
tunity to come before the Board, and we will look at those as the
Case B is not eligible for the program as it is defined.
applications brought to the Board.
Question 21.-If I understand you correctly, the Clemency Board will now
recommend the issuance of honorable and general discharges to certain of the
Senator HART. It may be a chance for Congress drawing a deep
clemency applicants and will leave to the Military Discharge Review Boards of
breath and granting amnesty. Maybe the reason to do that is to ask
the military services the upgrading of "clemency discharges" for other appli-
for SO much money to run your operation that the economy minded
cants. General and honorable discharges normally entitle veterans to Veterans'
here will join you.
benefits. But is it not true that chapter 53 of the Veterans' Benefits Statute
(section 3103 of title 19 of U.S.C.) provides in relevant parts that the
Mr. GOODELL. Well, I won't take that as an invitation.
"discharge
of
any
person
as
a
deserter
shall bar all rights of such
Senator HART. The experience of the program thus far in terms
person under laws administered by the Veterans' Administration
of the very low response from each of the qualifying categories reflects
Will this mean that persons to whom a general or honorable discharge is given
a lack of knowledge. Further, this would be more likely to be true
as a result of elemency will still be excluded from veterans' benefits? Will they
still remain second-class veterans, despite clemency?
for the category you described as the disadvantaged young. Those who
Answer.-It is our understanding, based on Veterans' Administration regula-
understand the program, are offended by the prospect of conditions,
tions and legal opinions, that the issuance of a discharge under honorable condi-
and therefore won't apply. Unless you have an enormously effective
tions in place of the original bad discharge avoids the disabilities of 38 U.S.C.
educational campaign, there will still remain unresolved this large pool
3103.
of young men with a record.
Question 22.-One asks whether it is wise or safe to allow the national dis-
cussion of amnesty to end SO quickly, essentially by legislative fiat? There are
I guess my windup question would be, do you feel that earned re-
lots of unresolved issues-the status of veterans, for one-and issues left over
entry is the final solution to this problem?
55-550 0 75 5
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60
Mr. GOODELL. I think this is the only clemency program you are
He knew full well in doing it he was not going to satisfy those for
going to have in the foreseeable future. I do not see there is going to
unconditional amnesty and he was not going to satisfy those who think
be a further move toward unconditional amnesty as such. It is con-
you ought to go out and hang them all. There are a few of those around.
ceivable, to the experence of this program, that there would be some
The President is a very decent and generous and tolerant man. He
other forms of conditional clemency to be offered in some of those
felt very deeply. There are scars and wounds that were very deep in
marginal areas where they didn't quite qualify as to the offense in-
this country in the sixties, people with great sincerity and purpose on
volved. At this point, we want to complete the program and do it
each side of that controversy and you and I were swirling in the mid-
as fairly as we can and get as much information as to those potential
dle of it. as was Senator Kennedy. Now we ought to look forward and
get this behind us.
applicants as we can.
I would also like to emphasize that I did not mean to imply that we
1 do not think that even if the President were persuaded for uncon-
do not have applications on intelligent, college educated or not, in-
ditional amnesty that the country would support it in terms of the
dividuals of conscience, whatever their IQ, were very courageous and
convictions of divisions in this war.
took their place in the war, some of them were very articulate and
Senator HART. Well, the country hasn't supported certain other
some were not. Certainly most of our cases involved confusion or lack
actions he has taken with respect to other individuals.
of motivation with reference to that particular war.
Mr. GOODELL. Don't get me into that, please.
As far as this whole problem of getting the information to these
Senator HART. No; I don't want to, because I think in many respects
individuals is concerned, it is very, very difficult, even if we mailed
that is a cheap shot, and I don't want to fire it. But if you judge that
directly to them.
which is supported by that reasoning-
I might say, we probably, in reference to your earlier point about
Mr. GOODELL. I don't mean that is to be supported broadly by the
appearances, the individuals who are most critical of our Board for
public. This is a great conviction in the country and I think it would
not giving personal appearances are the individuals who are refusing
have ultimately divided the country more at that point and perhaps
to make themselves available, are the ones who are refusing to appear
kept those divisions alive longer. That is my view. I respect those who
and let us tell them there are attorneys available to them. I am sure
feel otherwise.
there would be fewer problems, these individuals say they are taking
Senator HART. Yes.
a position, it is like saying I am not going to help you with your legal
Thank you, Mr. Chairman. Thank you, Mr. Goodell.
problem because I don't like the law that you violated, I don't believe
Senator KENNEDY. Thank you very much. We appreciate your pres-
it is a just law. It doesn't make any sense at all. These are respected
ence here and look forward to working with you up to January and
friends of mine, but as you can tell, I get a little incensed.
beyond.
Senator HART. Well, I don't want any young man to think this is
[The prepared statement of Charles Goodell follows:]
a conclusion I made after detailed examination of the Selective Serv-
ice, but, after listening to this 3-month bench more and more, I have
PREPARED STATEMENT OF CHARLES E. GOODELL, CHAIRMAN, PRESIDENTIAL
CLEMENCY BOARD
a hunch that if I were one of these unfortunately placed young men,
the lawyer might tell me, "Don't go to this program. Rather let's go
Mr. Chairman, members of the Subcommittee, my name is Charles E. Goodell.
into the courthouse and we might get better treatment."
I am an attorney in private practice in Washington, and I am Chairman of Presi-
dent Ford's Presidential Clemency Board, which is a part of the White House
Mr. GOODELL. He can't get better treatment if he has been convicted,
Office.
in most cases convicted, he has been to prison. served his sentence. The
I am grateful to the subcommittee for this opportunity to describe to you and
Clemency Board can give him clemency and a pardon. He cannot get
to the American public the operations of the Presidential Clemency Board. The
that from a court.
program suffers from insufficient public awareness and from confusion among
potential applicants. These hearings will broaden understanding of what the
Senator HART. I am not wishing ill of your effort to generate partici-
program is about and, in doing so, will be of service to those young people who
pation. My own feeling has long been, and I have said it at earlier
must soon decide whether or not to participate in the program.
hearings of Senator Kennedy, that my only question about blanket
With the subcommittee's consent, I would like to submit the entire statement
amnesty is that it would include some fellow who left because he had
for the record, read its highlights, and then will answer your questions.
At the outset, let me share with you several observations about the program,
taken the headquarters company fund. Except for that, I do not think
some of which I have come to appreciate only after becoming immersed in it.
this case-by-case process will resolve this issue in a way that history
The Clemency Board has been continually impressed with the depth of feeling
will find praiseworthy.
that the President has about this program, and with the personal attention that
Mr. GOODELL. I appreciate your viewpoint on that, Senator Hart,
he gives to it. He was personally involved in the rewriting of the initial proposals,
and devoted a considerable amount of time to that. At the Board's first meeting,
and I know you are well aware there are a large number of people
he met with us in the Cabinet room for a lengthy discussion of his hopes for the
out there on the other side of this issue who feel very deeply. They feel
clemency program. He met with us in the Cabinet room again for the signing
there should be no clemency whatsover. I know you appreciate that
of the first pardons and conditional clemencies under the Board's part of
historically President Ford has taken the most forthright and cour-
the program. He has spoken with me several times to give guidance to the Board
about how it should treat applicants coming to it.
ageous position on clemency or amnesty of any President in our his-
In August, in his first days in office, the President replaced two of the portraits
tory. This is the most extensive clemency program ever in this coun-
in the Cabinet room with portraits of Presidents Truman and Lincoln. He told
try. It took a lot of courage and vision for President Ford to do it.
his staff then that he particularly admired those Presidents because they were
62
63
the ones who took substantial political risks in granting clemency in order
to reunite the country in times of bitterness and strife.
those who are presently absent without authority from a military service, but who
The President cares deeply about this program, asks about its progress fre-
have not been convicted of an offense or discharged. They must return to their
quently, participates in shaping it even now. Its goals are critical to his vision of
military service, which processes them and issues them an undesirable discharge.
what this country should be.
At the completion of alternate service of up to 24 months, they are issued a
The members of the Presidential Clemency Board have been impressed also
clemency discharge to replace the undesirable discharge.
by the degree to which the applicants coming before us do not fit the stereotypes
Secondly, unconvicted persons who have violated the Selective Service laws
we had assumed. Many of the draft and military law violations which we have
must return to a U.S. Attorney. Through a process very similar to plea-bargaining
examined were not at all consciously and directly related to opposition to the
or pretrial diversion, they are offered up to 24 months alternate service. Upon
Vietnam War. For the most part, we have seen applicants with wives who were
satisfactory completion, charges are dropped.
about to leave them, whose fathers had died leaving a family without any means
The Presidential Clemency Board's jurisdiction is entirely different. We rec-
of support, or whose mother, wife or child had become acutely ill. Personal prob-
ommend clemency for persons who have already been convicted for or have
lems overwhelmed them and led to violations of the law.
admitted an offense, whether civilian or military and who have already received
We have many applicants who are not from educated and middle-class back-
punishment. The Board has jurisdiction over civilian draft evasion offenses, and
grounds, certainly not with college educations. Rather, they are generally un-
over military unauthorized absence, desertion and missing movement offenses.
sophisticated, inarticulate people who were unable to pursue their remedies
Our jurisdiction over military personnel extends both to those court-martialed
properly within the legal system. Had they been able to do so, many of these
and to those administratively discharged. We recommend to the President how he
applicants would have received hardship deferments or conscientious objection
should exercise his discretion under article II, section 2 of the Constitution.
deferments, or compassionate reassignments or hardship discharges in the
military. They just did not know how to proceed.
WHAT REMEDIES DOES THE BOARD OFFER TO APPLICANTS?
We have seen some cases in which there has been genuine conscientious objec-
The Board has received more than 800 written applications, of which 150 have
tion to killing. For the most part, however, even these people tend to be ones
who did not understand how to pursue their rights properly through the Selective
already become ripe for decision under the administrative procedures we have
Service system. They are predominantly Jehovah's Witnesses, Muslims, and
established. Eighteen have been referred to the President thus far, all civilian
a few others who have clear religious or ethical beliefs which are evident to the
cases; others have been decided by the Board and will be forwarded to the Presi-
Board from the letters which they write to us, from their probation records, and
dent in the next several days.
To the civilian applicant for clemency, the Board can offer, on behalf of the
from other files predating even their conviction.
Our applicants have often proven to the unfortunate orphans of an administra-
President, executive clemency in the form of a full pardon. Each form of execu-
tive clemency may be offered unconditionally, or conditioned upon a specified pe-
tive system in which success was determined by being educated, clever, articulate,
riod of alternate service.
and sophisticated. Those who believed deeply but couldn't express their feelings
When the President accepted the unanimous recommendation of the Board
adequately wound up with conviction records and sometimes jail sentences. The
that clemency be granted to the initial 18 civilian cases, he granted 8 full and
glib and sophisticated, whether sincere or not, got a better shake.
unconditional pardons effective immediately, and 10 conditional clemencies which
The applications which the Presidential Olemency Board has received indicate
will become full and unconditional pardons upon completion of the specified
to us with overwhelming force that the image which we have had of the typical
alternate service. Of those who received conditional clemencies, the lengths of
Vietnam-era draft "evader" is simply wrong.
alternative service were 3 months of alternate service for 3 applicants, 6 months
We have been surprised and impressed, finally, by the extraordinary public sup-
for 5 applicants, 10 months for 1 applicant, and 12 months for 1 applicant.
port which the President's clemency program has received.
While we cannot reveal the Board's recommendations prior to the President's
Without great fanfare, many employers, church groups, veterans' groups, and
decision on them, I can tell you that the distribution of 32 other recommendations
lawyers' groups have written and called to us and asked "What can we do to
which are shortly to go to the President on civilian cases is roughly similar to
help?" The church groups and the veterans' groups, in particular have established
the distribution in the first 18 cases.
counselling programs for potential applicants to the various parts of the clemency
A pardon restores to an applicant his Federal civil rights. Just as importantly,
program. Numerous employers have offered opportunities for alternate service
it is the custom in most states to remove most civil disabilities, as well as licens-
under the program. Other organizations which are not in total agreement with
ing restrictions which prevent ex-convicts from working in a variety of occupa-
the clemency program have united on the local level in one common goal-helping
tions. Without a pardon, the typical ex-offender cannot work in any professional
the human beings involved with the major personal decisions which they have to
occupation or, in many states, as an ambulance attendant, a watch-maker, a
face if they are to come home to the President's program.
tourist camp operator, a garbage collector, a barber or beautician, a practical
Nearly everyone who could potentially help these young people has said "We
nurse, or a plumber.
may not entirely agree with the way that the program was set up, but the im-
Since most states honor Federal pardons as a matter of comity, although they
portant thing is to help these boys who are thinking about coming back to us.
are not required to do SO as a matter of law, the real effect of a pardon is to make
Let's concentrate on them, not on our differences with each other."
the ex-offender employable again.
We have learned that people in this country really do want to have a reconcili-
The military applicant for clemency comes to us worse off than the civilian
ation which will bring former draft evaders and deserts back into full integration
applicant. Not only does he frequently have a Federal felony conviction for
in the community. We have been humbled and touched by the stream of offers
violation of military law, but he also has the stigma and the employment prob-
of help from people in all parts of the country.
lems attached to a "bad paper" discharge.
Let me now describe to you what the Olemency Board's jurisdiction is, what
To the former military applicant, we offer a full pardon, plus an upgrading
remedies we offer to prospective applicants, what administrative procedures we
of his discharge to at least a clemency discharge, either unconditionally or
have established, and what substantive criteria we apply in weighing applica-
conditioned upon a specified period of alternate service.
tions for clemency.
Some of the military applicants have wounds from service in Vietnam, decora-
JURISDICTION
tions for valor, and multiple tours of honorable military service. They went
The Presidential Clemency Board was created by Executive Order on Septem-
AWOL after this honorable service, and received bad discharges. Some of them
ber 16, 1974 to implement part of President Ford's Proclamation on clemency
even went AWOL or deserted after they had volunteered for second and third
issued that same day. The Board, organizationally within the White House, is
tours of duty in Vietnam.
composed of 9 part-time members. Each member is in private employment and is
The Board has decided that in such special cases, we will recommend to the
compensated by the Federal Government only for time spent on Board business.
President that he immediately upgrade their punitive or undesirable discharges
The Proclamation covers three major categories of persons. First, there are
to a general discharge or, in exceptional cases, to an honorable discharge.
64
65
The cases which we request the President to upgrade immediately will be the
We give special weight to time already spent in prison, and to alternate serv-
unusual ones, the ones in which justice unambiguously demands immediate cor-
ice and probation or parole already satisfactorily completed under judicial order
rective action. We will recommend pardons and clemency discharges in many
in deciding appropriate lengths of alternate service.
more cases, however. In all of those other cases, we will recommend that the
Equity compels us to consider factors beyond simply time spent in prison. For
President direct the military discharge review boards or other appropriate mili-
this reason, for example, Jehovah's Witnesses who have served a little time in
tary tribunal to review the cases anew in order to determine whether there
prison, but whose violations of law were motivated by deeply held religious
should be further upgrading of discharges beyond a clemency discharge. And we
beliefs, typically have been offered outright pardons, or have been asked to serve
will recommend that that de novo review be conducted without reference to the
minimal amounts of time where aggravating circumstances have existed in par-
offense for which a pardon has been granted as if that AWOL or desertion
ticular cases. On the other hand, persons who acted from no apparent sincerely
offense were not in the record.
held ethical or religious convictions about the war have received clemency con-
We have received a firm indication from the Department of Defense that it is
tingent upon longer lengths of alternate service, even when those persons may
amenable to the procedures which we propose for upgrading discharges.
have served more time in prison.
The Board has been diligent in creating procedural and substantive rules
ADMINISTRATIVE PROCEDURES OF THE BOARD
which can be readily understood by a layman who gives them a careful read-
ing, as well as by a lawyer or other counsellor who has not specialized in Selec-
Let me now turn to the Board's procedures, a copy of which is attached to
my statement. We have sent copies for comment to every Member of Congress, to
tive Service or military law. We have tried to use simple and clear language,
veterans' and civil liberties groups, to antiwar organizations, to every State and
and we have tried to bring the greatest practical degree of due process to a
major local bar association and to a number of private attorneys. I am pleased to
procedure President. which is, constitutionally, inherently discretionary on the part of the
say that for the most part, the proposed rulemaking appears to have been well-
PROTECTIONS OF APPLICANTS
received. Suggestions and criticisms will be reflected in a final rulemaking which
we will issue in a few days.
Anyone calling or writing in to the Presidential Clemency Board is guaranteed
It took some time to develop these regulations. In part this is explained by
that his name, address, telephone number, and any other information which he
the fact that the Presidential Clemency Board has no precise historical model to
gives us will be held in the strictest confidence, unless he has committed a serious
follow and no clear precedents in assisting the President in what is a unique
nondraft-related or nonAWOL-related criminal offense such as homicide. The
Executive function. We also wished to become very familiar with the types of
Justice Department has agreed that with this exception, we may keep our own
cases before us prior to issuing any rules. Even now we find new aspects in the
records completely sealed to other agencies.
cases which require further elaboration of our rules.
Since most evaders and deserters within our jurisdiction apparently do not
Let me describe briefly how the Board operates.
read the New York Times or watch Walter Cronkite frequently, we have taken
First, when we receive a communication expressing interest by or on behalf
pains to communicate to them that they are eligible for the President's program.
of a possible applicant in any part of the President's program, we mail out an
We are mailing information about the program to the last addresses of each
instruction kit. This kit describes the program, the Board's procedures, and other
person convicted of draft evasion and eligible for Board consideration, thanks to
aspects of the Board's operations. If the individual is not under the Board's
the very fine cooperation of the Federal Probation Service and the Administrative
jurisdiction, but falls within the jurisdiction of the Department of Justice or
Office of the U.S. Courts. Assuming that such addresses are available from the
the Department of Defense, we tell him how to pursue his case with them. If he
Department of Defense and the Coast Guard, we will do a mailing to over 114,000
is not under the jurisdiction of any part of the clemency program, we try to
convicted AWOLs and deserters as well.
suggest other avenues for the relief he seeks.
Everyone who applies or inquires to the Board is advised of the advantage of
Once the necessary information is obtained from an applicant, and his files
legal assistance. We give to any person who needs counsel the names of organiza-
are obtained from Justice or the military services, a Board attorney prepares a
tions which provide volunteer services.
summary of the files. The instructions to Board attorneys have been submitted
The American Legion, the Los Angeles County Bar, the New York County
to you. We have an elaborate internal procedure to ensure that the summaries
Bar, the American Bar Association and the Harvard Military Justice Committee
are properly prepared.
have either offered their services as volunteer representatives or expressed a
This summary is then mailed to the applicant along with the preparation in-
strong interest in doing so. But with the application period over half-completed,
structions. The applicant is encouraged to review the preparation instructions.
many potential applicants are undecided on how to proceed. I would like to see
The applicant is encouraged to review the summary, submit any additions or
every one of the 800 who have already applied put in touch with a volunteer
corrections, and to send the Board anything he believes the Board should con-
attorney. I cannot hide my disappointment that a number of legal organizations
sider when it reviews the case.
have declined to help because of political or philosophical differences with the
Once this process is completed, the case is presented to the Board together
program. I urge them to put aside these differences in favor of the needs of
with the material the applicant has sent in.
the applicants.
After the Board examines the case and makes a recommendation, the Presi-
Many of the persons eligible for the c'emency program are not highly sophis-
dent reviews that recommendation and issues his decision on clemency. Under
ticated or well educated individuals who could cope effectively with the problems
the Board's rules, an applican+ then has 30 days after the President's action to
that they faced. They need help now in applying to the Clemency Board. The
ask for reconsideration if he feels dissatisfied with the decision. He next passes
President's program offers very real benefits. Criticism that the program does
to the jurisdiction of the Selective Service for the performance of any required
not go far enough only hides the fact that it does go very far indeed. An individ-
alternate service.
Once the service is satisfactorily completed, the Board confirms that the
ual can receive a full pardon restoring his civil rights-his right to vote, his
clemency has been earned, and a pardon is issued.
right to apply for a license to be a bartender, a plumber, a barber, a practical
nurse, or a lawyer.
THE SUBSTANTIVE CRITERIA FOR EVALUATING APPLICATIONS
For those who were in the military service the program may offer not only a
clemency discharge, but a full pardon as in the civilian cases, and an automatic
The President's Proclamation contemplates a case-by-case evaluation of appli-
review by the military Discharge Review Boards that could lead to a discharge
cations to the Board, rather than a blanket treatment of whole classes of people.
under honorable conditions. The review will be conducted on the basis of the
We have carefully drawn our substantive standards so that they are a tool to
men's military record as if the AWOL or desertion offense were not in the record.
assist the Board in weighing each case on its merits. The standards help us to
In some exceptional cases, the Board is recommending that the President im-
separate out cases which should be treated differently, and to treat with con-
mediately upgrade the discharge SO that it will be under honorable conditions.
sistency and equity those which are similarly situated.
These exceptional cases include, among others, men who were wounded or deco-
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66
While these figures are-except for military deserters-clearly low, we do
rated for valor in Vietnam, had several tours of honorable military service, or
not believe that the "success" of the President's program can be viewed in
volunteered for combat duty and subsequently got into personal problems.
the same light as salesmen's goals or recruitment objectives.
)
In the light of this, I think that it is outrageous for any volunteer legal group
Mr. Goodell has publicly and repeatedly assured those eligible that they can-
which is concerned about the rights of citizens, and their right to counsel, to
not be hurt by seeking Presidential clemency through recourse to his Board.
refuse to offer legal aid to applicants. It grieves me to say that some very well
On November 2, the Secretary of Defense publicly assured the next-of-kin
known groups who differ with the program are refusing to cooperate with the
of "no-show" military deserters that:
Clemency Board in allowing us to advise applicants that they will provide
a) those seeking clemency would be given the opportunity to consult with
counsel. We have pleaded with these groups, not for ourselves, but for the people
a military lawyer or counsel of their own choice before undertaking obliga-
who have applied to the Clemency Board and need help. They, not the Board,
tions associated with the program;
lose by the obstinacy of these members of the bar.
b) there is no uniform or hair grooming requirement; and,
Let me close with a final comment about the program.
c) the program would end on January 31, 1975.
President Ford has acted in the tradition of Presidents Truman, Wilson, Lin-
A point has recently been made by some that there is a "Catch 22" aspect
coln, and Washington. I hope that this hearing today will help make more Amer-
to the program as follows: (a) a young man believes he is in violation of the
icans aware of the deep historical roots of clemency and of the country's need
draft law, but does not know whether he is being investigated or not, (b) he
for it now. Perhaps, if it serves that purpose, our being here today will make it
seeks to find out whether or not he is under investigation and, by SO doing, is
just a little bit easier for those who do come back to integrate themselves fully,
picked up by the system and is placed under investigation.
with dignity and with pride, as Americans and as members of their community
I suggest that the above example, while it makes a good "debating point,"
again.
misses the more central issue.
Should a law violator be spared investigation simply because of inefficiencies
Senator KENNEDY. While we are waiting for the panel, which in-
in the surveillance and law enforcement mechanisms?
We believe the answer is "no," and that those who fear self-incrimination must,
cludes John Schulz, editor in chief, Military Law Reporter, Mr.
like all facing possible legal sanctions, choose either (1) to accept their responsi-
Schwarzschild, director, American Civil Liberties Union project on
bility as citizens by coming forward, or, (2) live in limbo and take their chances.
amnesty, and James Wilson, director of national security, American
My point can be made even clearer if, for the words, "possible draft evasion,"
Legion, I am going to insert into the record the statement of Col.
one substitutes the words, "possible income tax evasion."
As to policies and procedures, a few thoughts are in order.
Phelps Jones, of the Veterans of Foreign Wars.
The military personnel who manned the "Joint Clemency Processing Center"
[The statement of Colonel Jones follows:]
performed with manifest restraint and professionalism in what, for many, must
have been a distasteful task. Returning deserters were not, according to their own
PREPARED STATEMENT OF COLONEL PHELPS JONES, USA (RET.), DIRECTOR,
language, "hassled." In fact, there have been very few "war resisters" among
NATIONAL SECURITY AND FOREIGN AFFAIRS, VETERANS OF FOREIGN WARS
the group. The deserters were, as many of us have long held them to be, men
who deserted for reasons as old as armies: personal problems and inability or
On behalf of John J. Stang, commander in chief of the Veterans of Foreign
unwillingness to accept discipline.
Wars of the United States, I am most pleased to be able to appear before this
As to the Clemency Board, two points: 1) on November 27 this Board asked
distinguished body for the purpose of placing into the record the views of our
the V.F.W. (presumably along with others) to assist with providing legal counsel
organization on the subject before your subcommittee, i.e., "An Assessment of
to men exploring their legal options before seeking clemency and, 2) On Decem-
the Efficacy of the President's Clemency Program for Draft Violators and Mili-
ber 5, Mr. Goodell forwarded to the V.F.W.'s commander-in-chief, John J. Stang,
tary Deserters."
"proposed rulemaking" to govern Board procedures for our comment.
We believe it is most appropriate that the views of the V.F.W. be carefully
(Copies of these two letters, and our answers thereto, are appended to this
weighed on this matter as it was before our National Convention on August 19,
1974 that President Ford made his first public reference to the clemency pro-
statement.) Mr. Chairman, the Clemency Board had been in existence for well over two
gram which he set into motion by means of a proclamation on September 16
months before this body sought to move on two self-evident requirements: avail-
of this year.
ability of legal counsel and codification of internal procedures.
Your subcommittee's distinguished chairman, Senator Kennedy, also selected
This snail-like performance should not provide rationale to extend Presi-
the V.F.W. as that organization before whom, on August 21, he urged support
dent Ford's program beyond January 31, 1975, although it does provide its own
of the President's August 19 proposal.
comment on the efficacy of boards and commissions in accomplishing the people's
The purposes of your subcommittee's hearings, as we understand them, are:
business.
a) to assess the policies and procedures of the Departments of Defense and
A summary of our views follows:
Justice, the Selective Service System, and the President's Clemency Board to
a) The military services are to be commended for their professional response
ascertain why SO relatively few draft law violators and military deserters have
to the Clemency Program.
come forward; and
b) The relatively small numbers of draft dodgers and "bad paper" dis-
b) in light of the foregoing assessment, to recommend procedural changes to
charges involved in the program should not be accepted as prima facie evidence
increase the program's productivity.
that the program has "failed" and quad erat demonstratum must be further
(I fully understand that these hearings are not being called to argue "amnesty,"
liberalized. We submit that the President's decently-motivated effort to "bind
pro or con. As I'm certain you gentlemen know, the V.F.W.'s opposition to
up the wounds" has not met with numerical "success" because many to whom the
"amnesty" is both total and unapologetic. Should a member or a staff aide desire
program is addressed, and more crucially their proponent groups, have not, for
our position or our rationale, I would be most pleased to provide him or her
whatever reasons, met the President's program and concern with a like-minded
with it on an individual basis.)
effort to place a divisive past behind us.
What are the results, to date, of the President's clemency program? Subject
The program has not failed its non-participants. They, and their supporters,
to refinement by government witnesses, we find:
want and need the "amnesty" issue. Incremental procedure adjustments with
Of 12,507 military deserters eligible, some 2,007 have been processed.
existing regulations will not meet their objections; only total vindication will
Of approximately 111,000 holding less-than-honorable discharges, some 508
and, it is our unchanged judgment, that such a development would be a tragic
have sought "earned reentry."
and irreversible policy blunder.
Of 8,700 convicted of draft evasion, 234 have volunteered for alternative
Attachments.
service.
Of 6,660 being sought for draft evasion, only 103 have signed clemency
agreements.
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69
PRESIDENTIAL CLEMENCY BOARD,
Routinely, and I believe effectively, the V.F.W. represents servicemen or vet-
THE WHITE HOUSE,
erans before Army, Navy, and Air Force Boards for the Correction of Military
Washington, D.C., November 27, 1974.
Records. Such cases are, I suspect you would agree, markedly different from
Mr. JOHN J. STANG,
those of individuals exploring legal options before submitting themselves to your
Veterans of Foreign Wars,
Board for possible clemency.
Washington, D.C.
By definition, the individuals you are attempting to serve would fit neither the
DEAR MR. STANG: As you know, on September 16, 1974, President Ford estab-
criteria for V.F.W. membership nor advance the Congressionally-chartered pur-
lished a clemency program as part of his efforts to heal the divisions caused by
pose of our organization.
the Vietnam War. Under this program, persons who have been convicted for
The American Civil Liberties Union and the American Bar Association would
draft-related offenses and persons who have received a less-than-honorable
appear to be more helpful to your stated need.
discharge from the Armed Forces for absence-related offenses may apply to the
Sincerely,
President Clemency Board for clemency.
JOHN J. STANG,
It is the Board's belief that the individuals eligible for the Presidential
Commander in Chief.
Clemency Board's program have a right to legal counsel to assist them in pursuing
their cases before the Board. We believe this right to be crucial to the operation
of the program. We make every effort to advise applicants of the importance of
PRESIDENTIAL CLEMENCY BOARD,
obtaining legal advice, and urge them to do SO.
THE WHITE HOUSE,
The board has had many requests from eligible persons seeking legal assist-
Washington, D.C., December 5, 1974.
ance. It has had less success in providing information as to how such assistance
DEAR SIR: The Presidential Clemency Board has reached unanimous agree-
may be secured. Your group has traditionally provided counsel, or encouraged
ment on the administrative procedures and the substantive standards which
the provision of counsel, to persons otherwise unable to obtain representation.
it proposes to employ in determining its recommendations to the President on
Therefore, we ask your help in creating a means by which applicants may be
applications for elemency under the President's elemency program. These proce-
assisted in obtaining legal counsel. We believe that every eligible individual
dures and standards haye been published in last Wednesday's Federal Register.
should have the means to make the most enlightened personal decision as to his
It is the intent of the Board to publish a revised rulemaking after the end of the
own case. We also believe that this inalienable right should transcend any dif-
comment period on December 12.
ference of opinion that may exist as to the clemency program.
The Board would be very grateful if you will examine the proposed rulemaking
Because the deadline for applying to the Board is January 31, 1975, we hope
and give us your comments by December 13 on how it should be improved. We
that your organization will consider this matter most expeditiously. We would
are interested in learning from both your own reactions to the proposed rule-
like to pursue it with you further, at your earliest convenience.
making and from the comments that you may have heard from potential appli-
Sincerely,
cants. Since a large number of people communicate with you who probably do not
LAWRENCE M. BASKIR,
attempt to give their views directly to the Executive Branch, it will be particu-
General Counsel.
larly helpful to the Board to learn about the comments which have been given
to you.
As you know, the Presidential Clemency Board deals only with those indi-
VETERANS OF FOREIGN WARS,
viduals who have received punishment for their offenses.
Washington, D.C., December 4, 1974.
LAWRENCE M. BASKIR,
I appreciate your help.
General Counsel, Presidential Clemency Board,
Sincerely,
CHARLES E. GOODELL,
The White House, Washington, D.C.
Chairman.
DEAR MR. BASKIR: I have received your letter of November 27 and, as you
point out, since the deadline for applying to the Clemency Board is January 31,
DECEMBER 6, 1974.
1975, I am replying expeditiously to your request that the Veterans of Foreign
CHARLES E. GOODELL,
Wars of the United States "help in creating a means whereby applicants (to the
Chairman, Presidential Clemency Board,
Clemency Board) may be assisted in obtaining legal counsel."
The White House, Washington, D.C.
The purpose of the V.F.W. is set forth in an Act of the 74th Congress (section
DEAR SENATOR GOODELL As commander-in-chief of the Veterans of Foreign
3, chapter 471, 49 Stat. 1390, 1391, May 28, 1936) which I cite below:
Wars of the United States, I am replying to your letter of December 5, which
enclosed proposed rules and regulations governing clemency procedures to be
SECTION 3-PURPOSE OF CORPORATION
followed pursuant to Presidential Proclamation 4313.
"That the purpose of this corporation shall be fraternal, patriotic, historical,
As I'm certain you know, the V.F.W. has been at the forefront of those organi-
and educational to preserve and strengthen comradeship among its members:
zations and individuals who have consistently opposed either general or condi-
to assist worthy comrades: to perpetuate the memory and history of our dead,
tional amnesty. While we have not (and will not) question our President's
and to assist their widows and orphans: to maintain true allegiance to the Gov-
motives in setting up the mechanism which you head charged with dispensing
ernment of the United States of America, and fidelity to its Consitution and
clemency, our objection to this development was two fold (a) American justice
laws: to foster true patriotism to maintain and extend the institutions of Ameri-
both civil and military has inherent to it a discerning sense of compassion hence,
can Freedom, and to preserve and defend the United States from all her enemies,
(b) the "clemency mechanism-which implies a lack of confidence in our home-
whomsoever."
grown judicial procedures-is both unneeded and, as the draft rules and regula-
Membership in the V.F.W. is defined by section 5 of the same Public Law which
tions you forwarded 80 clearly attest, unwieldy.
I cite below:
In light of the foregoing, my comments will be brief:
SECTION 5-MEMBERSHIP
(a) no VA benefits of any type should be extended to any applicants under this
program;
"That no person shall be a member of this corporation unless he has served
(b) no alternate service in the VA at any level, should be permitted;
honorably as an officer or enlisted man in the Armed Forces of the United States
(c) alternate service must never be offered in any active duty or reserve com-
of America in any foreign war, insurrection. or expedition, which service shall
ponent of any of the military services; and, finally,
be recognized as campaign-medal service and governed by the authorization of
the award of a campaign badge by the Government of the United States of
America."
70
71
(d) ample time has been afforded under the program for those eligible to
apply. The program needs no more time beyond January 31, 1975, its announced
clemency program, and it has been in persistent negotiation with all
termination.
the governmental agencies involved to cure some of the most glaring
I will closely follow adherence to the points I have just enumerated and the
future advocacy of the V.F.W. will be largely geared to these four critical
defects of the program. While I do not speak this morning with the
points.
formal authorization of CALCO, I know that this body has com-
Sincerely,
plained of and tried to correct most of the problems and defects in the
JOHN J. STANG,
clemency program that I shall have cause to set forth. These defects
Commander in Chief.
continue to be so massive and crippling, in CALCO's judgment, that
this organization felt constrained not to make itself available as "clem-
Senator KENNEDY. I am sorry we didn't have time for all interested
ency bar" and, as responsible attorneys, to refuse the request of the
groups to personally testify. We will keep our record open for a few
Presidential Clemency Board that CALCO act as a referral agency to
weeks to include all submissions.
which clemency applicants might be sent for legal assistance.
As the witnesses would understand, in the wrapup of the Congress
Senator KENNEDY. It will be received and printed as if read.
there are a series of continuing conferences which we are members of.
Mr. SCHWARZSCHILD. The comments I offer this morning on the ad-
Even now while we are here, there is an OEO conference, which I
ministration of the clemency program must be understood in the con-
should be at. I am chairing conferences this afternoon on health man-
text of the ACLU's position on the larger issue of amnesty, which is
agement and manpower and continuing our subject on this in the
inseparable from any consideration of the clemency program now in
morning, so we didn't have the time on this particular occasion to in-
clude all the people we would like to.
operation. For several years now, the ACLU has urged this country and its
I extend an apology as the chairman of this subcommittee, but we
political leaders to enact a universal and unconditional amnesty for
want to say that in no way effects our interest in their comments and
all those who have already undergone or still face criminal or admin-
the value of their recommendations.
istrative penalties for any nonviolent violations of law arising from
their conflict with the draft, the military, and the war in Southeast
STATEMENTS OF A PANEL CONSISTING OF JOHN SCHULZ, EDITOR
Asia. The Nation was deeply divided over the moral, political, mili-
IN CHIEF, MILITARY LAW REPORTER; HENRY SCHWARZS-
tary, and even legal and constitutional justification of that tragic
CHILD, DIRECTOR, AMERICAN CIVIL LIBERTIES UNION PROJECT
war. Direct American military involvement in that war ended almost
ON AMNESTY, ACCOMPANIED BY EDWIN J. OPPENHEIMER,
2 years ago. Our prisoners of war are home. Our troops have been
ACLU; AND JAMES WILSON, DIRECTOR OF NATIONAL SECURITY,
withdrawn. It is time also to heal the other wounds that we have in-
AMERICAN LEGION
flicted upon our Nation in the context of that war. Hundreds of thou-
sands of men live with the disabilities of less-than-honorable dis-
Senator KENNEDY. Mr. Schwarzschild.
charges from the military services; tens of thousands bear the stigma
of felony convictions or suffer the threat of military or civilian crimi-
STATEMENT OF HENRY SCHWARZSCHILD
nal prosecution arising from their response to the war.
The demand for amnesty does not rest primarily upon a judgment
Mr. Schwarzschild. Thank you, Mr. Chairman, Senator Hart.
of whether these men and women were right or wrong. First and fore-
I am Henry Schwarzschild, the director of the project on amnesty of
most, the call for a true amnesty says to the American people that the
the American Civil Liberties Union. I appear here pursuant to the re-
world and our own people have suffered enough over that war. Let us
quest of the subcommittee to present the views of the American Civil
stop continuing to make American war casualties out of our own chil-
Liberties Union on the administration of the clemency program, which
dren and let them return to our-their-society without judgment and
was instituted by President Gerald Ford through Proclamation 4313
without punishment. Amnesty, which has a long and distinguished
and Executive Order 11804 on September 16, 1974.
tradition in American history, is the way to end the process of vic-
I am accompanied today by Edward J. Oppenheimer, the ACLU's
timizing ourselves in the context of a problematic war that has, in
clemency litigation director. I should add that both Mr. Oppenheimer
some respects, been brought to an end.
and I are members of the steering committee of the clemency/amnesty
In that perspective, the ACLU finds the Presidential clemency pro-
law coordinating office (CALCO), organized here in Washington
gram unsatisfactory in its moral and political assumptions. We wel-
shortly after the clemency program was instituted, in order to pro-
come, of course, the impulse that caused the President to take some
vide free legal services where necessary to persons who apply for
action to alleviate the continuing problems of those who, for whatever
clemency. Other members of the CALCO steering committee are staff
reasons, refused to lend their services, their bodies, their lives, to the
members of such concerned groups as the National Legal Aid and De-
war in Indochina. We admired the President's courage in announcing
fender Association, the Lawyers Committee for Civil Rights Under
in SO hostile a forum as a veterans' convention his intention of provid-
Law, the Public Law Education Institute, the Central Committee for
ing some form of clemency. We offered the White House every assist-
Conscientious Objectors, the National Conference of Black Lawyers,
ance, during the time the program was formulated and organized
the Center for Social Action of the United Church of Christ, the
toward making it humane, just, and effective. But it became quickly
Washington Council of Lawyers, the National Interreligious Service
evident, with the President's proclamation and Executive order of Sep-
Board for Conscientious Objectors, and others. In its efforts to struc-
ture a legal referral service for clemency applicants, CALCO was com-
pelled to look at the administrative and substantive infirmities of the
72
73
tember 16, 1974, that the program in effect declares that those who re-
for violations of the Military Selective Service Act (i.e., desertion,
fused to participate in the war committed an offense against American
absence without leave, and missing a military movement), from per-
society which we are entitled-indeed compelled-to punish. The pun-
sons who have been discharged from the military services with bad
ishment in some circumstances would be mitigated by Presidential
conduct or dishonorable discharges by sentence of court martial for
clemency; but the Government's position is reaffirmed that war re-
such absence offenses, and for persons who were discharged from the
sisters committed the punishable crimes of the war. It is the punitive
military administratively with an undesirable discharge because of
and stigmatizing nature of the Presidential clemency program to
such offenses, if these acts occurred between August 4, 1964 and March
which the ACLU profoundly objects which has also been the cause
28, 1973. For applicants who, in the Board's judgment, merit Presi-
of its evident and dramatic lack of success.
dential clemency, the Board may recommend to the President the
Even within the assumptions on which the Presidential clemency
granting of executive clemency, contingent where appropriate upon
program rests, it was, it seems to us, ill designed. Its division among
the satisfactory completion of a period of alternate, civilian service
four governmental agencies is cumbersome and confusing. Its limited
not to exceed 24 months.
scope is discriminatory. Its strenuous effort to distinguish among vari-
The clemency applicants to the Board, in other words, are either
ous categories of war resistance and to deal with each case on the basis
persons who have already gone through the civilian or military crim-
of some individual judgment of his personal merits is fruitless and
inal process and have suffered such punishments as these courts im-
hurtful. Its threatened penalties for many people who under present
posed, or veterans with less-than-honorable discharges issued by mili-
law have committed no crime are shocking. Its loyalty oath is demean-
tary administrative fiat.
ing. Its alternate service requirements are useless, punitive, and in-
Not until the middle of November, fully half-way through the pe-
equitable. Its clemency discharge is stigmatizing. Most of its adminis-
riod for clemency applications, did the Board formulate procedural
trative apparatus is hostile to the moral and political commitments of
and substantive standards for considering clemency applications for
the war resisters. Many of its procedural aspects are very probably
the estimated 120,000 potential applicants. Even now, it is difficult to
violative of Federal statutes and the U.S. Constitution.
see what real advantages the clemency program offers persons quali-
It is because of the hurtful moral and political assumptions that
fied to apply to the Board.
underlie the program and because of its complex and discriminatory
Take a young man who refused induction into the military because,
implementation that the program is, to date, such a massive and
like millions of Americans, including many members of Congress, he
dramatic failure. Overall, only about 2.5 percent of those qualified to
believed the war in Southeast Asia to be a human and political catas-
apply for clemency under the program have done SO in the first 3 full
trophe. He was arrested, tried, and convicted, and served his sentence
months of its existence. [The time for applying for clemency only has
in a Federal penal institution. He is now free to apply to the Board
6 or 7 weeks more to run.]
for executive clemency. The Clemency Board may recommend to the
The war resistance community, especially those in exile, have de-
President the grant of clemency contingent upon the applicant's spend-
clared their boycott of the clemency program. The amnesty movement
ing another period of his life doing alternate service under the super-
in this country-comprising very broad elements of the American
vision of the U.S. Government instead of pursuing his own life. Even
religious community, together with civil libertarians, civil and com-
a full pardon will not expunge his felony record and does not auto-
munity organizations, some veterans and peace-oriented groups, and
matically relieve him of civil disabilities. Some lesser form of execu-
others-has joined the boycott and has taken the position that the
tive clemency will do nothing whatever for him. The Clemency Board
clemency program is unacceptable. We advise persons qualifying for
has only recently made it known that recommendations for full par-
clemency that in many, if not most, instances they may very likely have
dons are available to some clemency applicants. So far, the indications
legal options available to them better than the clemency offered by the
are that alternate service will be a condition for most of them.
program. At the same time, we have offered to counsel and represent
The applicant has no right to a hearing before the Board for him-
persons wishing to participate in the program to assert their interests
self or his attorney. He has no right to a hearing even if he finds the
and rights, and we have endeavored to improve some of the substantive
clemency recommendation unjust and requests a reconsideration by the
and procedural problems that we see in the program.
Board. He cannot see the reasons for the Board's recommendations to
Let me come to specific problems in the administration of the pro-
the President before the President sees them, SO that there is no op-
gram. By arrangement with the staff of the subcommittee, I shall
portunity to rebut erroneous facts or conclusions. In the Board's com-
present comments only on those parts of the clemency program that
putation of his alternative service-time, a prior criminal conviction
are administered by the Presidential Clemency Board and the Depart-
will be held against thim, even though he has presumably "paid his
ment of Defense, leaving comments on the Department of Justice and
penalty" for any such offense and should not be twice punished for it.
the Selective Service System to Mr. John Schulz of the Public Law
Wrongful processing by the Selective Service System of claims he
Education Institute.
may have had for exemption or deferral will be held in mitigation,
I need not describe the jurisdiction of the Board which its chairman
though such violations of laws and regulations by the Government
has very ably described before you. The Board, under Executive Order
should be exculpatory rather than mitigating in their effect. The
11804, was given jurisdiction to receive applicants for Presidenial
length of any prison or other sentence served will diminish his alter-
clemency from persons who have been convicted by Federal courts
nate service period, but this means in effect that the Board acts as a
74
75
corrective sentencing authority-where the draft refuser had a humane
program. The President's Proclamation and Executive order leave
or lenient judge in court, who gave him a lesser sentence, the Board's
room to hope that some change of the discharge issue may be accom-
computation will now substitute its own penalties in greater measure.
plished within its framework. If not, the program should be amended
Former military personnel run all these hurdles and a very substan-
by the President to remove this most injurious feature of its so-called
tial additional one. Those qualified to apply for clemency from the
remedies.
Board now hold a less-than-honorable discharge-either an undesir-
We have welcomed some of the recent procedural and substantive
able discharge, given administratively to 85,000 men, or a court mar-
decisions made by the Board. The formal acknowledgement that full
tial; imposed bad conduct or dishonorable discharge to 26,500. In their
and complete pardons are at the end of the tunnel for some, if not all,
cases, the Board may recommend that the President issue such appli-
the applicants; the possibility of brief hearings before the board
cants a "clemency discharge" (newly established by the Presidential
(though at the Board's discretion, rather than as a matter of the appli-
Proclamation), after they satisfactorily complete a period of alternate
cant's right), both on the original application and upon a request for
service. But the clemency discharge is distinctly worse than the un-
reconsideration of the Board's recommendation; finally, the inclusion
desirable discharge that most of these men now hold; undesirable dis-
in the Board's standards for mitigation of the applicant's conscientious
charges, crippling as they are in respect to employment, civil service
motivation for the act subject to the clemency. These are very con-
qualifications, and other needs of postmilitary careers, are held by
siderable steps in the direction of what a true and generous amnesty
tens of thousands of veterans for a great variety of reasons. But a
might someday look like. Given the limitations of the Presidential
clemency discharge will stigmatize a veteran for life as a deserter, if
clemency program, they cannot overcome the ACLU's objections to
not as a traitor to his country. An undesirable discharge leaves the
it, or the resistance and rejection on the part of the war resistors gen-
Veterans' Administration certain discretion with respect to the be-
erally. That resistance and that rejection are so strong that the Presi-
stowal of veterans benefits. An undesirable discharge may be taken
dential Clemency Board to date has received applications from no
before the military services' discharge review boards for appeal and
more than about seven-tenths of one percent of those qualified to apply.
upgrading; but it is very doubtful that these discharge review boards
About 800 applications out of a possible 120,000-only one in every
have jurisdiction to upgrade a clemency discharge given by the Presi-
150. It is that small number on which the chairman of the Board builds
dent as an act of executive grace. In fact, the issuance of a clemency
a structure of analysis about how men came in conflict with the law. It
discharge is a downgrading of the undesirable discharge, and, for this,
must be remembered that men who had intellectual, religious, or per-
the program expects the veteran to do up to 2 years of alternate, ill-
sonal objections to the war are least likely to apply for clemency be-
paid civilian work, in addition to the time he has already spent in the
cause they find the program objectionable. Surely, national reconcilia-
military service and the disabilities already inflicted upon him by
tion after the divisive experience of the Vietnam war is not being
virtue of the undesirable discharge!
accomplished by the Presidential Clemency Board. The Congress and
The subcommittee should also be aware that there is no satisfactory
the American people should learn why this is so.
rationale for offering clemency only to veterans whose less-than-
The Department of Defense has jurisdiction, within the Presiden-
honorable discharges were given because of absence offense. Tens of
tial clemency program, over persons who are subject to military au-
thousands of veterans, including many who served honorably and
thority and who have (or may have) violated the military laws against
heroically in Vietnam, some who have serious battle wounds from
desertion, absence without leave, or missing a military movement (arti-
that war, were administratively discharged by the services for every
cles 85, 86, and 87 of the Uniform Code of Military Justice), if these
imaginable variety of petty offense, most of them offenses that do
acts occurred between August 4, 1964 and March 28, 1973. The Depart-
not even exist in civilian life, much less have any bearing on their
ment of Defense has stated that there are about 12,500 military ab-
post-military life. Yet the rest of their life is blighted by their "bad"
sentees qualified to participate in the program. Some 2,200 military
discharge. The discharge policies of the military services are urgently
returnees have SO far been processed through the DOD's clemency
in need of systematic review and correction.
machinery, about 18 percent of the number eligible. I shall explain
Serious questions have been raised recently, in a major analysis in
presently why, in our judgment, the Defense Department's program
the Harvard Civil Liberties/Civil Rights Law Review, about the
is, compared to the other parts of the clemency program, SO successful.
legal validity of the present system of administrative discharges. In-
Military absentees who surrender to military authorities are sent to
deed, it is subject to question whether the President has the authority
Fort Benjamin Harrison, Ind., where the four services have estab-
by executive action alone to create an additional, sixth class of "clem-
lished a Clemency Processing Center. The returnee is normally proc-
ency discharge." But even if he had the power, we urge that the
essed there in one business day. He is required to sign a reaffirmation
express intent of the President's clemency program-to alleviate the
of allegiance, an admission of his violation, and a pledge to do an
harshness with which we otherwise punish those who came into con-
assigned period of alternate service. A Joint Alternate Service Board
flict with the war-be made real by giving every veteran a discharge
(JASB), composed of a colonel each from Army, Air Force, and
that will not haunt his entire post-military life and career. Only an
Marine Corps, and a Navy captain, considers the returnee's military
honorable discharge will accomplish that goal. It is tragic indeed that
personnel record and a form filled out by the clemency applicant. The
the clemency program should compound the injury, rather than miti-
1-page form contains only three questions: (1) Reason for absence
gating or abolishing it. That is what a clemency discharge does. It
from military service; (2) Employment during absence from military
remains perhaps the single most objectionable feature of the clemency
55-550 75 6
76
77
service; (3) Other matters I want the Board to consider. The returnee
(8) There are no published procedures and standards that describe
is given an undesirable discharge from his branch of the service. Upon
how the JASB considers cases and in votes upon determinations of
the satisfactory completion of the alternate service, the returnee may
terms of alternate service or class of discharge to be given.
obtain a clemency discharge in place of his undesirable discharge.
(9) The JASB gives no statement of reasons for its determinations,
Our objections to the administrative practice of the military clem-
nor is there provision for any appeal or review of its actions.
ency program are numerous:
(10) The judgment of the military services, normally made by the
(1) We believe that clemency judgments concerning military viola-
authority of the Commanding General of Fort Benjamin Harrison,
tors, especially alleged deserters, are not best made by the Military
as to the eligibility of a military absentee to participate in the clem-
Establishment itself, which is naturally antagonistic to the very no-
ency program are not appealable.
tion of leniency for those who violate its own code of behavior, espe-
(11) The clemency discharge held out to military returnees under
cially with respect to desertion. Virtually all the military absentees
the clemency program has precisely the same incurable defects that I
who qualify under the clemency program are enlisted men. The Joint
have already mentioned in my comments on the Presidential Clemency
Alternate Service Board is composed of four field-grade, career officers,
Board.
whose sympathies toward enlisted men charged with desertion are un-
(12) There has been a major conflict of statements by Department
likely to be warm.
of Defense spokesmen concerning the question of whether a military
(2) The required reaffirmation of allegiance is flagrantly offensive to
absentee who pledges but fails to do his assigned alternate service
the returnees, since in effect it charges them with having denied their
time can and will be prosecuted. The problem arises because the re-
allegiance, when all that can be charged against them is a violation of
turnee, after signing his alternate service pledge and the other forms,
military law, not a failure of allegiance to the country. The returnees
is discharged from the service with an undesirable discharge. Once
are acutely aware that no General Lavelle and no ranking officer in-
discharged, the military normally has no further jurisdiction over
volved in the My Lai coverup (see the Peers report) and no civilian
him.
or military official who lied to the Congress and the American people
If he fails to perform the alternate service, the only means of en-
about the bombing of Cambodia has been required to "reaffirm alle-
forcement appears to be an action by military authorities under article
giance" to the United States.
83 of the Uniform Code of Military Justice for having fraudulently
(3) The forms signed by the military clemency applicant include
obtained his undesirable discharge or by the Department of Justice
an admission of guilt, and a confession of having violated military
under 18 U.S.C. 10001 for making a false or fraudulent statement to
laws. Before signing the applicant is not given constitutionally re-
an agency of the U.S. Government. In order to prove fraud, the
quired warnings about his rights nor a preliminary hearing at which
prosecution would have to prove the deserter's fraudulent intent at
an impartial official might explain the charges against him and make
the time he signed the alternate-service pledge. But in most cases
an impartial assessment of whether the acts charged constitute a mili-
that would be extremely difficult and can be made virtually impossible
tary offense.
by thoughtful action on the part of the returnee. On September 19,
(4) In the extremely brief processing period at the Clemency Proc-
1974, Defense Department spokesman, Ken Pease, and Justice De-
essing Center, there is no adequate opportunity for the applicant to
partment spokesman, John Russell, were quoted in the Washington
have his personnel file reviewed by competent counsel acting in his
Post as having declared that there was nothing either Department
behalf to see whether ther are legal defenses against the absence of-
could do to enforce the deserter's alternate-service pledge. The briefing
fense that might make his application for clemency unnecessary. To
given by military officers to the returnees at Fort Benjamin Harrison
our information, there is no review of the lawfulness of the appli-
continues openly to give them this advice. On October 7, 1974, how-
cant's induction, no review of whether there may have been a wrongful
ever, the New York Times quoted Martin Hoffman, General Counsel
denial of an in-service application for discharge for hardship, depend-
of the Defense Department, who will be appearing here tomorrow, as
ence, or conscientious objection, and the like.
saying that they would institute prosecution in appropriate cases, and
(5) The applicant has no opportunity to appear before the JASB
the Justice Department was similarly heard to mumble about prosecu-
to state his case or to make a plea for mitigating considerations.
tion under title 18 of the United States Code. We think it essential
(6) The three-question form filled out by the applicant, aside from
that this matter be authoritatively clarified. The Defense Department
being sparse and inadequate to say the least, gives him no hint as to
and the White House have claimed that this so-called deserters' loop-
what standards the JASB considers in mitigation and, therefore, is
hole was not accidental but knowingly and intentionally created in the
ill-designed to help the applicant state his case to his advantage.
clemency program (New York Times, Sept. 19, 1974). If that is the
(7) The published standards in mitigation of the maximum (and
case, the threats of prosecution are sheer harassment. It would be
usual) 24-month alternate-service sentence include only personal hard-
extremely helpful if the subcommittee could obtain a final and au-
ship and "good soldier" elements. No weight whatever is given to the
thoritative ruling on this matter.
conscientious and unselfish motives that prompted the acts of many of
The apparent unenforceability of the deserter's alternate-service
the military absentees. Eighty percent of the military returnees have
pledge accounts entirely for the fact that the military clemency pro-
been given alternate service sentences of from 19 to 24 months, ap-
gram is relatively the most successful of the program's divisions. About
proaching the maximum.
18 percent of the potential applicants have submitted, compared with 7
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78
Senator KENNEDY. Thank you very much. We have some questions,
percent of the Board's potential clientele and about 2 percent of the
but we will withhold those questions for a little while.
Justice Department's. This is dramatic evidence for our contention
We will hear from Mr. Wilson now. For the benefit of the witnesses
that no punitive system of clemency, no conditional amnesty, will
we will continue until about 12:50 and then recess until 2:15 p.m.
achieve the President's objective of healing the Nation's wounds and
Senator Hart will chair the hearings this afternoon. I will be unable
overcoming the divisiveness of the Vietnam war among ourselves. The
to attend.
military clemency program, to all intents and purposes, is uncondi-
Senator HART. Mr. Chairman, let me apologize for leaving now.
tional, and despite its other serious shortcomings, that fact alone
I shall be back.
accounts for its strikingly higher ratio of success in returning war
STATEMENT OF JAMES WILSON
resisters to our society.
In concluding, let me only add this: The legal cloud that has been
Mr. WILSON. I just wanted to say before you leave, Senator, that I
cast over the deserters' loophole accentuates one of the chief objections
did bring one of our representatives of our rehabilitation staff here
that must be raised against the Presidential clemency program
who have been handling these cases.
generally. The program obliges war resisters to reaffirm allegiance to their
But one point I want to make clear is that we did not suddenly have
an enlightened opinion on this whole thing. We have been representing
country, which they had never denied but rather passionately affirmed;
young men with less-than-honorable discharges when the war began
it forces them to admit that they have committed crimes, when the
and we will continue after the January 31 deadline.
world and many of our fellow citizens, including much of our moral
Senator HART. I am delighted. I did read your statement in which
and political leadership, came to believe that the war itself was a
you make that point very clear.
crime; it compels them to confess that they did not fulfill their obliga-
I suppose the reason I did not assume that this service was gone was
tions as citizens, when they have spent years of their young lives
because of the very explicit opposition that we in the Legion as an
either in prison, underground in their own country, in exile abroad,
organization took with respect to those who said, in short, "I cannot
or in the military service itself; it now asks them to concede that this
serve in this war." It was a pretty hard-nosed position throughout.
Government has the moral and legal authority to impose punish-
Mr. WILSON. I just want to clarify this one matter. I will summarize
ment upon them for their acts of war refusal. The loophole problem
very briefly, and not read my statement.
makes it quite clear; the Presidential clemency program demands
The American Legion was opposed to unconditional amnesty, and
that war resisters lie to the Government in the process of begging it
from what I have heard here this morning it seems that the Legion's
for mercy. That is not the way a country makes peace with its young
position was certainly valid and that each case should be considered
on its individual merits. That is all we ask for.
sons. The war in Southeast Asia was a catastrophe for the world, a
Senator HART. I am still not convinced that the case-by-case proce-
horror for the peoples of Indochina, and a tragedy for our country.
dure will do other than accumulate a lot of files and reach only a small
Amnesty-or clemency-should be one gesture in the direction of end-
percent of those who we should be reaching. If you can tell me how
ing the tragedy. The Presidential clemency program, it seems to us,
we can protect against giving a ribbon to the fellow who robbed the
prolongs the tragedy for tens of thousands of young Americans.
headquarters company fund, if you can tell me how we can keep him
Modifications in the present program are essential and might miti-
out, I am still for blanket amnesty.
gate some of the worst features of its implementation. But the pro-
Mr. WILSON. Of course, we will continue to be opposed to a blanket
gram's very conception will remain punitive, demeaning, discrimina-
amnesty, but we will continue to represent men with less than honor-
tory, and hurtful. No clemency that is conditional, that makes the
able discharges, even though these young men cannot belong to the
impossible attempt to assess the personal, subjective, religious, moral,
American Legion. We finance the representation of these young men
ideological, religious or political motivations of people's acts of war
out of dues of people who are honorably discharged. We have 500,000
refusal, that offers clemency to some but not to others in similar
members who are Vietnam-era veterans, honorably discharged. We
situations. No such system will reconcile us with those young men and
will continue to perform that service.
women for whom the war should now also come to a close. For that
Senator HART. Among my Legionnaire brethren are the fathers
reason the Presidential clemency program is and will remain a failure,
of a lot of young men who all of a sudden found that they had to go
not only statistically but also morally and humanely. We hope de-
to the doctor to accumulate a big file for the time they were called
voutly that hearings help persuade the American people and the Presi-
up. The whole inconsistency of this thing is what contributes to my
dent that it is time to end the war for our own sons, and that
desire to see if we can't just lay a blanket under it, and as the word
only a universal and unconditional amnesty will accomplish that noble
means, forget it.
Mr. WILSON. Mr. Chairman, if I may, I would just briefly like to
purpose. I shall leave comments on the other two major aspects of the Presi-
go over my statement. It will just take 2 to 3 minutes.
dential clemency program to my colleague, John Schulz, of the Public
Senator KENNEDY. You may take what time you need.
Law Education Institute, the editor of the Military Law Reporter
Mr. SCHULZ. Mr. Chairman, I am happy to wait until the after-
and former editor of the Selective Service Law Reporter.
noon except there is one single matter in the oral statement I wish to
make which I think is of extreme urgency to the young men abroad
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81
in Canada, the 10,000 to 30,000 young men who think they are draft
Or perhaps, one might publish a list of the 70,000 to 80,000 who
violators and who are not. It would be a shame, Mr. Chairman, that
were found not to be criminals. Their reputations have already been
this could not be said when the press is here.
sullied by FBI agents running about in their communities and con-
Senator KENNEDY. I am sure, Mr. Wilson will give you 2 to 3
tacting their families and neighbors about their "crimes." They would
minutes to say it, but then I want to give him a chance to continue.
be in effect vindicated if the Justice Department were to publish a
Mr. SCHULZ. Thank you very much.
list saying they were not draft violators. They don't need clemency.
Let me say my name is John Schulz, editor in chief, Military Law
That is the most urgent aspect of this problem. These are simply not
Reporter, and former editor of the Selective Service Law Reporter.
criminals, in the most concrete sense of the word.
In that prior role I learned a lot about the administration of the
That is all I would like to say at this point, Mr. Chairman.
draft, and in fact, it was brought home more recently in concrete form
Senator KENNEDY. Well, I think that is an eminently sound and fair
that about 200,000 young draft registrants were considered violators
suggestion, and one which the Justice Department should follow. We
by Selective Service in the 10 years covered by President Ford's plan
will have a chance to bring it up with the Justice Department repre-
and had their cases referred for prosecution to the Justice Depart-
sentative who will be testifying here tomorrow.
ment. No more than 10 percent, about 19,000, were even indicted, and
I don't know how you could possibly argue with the reasoning of
about a third of those were convicted. In other words, about 3 per-
that proposal. You could object to the lack of manpower and resources
cent of the 200,000 young men who refused induction between 1964
to do it, but I think this suggestion is one which certainly should be
and 1973 are in fact not draft violators, yet many of them, I think, are
followed up.
still out there and consider themselves to be draft violators. I am
Mr. SCHULZ. Let me express my thanks to Mr. Wilson for letting
talking about people who have not committed a crime, people whose
me have these few minutes.
cases were dropped by the Justice Department's attorneys.
Senator KENNEDY. Do you have any reaction to that, Mr. Wilson?
As I said, this was brought home to me when a young man came to
Mr. WILSON. No, we have no objection, Mr. Chairman. We would
me who had been living underground for 2 years. He told me about
like every young man who is guilty of nothing to be aware of it.
his draft case. I thought something was wrong. I called the U.S.
I might say also, Mr. Chairman, before proceeding with this very
attorney, who told me that this man was indicted in 1971, but that his
short statement, that I felt a special obligation in coming up here,
case was dismissed in 1972 for an error. And he never knew, his
because as you are aware and as you pointed out in your preliminary
family never knew, the case was dropped although he had been told
statements, that there are many, many organizations in this town who
many times by Selective Service, by the FBI, by the U.S. attorney that
have qualified representatives who perform the same services as the
he was a violator. This man, whose name is Alan K. Merkle, is in the
American Legion who would have liked to appear before this sub-
hearing room today and for the first time, he can use his name
committee. Frankly, the ratio isn't too good today, but we are willing
publicly.
to take the odds we are facing today.
Senator KENNEDY. What are you suggesting?
But anyway, I would like to briefly state how we view the situation
Mr. SCHULZ. As a minimum, 20 percent of the people whose cases
at the present time.
were declined are innocent. That makes 40,000, perhaps 60,000. It
Senator KENNEDY. You seem to be doing very well for your side,
seems to me it would be minimum decency in normal times for the
Mr. Wilson.
Justice Department to tell these people that they are not criminals.
Mr. WILSON. Thank you very much.
Many of these people still think they are criminals. They received an
For the record, and as this subcommittee is aware, the American
induction order and did not know the induction order was illegal
Legion by action of succeeding national conventions offered a different
since the induction board made a mistake. Travis, which was this
means of resolving the amnesty issue than that chosen by President
man's alias, lived underground for 2 years or more, although he com-
Ford. We felt then, and we feel now, that the handling of the cases
mitted no crime. It seems there is some obligation on the Justice
of deserters and/or draft evaders should be through already estab-
Department or Selective Service to tell such a man that he is not a
lished judicial systems.
violator. How much stronger is that obligation, Mr. Chairman, in
We presented our viewpoint to both Senate and House committees
what is said to be a clemency program, in a period, according to
and to the President himself. However, once the President's proclama-
President Ford, in which justice and mercy should predominate! Yet
tion was issued, the matter was resolved. We used all of our means of
to this day, the Justice Department has taken no steps to help out
communication to make the provisions of the President's plan well
these 30,000 to 70,000 young men in limbo.
known to our membership of nearly 2.7 million veterans.
With Christmas coming up nothing could be more appropriate. One
Perhaps this effort was redundant for press, radio and television, in
way to inform the innocent might be to establish an official closed list
of people that are considered to be violators, with the possible excep-
fact, almost every form of communication has repeatedly covered this
matter in depth. The media should be commended for the splendid
tion of people who did not register, and then let everyone call, prefer-
job it accomplished in making known to all Americans, but particu-
ably, an independent organization that they could trust to see if their
name is on that list.
larly to those affected, of the opportunity President Ford's proclama-
tion provided.
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83
In announcing his "earned reentry" program, President Ford clearly
The American Legion has followed the progress of the amnesty pro-
stated his objective "to give these young people a chance to earn their
gram since its inception last September. Special briefings have been
return to the mainstream of American society SO they can, if they
held for the National Security Commission in Indianapolis dealing
choose, contribute to the building and betterment of our country and
with the procedure for processing military deserters through Fort
Harrison and Camp Atterbury and with Selective Service responsibil-
the world."
President Ford "promised to throw the weight of his Presidency
ity. My staff and I also attended the recent press conference held by
into the scales on justice or the side of leniency and mercy, but (to)
the President's Clemency Board and kept in touch with the Govern-
also work within the existing system of military and civilian law and
ment agencies to determine how well the program was being received.
the precedents set by (his) predecessors."
Much of this information has been transmitted to our national officers,
In keeping with the spirit of the clemency program, it is our view
to our policymaking bodies and to the membership at large.
that the program is not vindictive. It has and does provide a just
We feel that every young American to whom President Ford has
opportunity for more than 128,000 young men to reenter American
offered the chance to earn his way back into society is aware of the
society with far less sacrifice and risk than those who chose to serve.
provisions and mechanics of the program. However, if this is not the
The program has been in effect for more than 3 months and those
case, time still remains to apprise any who may not have knowledge
eligible for its provisions may still enter for 6 more weeks. However,
of the program.
the "open hand" of reconciliation should be terminated as announced
The fact that more have not taken advantage of the program is not,
on January 31, 1975.
in our judgment, through lack of information about it or how to pro-
The vast majority, more than 85 percent, of those covered by the
ceed to apply, rather we believe the draft evader, particularly, does not
clemency program are military deserters or absentees who still have
feel it is enough. Nothing short of complete, unconditional, automatic
redress after the program's termination date. Each convicted military
amnesty will satisfy this category among all those who refused to serve.
absenteee and a far larger number of Vietnam era men separated with
Based on our assessment, it is our recommendation that the pro-
less-than-honorable discharges may apply to the Discharge Review
gram's deadline should not be extended nor its provision liberalized.
Board and/or the Board for Correction of Military Records of their
Thank you very much, Mr. Chairman.
respective service.
Senator KENNEDY. Let me violate my own rule that I said about let-
The circumstances surrounding their violation of the Uniform Code
ting everybody speak, but since we have had comments and since I will
of Military Justice are a "mixed bag," and this is exactly what Mr.
not be able to be here, I would like to ask you a question, Mr. Wilson.
Goodell said. Seldom does their misconduct stem from a fervent per-
Do you really believe that if there was to be a broader amnesty that
sonal or moral opposition to the war in Vietnam. Their reasons for
this would impair the opportunity to raise a military force for our
absenting themselves parallel their fellow servicemen in nonhostile and
country at sometime in the future?
other hostile period, personal and family problems, inability to adjust
Mr. WILSON. I think it would definitely have an effect on the raising
to military society, overriding financial obligations, and a myriad of
of armies in any future conflicts, and God forbid that we ever get into
other reasons completely unrelated to Vietnam.
another one.
The American Legion, upon application, has and will continue to
Senator KENNEDY. So your view is that a broader kind of amnesty
provide administrative assistance and counsel before the discharge
program would pose a threat to the country in its ability to raise a
review boards and the boards for the correction of military records to
military force for its self-defense?
these former servicemen.
Mr. WILSON. Senator, it might not seriously impair them, because
Mr. Fattig, one of our representatives before these boards is here,
as was the case in Vietnam, I am sure somebody else would step up to
and if there are any technical aspects of this he will be delighted to
take their place. But I get back to the fact that the amnesty program
answer questions.
is not correct, or if the law that brought these young men into service
For the benefit of the Clemency Board, these men are not lawyers,
was not correct then I think it would be incumbent upon the executive
and for that reason their appearance as counsel for the Clemency
as well as the legislative to make needed changes. As Senator Thur-
Board would be of questionable value.
mond said we are a nation of laws, and if we become a nation of men
First, we strongly opposed the assignment of draft evaders or mili-
who violate the law, we will be in serious shape in the future.
tary deserters to Veterans' Administration hospitals, which we felt
I might say one last thing, Senator. If the Congress in its good
would be a direct insult to many of those who served and who are re-
judgment or the President in his good judgment finally decided and
minded daily of their painful sacrifice. Furthermore, it would be
the plan was changed or the law itself was changed the American
grossly unfair to those who chose not to serve.
Legion would not oppose the law. We never have and we never will.
Second, we are concerned that some alternate service assignments
We abide by the law.
would eliminate jobs for Vietnam veterans, particularly the 20-24 age
Senator KENNEDY. We will recess, and I hope you will all be able to
category whose unemployment rate has risen to a distressing 12.4 per-
come back at 2:15 SO we can continue with questions at that time. I
cent. We have received assurances from both the Administrator of
have further questions from Senator Mathias and a few other mem-
bers as well.
Veterans Affairs and the Director of the Selective Service System that
neither of them will occur.
We will recess until 2:15. I want to thank you all very much.
84
85
[Whereupon, at 12:55 p.m., the subcommittee was recessed until
2:15 p.m., the same day.]
bothered to tell him or his family that he was home free, that he was
innocent.
AFTERNOON SESSION
Instead of having to go by the alias of Travis, this man can use his
name, Alan Merkle. I wonder if he would stand up for the record. He
Senator HART [presiding]. The subcommittee will be in order.
is a carpenter here in Washington now and can now ply his trade
We always make the promise that we will read the record to inform
publicly.
ourselves as to what happened when we were necessarily absent. That
Senator HART. So that I may understand it, you say that the Justice
doesn't help me learn at 2:15 what happened after I left.
Department knows by name several thousand men who have been
Who remains to be heard
found to be not guilty of a charge that is in the files some place?
Mr. SCHULZ. I am not absolutely sure they know all these names.
STATEMENTS OF A PANEL CONSISTING OF JOHN SCHULZ, EDITOR
Senator HART. That would be my question. How are you going to
IN CHIEF, MILITARY LAW REPORTER; HENRY SCHWARZS-
notify the ones?
CHILD, DIRECTOR, AMERICAN CIVIL LIBERTIES UNION PROJECT
Mr. SCHULZ. There is a way for them to notify them.
First of all, I believe that the position the Justice Department has
ON AMNESTY, ACCOMPANIED BY EDWIN J. OPPENHEIMER,
taken would be outrageous in normal times, but in a period of clem-
ACLU; AND JAMES WILSON, DIRECTOR OF NATIONAL SECURITY,
ency a time when its major responsibility as outlined by the President
AMERICAN LEGION-Resumed
is to emphasize justice and mercy, this becomes indefensible.
There are several ways to go about informing these people, even if
Mr. SCWARZSCHILD. Both I and Mr. Wilson have made our state-
not every U.S. attorney has files, as good as those of the Detroit U.S.
ments. Mr. Schulz is left to make his statement.
attorney. It is possible to ask Justice to prepare a complete list of all
the people it still does want to prosecute with the possible exception of
STATEMENT OF JOHN SCHULZ
cases of nonregistration, which I am not referring to.
Mr. SCHULZ. Senators Hart and Thurmond, in fact I did make a
Nonregistration is a sort of offense that never came to the attention
brief statement before lunch of what I consider to be the most crucial
of the Justice Department, and I would accept their refusing to dis-
part of my testimony, namely the continual refusal of the Justice
close their list for nonregistration cases.
Department to tell a large number of young men-a figure which on
But for all the other violations, the Justice Department has told the
their own analysis may be as great as 40,000 persons-that they in
president of the institute I work for, Mr. Thomas P. Alder, that they
fact committed no violation of the selective service law during the 10
firmly believe they want nobody but the 7,000 currently under indict-
years covered by President Ford's program, but young men who think
ment and investigation. So, I think, Justice could make a list available.
they violated the law.
To protect people, it would not necessarily have to be fully public;
They think they violated the law because most of them got an in-
rather, it could be given in trust to an independent organization which
duction order, not knowing it was illegal, and because the FBI con-
these underground people and fugitives could then call to discover if
tacted them; and they think they violated the law because they were
their name is on the list; if not, they are innocent.
The Department of Justice has made one list public already, but as
indicted. But nobody in this group was told that the Department of
Justice later decided that they had not violated the law.
soon as it was given to the National Council of Churches, Assistant
Senator HART. The decision being a class situation
Attorney General Henry Petersen hastened to say it was not reliable,
Mr. SCHULZ. Mr. Chairman, no. Data supplied to this subcommittee
not a complete list, that is, that some persons considered violators were
not on the list, and some persons on the list were not considered
by the Justice Department indicates that 20 percent of the 200,000-odd
violators. What we need is an official closed list.
cases in which prosecution was declined between 1964 and 1973, were
bad cases.
In a curious way, this problem is not really the gist of the Justice
My own analysis, which you can find in my written statement, sug-
Department clemency program as they see it. They think that there
gests that the percentage of those 200,000 decisions to drop cases which
are no young men who are innocent but think themselves guilty. But
Alan Merkle came to me. And I understand that the counseling offices
represent bad cases, bad files because of Selective Service mishandling,
may be as high as 80 percent. But even if it is only 20 percent, that
in Canada are beginning to discover literally hundreds of people in the
same situation.
means 40,000 persons. If my analysis is correct, the figure is over
[See appendix for correspondence relating to this case, pp. -
-
100,000. If it is somewhere in between, we are talking about maybe
Mr. Chairman, the Justice Department response to this problem
75,000.
This state of affairs was brought home to me when a young man came
generaly illustrates its overall handling of the clemency program. In
short, the Justice Department program has not been implemented and
to me who had been living underground for quite a while thinking he
was a draft offender. He told me his story. I thought that something
operated in a spirt of clemency. Rather, I think, it looks mainly like
was wrong in the handling of his case. I called, in fact, yesterday, I
prosecution business as usual. U.S. attorneys are in charge of it. I
checked with the assistant U.S. attorney in Detroit about it. The
guess you can't expect much more from them. Their normal job is to
young man had been indicted in 1971, but the Justice Department dis-
be prosecutors. There are nearly 100 of them. They do things dif-
missed his indictment in 1972. Afterwards, he lived underground need-
ferently, SO the program isn't uniform. Guidelines go out to them
lessly without knowing any better, because although the FBI and the
Selective Service repeatedly told him he was a violator, nobody
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86
Senator HART. It is my understanding that each of our panelists
labeled "prosecutorial" instead of clemency, SO of course they must be
have had an opportunity to make their presentations.
supersecret; and potential applicants cannot learn about the program
Let me inquire of Senator Thurmond if he has some questions. He
they are supposed to make a decision about and come and sign up for.
must leave very soon.
In fact, the day the program was announced by President Ford,
Senator THURMOND. Thank you very much, Mr. Chairman. I ap-
Deputy Atty. Gen. Laurence Silberman said in a White House
press conference that the Justice Department part of this clemency
preciate your courtesy. I have a couple of questions here for Mr. Wilson
program closely resembled a pretrial diversion program in the courts.
of the American Legion.
Mr. Wilson, for the record, would you tell us what is the American
In the usual case a person thought to be guilty of an offense is diverted
Legion's opinion of the Presidential Clemency Board, and express
into a probation-like program without ever going through a court pro-
ceeding which finally determines his guilt or innocence. The Justice
your opinion on it?
Mr. WILSON. Senator, we feel the Board itself is excellently bal-
Department's "clemency" program is quite similar.
anced. We feel that we have opinions on both sides of the question,
Indeed, it is instructive, I think, to compare the Justice Department
program with a routine pretrial diversion purogram. I think on such a
and yet enough wisdom and charity, and I think this is evidenced
by the Board's first recommendations to the President that justice and
comparison the Justice Department program, which is supposed to
represent clemency, comes out a decided best.
fairness will prevail with this composition. I see no reason to doubt
otherwise.
First of all, in the Justice Department program a large and indeter-
Senator THURMOND. What steps are being taken by the American
minate number of persons are supposed to come in off the street. Of
Legion to assist people who want to apply to the Presidential Clemency
these, only a low percentage are guilty. Only 31/2 percent of the 200,000
Board?
referred for draft prosecution who once thought themselves viola-
Mr. WILSON. Senator, I did mention this morning to the chairman,
tors in fact. have ever been convicted. Only about 30 percent of those
but I will repeat it. We have a full-time paid staff, that since the
indicted have been convicted in the last 10 years, which is a far lower
American Legion was first organized and our rehabilitation service
percentage than in Federal bank robberies or narcotics convictions,
set up, have always provided free service for any man with less than
where 80 to 90 percent are convicted. So there is less certainty that one
an honorable discharge. These are normally referred in from the field
entering the Justice Depatment program is in fact guilty, than in the
where we take power of attorney. When they come in we have a staff of
normal diversion program.
experts, although they are not attorneys, who represent our people
In the second place, both programs have some kind of screening. In
before the boards for correction of military records and also the dis-
the Justice Department arrangement, there is no firm guarantee that
charge review boards.
counsel will be supplied. In his November 13 telegram, Mr. Saxbe, the
Not to blow our own horn on this, but these are people not eligible
departing Attorney General, said "an effort will be made" to supply
for American Legion membership, as I pointed out to the chairman,
counsel for indigents. Parenthetically, it seems to me that the Criminal
and we certainly have nothing to gain from this, but we feel it is the
Justice Act applies to persons under the clemency program. It is co-
thing to do and that is our record and will continue to be a service
extensive with the constitutional right to counsel, which attaches as
provided to these people after January 31.
soon as a person becomes a suspect under Escobedo V. Illinois.
Senator THURMOND. What is the American Legion's stand on
In contrast, a routine diversion program supplies counsel normally.
clemency for draft evaders and service deserters?
And counsel is not an academic point. As I already said, the mix of
Mr. WILSON. Pardon me, sir?
persons coming into the Justice Department may include a large
Senator THURMOND. What is the stand of the American Legion on
number of people who aren't guilty and who really need the help of
draft evaders and service deserters; what is the position of the Amer-
counsel to screen them out.
ican Legion?
Finally, the Justice Department program imposes a more onerous
Mr. WILSON. Well, our position, Senator, based on several national
obligation on participants than the routine pretrial diversion mechan-
conventions has been opposed to general and unconditional amnesty. In
ism. With Justice, the outcome is usually 2 years obligatory labor at
my statement we indicated that once the President made his decisions,
low wages. In contrast, pretrial diversion in the courts usually only
we considered the matter resolved. We tried to prevail upon the Con-
requires a person to keep his nose clean for a certain period of time
gress. Our commander a few years ago appeared before Senator Ken-
and stay in a certain geographical area.
nedy's subcommittee, and then we appeared before Congressman
In conclusion, Mr. Chairman, the Justice Department "clemency"
Kastenmeier's committee-and made our plea for the case-by-case
program is harsher, than its normal "criminal" counterpart at every
handling procedure. Our present national commander went to see
point of comparison. Moreover, each of these aspects reinforces the
President Ford and made our recommendations, but once the President
others. Since the outcome is harsher, more rigorous due process stand-
had made his decision we have tried to accommodate ourselves to the
ards should be observed, but are not. Since only few potential partic-
decision that was made on amnesty.
ipants may be guilty, counsel should be supplied automatically, yet it is
Senator THURMOND. Thank you very much.
not. What we have is a program that is flawed at every step.
Now, I have just a few questions here for Mr. Henry Schwarzschild,
Frankly, I don't understand how this public national clemency pro-
Director of the American Civil Liberties Union.
gram has turned into a secret, individualized prosecution program in
the hands of the Justice Department.
88
89
What do you believe the proper role of lawyers outside the Govern-
requests we have been able to and will continue to meet that request
ment should be in helping to make the President's clemency program
for legal assistance.
work?
Senator THURMOND. Thank you very much.
Mr. SCHWARZSCHILD. The proper role of lawyers outside the Govern-
Thank you, Mr. Chairman. I appreciate your kindness.
ment is to advocate to the best of their ability the interests and rights
Senator HART. On that last point, remembering an exchange with
of their clients, and that is certainly and very emphatically true with
Mr. Goodell this morning, I got the impression that he felt that repre-
the war resisters of the Vietnam era. The question remains whether
sentation was not being provided, at least with respect to certain areas,
it is the judgment of these lawyers and other organizations whether
under this clemency.
the best interests of the war resisters are advocated in this program
Mr. SCHWARZSCHILD. I am grateful for the opportunity of respond-
or not. In our judgment, a great many of the people qualified under the
ing to that.
program have better legal options in the legal process outside the
The story on that is the following, Senator. As I have just explained
clemency, because as Mr. Shulz has indicated, a great many have
to Senator Thurmond, we represent a great many war resisters in all
turned out to be not violators at all and in service claims wrongly
aspects of the clemency program, and in other legal matters that read
handled and defenses against the charges of desertion and draft vio-
down to their interest.
lation, and we make judgments all the time as lawyers do in the ordi-
The problem that Senator Goodell referred to is the following: The
nary course of this work what the best interests and rights of their
ACLU, together with other important lawyer organizations and other
clients are. The ACLU has represented, and continues to represent war
concerned organizations around the country, when the clemency pro-
resisters in great numbers before the various agencies involved in the
gram was first announced, organized the clemency organization in
clemency program and other legal channels appropriate to their best
Washington. On the steering committee of that ad hoc group sat staff
interests.
members not only from the ACLU, the Lawyers Committee for Civil
Senator THURMOND. Are you satisfied with the degree to which
Rights Under Law, National Legal Aid and Defenders Association,
lawyers' organizations around the country have fulfilled their role in
Public Law Education Institute, Central Committee for Conscien-
connection with the amnesty program?
tious Objectors, National Conference of Black Lawyers, Center for
Mr. SCHWARZSCHILD. We have been traditionally very much in need
Social Action of the United Church of Christ and the Washington
of additional volunteer legal services for people in conflict with the
Council of Lawyers, and the like.
draft and the military and the war in Vietnam. At the present time,
That group was formed in order to be a method of channeling
organizations have made judgments with respect to their responsibil-
applicants for clemency to legal representation, to be an intermediary
ities within the limits of their capability and their resources SO to
between applicants for clemency and legal services from volunteer
apply their legal resources that they can best serve the interests of the
lawyers.
community of those who came into conflict with the law in the con-
From the very moment of the inception of that program it began
text of the war.
necessarily to look into the question of what procedure boards and
I am satisfied that all the organizations I know of and have worked
what the remedies were offered. We began to immediately observe from
with have done SO. I think it would be an enormous asset to the clem-
the middle of September that the Clemency Board had established no
ency program if the Presidential Clemency Board and the other agen-
procedures, that remedies were either vague or distinctly hurtful to
cies involved would make a formal determination that the procedures
the interests of the potential clients, and we therefore began to explore
fall within the purview of the Criminal Justice Act and they can
extended discussions and negotiations with the staff and leadership of
be compensated under the act in the clemency program.
the Board to consider the remedies which were being held out to them.
Senator THURMOND. Since the ACLU was established to represent
Since relief did not come until just a week or SO ago, perhaps 2 weeks,
indivdual clients with civil liberty problems, your organization has
better than halfway through the clemency program, at which time it
expressed differences with the shape of the President's clemency pro-
got around to publishing tentative procedures and regulations, that
gram. Notwithstanding those differences and the fulfilling of your
group of organizations decided that while it might furnish individual
mandate to help individuals in need of legal representation. how many
counsel to individual applicants for clemency it would not serve the
individual applicants have obtained counsel from the ACLU!
Presidential Clemency Board as a clemency bar for these reasons: The
Mr. SCHWARZSCHILD. I cannot say that with any specific certainty,
men who might apply for Clemency Board were not in any legal jeop-
we have full-time lawyer on base at Fort Harrison. He is supervised by
ardy. They had already had their legal jeopardy, convicted or dis-
Professor Sherman, professor of law at Indiana University, a clemency
charged punitively from the service, and they didn't need representa-
litigation director, who is sitting here beside me, Mr. Oppenheimer, of
tion very urgently. Meanwhile, lawyers couldn't responsibly represent
the military rights process here in Washington. There are So many
to the country procedures that weren't even remotely satisfactory.
cases with respect to the military aspect of the program, the Justice
This group of lawyers said, second, unless certain essential state-
Department's aspect and the Clemency Board that he cannot give you
ments were made on the record about procedures and records we
at this moment a correct figure.
could not permit the Board to act as though this lawyer's organization
We would be prepared to furnish legal representation to any war
approved of procedures of the Board. We said at all times that when
resister who qualifies under the program and whenever we have the
these matters were settled in the minimum interest of due process and
90
91
humane remedies these organizations would reconsider what in effect
was a boycott of the request of the Board.
considers itself to be discretionary would be mandatory under the
Very recently, within the past 2 weeks, and again this morning
APA. I would certainly hope this subcommittee, being the Subcom-
very material changes have been made, and the organizations are ready
mittee on Administrative Practice and Procedure, would explore
and are in the process of reconsidering whether these challenges will
the possibility of making sure APA procedure was asserted on the
meet the needs, and if that is true, we shall be glad to serve as the
Clemency Board.
clemency bar for the Board.
Senator HART. How recent was the district court's—
Senator Hart, we have, during all this period been willing and
Mr. OPPENHEIMER. Pickus V. Board of Parole in the District of
ready, and in fact implemented our attempt to represent every clem-
Columbia Court of Appeals.
ency applicant who requires our legal representation.
Senator HART. Mr. Wilson, you recommend that the program ter-
Senator HART. Senator Goodell, as I recall it, said when I suggested
minate as of the date fixed for its expiration, the end of January.
perhaps a lawyer would conclude that his client's best interest lay in
Senator Goodell this morning did not testify as to what his recom-
the regular process rather than this clemency, that no one could say
mendation on that would be, but it is clear that a very high percentage
that was true with respect to the individual who had already been
of eligibles are not yet participating. I think there is disagreement
found guilty and perhaps done time. Only the pardon would be a use-
between you and Snator Goodell as to why.
ful remedy. Do you agree with that?
Mr. WILSON. Well, I understood when the Chairman was testifying
Mr. SCHWARZCHILD. No, I do not. That is not entirely accurate
that he didn't hold out much hope for it being extended on
even with respect to those cases under the Clemency Board, and cer-
January 31; perhaps I misunderstood him.
tainly not true of those cases within the jurisdiction of the Justice
Senator HART. He said he wouldn't tell us what his recommendation
and Defense Departments. Even before the Board it is not true. For
was.
example, persons convicted under the Federal statutes, including
Mr. WILSON. I may have misunderstood him, but I thought he gave
Federal Service Act, can apply for a Presidential pardon after a period
a little personal prognostication that he didn't think the chances were
of 3 years upon termination of their sentence. If granted, that pardon
very good.
would not carry an alternate service sentence. It would not obligate
The only thing in our research after World War II, the old Roberts
them in addition to their prison sentence of serving up to 2 years serv-
board was in existence from 1946 to 1947, which by comparison and
ice. So there is a better remedy.
precedent would indicate that this board, of course, had a shorter life
I might ask Mr. Schulz and Mr. Oppenheimer to comment on that
than did the original Roberts board, for whatever it is worth.
because they are more competent with respect to the other legal reme-
Mr. Schwarzschild. Senator, I think there may be a slight mis-
dies that persons convicted have.
understanding here. The life of the Board by virtue of the Executive
Senator HART. There is a matter on the floor that I might find out
order of President Ford does not expire until the end of 1976. Its
about. Pardon me for a moment.
life continues through December 3, 1976. What expires on January 31,
[A short recess was taken.]
1975, 6 weeks from now, is the time in which qualified applicants may
Senator HART. I apologize, gentlemen.
submit their petitions for clemency to the Clemency Board or the De-
Mr. OPPENHEIMER. Senator, alternative remedies to applications to
fense Department or Justice Department. The Board continues for
the Presidential Clemency Board include a motion under title 28,
another 2 years beyond that for the processing of applications by the
United States Congress, section 2255, to set aside the verdict based on
time January 31 of next year rolls around.
changes in selective service law which occurred since the man's con-
Senator HART. I was not clear on that.
viction. Certainly if the man was convicted and sentenced under the
But even with that clarification, it is true that for the 80 percent of
Youth Corrections Act he is allowed to apply to expunge his convic-
the eligibles have not applied by the end of January the opportunity
tion. The Supreme Court held in the Davis case that remedies were
to participate in the program is over unless the President extends the
certainly available. They are more comprehensive and go to the ques-
date.
tion of expunging conviction totally which a pardon does not do,
Mr. SCHWARZSCHILD. The time for applying for clemency. Twenty
certainly a more viable remedy.
percent of the number eligible would be an extraordinary rise from
Much of the contention necessary which has occurred to men who
present developments, because as you have heard, only 2 percent of
apply to the Board tend to center around those provisions, that appli-
those eligible have SO far applied and only 2 percent of those eligible to
cations should be forthcoming as a primary consideration. I think any
apply to the Justice Department. The figure for the Defense Depart-
attorney would consider that not so.
ment is higher, about 80.
As to the question of representation, there is a question the subcom-
The military clemency program is in fact unconditional. It cannot
mittee has not touched on, and that is the administration of the Ad-
compel the returing military absentee to perform his service.
ministrative Procedure Act. That has continually been the procedure
Our own sense on the question you raise with respect to the exten-
of the Presidential Clemency Board that administrative practices do
sion of the deadline is really rather complicated. We believe this Presi-
not apply. It seems to me if the Board of Parole acknowledges this the
dential clemency program to be SO deficient in its moral and political
Clemency Board would. It means many discretionary provisions or
assumptions and SO deficient in its rehabilitation that we think it is
right to a statement of reasons by the Board which the Board now
very misleading to the American people with respect to the notion there
55-550 75
92
93
has been amnesty for those who came in conflict with the war in Viet-
who found the war unbearable and unacceptable and refused to par-
nam. We are concerned and emphasize that misrepresentation of what
ticipate in it.
has been going on.
Senator HART. Mr. Wilson, did you have something you would like
Since our position remains that really only an unconditional uni-
to add?
versal amnesty with our own children who came in conflict, and are
Mr. WILSON. No, in my statement, Senator, we have pretty well said
quite inclined to think there is a material injustice in saying that
that most of the people who got in trouble would have gotten in trouble
people who appply by January 31 may have clemency, and that people
whether there was a war or whether it was peacetime. We figure it is
who have not heard about it until then or have been prosecuted will not
over and above those people, and the matter of crimes would have to
have the option for applying for clemency, but it is that internal in-
be resolved. I think the President's amnesty program realizes that all
justice which makes us more convinced that only a general amnesty
these people didn't flee because they felt Vietnam was wrong. I think
will meet the needs of the people.
there was one case in the original recommendations of the President's
If I may, in that connection, Senator, allude to something. You
board where the man wanted to go back to Vietnam and when he was
alluded to that 21/2 years ago, and I had occasion to testify then on
refused that, I think he went a.w.o.l., and of course they were right
the question you raise this morning with respect to the possibility that
in looking at the man's previous record and saying, look, this is a good
a general amnesty might also offer relief to somebody who has made
man, a good soldier and he just wanted to go back again. Why, I don't
off with the petty cash fund. I would like to apply as to how we see
know. You know, a blanket amnesty is SO unfair, really.
the answer to that. The general amnesty would not relate to theft, but
I would hate to see everybody lumped together because if we have
to offenses that arise because of refusal to participate in the war in
the misfortunte to get into another conflict and any fellow feels he
Vietnam. ordinary crimes, murder, assault, embezzlement or theft
can get away with anything we are going to have a tough job of keep-
would of course not be related to that. We do not propose that an
ing some discipline in the Armed Forces.
amnesty for the offenses were caused by the war to cover the offenses of
Senator HART. Well, we are saved by the second segment of votes
murder. That I hope will meet your concern.
occurring on the floor.
Beyond that, let me say this, if I may, the attempt to distinguish
I will have to recess, returning after that vote.
in a very precise and narrow way between the motivations, honorable,
Mr. WILSON. Senator, would you mind, I have a very urgent matter
dishonorable, selfish, ideological, what have you, that prompted people
and I will leave the field with my worthy opponents here.
to do various things, the attempt to distinguish that is not only inher-
Senator HART. No, you are excused.
ently virtually impossible, but will hurt SO many more people than it
Mr. SCHWARZSCHILD. Are we all excused
would help that it seems to me we ought to apply a general amnesty,
Senator HART. Yes.
which is after all a lawful relief from the injuries that the law has
Mr. SCHWARZSCHILD. Thank you very much.
done. We ought to apply the principle that Anglo-American juris-
Senator HART. Mr. Meis will be heard as soon as I get back.
prudence has adopted that it is better that 10 guilty men go free than
[A short recess was taken.]
one innocent man be punished.
[The prepared statements of John Schulz, Henry Schwarzschild,
In the horror that the war imposed and the tragedies it inflicted on
and James Wilson follow
America, it seems to us if someone were to be guilty of making off
with the petty cash, if he were to receive no punishment it would inflict
PREPARED STATEMENT OF JOHN E. SCHULZ, EDITOR IN CHIEF, MILITARY LAW
REPORTER
virtually no hardship upon itself by virtue of the fact if it persisted in
no amnesty.
Mr. Chairman, I appreciate the opportunity of appearing here this morning at
Senator HART. If we are going to legislate amnesty, and I can under-
your request. My name is John Schulz. I am a lawyer and editor of the Military
stand why a President, if he wanted to give amnesty and were con-
Law Reporter (MLR) a periodical legal service covering administrative, judicial
and statutory developments in the field of military, veterans and selective
cerned for some measure of public acceptance, would have to make
service law.¹ MLR is the successor to the Selective Service Reporter, which
every effort short of disabling the general grant of amnesty to kind
I edited between 1970 and 1972. My interest in the Presidential citizney pro-
of hold safe
gram stems primarily from the rather detailed knowledge of the administration
Mr. SCHWARZSCHILD. We have done some drafting in that field, and
of the draft which I acquired as editor of SSLR, where I was able to observe
the constant interplay between selective service administration, court decisions,
I think it is possible to distinguish ordinary crimes which need to fall
Department of Justice prosecution policy, and congressional action.
under a general grant of amnesty from violations of law or possible
Mr. Chairman, the draft law developments of the last decade have, I believe,
violations of law that had anything to do with people in conflict with
profound implications for the Presidential clemency program. It is primarily to
the war. I think it is possible to distinguish those in legislative lan-
these that my statement is devoted.
guage and statutory language. The attempt has been made. I think
I. INTRODUCTION
it can be improved. I would certainly welcome very greatly the con-
tinuing effort on the part of the legislative branch which has concur-
On September 16, 1974, President Ford announced an earned reentry program
for Vietnam-era draft and military evaders, designed to "heal the scars of divisive-
rent power to enact power legislatively to attempt to do that and to
broaden the remedies and the relief it gives to those American citizens
1 The Reporter is published by the Public Law Education Institute, 1346 Connecticut
Avenue NW., suite 610, Washington, D.C. 20036.
94
95
ness" through a "national commitment to justice and mercy." Briefly, the program
option of submitting to induction in lieu of prosecution. By the Justice Depart-
offered clemency for resisters in exchange for up to two years of low-pay alter-
ment's own account, induction in lieu of prosecution was the preferred vehicle
nate service. Evaluation of cases was placed in the hands of two existing agencies,
throughout the Vietnam war for clearing draft cases.4 That option ended with
the Department of Justice for unconvicted "alleged" draft evaders, and the
the termination of induction authority on July 1, 1973, putting the DOJ to
Department of Defense for unconvicted military absentees, and a newly-created
the task of either prosecuting a greater number of cases or washing out a sub-
body, the Presidential Clemency Board, for already convicted persons in both
stantial portion of its case backlog. At this time, the DOJ repeatedly but un-
categories. Authority to fashion and administer an alternative service program
successfully asked the DOJ to permit enlistment of draft evaders in lieu or
was delegated to the Selective Service System.
prosecution.5 From this perspective, the Department's program appears prin-
The earned reentry program has now been in operation almost exactly three
cipally as a revival of that pretrial diversion program. Just as during the war
months. On the basis of experience to this point-two-thirds of the way through
Justice claimed that the overriding purpose of its prosecutorial policy was to
the window period which ends January 31, 1975-there is little basis for believing
secure manpower for the services by pressuring alleged violators to accept
that the program will succeed in meeting the above objectives: only a tiny frac-
induction, SO now the Department claims to be serving the national interest by
tion of those thought to be eligible for the program have chosen to take part.
giving such persons a means of stepping forward and clearing their records.
A. Failure to inform evaders of declined prosecution
Persons
Persons
processed by
Rate of
It is a matter of public, although not well-publicized, record that the vast
qualified
December 1974
participation
majority of Vietnam-era "draft evaders"-over 96 percent to be exact-were
Agency
[approximate]
[approximate]
(percent)
never convicted. That is, out of 203,922 cases the Selective Service System re-
ferred to Justice for prosecution as violators between 1964 and 1973, U.S.
DOD
12,000
2,200
18.3
Attorneys chose to prosecute only 19,272 (9.45 percent) despite elaborate screen-
DOJ
7,000
130
1.9
PCB
112,000
800
.07
ing by SSS prior to referral. And the Federal courts convicted decreasing frac-
As indicated, the Department of Defense and Justice were assigned very similar
(a)
(b)
(c)
(d)
roles in the reentry program, both being made responsible for handling uncon-
victed offenders. It is thus remarkable that the DOD program to date enjoys a
Indictments and
Cases
participation rate some nine times as great as does its DOJ counterpart. Many
complaints
Convictions
referred
different explanations may be offered for this discrepancy, but I submit that it
by SSS
Prosecutions
Percentage
Percentage
must be traced in good part to several substantial defects in conception and
to DOD for
as percentage
of
of
Fiscal year
prosecution
Number
of referrals
Number
prosecutions
referrals
operation of the DOJ program, most of which relate to its being administered by
United States Attorneys as though it were normal, even secret, prosecutorial
business.
Total
209,204
21,342
10.20
619
40.38
4.11
Total,
These remarks, Mr. Chairman, are primarily devoted to the major flaws in
1964-73
203,922
19,272
9.45
7,933
41.16
3.89
the DOJ program listed immediately below. I shall also address myself briefly
1964
13,589
276
2.03
206
to the SSS reconcilation service program.
74.64
1.51
1965
13,661
341
2.49
242
70.97
1.77
The major defects to date in the DOJ program are:
1966
13,835
516
3.72
371
71.90
2.68
(1) Failure to clarify the status of tens of thousands of evaders who
1967
19,714
996
5.05
748
75.10
3.79
1968
currently believe themselves guilty but whom DOJ knows to be innocent.
21,331
1, 192
5.59
784
65.77
3.68
1969
27,444
1,744
6.35
900
51.60
3.28
(2) Failure to publicize key aspects of the program, including standards
1970
26,475
2,833
10.70.
1,027
36.25
3.88
for determining alternative service periods, grounds for mitigation, and
1971
25,504
2,973
11.66
1,036
34.85
4.06
1972
29,091
4,906
16.86
1, 642
33.46
5.64
other terms of the agreements applicants are expected to sign.
1973
13,278
3,495
26.32
977
27.95
7.35
(3) Failure to insure availability of counsel for all applicants and to take
1974
5,282
2,070
39.18
686
33.14
12.99
action to secure funds for appointed counsel under the Criminal Justice Act
(18 U.S.C. section 3006A).
Sources: (1) Letter from Assistant Attorney General Henry E. Peterson to Representative Robert
Kastenmeier, Mar. 1, 1974, reprinted in amnesty, hearings before the Subcommittee on Courts, Civil
П. JUSTICE DEPARTMENT PROGRAM*
Liberties and the Administration of Justice of the House Judiciary Committee, 93d Cong., 2d sess.
36 (1974) (hereinafter Kastenmeier hearings) (all figures in column (a) except 1974, which was supplied
by Selective Service System National Headquarters). (2) 1974 Semiannual Report of the Director,
Basically, the Justice Department element of the clemency program borrows
Administrative Office of the U.S. Courts 62, fig. 32 (as supplemented for fiscal 1974 by prelimi-
heavily from the carefully-considered approach of Senator Taft's proposed
nary figures from 1974 annual report).
"Earned Immunity Act of 1974," S. 2382, with one important exception the cases
of unconvicted draft resisters are now to be reviewed by this prosecutorial agency
tions of indicted draft evaders over the years, the rate dropping from 75 percent
rather than an independent Immunity Review Board. Thus, the basic wisdom of
in fiscal 1964 to 28 percent in fiscal 1973,7 a strikingly low figure in Federal
having a new agency with a specific clemency mandate review these cases has
criminal law. By contrast, the conviction rate over the same period in all Federal
been lost or overlooked.
narcotics offenses was 75.8 percent,8 in all Federal bank robbery prosecutions,
Under these circumstances it is hardly surprising that Justice Department
82 percent."
officials should frankly acknowledge their program to be an extension of the
Both of the above figures for draft offenses are prima facie SO unusual as to
prosecutorial process. It also means that the program lacks central direction
call out for some explanation. Ever since 1972, their proper interpretation has
and uniformity, since it is administered by 96 U.S. Attorneys in the field rather
than a central review board.
4 See Letter of Assistant Attorney General Henry Peterson to Senator Robert Taft,
Indeed, the DOJ program resembles, as much as anything else, the Depart-
November 9, 1973, reprinted in Amnesty, Hearings Before the Subcommittee on Courts,
ment's earlier practice of clearing post-indictment cases by giving violators the
Civil Liberties and the Administration of Justice House Judiciary Committee, 93rd Cong.,
2d Sess. 344-45 (1974) (hereinafter, Kastenmeier Hearings).
5 Id.
I wish to thank Thomas P. Alder. Esquire, president of the Public Law Education
6 The detailed figures are given as totals and by fiscal year in the following table. The 2d total figure,
Institute. for the invaluable contribution he made to this part of my statement, and
covering 1964-73, most nearly covers the period of President Ford's clemency program.
for his skillful assistance throughout the remainder of it.
Id.
8 In the White House conference of September 16. 1974, Deputy Attorney General
8 Calculation by author from figures in figure '30, 1964 semi-annual report, supra, note 4.
Laurence Silberman explicity likened the DOJ program to a criminal pretrial diversion
9 Kastenmefer Hearings at 158.
program and emphasized the role of the U.S. Attorney prosecutorial discretion.
97
96
Likewise, indictments rose by only 15 percent between 1973 and 1974.17 This
been a matter of sharp debate between, on the one hand SSS and DOJ and, on
suggests that only about 17.5 percent of declined prosecutions in 1973 were at-
the other, experienced draft lawyers and counselors.
tributed to acceptance of induction. If so, more than 80 percent of all cases of
The government view.-SSS and DoJ have consistently attributed the low draft
declined prosecution in 1973 and prior years were attributable to invalid induc-
indictment and conviction rates mainly to delinquent registrants' willingness to
tion orders.
accept induction in exchange for nonprosecution or dismissal of indictment. Thus,
Even if one accepts the more conservative estimates derived from Department
for example, in Rep. Kastenmeier's hearings this year, former SSS General Coun-
of Justice submissions to this subcommittee in 1972,18 one-third of all referrals
sel Walter Morse acknowledged that 10,153 of the 19,271 registrants indicted be-
were rejected by DOJ for legal flaws. That is, about 68,000 persons (one-third of
tween August 4, 1964 and December 29, 1972 had their indictments dismissed
203,922) were found not to be violators after being SO declared by SSS and, in
before trial; this, he said, was "for the most part for the reason that they
sub-
some cases, after indictment. In fact, even on the supported DOJ figure of 20 per-
mitted to induction or upon an FBI investigation it was found that their violation
cent cited earlier, over 40,000 individuals are involved.
was not willful." Likewise, he said, all but 17,000 of the 200,000-odd young
Persons who ran afoul of Selective Service regulations and requirements were
men referred for prosecution had their offense purged by submitting to induction
repeatedly told that they were violators; few, if any, have ever been told, either
or as the result of FBI investigation.10
by DOJ or SSS, that they were cleared. As a result, many of them continue to live
You may remember, Mr. Chairman, that in 1972 Assistant Attorney General
under what they believe to be the threat of a felony prosecution.
Robert Mardian, then responsible for draft prosecutions, gave the same explana-
A case in point concerns a young man called Travis who contacted me not long
tion to this subcommittee. Eighty percent of all registrants who refuse induction
ago, at the suggestion of a friend who knew that I was familiar with selective
eventually submit, he said." This view seems to be supported by the fact that the
service law. Travis was not this young man's real name. He had been using it
great majority of nonconvictions have taken the form of dismissals rather than
since the summer of 1971 when, after refusing induction, he fled Ann Arbor,
acquittals. That fact does not, however, lead inexorably to his conclusion; selec-
Michigan to begin the uncertain, rootless life of a fugitive "underground" in
tive service cases are routinely disposed of on the merits by pretrial motions to
America. He traveled first to California, then in quick succession to Washington
dismiss under Fed. R. Crim. P. 12, the legality of induction order uniformly being
State, Arizona, California again, Louisiana, back to Michigan briefly for Christ-
treated as a court rather than a jury issue. See, e.g., Cox V. U.S., 332 U.S. 422, 432
mas 1971 and finally to Washington, D.C. at the end of 1971.
(1947) (whether or not SS classification has basis in fact not a jury question)
When Travis told me the story of his dealings with SSS, it seemed clear that
U.S. V. Boardman, 419 F. 2d 110, 114 (1st Cir. 1969), cert. denied, 90 S.Ct. 1124
his induction order was invalid. His experience was, I think, rather typical. He
(1970) U.S. V. Seeley, 301 F. Supp 811 (D.R.I. 1969) (since improper processing
applied for conscientious objector status after leaving school in 1970; his local
of defendant would not be admissible before jury to negative intent, disposition
board turned him down without explanation, as did his appeal board; within the
of merits of case on motion to dismiss is sensible, fair and economical).
month he got an induction order. His letter requesting some indication of the
The other view.-Many registrants, experienced draft counsels and attorneys
weakness in his case and some more time went unanswered-until, sometime after
took the low draft conviction and prosecution rates of the war years as confirma-
his induction date, he was informed that his board has no further power to review
tion of their uniform anecdotal experience with the rampant errors, incompetence,
his case since it was "in the hands of the U.S. Attorney."
vindictiveness, and inconsistency of SS administration." This is not the place to
Just the other day I asked the Detroit U.S. Attorney's office about Travis'
rehash such matters in detail; suffice it to observe that in one lear, 1970, the Su-
case and was told by Assistant U.S. Attorney Christopher Andreoff that Alan K.
preme Court invalidated three key parts of selective service practices and
Merkle, alias Travis, had indeed been indicted on September 17, 1971 (criminal
procedure:
complaint No. 71-3459) and that his indictment had been dropped on August 16,
(1) The High Court struck down as "blatantly lawless" the power as-
1972. In other words, Alan K. Merkle spent 2 anxious, rootless years underground
serted by local boards to declare registrants "delinquent" and then "puni-
although he committed no crime.
tively" strip them of deferments, order them prematurely for induction, or
Why? Simply because both SSS and DOJ diligently and repeatedly told him
order them for induction without a physical exam.18
he was a violator in 1971, but neither ever bothered to inform him, in 1972 or
(2) It threw out Selective Service's restrictive interpretation of the con-
after, that in fact he was innocent.
scientious objector law, ruling that to qualify as a conscientious objector
This I have confirmed from both Travis and his mother, who always sent on
one need not entertain "religious beliefs." 14
communications from the government. From SSS, she sent Travis the letter re-
(3) And finally, the Court invalidated a routine selective service procedure
ferred to earlier; from DOJ, an FBI letter in the summer of 1971 warning that
which, in effect, permitted local boards to deny deferment claims without
Travis would be indicted unless he submitted promptly to induction. Later, she
permitting any administrative appeal.¹⁵
told him, the FBI visited her several times. Nothing did she ever receive to
The moment of truth: fiscal 1974.-Until fiscal 1974, it was impossible (absent
suggest that Travis' case had been dropped.
a very detailed comparison between total induction orders issued and total in
This state of affairs is quite general. No draft counselor I know ever heard of
ductions) to know conclusively whether the Department was in error in at-
SSS or DOJ sending men word that they were no longer wanted. Further, Kevin
tributing the high dismissal rate to voluntary induction by violators. Induction
Maroney of the Justice Department Criminal Division told me in September 1974
authority expired on July 1, 1973, however; since that date nobody has been
that DOJ feels it has no obligations to let draft evaders know their cases have
drafted, and, as noted above, nobody under indictment has been permitted to
been dropped.
enlist. This, of course, simply means that no part of the fiscal 1974 nonconviction
Nor was notice given by the Attorney General's October 31 announcement that
rate can be attributed to dismissals due to acceptance of induction. Yet, the con-
"no individual will be required to perform alternative service if the Department
viction rate for fiscal 1974 was only 33 percent 16-only 5 percent higher than
does not believe the evidence against him is sufficient to justify a draft evasion
in 1973.
prosecution." This is simply too general. Indeed, the problem was compounded
In other words, it appears that about 93 percent of all dismissals in fiscal 1973
by the Attorney General's quick addendum, "This does not mean, however, that
and before were due to legal defects, not submissions to induction.
any individual who is not currently under indictment or investigation can be
assured that he will not be required to perform alternative service or be
Kastenmeier Hearings at 158.
prosecuted."
10 Id.
Nor will the ignorant innocent be aided by Mr. Saxbe's November 13 act of
11 Letter from Assistant Attorney General Robert Mardian to Senator Edward M.
ordering all U.S. Attorneys to review all pending cases. First, this review simply
Kennedy, February 23. 1972, reprinted in Selective Service and Amnesty. Hearings of the
Administrative Practice and Procedure Subcommittee, Senate Judiciary Committee, 92d
will not extend to the 40,000 to 70,000 referred to above. Their cases have, for
Cong., 2d Sess. 398, 400 (1972) (hereinafter. Kennedy Hearings).
12 See generally Tigar, The Rights of Selective Service Registrants, in The Rights of
17 Id.
Americans 499 (Dorsen ed. 1971) Shulz, Statement, Kennedy Hearings at 85-104.
18 In response to a question from the subcommittee, the DOJ submitted a table categoriz-
18 Gutknecht V. United States. 396 U.S. 295 (1970).
ing reasons for all dismissals which occurred between March 1971, and February 1972.
14 Welsh V. United States, 398 U.S. 333 (1970).
Kennedy Hearings at 396. According to the table, 23 of all dismissals were due to "volun-
15 Mulloy V. United States, 398 U.S. 410 (1970).
tary" inductions.
16 See table, note 4, supra.
98
99
the most part, long been closed. They have only lacked notice that this is so.
Moreover, the means, used to contact individuals found to be cleared namely
to counsel, which attaches, of course, at the moment an individual becomes a
dispatch of a first class letter to last known address without even a return re-
suspect. Escobedo V. Illinois, 378 U.S. 478 (1964).
ceipt, is plainly inadequate to give notice to a population of which as many as
Indeed, in a few jurisdictions, U.S. Attorneys have participated in develop-
two-thirds are in fugitive status. Finally, the initial reports of this screening
ment of excellent programs being CJA funds. For example, in Oregon, counsel
do not show that it is being conducted vigorously or uniformly. In general, very
have been appointed under the CJA for absent defendants and paid to travel to
few cases have been dismissed, running on the order of 10-20 percent by early
Canada to seek men out for a review of their files.
count; and some jurisdictions have reduced their loads not at all (e.g., the
Western District of Pennsylvania washed out none of its 59 pending cases), while
D. Conclusion: Prosecutorial diversion without clemency and without fairness
others have managed significant reductions (e.g., Connecticut dropped 19 of 59
The defects analyzed above all seem to reinforce a single point, namely that the
cases).¹⁹
DOJ has implemented its part of the Presidential clemency program as though
For its part, SSS did not direct local boards to send word to cleared violators
it simply involved prosecutorial business as usual. Indeed, it would be surprising
until August 1973, when a new section was added to its Registrants' Processing
to expect U.S. Attorneys, who are after all prosecutors, to act in a spirit of
Manual requiring such notice.*0
clemency or, as the President put it, of justice and mercy.
The refusal of DOJ to let young men know that they are no longer considered
As for the overall direction of the Department's program, there has been
violators would be of questionable fairness even under normal conditions. In
little evidence of genuine interest in clemency or even of a sympathy with the
what is supposed to be a clemency program dedicated to "justice and mercy,"
President's stated goals. Again this should not seem surprising since the depart-
it is not too much to ask that the Department, with the assistance of SSS, de-
ing Attorney General only last year denounced amnesty and the idea of "earned
velop an affirmative and serious campaign to reach each and every one of them.
immunity" for resisters, saying: 23
B. Failure to publicize key parts of program
Some arguments have been raised that amnesty should be granted if these
individuals now serve in nonmilitary service. This is ridiculous and a
On September 16, the Attorney General issued "Prosecutive Guidelines" to
direct slap in the face to the fine men and women who are currently in
U.S. Attorneys concerning the DOJ clemency program. This document 21 contains
uniform.
a large amount of information of importance to potential program applicants.
We are well rid of the draft dodgers and deserters.
They made their
For example, it includes the text of the program alternative service agreement
bed, let them sleep in it.
(which requires the applicant to agree to waive his constitutional right to speedy
In conclusion, Mr. Chairman, I think that by comparing the DOJ program
trial and due process, and against double jeopardy) the base line for alternative
with the type of pretrial diversion program routinely utilized in criminal courts,
service (24 months), and grounds of mitigation (whether registrant was er-
the clemency program comes out decidedly second best. First, there is less cer-
roneously convinced he was not violating the law, whether his family presently
tainty that persons entering the clemency program are criminals. In the routine
has a desperate and irreplaceable need of his presence, whether he lacked mental
diversion program, a person is considered for pretrial diversion only after ap-
capacity to understand his actions, etc.), procedures (right to have, but not to
prehension, SO there is a very good chance that he may be proven guilty, given
be supplied with, counsel, to see file, to make a submission, but not to appeal).
typical high conviction rates. In the elemency program, a great number of
The problem is that this key document was not made public. In fact, its
potential applicants must present themselves and, as was shown above, very few
confidentiality was stringently maintained. This policy contrasts sharply with
of them are guilty although they SO consider themselves.
the way the impending directives of all other participating agencies were
Second, screening in the clemency program is less adequate although the need
handled; DOD (Secretary of Defense memorandum and implementing service
is greater. Criminal diversion programs work in conjunction with appointed
directives freely available), SSS (reconcibiation service regulations published
counsel for the many indigents in the criminal justice process. The DOJ program
in Federal Register) and PCB (standards and guidelines published in Federal
does not guarantee appointment of counsel to those who need it. Moreover, there
Register).
is no guarantee that participating counsel be adequately qualified in selective serv-
How can anyone be expected to sign up for the DOJ program in the informa-
ice law, which after all is such an extremely specialized form of administrative
tion vacuum it has created? How is it possible to monitor U.S. Attorney per-
law that the normally-equipped criminal lawyer, even if highly expert, cannot
formance without the benefit of publicly available standards?
adequately advise a draft registrant."
C. Failure to ensure availability of competent counsel
Finally, the noncriminal obligation imposed by the elemency program is more
The DOJ Guidelines specify that applicants are entitled to counsel, and the
harsh than its routine criminal counterpart. Two years of mandatory labor at
Attorney General's November 13 telegram pledges that some effort will be made
low pay is the norm for the clemency program, while criminal diversion normally
to find counsel for those who are indigent.
results in a routine probation order which requires nothing more onerous than
Frankly, Mr. Chairman, a national program ought to be able to do better than
to stay in a certain area, report periodically to a probation officer and, perhaps,
this. The need for skilled counsel is by no means academic since, as developed
refrain from association with unsavory individuals.
above, a majority of potential applicants are probably innocent and in no need
In short, I submit, Mr. Chairman that the DOJ clemency program fails to
of doing alternative service.
meet the minimum standards of fairness required by the Due Process clause of
Although pressed on this point in a public meeting of the Clemency Board a
the Constitution.
month ago, the Justice Department has evidently made no effort to advise U.S.
Attorneys of the substantial likelihood that funds may be secured for appointed
III. SELECTIVE SERVICE SYSTEM-RECONCILIATION SERVICE
counsel under the Criminal Justice Act, 18 U.S.C. section 3006A. The weight of
The Selective Service System, being the end component of the clemency pro-
opinion is to the effect that the CJA is coextensive with the constitutional right
gram-the one to which appplicants from the other three components all are ex-
pected to report-is in some ways the most important. It is the Selective Service
18 Given the statistics displayed in footnote 4, supra, it seems clear that these prosecu-
torial reviews have not been nearly S0 rigorous as courts would require. Of course, one
System that in most cases will be the final arbiter of whether or not a person
cannot reasonably expect prosecutors to take a really objective view of their cases.
actually receives the remedies available through the program, through its role
20 Section 642.12 (August 1, 1973). Some local boards did send registrants new classifi-
in adjudging a person's civilian work performance satisfactory or not. Unfor-
cation cards telling them that they had been placed in class "1-H." Many. having
absolutely no idea what this notation meant, simply assumed that it confirmed their status
tunately, the SSS seems to have taken its function as punitive rather than restora-
as violators.
tive, and in SO doing has perpetuated many of the injustices that marked the
21 A copy is appended to this statement as appendix A.
22 The speedy trial right is most significant in draft cases in which, because of the
documentary nature of its proof and its ability to rely on the presumption of regularity,
23 Letter from Hon. William Saxbe to Lima Draft Information Center, February 28,
the government normally suffers little or no harm from delay, while the defendant is
1973. a copy of which is appended to this statement as appendix C.
likely to be severely prejudiced. See U.S. V. Daneals, 370 F.Supp 1289, 2 MLR 2348
24 This was generally recognized during the Vietnam war and led, in some places at least,
(W.W.N.Y. 1974).
to formation of special CJA panels of draft-law experts who alone were appointed in draft
cases.
100
101
alternative service program under the draft. These comments will focus on three
had only the vague guidelines of "the national health, safety or interest"; it was
of those areas.
left to the whim of the System to decide whether or not a proposed job fit those
A. Improper delegation of authority to State directors with no right to appeal
guidelines. The consequence of this was that conscientious objectors seeking work
their decisions
frequently were subjected to delays and harassment in their search for jobs.
For example, in 1972 this subcommittee learned of a registrant in Indiana who
Local versus central authority for program.-Prior to the 1971 amendments to
was denied a job in a school for retarded children because the local board felt
the MSSA, local boards were responsible for assigning and administering the
that "the registrant should not be allowed to have a position that might influence
alternative service program for persons falling under their jurisdiction. An
any young Americans.
amendment to section 6(j) changed this policy to put the National Director of
Despite this history, the Selective Service System has seen fit to put into effect
SSS in charge of the program.* Despite this amendment, however, the practical
for the clemency program virtually the very same regulations on types of approv-
control of the program was given to State Directors, a policy that evoked con-
able jobs-regulations which are models in vagueness." The Reconciliation Serv-
siderable protest in the hearings conducted before this subcommittee in 1972.
ice program, dealing as it does with persons who have been adjudged as law
Several witnesses pointed out to the subcommittee the wide disparity in philos-
violators, presents an opportunity for the same type of discrimination.
ophy among State Directors, mentioning specifically several who had publicly
Compensation for jobs.-The regulation dealing with this matter provides that
stated their intention to assign conscientious objectors to nothing but the most
compensation for civilian jobs should reasonably compare with the standard of
menial positions in state hospitals." Despite the protests, regulation 1660.1
living that the same person would have enjoyed had he entered military service.
giving control to State Directors, was put into effect."
It adds, however, that the State Director may waive the provision when such
There is a similar gap between the Executive Order establishing the recon-
action is determined to be in the national interest and would speed the placement
ciliation service program and the regulations issued by SSS to implement it. In
of the returnee in service.
his order of September 16, the President specified that the National Director
No specific standards are given for determining that the pay provisions should
was to establish and administer the program,28 yet the regulations give all effec-
be waived, and no guarantee that State Directors will not assign men to low-
tive power to State Directors." The widely disparate policies of State Directors
paying jobs which may not allow them to meet their financial responsibilities or
will therefore continue to exist. Some State Directors will have a relatively liberal
support their dependents.
policy of job approval while others will operate under a highly restrictive
Given the current status of the country's economy, this is not an idle concern.
standard. The inequity to the persons involved in the program is obviously, as
SSS is likely to have real trouble generating an adequate number of jobs meet-
is the parallel with the excessive discretion of U.S. Attorneys in the DOJ program,
ing the comparability provision, which would mean a wage at least 36 percent
discussed above.
above the minimum wage,* without interfering with the civilian labor market.
Nonappealability of State Director decisions.-Not only is control of the pro-
In other words, there is a very real possibility that people returning under the
gram put in the hands of State Director, but in a seeming effort to compound
clemency program will be used as a source of cheap labor, performing menial
the violation of the President's intention, no provision is made anywhere in the
jobs at subsistence salaries.
Reconciliation Service regulations for an appeal to anyone other than the State
Director. In particular, there is no provision for appealing any decisions to the
C. Failure to prepublish regulations and to publish RSM
National Director, who theoretically is in control of the program. Unappealable
Prepublication of regulations.-The 1971 amendments to the Military Selective
decision to be made by State Directors include the following:
Service Act included a provision requiring that all regulations issued under that
(1) The decision to deny a returnee's proposal for civilian work.80
Act be published in the Federal Register at least 30 days prior to their becomng
(2) The job assignment made after denial of a returnee's proposal."
effective; this requirement was made waivable by the President, if he determined
(3) The transfer assignment to another job when the returnee's first job
that compliance would impair the national defense. The legislative history of
terminates through no fault of his own.*
the provision shows that it was accepted in conference-in the interest of equity."
(4) The determination that termination of a returnee's job was due to
In the 3 years since the adoption of that amendment, SSS has prepublished all
his failure to work satisfactorily, and that he will therefore be reported as
changes to the Selective Service regulations, thus allowing a period of time for
unsatisfactory."
public comments and criticisms before making the changes effective.
(5) The determination that, absent the termination of the job, a returnee
Notwithstanding this Congressional mandate and subsequent history, the regu-
is not working satisfactorily and report of same."
lations issued by the SSS to govern the Reconciliation Service program, published
(6) The determination that there is "good cause" to reassign a returnee
on September 26, 1974, were made effective upon publication. Accompanying the
to another job, without a finding of any kind as to the quality of work."
regulations was an introduction stating that the Director of Selective Service
The practical effect of vesting this broad unreviewable authority in State
had determined that since it was "impracticable, unnecessary and contrary to
Directors is to perpetuate all of the possibilities of inequality and inconsistency
the public interest," good cause existed for making the regulations effective
that marked the alternative service program under the draft law. Indeed, the
immediately."
program as implemented appears to look upon the work period as a period of
There is no justification for dispensing with public comment on these regula-
punishment, with the State Director acting in the capacity of a warden, and the
tions: the President did not waive the requirement, and if haste was required
returnee having no right of appeal to anyone on any subject.
(doubtful in view of the slow start of the program), SSS could, like the Clemency
Board, have made its regulations effective immediately while also soliciting public
B. Standards for approvable jobs
comments.
Types of jobs.-When the draft was in effect, one of the problems which
plaqued the SSS alternative service program was the lack of clear and specific
Je Hearings. see note 6 supra. page 163.
standards for approvable jobs. A person seeking to propose a work requirement
37 See 2 CFR 200.3 and 2 CFR 200.4.
38 2 CFR 200.4 (a) (3).
89 The $2 per hour federal minimum wage provides $347 per month for a 40 hour week.
Military Selective Service Act. section 6(j).
The military recruit, however, receives a basic pay of $344.10 per month, plus a tax-free
Hearing, Subcommittee on Administrative Practice and Procedure, Senate Judiciary
$73.30 for subsistence, $63.30 for housing. free health care equivalent to $20 per month
Committee. 1972 pages 113-114, 160-161. 173-174, etc.
in a group health plan and clothing equivalent to $10 per month. His standard of living,
27 32 CFR 1660.1 (b). put into effect December 10, 1971.
28 Executive Order 11804. September 16, 1971 (39 FR 33299).
therefore, including income and other compensation, amounts to about $530 per month,
36 per cent higher than the minimum wage. (Washington Star-News, October 6, 1974).
See 2 CFR 200.2(b) (1), (2) and 2 CFR 200.5(a), (b).
40 2 CFR 200.4(a) (2).
ao 2 CFR 200.5(a).
41 Military Selective Service Act, section 13(b).
at 2 CFR 200.5(a).
42 Joint Explanatory Statement, House Report 92-433, June 30, 1971, page 29.
83 2 CFR 200.6(b).
48 Title 2, Code of Federal Regulations. Part 200 (39 FR 34511).
88 2 CFR 200.6(b).
44 39 FR 34511.
84 2 CFR 200.6(a).
2 CFR 200.5(b).
102
103
No publication of Reconciliation Service Manual.-The Reconciliation Service
Manual (RSM) is an "internal" manual of the Selective Service System, de-
APPENDIX A
signed to provide its employees with procedural guidelines for administering
and implementing the program of civilian work. If that were all it was, the
failure to publish the Manual might not be significant. But, the Manual, in
Office of the Attorney General
fact, adds to and clarifies the regulations in such a manner that it ought to be
available to persons coming under the program and the interested public. A few
Machington, D. 10330
examples of the differences between the regulations in 2CFR and the Manual
(RSM)
:
September 16, 1974
(1) 2 CFR section 200.2(b) (2) states simply that the State Director will
monitor the work assignments. RSM section 2209(2) (b), adds specifically
that this monitoring is to include auditing employer's records and super-
visory reviews to be conducted at 3-month intervals, incluuding on-the-job
MEMORANDUM
interviews.
(2) 2 CFR section 200.5(a) specifies that the State Director will assign
TO:
All United States Attorreys
returnees to a job to begin within 30 days after they report and will consider
any job proposed by the person. Under RSM section 2207(8) (9), a returnee
will be allowed 20 days to submit his own job; if such proposal is not
FROM:
William F.. Sexbe
Attorney General
west
approved or if none is submitted, he will be assigned before 30 days.
(3) 2 CFR section 200.5(b) : The State Director may, for good cause, or,
upon the instruction of the Director, shall reassign a returnee. RSM sec-
SUBJECT: Clemency
tion 2209(4) (b) : Returnees may submit a written request to State Director
requesting a job transfer. Such request shall include the justification for
the transfer and a statement from the proposed employer about the job; the
State Director will notify returnee in writing of his decision.
(4) 2 CFR section 200.6(a) : When a job terminates, the State Director
the of Vietnam cra draft evaders and military deserters. who
President's Proclamation announcing a program for the
The attached documents are for use in implementing
will normally conduct an investigation; if he finds the departure improper,
return All reasonable attempts should be made to notify those
he will report to the Director; if he finds no failure to work satisfactorily,
are eligible to participate in the program.
he will reassign the person with credit for intervening time. RSM sec-
tion 2209(3) (d)-(g) When job terminates, State Director will normally
For specific problems, please call Kevin Maroney,
conduct an investigation with three possible outcomes: 1) if no failure to
Criminal Division, 202-739-2333.
work satisfactorily, reassignment with credit; 2) if failure to work satis-
factorily but with mitigating circumstances, reassignment without credit;
Attachments
3) if repeated failure, report to Director.
These examples, I submit, demonstrate the substantive nature of the RSM.
SSS failure to publish it violates the clear intent of Congress as expressed in
both the Military Selective Service Act (MSSA), section 13, and the Federal
Register Act, 44 U.S.C. section section 301 et. seq. Fairness plainly requires that
potential participants in the clemency program have an opportunity to learn
about the reconciliation service before making the decision to do something that
could drastically alter their lives.
105
104
- 2 -
PROSECUTIVE POLICY WITH RESPECT TO CERTAIN PERSONS ALLEGED
TO HAVE VIOLATED SECTION 12 OF THE MILITARY SELECTIVE SERVICE
ACT (50 APP. U.S.C. 462) PURSUANT TO
(4) such other similar circumstances.
THE PRESIDENT'S PROCLAMATION
V. In the determination by the United States Attorney
of the length of service 30 provided in IV, an applicant
I. This directive applics to all persons cligible to
shall be permitted to:
participate in the alternate service clemency program as
providec in the President's Proclamation announcing a pre-
(1) have counsel present;
gram for the return of Vietnam era Graft evaders and military
deserters. Howaver, this directive is inapplicable to any
(2) present written information on his behalf;
person who has fled the country and is prevented from re-entry
by virtue of S U.S.C. 1182 (a) (22) or other law. This direc-
(3) make an oral presentation; and
tive alters the present Departmental policy to effectuate
the President's declared policy of clemency to draft evaders
(4) have counsel make an oral presentation.
and resisters.
An applicant shall not have access to" investigatory
II. Each eligible violator of Section 12 of the Military
records in the possession of the United States Attorney except
Selective Service Act who is willing to perform alternate
as provided ly 32 C.F.R. 160.32. The United States Attorney
service as an indication of his allegiance to the United
shall make his decision on the basis of all relevant infor-
States should report to the United States Attorney for the
mation. No verbatin record of the proceedings shall be required.
district in which he violated or is alleged to have violated
the Act.
VI. If the alleged violator fails to complete the period
of alternate service to which hc has agreed, the United
III. Any person presently under indictment or investi-
States Attorney may proceed to prosecute the case.
gation who presents himself to the United States Attorney before
January 31, 1975, and agrees to perform a period of alternate
VII. IE the United States Attorney receives in certifi-
service, under the auspices of the Director of Solective
cate from the Director of Selective Service indicating that
vicc, as an acknowledgement of his allegiance to the United
an alleged violator has satisfactorily completed his period
States, will not be prosecuted if to satisfactorily performs
of alternate service, then hu will cither move the court to
such service. If no agreement is reached, the alleged vio-
dismiss the Section 12 indictment against the violator with
lator may be prosecuted for thu Section 12 violation.
prejudice, or terminate any Section 12 investigation of the
alleged violator, whichever is appropriate.
IV. The length of alternate service shall normally be
24 months, but the United States Attorncy may reduce the term
VIII. If an alleged Section 12 violator is apprehended
in light of the following circumstances:
before January 31, 1975, the violator will be treated as if
he voluntarily presented himself to the United States Attorney
(1) whether the applicant, at the time he committed,
as provided in II, if the violator so desires.
the acts allegedly constituting a violation of Scetion 12 of
the Military Selective Service Act, was erronecusly convinced
IX. Upon request of any individual who thinks he may
by himself or by others that he was not violating the 12:18
be under investigation ior violating Section 12 of the
Military Solective Service ACT, the United States Attorney
(2) whother the applicant's invediate family 15
in desperate need of his personal presence for which :- senar
shall promptly zeview that individual's case file, if any
substitute could be found, and such need was not of his cv:-
exists, and in any event inform it: individual whether or
not Section 12 charges against 1.1.1 will be pursued if he
creation;
does not report as provided in II.
(3) whether the applicant lacked sufficient mental
X. An individual iiin is neither under indictment nor
capacity to appreciate the gravity of hie actions; and
investigation for an offense covered by this directive but
who reports as provided in II and admits to soon an offense
106
107
- 3 -
UNITED STATES OF AMERICA
vs.
will be subject to prosecution unless he makes an agreement
as provided in III.
Name
File No.
XI. The United States Attorney may delegate any func-
tion under this directive to an Assistant United Etates
Attorney.
Street Address
Telephone No.
City and State
AGREEMENT FOR ALTERNATE SERVICE
It appearing that you have committed an offense against
the United States on or about
in violation
of Title 50 APP. United States Code, Section 162, in that
Therefore, on the authority of the Attorney General of
the United States, by
,
United States
Attorney for the District of
prosecution
in this District for this offense shall Pc deferred for the
period of
months from this date, provided you sign the
following agreement:
Agreement
I,
understand that the
Sixth Amendment to the Constitution of the United States
provides that in all criminal prosecutions the accused shall
enjoy the right to a speedy trial. I understand that the
Fifth Amendment prohibits double jeopardy for the same
offence. I understand that Rule 12(b) of the Federal Rules
of Criminal Procedure provides that the Court may dismiss an
indictment, information, or caplaint for unnecessary delay
in presenting a charge to the grand jury, filing an informa-
tion or in bringing a defendant to trial. I understand that
constitutional due process Hay require dismissal of an
indictment that has been unfairly dolayed.
55-550 O - 75 8
108
109
- 2 -
Re: United States v.
As an acknowledgement of my allegiance to the United
Criminal File No.
States of America, I agree to perform alternate service for
a period of
months in a job acceptable to the Director
of Selective Service as provided in President's Proclamation
Dear
:
announcing a program for the return of Victnam era draft
evaders and military deserters. I will report to the Director
This letter concerns reports received by this office
within
days. I also knowingly and voluntarily agree
that you have committed an offense against the United States
to waive the constitutional right against double jeopardy
on or about
in violation of Section 12 of
and the right to use any dolay during the period of ry alter-
the Military Selective Service Act.
nate service to establish is defense based upon Rule 48 (b)
of the Fedoral Rules of Criminal Procedure, the constitutional
right to due process or a specdy trial, and the statute of
In accord with the President's policy of granting
limitations in a prosecution initiated because of my violation
leniency to certain individuals who are charged with vio-
of this agreement. I understand that I may be prosecuted if
lating Section 12 of the Military Selective Service Act, you
I violate this agreement.
are eligible for diversion to an alternate service program.
Should you agree to undertake acceptable alternate service
In exchance for the promises of
o
the United
as an acknowledgement of your allegiance to the United States
States will defer any prosecution of
for
this office will refrain from prosecution. Note, however,
violation of Title
United States Code, Section
that if no agreement is reached the United States will be
462 for a period of
months. The United States also
free to prosecute you for the Section 12 charge. If the
agrees to drop any investigation or indictment of
for
Director of Selective Service certifies to us that you have
violation of the aforesaid offense with prejudice upon receipt
successfully completed your service, the pending charge
by the United States Attorney for the District of
of a certificate from the Director of Selective Service indi-
against you will be dropped. However, failure satisfactorily
cating that
has satisfactorily com-
to complete the alternate service will probably cause us to
pleted his peziod of alternate service.
resume prosecution of the Section 12 charge.
In the event
is prosecuted under
A decision to seek acceptance into this program is one
50 U.S.C. App. 462 if he violates this agreement, nothing
that must ultimately be made by you, Nevertheless. it is
stated herein shall be used against him during the trial of
important that you immediately discuss this matter with your
such offense.
attorney inasmuch as your participation in this program will
require a waiver of certain rights afforded to you by the
Constitution. For example, you must waive your right to a
speedy trial and right to have an indictment presented to
Name of Alleged Violator
Name of Attorney for Alleged
the grand jury, if one has not already been obtained, within
Violator
the prescribed statute of limitations. We suggest that you
consult with your attorney who will explain the program to
you and the nature of the waivers mentioned above.
Date
Date
Very truly yours,
Name of United States Attorney
United States Attorney
Date
By:
110
111
ASSISTANT ATTORNEY GENERAL
APPENDIX B
APPENDIX C
CRIMINAL DIVISION
Bepartment of Justice
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November 7, 1074
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are more, Ct.
COMMITTEE ON ARMED SERVICES
T. EDWARD ENASWELL. jas., CHIEF COUNSEL AND STAFF DIRECTOR
WASHINGTON, D.C. 20510
February 28, 1973
Mr. Henry Schwarzchild
Director
Lima Draft Information Center
American Civil Liberties Union
875 West Market Street
Foundation
Lima, Ohio
45005
22 East 40th Street
New York, New York 10016
Dear Friends:
This will acknowledge your recent comments or the an
Dear Mr. Schwarzchild:
nesty question.
This is in response to your letter of October 24, 1974,
When these individuals had 2. choice to melio, they fled
wherein you request confirmation of your understanding of
rather than serving their country. Hany brave Americans stare.
ed and served some giving their lives in that service. I do
information telephonically provided to you by Kevin T.
not argue with their freedom to make the choice they did. but
Maroney, Deputy Assistant Attorney General, pertaining to
to grant then amnesty discredits the basic goals of thin 73.
the 15-day grace period extended to draft law violators
tion. They rade their hed, let them sleep in it.
entering this country for the purpose of taking advantage
of the President's Clemency Program.
Some arguments have been raised that appesty should be
granted, if these individuals now serve in either the arred SCI
vices or in other non-military service. This is ridiculous and
Your understanding is correct. The sole purpose of the
a direct slan in the face to the fire ren and women who are cu
15-day period, during which the execution of outstanding
rently in uniform or ir. those other programs.
warrants of arrest will be suspended, is to permit those
R
individuals desirous of taking advantage of the Clemency
We are well rid of the draft dodgers and deserters.
had an obligation to the United States -- and they chose not to
Program, to enter the country and report to the respective
honor, it. Our only obligation to ther is to prosecute there to
United States Attorney, without fear of arrest, for the
the fullest extent of the law. You cannot alloy each individu
purpose of concluding an agreement for alternate civilian
to fecide whether or not He is going to 12 it
service. On the other hand, if after a draft law violator
is a poor way to run = country. 5 Lave can be changed, but urti.
enters this country, he demonstrates by his actions that his
what harpens through the correct legislative processes, the la
stands.
purpose in returning was for reasons other than that for
which the 15-day period was designed, the arrest warrant will
Too many people vant the freeden and herefit of living in
be executed.
the United States vithout accorting the responsibility that good
with it.
Sincerely,
Test regards
Henry Efeterson
Sincerely,
HENRY E. PETERSEN
Assistant Attorney General
W-B Sayaha
William =. date
States Coretor
27%
112
113
PREPARED STATEMENT OF HENRY SCHWARECHILD, DIRECTOR, PROJECT ON AMNESTY,
AMERICAN CIVIL LIBERTIES UNION
I am Henry Schwarschild, the Director of the Project on Amnesty of the
American Civil Liberties Union. I appear here pursuant to the request of the
Subcommittee to present the views of the American Civil Liberties Union on
the administration of the clemency program, which was instituted by President
Gerald Ford through Proclamation 4313 and Executive Order 11804 on Septem-
DISPOSITION OF ALLEGED
DRAFT OFFENDERS, 1964-1973
203,922 TOTAL CASES REFERRED FOR PROSECUTION
19,272 INDICTMENTS AND COMPLAINTS
7,933 CONVICTIONS
EQUALS 41.16% OF INDICTMENTS AND COMPLAINTS
Copyright © 1974
Public Law Education Institute
ber 16, 1974.
I am accompanied today by Edwin J. Oppenheimer, the ACLU's clemency litiga-
tion director. I should add that both Mr. Oppenheimer and I are members of
the steering committee of the clemency/amnesty law coordinating office (CALCO),
organized here in Washington shortly after the Clemency Program was instituted,
EQUALS 9.45% OF CASES REPORTED
in order to provide free legal services where necessary to persons who apply
for clemency. Other members of the CALCO steering committee are staff mem-
OR 3.89% OF CASES REFERRED
bers of such concerned groups as the National Legal Aid and Defender Associa-
tion, the Lawyers Committee for Civil Rights Under Law, the Public Law Edu-
cation Institute, the Central Committee for Conscientious Objectors, the Na-
tional Conference of Black Lawyers, the Center for Social Action of the United
Church of Christ, the Washington Board for Conscientious Objectors, and others.
In its efforts to structure a legal referral service for clemency applicants, CALCO
was compelled to look at the administrative and substantive infirmities of the
clemency program, and it has been in persistent negotiation with all the gov-
ernmental agencies involved to cure some of the most glaring defects of the pro-
gram. While I do not speak this morning with the formal authorization of
CALCO, I know that this body has complained of and tried to correct most of
the problems and defects in the Clemency Program that I shall have cause to
set forth. These defects continue to be so massive and crippling, in CALCO's
judgment, that this organization felt constrained not to make itself available as
SUBMITTED WITH STATEMENT OF JOHN SCHULZ, Editor-in-Chief, Military Law Reporter
the "clemency bar" and, as responsible attorneys, to refuse the request of the
Presidential Clemency Board that CALCO act as a referral agency to which
clemency applicants might be sent for legal assistance.
I. GENERAL CONSIDERATIONS
A. Amnesty.-The comments I offer this morning on the administration
of the Clemency Program must be understood in the context of the ACLU's
position on the larger issue of amnesty, which is inseparable from any considera-
tion of the clemency program now in operation.
For several years now, the ACLU has urged this country and its political
leaders to enact a universal and unconditional amnesty for all those who have
already undergone or still face criminal or administrative penalties for any
nonviolent violations of law arising from their conflict with the draft, the
military, and the war in Southeast Asia. The nation was deeply divided over
the moral, political, military, and even legal and constitutional, justification of
that tragic war. Direct American military involvement in that war ended almost
2 years ago; our prisoners of war are home; our troops have been withdrawn. It
is time also to heal the other wounds that we have inflicted upon our own nation
in the context of that war. Hundreds of thousands of men live with the disabil-
ities of less-than-honorable discharges from the military services; tens of thous-
ands bear the stigma of felony convictions or suffer the threat of military or
civilian criminal prosecution arising from their response to the war.
The demand for amnesty does not rest primarily upon a judgment of whether
these men and women were right or wrong. First and foremost, the call for a
true amnesty says to the American people that the world and our own people
have suffered enough over that war. Let us stop continuing to make American war
casualties out of our own children and let them return to our-their-society
without judgment and without punishment. Amnesty, which has a long and
distinguished tradition in American history, is the way to end the process of
victimizing ourselves in the context of a problematic war that has, in some
respects. been brought to an end.
B. Presidential clemency program.-In that perspective. the ACLU finds the
Presidential clemency program unsatisfactory in its moral and political assump-
tions. We welcome. of course. the impulse that caused the President to take
some action to alleviate the continuing problems of those who. for whatever rea-
sons, refused to lend their services, their lives, their bodies, to the war in Indo-
115
114
satisfactory completion of a period of alternate, civilian service not to exceed 24
china. We admired the President's courage in announcing in SO hostile a forum
months, and of a clemency discharge.
as a veterans' convention his intention of providing some form of clemency. We
The clemency applicants to the Board, in other words, are either persons who
offered the White House every assistance, during the time the program was
have already gone through the civilian or military criminal process and have
shaped and organized, toward making it humane, just, and effective. But it be-
suffered such punishments as these courts imposed, or veterans with less-than-
came quickly evident, with the President's Proclamation and Executive Order of
honorable discharges issued by military administrative fiat.
September 16, 1974, that the program in effect declares that those who refused
Not until the middle of November, fully half-way through the period for
to participate in the war committed an offense against American society that
clemency applications, did the Board formulate procedural and substantive stand-
we are entitled-indeed compelled-to punish. The punishment in some circum-
ards for considering clemency applications from the estimated 120,000 potential
stances would be mitigated by presidential clemency, but the government's posi-
applicants. Even now, it is difficult to see what real advantages the clemency
tion is reaffirmed: that war resisters committed the punishable crimes of the
program offers persons qualified to apply for clemency to the Board.
war. It is the punitive and stigmatizing nature of the Presidential clemency
Take a young man who refused induction into the military because, like mil-
program to which the ACLU profoundly objects which has also been the cause
lions of Americans including many Members of Congress, he believed the war in
of its evident and dramatic lack of success.
Southeast Asia to be a human and political catastrophe. He was arrested, tried
Even within the assumptions on which the Presidential clemency program
and convicted, and served his sentence in a federal penal institution. He is now
rests, it was, it seems to us, ill designed. Its division among four governmental
free to apply to the Board for executive clemency. The Clemency Board may
agencies is cumbersome and confusing. Its limited scope is discriminatory. Its
recommend to the President the grant of clemency contingent upon the appli-
strenuous effort to distinguish among various categories of war resistance and
cant's spending another period of his life doing alternate service under the
to deal with each case on the basis of some individual judgment of his personal
supervision of the United States Government instead of pursuing his own
merits was fruitless and hurtful. Its threatened penalties for many people who
life, and to receive in exchange therefor some form of clemency which may or
under present law have committed no crime are shocking. Its loyalty oath is
may not be a full pardon. Even a full pardon will not expunge his felony record
demeaning. Its alternate-service requirements are useless, punitive, and inequit-
and does not automatically relieve him of civil disabilities. Some lesser form
able. Its "clemency discharge" is stigmatizing. Most of its administrative ap-
of executive clemency will do nothing whatever for him. The Clemency Board
paratus is hostile to the moral and political commitments of the war resisters.
has only recently made it known that recommendations for full pardons are
Many of its procedural aspects are very probably violative of federal statutes
available to some clemency applicants. So far, the indications are that alternate
and the United States Constitution.
service will be a condition for most of them.
It is by reason of the hurtful moral and political assumptions that underlie
The applicant has no right to a hearing before the Board for himself or his
the program, and because of its complex and discriminatory implementation,
attorney. He has no right to a hearing even if he finds the clemency recom-
that the program is, to date, such a massive and dramatic failure. Overall, only
mendation unjust and requests a reconsideration by the Board. He cannot see
about 2.5 percent of those qualified to apply for clemency under the program
the reasons for the Board's recommendations to the President before the Presi-
have done SO in the first 3 full months of the program. (The time for applying
dent sees them, SO that there is no opportunity to rebut erroneous facts or con-
for clemency only has 6 or 7 weeks more to run.) The war resistance com-
clusions. In the Board's computation of his alternate service time, a prior
munity, especially those in exile, have declared their boycott of the clemency
criminal conviction will be held against him, even though he has presumably
program. The amnesty movement in this country, comprising very broad ele-
"paid his penalty" for any such offense and should not be twice punished for
ments of the American religious community, together with civil libertarians,
it. Wrongful processing by the Selective Service System of claims he may have
civic and community organizations, some veterans and peace-oriented groups,
had for exemption or deferral will be held in mitigation, though such violations
and others, has joined in the boycott and has taken the position that the clemency
of laws and regulations by the Government should be exculpatory rather than
program is unacceptable. We advise persons qualifying for clemency that in
mitigating in their effect. The length of any prison or other sentence served
many, if not most, instances they may very likely have legal options available to
will diminish his alternate service period, but this means in effect that the
them better than the clemency offered by the program. At the same time, we have
Board acts as a corrective sentencing authority-where the draft refuser had a
offered to counsel and represent persons wishing to participate in the program
humane or lenient judge in court, who gave him a lesser sentence, the Board's
to assert their interests and rights, and we have endeavored to improve some of
computation will now substitute its own penalties in greater measure.
the substantive and procedural problems that we see in the program.
Former military personnel run all these hurdles and a very important addi-
Let me come to specific problems in the administration of the program. By
tional one Those qualified to apply for clemency from the Board now hold a
arrangement with the staff of the Subcommittee, I shall present comments only
less-than-honorable discharge either an undesirable discharge, given administra-
on those parts of the clemency program that are administered by the Presidential
tively (ca. 85,000 men) or a court-martial from the military imposed bad
Clemency Board and the Department of Defense, leaving comments on the
conduct or dishonorable discharge (about 26,500). In their cases, the Board may
Department of Justice and the Selective Service System to Mr. John Schulz
recommend that the President issue such applicants a "clemency discharge"
of the Public Law Education Institute. With your permission, Mr. Chairman,
(newly established by the Presidential Proclamation), after they satisfactorily
I should like to supplement my full statement for the record of these hearings
complete a period of alternate service. But the clemency discharge is distinctly
with our additional comments on the parts of the clemency program to which I
worse than the undesirable discharge that most of these men now hold undesir-
shall not address myself this morning.
able discharges, crippling as they are in respect to employment and civil-service
qualifications and other needs of post-military careers, are held by tens of thou-
II. THE PRESIDENTIAL CLEMENCY BOARD
sands of veterans for a great variety of reasons. A clemency discharge will stig-
matize a veteran for life as a deserter, if not a traitor to his country. An un-
The Board, under Executive Order 11804, was given jurisdiction to receive
desirable discharge leaves the Veterans Administration certain discretion with
applicants for presidential clemency from persons who have been convicted by
respect to the bestowal of veterans' benefits. The clemency discharge absolutely
Federal courts for violations of the Military Selective Service Act (i.e. deser-
disqualifies the veteran from all benefits. An undesirable discharge may be taken
tion, absence without leave, and missing a military movement), from persons
before the military services' discharge review boards for appeal and upgrading;
who have been discharged from the military services with bad conduct or dis-
but it is very doubtful that these Discharge Review Boards have jurisdiction to
honorable discharges by sentence of court martial for such absence offenses,
upgrade a clemency discharge given by the President as an act of executive
and from such persons who were discharged from the military administratively
grace. In fac+, the issuance of a clemency discharge is a downgrading of the un-
with an undesirable discharge because of such offenses, if these acts occurred
desirable discharge-and for this the program expects the veteran to do up to
between August 4, 1964 and March 28, 1973. For applicants who, in the Board's
2 years of alternate, ill-paid civilian work, in addition to the time he has already
judgment, merit presidential clemency, the Board may recommend to the Presi-
spent in the military service and the disabilities already inflicted upon him by
dent the granting of executive clemency, contingent where appropriate upon the
virtue of the undesirable discharge!
116
117
The subcommittee should also be aware that there is no satisfactory rationale
(3) Other matters I want the board to consider." The returnee is given an
for offering clemency only to veterans whose less-than-honorable discharge was
undesirable discharge from his branch of the service. Upon the satisfactory
given because of an absence offense. Tens of thousands of veterans, including
completion of the alternate service, the returnee may obtain a elemency discharge
many who served honorably and heroically in Vietnam, who have serious battle
in place of his undesirable discharge.
wounds from that war, were administratively discharged by the services for every
Our objections to the administrative practice of the military clemency program
imaginable variety of petty offense, most of them offenses that do not even exist
are numerous.
in civilian life, much less have any bearing on their post-military life. Yet the
1. We believe that clemency judgments concerning military violators, especially
rest of their life is blighted by their "bad" discharge. The discharge policies of the
alleged deserters, are not best made by the military establishment itself, which
military services are urgently in need of systematic review and correction.
is naturally antagonistic to the very notion of leniency for those who violate its
Serious questions have been raised recently, in a major analysis in the
own code of behavior, especially with respect to desertion. Virtually all the mili-
Harvard Civil Liberties/Civil Rights Law Review, about the legal validity of the
tary absentees who qualify under the clemency program are enlisted men. The
present system of administrative discharges. Indeed it is subject to question
Joint Alternate Service Board is composed of four field-grade, career officers,
whether the President has the authority by executive action alone to create an
whose sympathies toward enlisted men charged with desertion are unlikely to
additional, sixth class of "clemency discharge." But even if he had the power, we
be warm.
urge that the express intent of the President's clemency program-to alleviate the
2. The required reaffirmation of allegiance is flagrantly offensive to the re-
harshness with which we otherwise punish those who came into conflict with the
turnees, since in effect it charges them with having denied their allegiance, when
war-be made real by giving every veteran a discharge that will not haunt his
all that can be charged against them is a violation of military law, not a failure
entire post-military life and career. Only an honorable discharge will accomplish
of allegiance to the country. The returnees are acutely aware that no General
that goal. It is tragic indeed that the clemency program should compound the
Lavelle and no ranking military officer involved in the My Lai cover-up (see the
injury, rather than mitigating or abolishing it. That is what a clemency discharge
Peers report) and no civilian or military official who lied to the Congress and
does. It remains perhaps the single most objectionable feature of the clemency
the American people about the bombing of Cambodia has been required to "re-
program. The President's Proclamation and Executive Order leave room to hope
affirm allegiance" to the United States.
that some change of the discharge issue may be accomplished within its frame-
3. The forms signed by the military clemency applicant include an admission of
work. If not, the program should be amended by the President to remove this
guilt, a confession of having violated military laws, without the applicant having
most injurious feature of its so-called remedies.
been given constitutionally required warnings about his rights, and indeed with-
We have welcomed some of the recent procedural and substantive decisions
out a preliminary hearing at which an impartial official might explain to the re-
made by the Board. The formal acknowledgement that full and complete pardons
turnees the charges against him and might make an impartial assessment of
are at the end of the tunnel for some, if not all, the applicants; the possibility of
whether the acts charged constitute a military offense.
brief hearings before the Board (though at the Board's discretion, rather than
4. In the extremely brief processing period at the Clemency Processing Center,
as a matter of the applicant's right), both on the original application and upon a
there is no adequate opportunity for the applicant to have his personnel file
request for reconsideration of the Board's recommendation finally the inclusion
reviewed by competent counsel acting in his behalf to see whether there are legal
in the Board's standards for mitigation of the applicant's conscientious motiva-
defenses against the absence offense that might make his application for clem-
tion for the act subject to the clemency-these are very considerable steps in the
ency unnecessary. To our information, there is no review of the lawfulness of
direction of what a true and generous amnesty might some day look like. Given
the applicant's induction, no review of whether there may have been a wrongful
the limitations of the Presidential clemency program, they cannot overcome the
denial of an in-service application for discharge for hardship, dependence, or
ACLU's objections to it, or the resistance and rejection on the part of the war
conscientious objection, and the like.
resisters generally. That resistance and that rejection are SO strong that the
5. The applicant has no opportunity to appear before the JASB to state his
Presidential Clemency Board to date has received applications from no more than
case or to make a plea for mitigating considerations.
about .07 percent of those qualified to apply. About 800 applications out of a
6. The three-question form filled out by the applicant, aside from being sparse
possible 120,000-only 1 in every 150! Surely, national reconciliation after that
and inadequate to say the least, gives him no hint as to what the standards are
divisive experience of the Vietnam war is not being accomplished by the Presi-
that the JASB considers in mitigation and therefore, is ill-designed to help the
dential Clemency Board. The Congress and the American people should learn why
applicant state his case to his advantage.
this is SO.
7. The published standards in mitigation of the maximum (and usual) 24-
III. THE DEPARTMENT OF DEFENSE
month alternate service sentence include only personal hardship and "good
soldier" elements but give no weight whatever to the conscientious and un-
The Department of Defense has jurisdiction, within the Presidential clemency
selfish motives that prompted the acts of many of the military absentees, and
program, over persons who are subject to military authority and who have (or
indeed 80 percent of the military returnees have been given alternate-service
may have) violated the military laws against desertion, absence without leave,
sentences of from 19 to 24 months.
or missing a military movement (articles 85, 86, and 87 of the Uniform Code
8. There are no published procedures and standards that describe the JASB's
of Military Justice), if these acts occurred between August 4, 1964 and March 28,
procedures in considering cases and in voting upon determinations as to terms
1973. The Department of Defense has stated that there are about 12,500 military
of alternate service or class of discharge to be given.
absentees qualified to participate in the program. Some 2,200 military returnees
9. The JASB gives no statement of reasons for its determinations, nor is there
have SO far been processed through the DOD's clemency machinery, about 18
provision for any appeal or review of its actions.
percent of the number eligible. I shall explain presently why, in our judgment,
10. The judgment of the military services, normally made by the authority of
the Defense Department's program is, compared to the other parts of the clem-
the Commanding General of Fort Benjamin Harrison, as to the eligibility of a
ency program, so successful.
military absentee to participate in the clemency program are not appealable.
Military absentees who surrender to military authorities are sent to Fort
11. The clemency discharge held out to military returnees under the clemency
Benjamin Harrison, Indiana, where the four services have established a Clemency
program has precisely the same incurable defects that I have already mentioned
Processing Center. Their processing there is accomplished normally in one busi-
in my comments on the Presidential Clemency Board.
ness day. The returnee is required to sign a reaffirmation of allegiance, an admis-
12. There has been a major conflict of statements by Department of Defense
sion of his violation, and a pledge to do an assigned period of alternate service. A
spokesmen concerning the question of whether a military absentee who pledges
Joint Alternate Service Board (JASB), composed of a colonel each from the
but fails to do his assigned alternate service time can and will be prosecuted.
Army, the Air Force and the Marine Corps and a Navy Captain, considers the
The problem arises because the returnee, after signing his alternate service pledge
returnee's military personnel record and a form filled out by the clemency appli-
and the other forms, is discharged from the service with an undesirable discharge.
cant. The 1-page form contains only three questions: "(1) Reason for absence
Once discharged, the military normally has no further jurisdiction over him. If
from military service; (2) Employment during absence from military service:
he fails to perform the alternate service, the only means of enforcement appear
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to be an action by military authorities under article 83 of the Uniform Code of
Presidential clemency program is and will remain a failure, not only statistically
Military Justice for having fraudulently obtained his undesirable discharge or
but also morally and humanly. We hope devoutly that hearings help persuade the
by the Department of Justice under 18 U.S.C. 1001 for making a false or
American people and the President that it is time to end the war for our own
fraudulent statement to an agency of the United States Government. In order
sons, and that only a universal and unconditional amnesty will accomplish that
to prove fraud, the prosecution would have to prove the deserter's fraudulent
noble purpose.
intent at the time of his signing of the alternate-service pledge. But in most
I shall leave comments on the other two major aspects of the Presidential
cases that would be extremely difficult and can be made virtually impossible
clemency program to my colleague, John Schulz, of the Public Law Education
by thoughtful action on the part of the returnee. On September 19, 1974,
Institute, the editor of the Military Law Reporter and former editor of the
Defense Department spokesman Ken Pease and Justice Department spokesman
Selective Service Law Reporter.
John Russell were quoted in the Washington Post as having declared that there
was nothing either Department could do to enforce the deserter's alternate-
service pledge. The briefing given by military officers to the returnees at Ft.
PREPARED STATEMENT OF JAMES R. WILSON, DIRECTOR, NATIONAL SECURITY-
Benjamin Harrison continues openly to give them this advice. On October 7, 1974,
FOREIGN RELATIONS DIVISION, THE AMERICAN LEGION
however, the New York times quoted Martin Hoffman, General Counsel of the
Defense Department as saying that they would institute prosecution in appro-
Very late last week, the American Legion learned that this subcommittee would
priate cases, and the Justice Department was similarly heard to mumble about
hold hearings on the progress of the several Government agencies and the
prosecution under title 18 of the United States Code. We think it essential that
Clemency Board in administering the President's amnesty program.
this matter be authoritatively clarified. The Defense Department and the White
Had witnesses been limited to the Government agencies, the American Legion
House have claimed that this so-called "deserters' loophole" was not accidental
would not have requested this appearance. However, when we learned that out-
but knowingly and intentionally created in the clemency program (New York
side witnesses representing views diametrically opposed to ours were being
Times, September 19, 1974). If that is the case, the threats of prosecution are
invited, we requested the opporunity to appear.
sheer harassment. It would be extremely helpful if the subcommittee could obtain
I feel honored to have been given the privilege to present the views of our
a final and authoritative ruling on this matter.
organization for there are many individuals and organizations who either were
The apparent unenforcebility of the deserter's alternate service pledge accounts
not aware of these hearings or will not have the opportunity to appear.
entirely for the fact that the military clemency program is relatively the most
For the record, and as this subcommittee is aware, the American Legion by
successful of the program's divisions. About 18 percent of the potential appli-
action of succeeding national conventions offered a different means of resolving
cants have submitted, compared with .07 percent of the potential clientele of the
the amnesty issue than that chosen by President Ford. We felt then, and we
Board's and about 2 percent of the Justice Department's. This is dramatic evi-
feel now, that the handling of the cases of deserters and/or draft evaders should
dence for our contention that no punitive system of clemency, no conditional
be through already established judicial systems.
amnesty, will achieve the President's objective of healing the nation's wounds
We presented our viewpoint to both Senate and House committees and to the
and overcoming the divisiveness of the Vietnam war among ourselves. The mili-
President himself. However, once the President's proclamation was issued, the
tary clemency program, to all intents and purposes, is unconditional, and despite
matter was resolved. We used all of our means of communication to make the
its other serious shortcomings, that fact alone accounts for its strikingly higher
provisions of the President's plan well known to our membership of nearly 2.7
ratio of success in returning war resisters to our society.
million veterans.
Perhaps this effort was redundant for press, radio and television, in fact,
IV. CONCLUSIONS
almost every form of communication has repeatedly covered this matter in depth.
The media should be commended for the splendid job it accomplished in making
In concluding, let me only add this: The legal cloud that has been cast over
known to all Americans, but particularly to those affected, of the opportunity
the "deserters' loophole" accentuates one of the chief objections that must be
President Ford's proclamation provided.
raised against the Presidential clemency program generally: The program
In announcing his "earned re-entry" program, President Ford clearly stated
obliges war resisters to reaffirm allegiance to their country, which they had
his objective "to give these young people a chance to earn their return to the
never denied but rather passionately affirmed it forces them to admit that they
mainstream of American Society SO they can, if they choose, contribute to the
have committed crimes, when the world and many of our fellow citizens, includ-
building and betterment of our country and the world."
ing much of our moral and political leadership, came to believe that the war
President Ford "promised to throw the weight of (his) Presidency into the
itself was a crime; it compels them to confess that they had not fulfilled their
scales of justice on the side of leniency and mercy, but (to) also work within the
obligations as citizens, when they have spent years of their young lives either in
existing system of military and civilian law and the precedents set by (his)
prison, or underground in their own country, in exile abroad, or in the military
predecessors."
service itself; it now asks them to concede that this government has the moral
In keeping with the spirit of the clemency program, it is our view that the
and legal authority to impose punishment upon them for their acts of war
program is not vindictive. It has and does provide a just opportunity for more
refusal. The loophole problem makes it quite clear: The Presidential clemency
than 128,000 young men to re-enter American society with far less sacrifice
program demands that war resisters lie to the government in the process of
and risk than those who chose to serve. The program has been in effect for more
begging it for mercy. That is not the way a country makes peace with its young
than three months and those eligible for its provisions may still enter for six
sons!
more weeks. However, the "open hand" of reconciliation should be terminated
The war in Southeast Asis was a catastrophe for the world, a horror for the
as announced on January 31, 1975.
people of Indochina, and a tragedy for our country. Amnesty-or clemency-
The vast majority, more than 85 percent, of those covered by the clemency
should be one gesture in the direction of ending the tragedy. The Presidential
program are military deserters or absentees who will still have redress after the
clemency program, it seems to us, prolongs the tragedy for tens of thousands of
program's termination date. Each convicted military absentee and a far larger
young Americans.
number of Vietnam era men separated with less than honorable discharges may
Modifications in the present program are essential and might mitigate some
apply to the discharge review board and/or the board for correction of records
of the worst features of its implementation. But the program in its very con-
of their respective service.
ception will remain punitive, demeaning, discriminatory and hurtful. No clemency
The circumstances surrounding their violation of the Uniform Code of Military
that is conditional, that makes the impossible attempt to assess the personal,
Justice are a "mixed bag" according to reports from the clemency board. Seldom
subjective, religious, moral, ideological, religious or political motivations of
does their misconduct stem from a fervent personal or moral opposition to the
people's acts of war refusal, that offers clemency to some but not to others in
war in Vietnam. Their reasons for absenting themselves parallel their fellow
similar situations-no such system will reconcile us with those young men and
servicemen in non-hostile and other hostile periods-personal and family prob-
women for whom the war should now also come to a close. For that reason the
lems, inability to adjust to military society, overriding financial obligations, and
a myriad of other reasons completely unrelated to Vietnam.
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The American Legion, upon application, has and will continue to provide ad-
ministrative assistance and counsel before the discharge review boards and the
missed. Judge Harlington Wood agreed, the indictment was dismissed
boards for the correction of military records to these former servicemen.
and I am a free man today.
Shortly after the establishment of the clemency board, we expressed two deep
Since I am the first draft evader to return and refuse the Ford re-
concerns about the alternate service phase. First, we strongly opposed the assign-
ment of draft evaders or military deserters to Veterans Administration hospitals,
entry program, the Justice Department's refusal to prosecute must be
which we felt would be a direct insult to many of those who served and who are
viewed as a significant victory. However, I cannot let my own happi-
reminded daily of their painful sacrifice. Furthermore, it would be grossly unfair
ness hide the fact that there are still thousands of men and women
to those who chose not to serve.
who live each day under the threat of imprisonment. Neither can I
Secondly, we are concerned that some alternate service assignments would
eliminate jobs for Vietnam veterans, particularly the 20-24 age category whose
forget that the Government seems intent on sticking with President
unemployment rate has risen to a distressing 12.4 percent. We have received
Ford's program even though it is an obvious failure.
assurances from both the administrator of veterans affairs and the director of
Other witnesses have presented the factual and practical problems
the selective servicesystem that neither of these will occur.
The American Legion has followed the progress of the amnesty program since
with "earned reentry." I would like to share with you a short summary
its inception last September. Special briefing sessions have been held for the
of my feelings over the past 61/2 years and how they affected my choice
national security commission in Indianapolis dealing with the procedure for
between permanent exile, earned reentry or the possibility of jail.
processing military deserters through Fort Harrison and Camp Atterbury and
It is:
with selective service responsibility. My staff and I also attended the recent
1968-I receive the final rejection of my application for conscien-
press conference held by the President's clemency board and kept in touch with
the Government agencies to determine how well the program was being received.
Much of this information has been transmitted to our national officers, to our
but we decide it is better to leave. We are afraid; we don't want to leave
tious objector status. My wife, Elaine, and I discuss my going to jail
policymaking bodies and to the membership at large.
America, our families, the life we have made together. But we cannot
We feel that every young American to whom President Ford has offered the
support the war, SO 2 weeks later we leave for Montreal.
chance to earn his way back into society is aware of the provisions and mechan-
ics of the program. However, if this is not the case, time still remains to apprise
1969-The war goes on under a new President. My brother decides to
any who may not have knowledge of the program.
get married and sends us an invitation. We are a close family and I -
The fact that more have not taken advantage of the program is not, in our
judgment, through lack of information about it or how to proceed to apply,
term. want to be there, but I can't. I have been indicted and I risk a prison
rather we believe the draft evader, particularly, does not feel it is enough. Nothing
short of complete, unconditional, automatic amnesty will satisfy this category
1970-My grandmother dies and I can't go to her funeral. Heavy
among all those who refused to serve.
depression sets in. Decide to stop thinking about America and try to
Based on our assessment, it is our recommendation that the program's dead-
make a success of becoming Canadian.
line should not be extended nor its provisions liberalized.
1971-American public opinion turns heavily against the war, but
STATISTICS OF CLEMENCY PROGRAM
I can't allow myself to feel optimism. The loneliness is too difficult if
I admit it. Elaine and I decide to buy our house and stay in Montreal.
Draft Evaders (Convicted) 263 of 8,700 have applied to Clemency Board. Mili-
1972-My son Jamie is born. He can't be President because he is born
tary Absentees (Convicted)¹ 559 of more than 100,000 have applied to Clemency
Board. Draft Evaders 131 of 6,800 have signed agreements with U.S. Attorneys.
but it is a long trip. They don't make it.
on foreign soil. His grandparents want to see him as a new-born baby,
Military Deserters' 2,233 of 12,500 have been processed through Fort Harrison
and Camp Atterbury.
1973-Direct American participation in the war ends. Amnesty
Senator HART. We will be in order. I apologize for this delay, Mr.
grows as an issue. Watergate breaks and exposes a lot of what we said.
Meis and we welcome you. Our next and concluding witness is Mr.
My friends and I are sure it means a total amnesty is in the works.
William Meis.
1974-Starts a happy year. My daughter, Marika is born, President
Nixon resigns and Gerald Ford assumes the Presidency. I am sure
STATEMENT OF WILLIAM MEIS
President Ford will call for a new beginning and a healing of the
Mr. MEIS. Thank you, sir. I would like to read a short statement and
wounds. Instead he pardons Nixon and then says we exiles must accept
then we can go into questions.
guilt and punishment, that we must earn our way back and sign a
loyalty oath. I am shocked and hurt. I decide to come back and stand
My name is Bill Meis and I am a draft evader. Three months ago
up for what I believe in.
I left my home and family in Montreal and returned to the United
States to challenge President Ford's "earned reentry" program. I sur-
Today, as I sit here in this room, I can say those nightmares and
rendered myself to the authorities in Springfield, Ill., where I was
painful memories are beginning to fade. Since my return to the States
arrested, arraigned, and placed under a $2,000 bond. There I awaited
I have rediscovered the basic goodness and sense of justice within the
a trial which was to have taken place on March 3, 1975.
time. American people. I know total amnesty is coming; it is just a matter of
On December 2 of this year, the assistant U.S. attorney in Spring-
field, after receiving authorization from the General Counsel's Office
How can I say that ! I say that because I have received messages of
of the Attorney General's in Washington, presented a motion before
support from men lying shot up in a VA hospital in Denver; I say it
because I have spoken to Vietnam veterans and received a warm re-
the Seventh District Federal Court, asking that my indictment be dis-
ception; a say it because two local commanders of the V.F.W. and a
1 Eligible to appeal to Discharge Review Board (unless discharged by General Court
commander of the U.S. Marine League have publicly stated their sup-
Martial) (15-year limit), and/or Board for Correction of Military Records (3-year limit).
port; I say it because I have been in the heart of the heartland, the
If convicted, will be eligible to appeal to Discharge Review Board (unless dicharged
by General Court Martial) (15-year limit), and/or Board for Correction of Military Rec-
middle of the Midwest and received countless messages of support
ords (3-year limit).
from common, everyday people.
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But most of all, I can say it because the American people do want to
Senator HART. You said in your testimony that you returned 3
heal the wounds of the last 10 years. They want to be united again as a
months ago to challenge-
people prepared to face the difficult problems that lie ahead. And they
Mr. MEIS. Yes?
know unity cannot come until all the legacies of the Vietnam war have
Senator HART. To challenge the clemency program
been dealt with. That is the task we must set ourselves.
Mr. MEIS. Yes.
Senator HART. Well Mr. Meis, yours is a very brief but I think very
Senator HART. Expand a little in addition to what you said in your
eloquent plea. I would like to be able to share your optimism that, as
testimony why you didn't accept this clemency?
you put it, total amnesty is coming, it is just a matter of time.
Mr. MEIS. Why didn't I accept it?
Mr. MEIS. Exile teaches one to learn patience, Senator.
Well, as everyone who has seen the form knows, you sign away cer-
Senator HART. I would hope you are right. The time will be short-
tain constitutional rights, you sign away your right to appeal, you sign
ened, assuming you are right, time will be shortened in proportion to
away your right to double jeopardy. I feel very strongly that earned
the voices in leadership positions that urge the whole community to
reentry implies that we admit guilt, that we admit that at one time
understand the benefits and the equities. I am not sure that enough
we were disloyal to our country, that we are willing to accept punish-
voices are raised to that point.
ment without appeal. I feel proud of what I did. I was acting in the
When President Ford announced his program I expressed delight
best interests of myself and my country. I was trying to stop the deaths
and then, regret that it didn't go as far as it should. The voice in the
in Vietnam.
White House really is th one voice that can give the kind of leadership
It is my generation which suffers from that war. My friends, fami-
that a concept like this most requires. This should not mean by the
lies that I knew, kids that I grew up with died over there, you know,
silence of people in Congress, but there is a whale of a difference in the
which is a very heavy thing that weighs on my mind. So, I cannot
reach of our voices. There are some questions that have had developed
accept a program such as the reentry program, which is not willing to
that I would like to ask you.
put behind us those years of suffering and fighting between ourselves.
Mr. MEIS. Fine, sir.
But I did feel that if I wanted to challenge the program and be treated
Senator HART. One Administration official said that an appropriate
with respect, with dignity, then I could not do that from Canada and
alternate service would provide the participant room and board plus
I felt it was necessary to return to the United States. After talking it
$100 a month compensation. Tell us how you are taking that job of
over with my wife and friends and the American organization which
kind, whether it effects your ability to support your wife?
helped me, we decided to do it.
Mr. MEIS. Well, from just a practical point of view, I frankly could
Senator HART. How many with a like attitude have followed you
not support a wife and two children with the kind of job you are talk-
back from Canada, do you know?
ing about. I think it is totally unrealistic to believe that I would do SO.
Mr. MEIS. I am not sure at this point in time.
A lot of people forget-like Mr. Goodell this morning who re-
Senator, I think I should make it very clear that what I did was
ferred to us as young people, inarticulate, confused, mixed-up and un-
only able to do because of the support of a lot of people and because,
fortunate boys-that we are older. In my opinion, we were never as
as a novelist, I am in a position where I could take a few months off
Mr. Goodell describes us, and we are certainly not now. Most of my
and attempt this kind of challenge.
friends run from 27 to 37 years old, and we have been in Canada or
For most of us. there are very real problems in refusing the re-
Sweden or wherever for a long time. We have made successful lives for
entry program and deciding to go through the system of justice. This
ourselves as immigrants and we are not desperate to come home if
can be a very long, difficult, and expensive procedure. I know there
coming home means punishment.
are a number of people who are contemplating doing it. I think, until
Senator HART. You are not a lawyer?
there is a total amnesty. people will do it. There will be a number
Mr. MEIS. No, I am not.
of challenges launched. But it is not something that everybody can
Senator HART. As a layman, how would you react to this question
do at the drop of a hat. Do you understand what I mean?
Participants in this clemency program, as you may have noted, are
Senator HART. Did you have a lawyer representing you when you
required to reaffirm allegiance to the United States.
presented yourself to the U.S. District Attorney at Springfield?
Mr. MEIS. Yes; that's correct, sir.
Mr. MEIS. Yes, sir, I did. I would advise anyone to have a lawyer
Senator HART. Do you feel that you ever foreswore allegiance to the
whether they enter into the plan or refuse it.
United States?
Senator HART. Do you have any impression as to whether if you
Mr. MEIS. No, I don't, Senator. I feel this is a very important point
had volunteered for the clemency program the U.S. Attorney then
Those of us who stood against the war did SO in the very highest
might have dropped the indictment on you?
allegiance to the United States. This is one of the reasons I feel there is
Mr. MEIS. Well, for me to accept the program as I understand it,
a real need for amnesty. We had a situation in America where we were
I suppose it is conceivable they would have given me no alternate
very close to a civil war because both sides thought they were acting in
service at which point, the indictment would have been dropped. But
the best interests of our country and in the best interests of their con-
they have been giving everyone some length of alternate service as
sciences. The best way to resolve that kind of situation is to have an
far as I know. I am not up-to-date on all these questions, Senator.
amnesty.
But no, they would not drop the indictment until I completed the
55-550 75 9
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alternate service. I think the reentry program states-you might
Senator HART. Or in the role of an adversary rather than
ask a lawyer-I think the indictment remains in effect until you per-
Mr. MEIS. If I understand the question, my answer would be that
form the alternate service. So it is the kind of thing they can hold
the prosecutor was acting as a plea bargainer.
over you.
Senator HART. You did have that impression, notwithstanding the
Senator HART. Your experience with the U.S. Attorney's office there,
fact that within that rather brief period of time you saw the prosecu-
and I don't want to personalize this
tor move to dismissal
Mr. MEIS. Thank you.
Mr. MEIS. I am not sure that I understand the question.
Senator HART [continuing]. Describe what happened, what was the
Senator HART. Well, the question here is what concept did you have
atmosphere like when you walked in
of what you would find at the U.S. attorney's office before you got
Mr. MEIS. When I first turned myself in?
there? Did you anticipate walking into somebody that was a prose-
Senator HART. Yes.
cutor as the movies on the TV present?
Mr. MEIS. It was a madhouse, really, because there was an awful
Mr. MEIS. I suspect I probably did; yes.
lot of press coverage and attention paid to this cause. I was arraigned,
Senator HART. Now, that you have been through the experience, does
arrested. and set free on bond. The total process took about 45 minutes.
the district attorney still have that style, in your mind?
We could unclog this Nation's courts if things always moved that
Mr. MEIS. No; not at all.
fast. They moved me through very quickly. I will have to say that
He acted as a plea bargainer between my lawyer and the Department
everyone was very correct, very proper. I was offered the reentry pro-
of Justice in Washington. That was the role I saw him play.
gram. I was asked by my own lawyer if I wanted to sign it.
Senator HART. And returning-before we leave-to your expression
I would say it seemed to follow a rather proper and correct pattern
of the belief that unconditional amnesty will come, total amnesty will
from what I could understand. Is that what you meant by your
come in time, you have described a number of people who have en-
question, Senator
couraged you, including patients in our VA hospitals.
Senator HART. Yes; the reception, the process.
Mr. MEIS. Yes. Vietnam veterans, two commanders of V.F.W. posts,
Mr. MEIS. Well everything was done publicly, SO I don't know how
and a commander of the Marine Corps League.
much we can interpret from my experience how other people would
Senator HART. Have you had contact with either brothers or sisters
be treated. I really don't know. I hope the Government would treat
who have been killed in Vietnam or parents of men killed
everyone that way. I suspect they would not, but I really don't know.
Mr. MEIS. Yes, yes. I don't mean to say that no one opposes amnesty.
Senator HART. Let me get it more precisely in time.
The President of the Gold Star Mothers' Chapter in my home town is
Mr. MEIS. Right.
pretty violently opposed to amnesty. She is an old friend of our family.
Senator HART. Three months ago you came in from Montreal. You
She and my mother talk, but she still is very much against amnesty.
surrendered to authorities in Springfield on what date?
But there are others who are in favor of it. I have talked to sisters
Mr. MEIS. October 3.
Senator HART. Then on December 2 the indictment was dismissed
and brothers and parents who express a favorable opinion.
What I am saying is that there is not the massive resistance that a
Mr. MEIS. That is right. It took about 2 months.
Senator HART. I was trying to find the time lag between your arrival
number of politicians and representatives of certain veterans groups
have tried to depict. They paint the picture that there is a massive re-
and dismissal.
sistance to amnesty, particularly if you are aware, not from New York
Mr. MEIS. The judge gave us 60 days to present motions and my
City, or Los Angeles, that if you go out into the heartland everybody
lawyer drew up a motion for dismissal. We presented it to the assist-
wants to string up war resisters. That is not the case at all.
ant U.S. attorney who said it looked pretty good and he didn't want
to prosecute. He said he would have to send it to Washington. So he
I honestly feel that among these who lost friends or relatives in
sent it to the Attorney General's office where they had it for approxi-
Vietnam, there is at least a significant number, significant percentage,
mately 3 weeks. They reviewed it, under a number of considerations,
who are in favor of amnesty. I don't know what percentage, I don't
think anyone knows; but it is a lot more than I think you or I would
I would imagine, and they sent it back to the assistant U.S. attorney,
assume.
whose public statement was that they were not willing-I don't want
Among the general American population in a very conservative area
to misquote him-but it is something to the effect that they were not
like my home town where I would say the greatest resistance is—I feel
willing to publicly prosecute a case which they might not win and
therefore they themselves would present a motion for dismissal. We
uncomfortable making these kind of guesses, but I would say it is kind
only had 60 days for motions and that came on the sixtieth day.
of 50-50. And again, I make the point that this percentage is for a
very conservative constituency.
Senator HART. Before you presented yourself to the U.S. attorney
Senator HART. What is your home town?
did you feel that the agencies dealing with the clemency program
Mr. MEIS. Decatur, III.
were dispassionately dealing with the applicants' cases or was there
a feeling of adversary position, was there a prosecutor in the role of
Senator HART. What do you plan to do now. what are you going to
do about the challenge that you came back to?
a plea bargainer?
Mr. MEIS. Was the prosecutor acting as a plea bargainer?
Mr. MEIS. For my own personal case there is not a great deal more
that I can do. I am happy that I am free, and it is a good feeling.
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I plan to keep working for full amnesty to the extent that I can
be involved, but I do think hearings like this and the public exposure
CLEMENCY PROGRAM PRACTICES AND PROCEDURES
which is coming will bring about total amnesty. I am fairly confident
that I am not going to have to work on it all my life.
I also plan to continue my career, and my family and I will eventu-
THURSDAY, DECEMBER 19, 1974
ally move down into the States. We do have a house and a lot of obliga-
tions in Montreal that need to be taken care of. But I will say we will
U.S. SENATE,
be moving back here.
SUBCOMMITTEE ON ADMINISTRATIVE
Senator HART. What prediction do you make as to what will be the
PRACTICE AND PROCEDURE,
decision of others with whom you are closely associated in Canada?
OF THE COMMITTEE ON THE JUDICIARY,
Mr. MEIS. What will they do?
Washington, D.C.
Senator HART. What will they do?
Mr. MEIS. If there is a total amnesty soon, we will begin the process
The subcommittee met, pursuant to notice, at 10:30 a.m., in roo m
of coming home. If there is no total amnesty there will continue to be
2228, Dirksen Senate Office Building, Senator Edward M. Kennedy
a series of challenges until there is total amnesty.
[chairman of the subcommittee] presiding.
Present: Senators Kennedy [presiding] and Hart.
I think we war resisters along with the Vietnam veterans, have re-
Also present: Thomas M. Susman, chief counsel, Mark Schneider,
ceived extremely shabby treatment and we will continue to be a thorn
investigator, and Janet Alberghini, staff assistant.
in the side of the Government until those in power are prepared to
treat us with dignity and respect. One of the greatest ironies of the
OPENING STATEMENT OF SENATOR EDWARD M. KENNEDY
last 10 years is that the two groups of people who did take a stand
during the Vietnam war either by serving in the Armed Forces or by
Senator KENNEDY. The subcommittee will come to order.
standing up and saying no, are the two groups that are being dealt
The second day of hearings of the Subcommittee on Administrative
with with most harshly today. Sooner or later Americans are going to
Practice and Procedure begins this morning on the operation of the
have to deal with the war. There will continue to be challenges, annoy-
Presidential clemency program. We seek to elicit information about the
ing incidents, things will continue to move by different forms of pro-
workings of the Ford amnesty program; to clarify the policies and
tests until there is an amnesty for war resisters and until Vietnam vet-
procedures of the agencies involved in administering the program; to
erans benefits are commensurate with the benefits for veterans of other
highlight problems and deficiencies where they may have appeared;
wars.
and to recommend improvements in the administration of the program.
Senator HART. Well, I don't know what the dictionary's definition of
Yesterday we heard testimony from former Senator Charles E.
reconciliation is, but I would assume it takes two to dance.
Goodell, Chairman of the Presidential Clemency Board. Senator
Mr. MEIS. Right.
Goodell suggested that one of the primary weaknesses of the clemency
Senator HART. And absent unconditional amnesty, those like you
program was its failure to reach out to the thousands of young men
will not be reconciled.
eligible for clemency and to inform them of their options. Less than
Mr. MEIS. Even without amnesty, many of us are becoming recon-
than one-tenth of 1 percent of those eligible for clemency have ap-
ciled in the sense that we love our country, that we care very much. My
plied to the Board SO far.
roots are in America, Senator, and I feel that kind of reconciliation.
However, Senator Goodell yesterday announced a new effort to
But I think that true reconciliation demands that we both look at each
reach the more than 100,000 convicted draft evaders and discharged
other with respect, and as you say, it takes two to tango.
military deserters to inform them of their eligibility.
Senator HART. Well, thank you very much.
Other witnesses stated that the low rate of participation in the
As just an individual I would think the country would want you to
clemency program is due to the absence of procedural protections, to
return and want you here.
inequities and unfairness in the processing of applicants, particularly
Mr. MEIS. Thank you, Senator.
by the Defense Department and the Justice Department to unfair
We are adjourned until 10 o'clock tomorrow morning.
requirements imposed upon the participant, and to the lack of any
[Whereupon, at 4 o'clock, the subcommittee was adjourned until the
predictibility-and ultimately confidence-in the process. As one
following morning.]
witness explained, many lawyers are counselling clients who may be
eligible for clemency that they may receive more leniency and more
equity by exercising their legal options outside the clemency program.
Both the American Legion and the American Civil Liberties Union
agreed to one point: Many young men are not going to come forward
voluntarily unless there is a full and unconditional amnesty; and
that is far from what is being offered them today.
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Whether or not we are satisfied with the scope or the nature of the
present earned reentry program announced by President Ford on
deeply disturbing in its reflection of serious defects in the Presidential
September 16, that program is in operation. For those who
clemency program.
might want to participate, the program should be publicized, the
Even judging the program within the limitations imposed by
procedures made more equitable, the terms clearer, the results fairer.
President Ford, I find it difficult to understand why SO many eligible
With this in mind, and in light of the testimony we have heard SO far,
individuals have not been notified, why SO many discrepancies in the
I offer these preliminary recommendations.
treatment of participants exist in the different programs, why the
First: I believe that the criminal records, either civilian or military,
benefits for some are SO limited, and why a program conceived in a
of those receiving pardons or clemency discharges should be ordered
spirit of compassion and reconciliation may impose greater penalties
sealed by the President, the Attorney General, or the Secretary of
on an individual than the normal military or judicial process.
Defense. This appears not only possible, but entirely desirable in
Our witnesses today represent the Defense Department, the Justice
light of our past traditions and in response to the spirit of President
Department, and the Selective Service System. I hope that each of
Ford's call for national reconciliation. These files should not haunt
them will be prepared to address themselves to these questions and
the young men who complete the clemency process if our goal is to
to the recommendations that I have put forward.
remove the barriers to their full reentry into our national life.
Our first witness is Martin Hoffmann, General Counsel, Department
Second: I think it imperative that the Justice Department, and/or
of Defense. Mr. Hoffmann is from Stockbridge, Mass. He previously
the Selective Service System compile final and definitive lists of those
served as Special Assistant to the Secretary of Defense and is familiar
in jeopardy, of prosecution and of those whose files have been closed
with Capitol Hill proceedings. He was legal counsel to Senator Percy.
because of procedural errors or any other reason. This list should then
We extend a warm welcome to you this morning.
be provided to some intermediary organization in confidence, where
Accompanying Mr. Hoffmann is Captain Miller of the U.S. Navy.
men can call or write without fear of self-incrimination. The Depart-
I understand that members of the Naval Command College, class of
ment also should make its own effort to notify individuals who are no
1975, which include officers representing 38 nations from the free
longer liable to criminal action.
world are here today, and we would like to welcome them.
Third: Even while recognizing the limitations of the President's
conditional approach, I believe it can be expanded to more closely
STATEMENT OF MARTIN R. HOFFMANN, GENERAL COUNSEL, DE-
approximate the goals of leniency and evenhandedness. Particularly
PARTMENT OF DEFENSE, ACCOMPANIED BY CAPT. WILLIAM 0.
for the soldier who received an undesirable discharge, perhaps after
MILLER, U.S. NAVY
protesting the war by refusing to return to Vietnam, but who did not
desert, the program seems unjust. If he had deserted he would be
Mr. HOFFMANN. Mr. Chairman, it is a pleasure to be here to respond
eligible for consideration for the program. But since he decided to stay
to our request for a description of the procedures by which military
and accept imprisonment for disobeying an order, then he is
absentees are returned to and separated from military service under
ineligible.
the President's clemency program. I am accompanied by Captain
Clearly, the program should be expanded to other recipients of
William O. Miller, U.S. Navy, who serves with the Assistant Secretary
dishonorable discharges where there is any indication of a Vietnam
of Defense for Manpower and Reserve Affairs.
motivated action that led to his discharge. Also, it seems unfair for a
The President's program is outlined in Presidential Proclamation
veteran, who came to the conclusion that he could not participate
4313 and Executive Orders 11803 and 11804 dated September 16,
further in Vietnam, to find that the Defense Department does not
1974. The implementing responsibility of the Department of Defense
count deep moral objection to Vietnam as a mitigating factor, al-
related to those individuals who are subject to military jurisdiction:
though the Clemency Board has.
that is, members of the military services who have been dropped from
Perhaps even more important, can a program that was ordered into
the rolls as deserters by reason of an unauthorized absence of more than
effect on September 16, a program that on December 16 had not yet
30 days starting between the dates August 4, 1964 and March 28,
notified all eligible persons, can that program be ended on January 31
1973. It is estimated that 12,500 eligible absentees were at large. Also
and be considered adequate?
eligible were approximately 500 individuals who were in military
Only the expansion and extension of the program beyond January 31
custody at the time of the proclamation, but who for various reasons
can begin to alleviate these particular inequities.
had not been separated from the military service or brought to trial
Finally, I believe that each agency charged with administering
for their offense.
portions of the clemency program must reform and adjust its practices
On September 17, 1974, the Department of Defense provided exten-
and procedures to conform with the requirements of the Administra-
sive guidelines to the military departments on implementation of
tive Procedure Act, at the very least with the procedural protections
the program. A copy is attached to this statement. The controlling
that were available under the Selective Service Act.
philosophy is that the program should provide an effective, expeditious
These recommendations stem from the reports we have received
procedure fully protective of the rights and options of the returnee
and from the testimony of witnesses yesterday, testimony which was
whereby eligible military absentees may enter the program, become
separated from the military service and undertake alternate service.
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131
Upon completion of the prescribed period of service, a clemency dis-
incriminate himself by signing up. Shouldn't he be aware of some of
charge would be issued in lieu of the undesirable discharge previously
the rights he has?
received upon separation from the military.
Mr. HOFFMANN. Perhaps you can refer that question to the Justice
The specific requirements for eligibility are set forth in the Presi-
Department. Unless he has entered the military service he will not
dential proclamation. They are as follows:
come into that end of the program to which I am addressing myself,
The unauthorized absence is in violation of article 85, 86 or 87, of
which is the DOD.
the Uniform Code of Military Justice, and during the period August 4,
If he has entered the military and has been dropped from the rolls,
1964, through March 28, 1973.
he is classified as a fugitive. The statute would not run with respect
Other pending offenses, if any, have been disposed of.
to him.
The member must report not later than January 31, 1975.
Senator KENNEDY. Fair enough.
The member affirms his allegiance and pledges to perform the
Mr. HOFFMANN. Participation in the clemency program further
specified period of alternate service.
rests on agreement by the individual to the following:
Certain aspects of the specific guidance issued by the Department
A request for discharge for the good of the service must be submitted.
of Defense should be highlighted:
Senator KENNEDY. What happens if there are procedural errors
The deserter must return to military control, just as the draft
which would give him a good defense to the charges? Do they prevent
evader must present himself to the U.S. Attorney.
him from having to go through the complete clemency proceeding?
Eligibility may be determined by telephone or letter to the clemency
Mr. HOFFMANN. I think I should use this opportunity to make the
information point. The information disclosed in these inquiries will
point that he is actually briefed on an election he may or may not
not be used to apprehend the member for a desertion-related offense
make. In other words, when he gets through the entire process his
during the eligibility period.
options are laid out for him and he knows what he is in for.
Absentees coming into the country will not be apprehended at the
If, in the course of the review of his record by his lawyer or lawyers,
border but will be given 15 days to report to military authority.
there are procedural defects, if as a practical matter the board that
All participants will be centrally processed by the respective military
reviews his record to make a determination of the alternate service
service at Fort Benjamin Harrison, Ind. We were processing returning
length finds defects, he may not proceed until those are resolved one
absentees at Camp Atterbury during the early part of the program
way or the other. If, based on his judgment and his lawyer's judgment,
when we had the initial large numbers. Since then the processing center
he has a defense to the charges pending under the Uniform Code, he
has been consolidated for convenience at Fort Benjamin Harrison.
can, of course, go back that route and have them processed there-
Senator KENNEDY. On page 2 of your testimony, you have a ref-
under. I think several have done that.
erence to the fact that the deserter must return to military control.
Now, again, you see, under the unauthorized absence offense,
I understand the Marine Corps regs use the words "the individual
which merely consists of being AWOL or being absent without leave,
technically apprehended." What does that mean?
that is a fairly simple offense and simple in its proof. He knows if he
Mr. HOFFMANN. I would think that refers to a status. When he
has been gone without leave, and it is easily established, the prima
returns, he comes back on the rolls of the military until he is separated.
facie case is ordinarily made by proving the records that are in his
Whether or not he is technically in custody is practically a matter of
service record. So it is not a proceeding of great complexity, and to
the way Fort Ben Harrison is run. He is not in actual physical custody
the extent he does have defenses, procedural or otherwise, for instance,
at that time.
the pendency when he left of conscientious objector application or
Senator KENNEDY. What are his limitations? Can he come and go
hardship discharge or that sort of thing, the system is designed SO
freely?
they will be accommodated according to the advice he receives there
Mr. HOFFMANN. He can come and go as he likes.
and according to his own judgment of what he ought to do.
Senator KENNEDY. What if he changes his mind, can he walk out
Senator KENNEDY. On page 8 of your testimony, since we are on
the door?
this point, you refer to the responsibility of his counsel, civilian or
Mr. HOFFMANN. I think as a practical matter he can. I think if he
military, to make these facts known to the absentee himself with the
manifests this turn of mind in such a way that people in charge there
military discharge authority. Again, we are talking about legal de-
were put on notice, he would be taken into custody. He is not a fugitive
fenses available to him. Does the Board have any responsibility here?
and not treated as a fugitive SO long as he is manifesting a desire to
What responsibility does the Board have in terms of these defenses?
participate under the program.
Mr. HOFFMANN. The Board is not charged with any responsibility
Senator KENNEDY. What if you have a situation where an individual
of that nature. They have his record before them and under their
didn't register for the draft, and he walks into the office to give him-
procedures they review the whole record. In the event it appears he
self up about 3 months before the statute of limitations is going to ex-
may have made an improvident choice-this is more practice than
pire. He never registered for the draft but he knows that under the
regulation-they would send it back to ascertain whether he wishes
State and Federal law the statute is going to expire. Shouldn't he get
to avail himself of other choices.
some advice prior to the time that he actually surrenders himself to
Senator KENNEDY. Does he get a chance to look at the whole
what the implications could be? I can see a situation where he would
record?
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132
and family hardship either at the time of the offense or if the applicant
were to perform alternative service; mental or physical illness or con-
Mr. HOFFMANN. Yes, sir.
dition, either at the time of the offense or currently; employment or
Senator KENNEDY. The complete file?
volunteer activities of service to the public since conviction or military
Mr. HOFFMANN. Yes, sir, with his lawyer or lawyers.
discharge; service-connected disability, wounds in combat, or decora-
This is one of the reasons why the processing center is at Fort
tions for valor in combat; tours of service in the war zone; substantial
Benjamin Harrison. That is a repository for the record center, SO that
evidence of personal or procedural unfairness in treatment of appli-
right there we have any records that he may want.
cant; denial of conscientious objector status, of other claim for selective
Senator KENNEDY. I would like to mention at this point, that it
service exemption or deferment, or of a claim for hardship discharge,
is my understanding and that of other members of Congress, that
compassionate reassignment, emergency leave, or other remedy avail-
the way people are treated by the Defense Department in terms of
able under military law, on procedural, technical, or improper grounds,
the atmosphere-and this is irrespective of the procedures-has been
or on grounds which have subsequently been held unlawful by the
very positive and a credit to the people involved in the program.
judiciary; evidence that applicant acted in conscience, and for
Mr. HOFFMANN. We appreciate that recognition. They have worked
manipulative or selfish reasons; and, voluntary submission to author-
very hard to implement the spirit of the program in the processing
ities by applicant."
of the program.
That seems to be generally a very compassionate description of
Senator KENNEDY. Fine. Will you continue?
what could be included in the mitigating circumstances.
Mr. HOFFMANN. The unauthorized absence would render him
If you look over the list in the DOD, the mitigating circumstances
triable and could lead to a punitive discharge.
that you have there are more targeted toward a sort of military
Issuance of formal legal charges is not required.
involvement in this, and I think they are a much tougher and harder
The individual electing to participate in the program must reaffirm
set of factors. And then the ones in the Department of Justice are
his allegiance and execute a pledge to complete alternate service.
about the same as the DOD. So you have, at least I would think that
During the initial stages of processing, each individual is given a
you have, a difference. Even though mitigating circumstances are
complete legal briefing by a military attorney assigned to represent
being applied by all, they are defined by a good deal of difference by
him. This involved a group session, usually no larger than ten, with
what is included in any of those factors, and I am wondering whether
opportunity for individual sessions at that time or any time during
this makes any sense.
processing. The consequences of an undesirable discharge are fully
Mr. HOFFMANN. I think the basic difference between the Clemency
explained to him, as well as the legal implications of all aspects of the
Board standards and our standards will be found in the basic differ-
program. Additionally, each member is advised that he is entitled to
ence between the status of the individuals that are being addressed
consult a civilian attorney of his choice. He may have his own counsel
between these two segments of the program.
if he has retair ed one. The local bar association in Indianapolis, at our
With respect to the Clemency Board, they have been as a practical
request, has provided a referral service of attorneys who provide
matter already addressed by the full legal process that would apply to
advice, free of charge, to any returning absentee. Office space at Fort
their situation; that is, they have been tried. They are in a different
Benjamin Harrison has been provided for private consultation between
status with respect to the program than those who have fled, who
attorney and client.
have not completed either a period of inducted service or a commit-
After the individual has established his legal repres nt tion and
ment under an enlistment, or have not completed a period of alternate
been fully advised, the processing continues. His pay accounts are
service as a conscientious objector who has achieved relief from mili-
placed in order, and he is given an opportunity to provide information
tary service. So that the criteria, I think, would be different in dealing
to the Joint Alternate Service Board at Fort Benjamin Harrison for
with those two cases.
its consideration in determining the amount of alternate service he
Now, if you review the criteria one by one, you will find that all
will be required to perform. He is also given a complete physical
of ours are included in theirs. Those having to do with the length of
examination. As the proclamation requires, each case is reviewed for
service, decorations, wounds if any, and that sort of thing. Several of
the assignment of alternate service, 24 months being the standard.
the Board's criteria would be included in a defense to a court martial,
The Board considers reductions on an individual basis in the length of
such as mental state, inability to comprehend the seriousness of the
alternate service from the maximum of 24 months, taking into account
offense and that sort of thing. So that they would be excluded from
the following circumstances: previous satisfactory military service,
consideration once an individual had elected the program rather than
combat service, awards and decorations, wounds and injuries, and
trial.
nature of employment while absent.
Senator KENNEDY. Before we proceed in that area, I would like to
Criteria dealing with individual hardship we felt were inappropriate
for consideration, since we couldn't balance equities against the
refer to the three different sets of mitigating circumstances established
by the Clemency Board, the Department of Justice, and the Depart-
conscientious objector who had been required to serve alternate service
ment of Defense. As it appears to me they are different, substantially
notwithstanding hardship or individuals who served in the military.
So that is the basis for the difference in rationale between those
different. The Clemency Board points out these mitigating circum-
circumstances.
stances: "applicants' lack of sufficient education or ability to under-
stand obligations, or remedies available, under the law; personal
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135
I think one might also point out that the legal effect of the term
order. Whatever it was that concerned a young person to take the
mitigation is somewhat different in the two cases. In one where there
extraordinary actions which he took in separating himself from the
has been a conviction where a more pure form of a pardon power rather
service, assuming that there were factors that obviously impacted his
than prosecutorial discretion is in operation. There you are looking
decision, whether it is family hardship, physical illness, or other
at the operation of the total system in its finality and using such things
reasons. Because that individual either lacked the knowledge about
as the lack of compassion or consideration and the sort of things we
how to procedurally get a discharge, or felt that he did not have a
have there. That would not be applicable, simply because the man has
sufficient case to carry it further, or was emotionally compelled at the
absented himself and he has not been brought to trial and has not
particular moment not to go through the rather lengthy process
had his matter disposed of under the Uniform Code and under the
required, he goes over the hill and then comes back.
normal way of proceeding.
Those factors were very real in terms of the motivation of why he
Senator KENNEDY. Even given what you have said Mr. Hoffmann,
separated from the service, and that is a point of difference that we
under your regulations you talk about comprehension, length of serv-
have obviously reached.
ice in Southeast Asia, wars, wounds, nature of service, and then you
I have studied the order, I have spoken in complete support of it,
have additional guidelines. As I understand, there haven't been
I have talked with the President about it and he has talked with me
additional guidelines.
about it. From my personal considerations with him I believe that
Mr. HOFFMANN. Correct.
runs contrary to what he intended.
Senator KENNEDY. That is considerably different from the ones
It talks about reconciliation, calls for an act of mercy to bind up
I have read to you.
the Nation's wounds, to heal the scars of divisiveness, and yet you
Mr. HOFFMANN. That is correct, I will grant you the difference.
have not repaired the hardships that motivated a person to run through
Senator KENNEDY. Your regulations don't even include hardship.
the procedures in the military to take a hardship discharge.
You provide a discharge procedure for hardship cases even within the
Mr. HOFFMANN. I think I would say, in the formulation of the
military, but you don't include hardship here.
program, there is no question that the hardships endured by many in
The thing I am having difficulty understanding is that you have one
spending time as fugitives and having the condition in which they left
Presidential order but different interpretations of that in terms of what
in the first place, same idea was one of the things that motivated doing
the criteria for mitigating circumstances are going to be. Even given
away with prosecutions, and in fact, giving clemency with respect to
what you have said about their status in terms of legality or in terms
these offenses. But I don't think that I can make a point that deser-
of service or whatever, it seems to me that a rather different standard
tion because of hardship is a specific element in the program.
is being used by DOD in trying to reach the President's order on the
I think you are right, we differ. This was thrashed out in the course
questions of mitigating circumstances between the departments.
of formulating these things on an interdepartmental basis as well as
Mr. HOFFMANN. Senator, I think perhaps we differ. We don't see
a Department
that difference in philosophy of implementation. Take for instance the
Senator KENNEDY. You differ from the Clemency Board?
example you pose, that of a hardship situation. As you know, in the
Mr. HOFFMANN. That is correct.
military, in the event that an individual who is serving in the military
Senator KENNEDY. And you have one Presidential order?
either enlisted or under the draft has a hardship situation which would
Mr. Ho FMANN. We differ in the criteria. We are stating that we do
warrant discharge, he may apply for it. Under our program if he has
not differ in the philosophy and practical effect of considerations-
applied for it that can be reviewed to see if it was improvidently with-
Senator KENNEDY. Of course, you differ in the philosophy. It is
held. He has already had under the existing system, following induction
clear in the language, and the instructions that you are giving on it. It
into the military enlistment, an opportunity to exercise that option
is clear as can be. It is as clear as the English language. They ought to
and have the availability of the system.
consider personal and family hardship, they ought to consider mental
Now, if he has not done that, it seems to us that is not an appropriate
or physical illness, they ought to consider the lack of sufficient educa-
criteria to consider when we are balancing off the treatment he is
tion or ability to understand the obligations or remedies available.
getting.
It is just evidence that an applicant acted in conscience and not for
Senator KENNEDY. Why not? That is an amazing statement.
manipulative and selfish reasons.
Because an individual hasn't used the reasons to justify a hardship
All those terms seem to apply to what was in the mind of that
discharge under one circumstance, you are not going to consider what
young person at the time he made the decision to go over the hill.
might have been considered factors in a hardship situation as a miti-
But from your testimony it is clear that, if he didn't take advantage
gating factor in reaching the President's Executive order? That seems
of the hardship discharge, then we are in effect not taking a look at
to me to reflect a hard line attitude on this question of mitigating cir-
those mitigating circumstances at this time. That is the way I read
cumstances that quite clearly is different from the clemency board.
your testimony this morning. I would like to be relieved of that inter-
I can view that as a legal question, but in terms of the President's
pretation, but that is the way I interpret it. You are further indicating
order I don't see how you can reach that conclusion, but obviously
that is the way we are at DOD and that is the way we are at the
you have.
Clemency Board. We are operating under the President's Executive
The fact that amazes me is the existing attitude within the Defense
order, but we just reach different conclusions, and I think that is
Department. The acknowledgment that you are not even going to
where it is left.
consider those factors, runs completely contrary to the President's
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137
Mr. HOFFMANN. I think we- reach different conclusions because of
a difference in perception with respect to alternate service. Looking
given the opportunity to make one. Approximately 80 percent make
at those circumstances under which a soldier who was otherwise
statements, about 5 percent of which are lengthy with attachments,
affidavits, and SO forth. About 20 percent make no statement. Each
honorably serving and did not serve his 2 years, and the circumstances
Board member reads all statements and attachments.
under which a conscientious objector would have assigned to him,
Each member of the Board very carefully considers the statement
2 years of service to the country of public service-type employment
submitted by each participant, along with any and all documentation
in lieu of military service, we attemped to apply a criteria by which
that he may desire to present in his own behalf. The latter has included
we assign the service corresponding to the situation in which those
individuals found themselves, and under those terms, Senator,
among others, letters of favorable comment from friends, family rela-
hardship is entitled a considerably higher threshold than is implied
tives, and employers; recommendations from personal lawyers, per-
sonal doctors, employers, and law enforcement officials; performance
by your philosophy-your phrasing and your understanding of this
criteria and the Clemency Board rule.
ratings from schools as well as employers; information from locally
Senator KENNEDY. You are familiar with this sheet, the statement
provided legal counsel; personal copies of previously submitted re-
to the Board for alternative service, the form you use?
quests for hardship discharge or conscientious objector status; personal
Mr. HOFFMANN. Which one is that?
copies of citations for awards and decorations; and petitions for
Senator KENNEDY. It is a statement to the board for alternative
leniency signed by friends, relatives, fellow workers, and members of
the subject's church and community. Every statement and all docu-
service.
Mr. HOFFMANN. Yes; I have got it if you can identify it.
mentation is thoroughly reviewed along with each participant's total
record. The Board actively attempts to obtain all relevant informa-
Is this the statement submitted by the individual to the Alternate
tion that would assist the Board members to arrive at the most
Service Board?
equitable decision.
Senator KENNEDY. I will give you this one to take a look at.
Mr. HOFFMANN. Yes; this is the form for the individual to use as a
guide to submit whatever he would like to in mitigation to the Board.
Senator KENNEDY. You have three questions on this. One is the
reasons for absence of service, then the employment during the ab-
sence, and other matters to be considered. There is probably enough
space for about one line on each of those questions.
Mr. HOFFMANN. Well, for convenience this is bunched up together.
As a practical matter he can submit whatever he wants in any length
he wants. It is made clear to him he does not need to do it on this
form. He does not need to label it.
He is given in writing the criteria that we have just discussed.
All this is made clear to him by his counsel or counsels. He can ask
questions about it. He prepares with his counsel present, with his
counsel assisting him in any way he can with his full record available.
Senator KENNEDY. It seems to me that just by the nature of that
sheet that anybody who is going to answer that would answer it in
the space that is available. It is like any examination or test.
Mr. HOFFMANN. I think, Senator, if that were the sheet, and I am
not sure it is, because the ones I saw were at Camp Atterbury and
considerably longer, everybody is told this is not the exclusive sheet of
paper, and they could submit whatever they like, including affidavits,
which many had, including their employment during absence and that
sort of thing. We don't restrict them to a single sheet of paper.
Senator KENNEDY. Will you give us the other form? I understand
that this was one of the forms that was being used, but I would be
interested in seeing it.
Mr. HOFFMANN. These are the materials on the form.
The form which follows is a copy of the form in use at Fort Benja-
min Harrison. A copy is attached to this statement. It must be recog-
nized that an individual's statement is not limited to one page but can
be as lengthy as the individual deems necessary. One statement, in
fact, had 19 lengthy attachments. The absentee is not required to
make any statement other than to assure the Board that he has been
138
139
[The form referred to above follows:]
Senator KENNEDY. Can you tell us what you know about any
impressions that are gathered by those that are counseling the re-
STATEMENT TO BOARD FOR ALTERNATE SERVICE
turnees to make sure that when they fill these applications out, they do
not claim war resistance as a motive? The impression I gather, or at
1,
Social Security
least the staff has, from talking to counselors and attorneys, is that
they advise not to mention the war opposition as a motive because it
Number,
, submit the following matters to the
is their belief, whether right or wrong, that that tends to bring a
alternate service board for consideration in their determination of the
little longer alternative service. Have you heard that? Do you know it
to be the case, and can you tell us what the policy is?
number of months of alternate service that I must serve. I voluntarily
Mr. HOFFMANN. I had not heard that either at Camp Atterbury or
subsequently. I would not think that would be the case. Of course, it
submit this statement with full knowledge and understanding that I am
is not in the criteria.
I would not think offhand there would be any reason to mention
not obligated to make this statement or complete any part of this form.
that one way or the other. I am sure if the individual were worried
The information submitted in this statement is true and correct to the
about it or asked his lawyer, his lawyer would tell him what he thought
based on all the circumstances, and I couldn't give you a composite
best of my knowledge.
of how that would run with respect to the individuals out there.
Now, in general we get the impression which corroborates the earlier
1. Reason for absence from military service:
material that we had on it that only about 7 percent of individuals
who are coming back mention at any stage of the proceeding an
objection to the war as a reason for their absence. A survey was
taken, prior to the institution of the program-I think it was done
perhaps in 1972 or 1973-possibly the time of this subcommittee's
last hearings, in which a number of deserters who were abroad where
they could be reached were interviewed. In that group I think ap-
proximately 5 percent had an objection to the war and an additional
3½ percent were conscientious objectors.
2. Employment during absence from military service:
So that I am not sure there are that many who would have had that
in their minds when they left.
So to answer your question, I had not heard that.
Senator KENNEDY. Possibly one of the reasons that they might not
mention war opposition as a motive is because they have a belief that
if they were to mention that, it may bring about a more extended
period of alternative service. That is what has been represented to us,
and I think it is worth finding out.
3. Other matters I want the Board to consider:
Mr. HOFFMANN. Well, we will be happy to have those from whom
you got your information contact us about it and give us the specifics.
I will look into it at any case.
Senator KENNEDY. Your position, at least now, is that the op-
position to war will not be considered an aggravating factor?
Mr. HOFFMANN. It would not be. No; the intent was to make these
deliberations free of any impact of that one way or the other.
The Board actively considers all information, data, and docu-
Signature
mentation that serves to further the interest of equity among par-
ticipants. A participant's stated opposition to the Vietnam war,
WITNESS:
to national policies, to individual service policies and/or procedures
CPT, JAGG
is not held to his disadvantage during the Board's review and does not
Current Mailing Address:
preclude a reduction in the period of alternate service.
The composition and procedures of the Joint Alternate Service
Board may be of interest to you.
Date RMC
Street, Route
The Board was established jointly by the Secretaries of the military
Discharge Date
departments at the beginning of the program. All military absentees,
Town, State, Zip
under the jurisdiction of the military departments, have had their
alternate service determinations made by the Joint Alternate Service
55-550 75 10
141
140
Mr. HOFFMANN. He could appeal up the chain of command, yes.
Board. The Board is composed of one 0-6 grade officer who is a
The individuals on the Board sit as representatives of authority.
Colonel or Captain of the Navy, from each of the military services.
Senator KENNEDY. Have any of them done that?
All four officers consider the case of each returning absentee. The
Mr. HOFFMANN. No.
officer from the military service of the absentee presides during the
Senator KENNEDY. Have they been told they can do that?
consideration of his case. In the case of a tie vote, that officer's deter-
Mr. HOFFMANN. I believe so. I will check on that and let you know.
mination is controlling. As noted earlier, the indiv idual has the oppor-
It operates parallel to and directly in the chain of command. This
tunity to present a written statement to the Board. The Board will
not consider his case until it determines that the inc ividual either has
process replaces the article 32 investigation that would normally
attend the case where the convening authority has decided the case
taken advantage of the opportunity, or has specifically declined to do
should be investigated prior to court-martial. So that it is done under
SO. In the preparation of this statement the individual has complete
access to his counsel.
the authority of the convening authority that would act in the event
he elected the court-martial instead of the program.
Upon being advised as to the length of alternate service, the in-
Absentees are not specifically advised that they can seek reconsider-
dividual is given a further opportunity to consult with his attorney
ation of the Board's determination.
or attorneys. He must then make his final determination as to whether
They are advised, however, tha an appeal system is available for
or not he wishes to participate in the program.
a review of their military discharge. DD form 293 common to all
In the great majority of cases processed through the Joint Process-
military services is customarily used to request such a review. This
ing Center, action is completed within a 24-hour period.
form is shown to the absentee and the lawyer emphasizes that the
The individual is advised that after discharge he must report to
burden of proof for a better than undesirable discharge is the absentee's
the Director of the Selective Service System in the State in which
he intends to reside. The Selective Service System thereafter works
responsibility. The absentee is advised by the military lawyer during
with him to provide a suitable alternate service job.
his in processing legal briefing and again during his person-to-person
Senator KENNEDY. Our subcommittee has been very interested
legal briefing during out processing of the following:
1) The absentee may appeal to his service Discharge Review Board
in the development of the procedures in the Selective Service Act.
or Board for Correction of Military Records for what he may consider
As I understand it, there is no opportunity for personal appearance
before the Board. Is that correct?
to be injustices regarding the character of his discharge. DD form 293
is available to returnee if requested.
Mr. HOFFMANN. That is correct.
2) In the event the absentee is deprived of military administrative
Senator KENNEDY. And there is no opportunity for a represe itative
review, or has exhausted his administrative remedies, he can have an
to appear before the Board?
action initiated in Federal court.
Mr. HOFFMANN. That is correct.
3) Regarding the number of months of alternate service assessed
Senator KENNEDY. If the decision is adverse, are the reasons for
by the JASB for which there are no appellate pro edures officially
the decision, other than just the decision itself, available to the
established the absentee is advised that the ABCMR might take
applicant?
Mr. HOFFMANN. If the
Senator KENNEDY. Are the reasons given for the Board's decision
to refuse, for example, to grant a clemency discharge or the reasons
why one might get 24 months of alternative service and another
person get 3 months?
Mr. HOFFMANN. Well, the Board's function is limited to that deter-
mination of alternate service. If the individual qualifies under the
criteria that I have recited here that come from the proclamation he
is eligible. The only thing left is determination of alternate service.
The only reason we leave his final election to participate following the
determination of the length of service is SO that he can see the entire
result under the program before he commits himself.
The Board does not issue a decision or reasons. It expresses its
view of a case in terms of the length of alternate service it assigns.
Senator KENNEDY. But, if an individual gets 24 months and he feels
he only should have gotten 6, there is no way for him to know what
the factors were in the consideration of whether it is going to be 24
months or 6?
Mr. HOFFMANN. No, sir.
Senator KENNEDY. If he gets 24 months and he thinks he ought to
have gotten 6, is there any opportunity for him to appeal that length
of time?
142
143
jurisdiction and rule on the returnee's appeal to them, since the
prosecutorial discretion with respect to prosecution under the system.
alternate service is a matter of his Army records.
The Administrative Procedure Act would not apply and we feel that
[A copy of the form referred to above follows:]
the procedures are appropriate for many of the same reasons Senator
Goodell feels it is inappropriate or unnecessary for them to appear
APPLICATION FOR REVIEW OF DISCHARGE OR SEPARATION
Form Approved
before the Clemency Board.
FROM THE ARMED FORCES OF THE UNITED STATES
Budget Bureau No. 22-M014.1
Given the full opportunity to consult with counsel, the full oppor-
(See Instructions on severse before completing application. Please type or print.)
tunity to make representation to that Board in any form of any
BRANCH OF SERVICE
ANM.
NAVY
MARINE CORRS
COAST GUARD
AIR FORCE
material they think is relevent, even notwithstanding the criteria, I
1. LAST NAME FIRST NAME MIDDLE INITIAL
2. SERVICE NUMBER
am not sure the right to a particular hearing, the opportunity to come
in and meet with the members or sit down and make oral presentations
a. RATE OR GRADE AT SEPARATION
4. ORGANIZATION TIME OF DEPARATION
as opposed to written presentation would make a great deal of differ-
ence. It is not essentially an adversary proceeding, as you know.
a. NATURE OF SEPARATION OR TYPE OF DISCHARGE RECEIVED
e. DATE AND PLACE OF SEPARATION
Senator KENNEDY. What about the Clemency Board, do they
NOTE: Navy and Marine Corpe attach discharge certificate
permit personal appearances?
7. REQUEST THE FOLLOWING CORRECTIVE ACTION BE TAKEN:
Mr. HOFFMANN. I don't believe they do.
Senator KENNEDY. Yes, they do.
Mr. HOFFMANN. Do they?
8. EVIDENCE SUBMIT TED IN SUPPORT OF APPLICATION 18 LISTED AND FORWARDED. (Affidavite of withouse may be used #
desired, OF they may appear ## person. Attidevite must to naterized. You may also submit . brief containing arguments in support of applica-
Senator KENNEDY. It is a matter of discretion, as I understand, for
tion. " space le moullicient, URS additional sheet.)
the Board. At the Board's discretion the applicant or his representative
may be allowed to present an oral argument to the Board prior to
determination of his case. It also points out in their regulations that
each applicant will have an opportunity for reconsideration of the
decision, and that was what you have mentioned here, that they can
inspect all their own records. That is in clemency rules and regulations
of the citation.
Mr. HOFFMANN. Yes, but my impression is that it is not the normal
course that they come before the Board.
Senator KENNEDY. They have only granted 18 so far.
Mr. HOFFMANN. Yes, sir.
Senator KENNEDY. Can you tell us why they do in one and don't
do in another? Is there a reason for it in light of all the interagency
a. DESIRE TO APPEAR ORE THE BOARD IN " HSON
10. DESIRE TO 08 NTED BY COUNSE L(For instructions .
communications that you are having on this program?
(No expense to the Government)
Counsel, ... reverse atde
Mr. HOFFMANN. Well, I have not had any discussions with them
YES
NO
YES
NO
11. NAME AND ADDRESS OF COUNSEL (If any)
as to why they did it.
We did not do it, because we did not feel it would add a great deal
MAKE THE FOREGOING STATEMENTS AS A PART OF MY APPLICATION WITH FULL KNOWLE DGE OF THE PENALTIES INVOLVED FOR
more to the process in terms of letting the member have the complete
WILLFULLY MAKING A FALSE STATEMENT. (1). 5. Code. Title 18. Section 1001. Commenty Section so, provides # penalty as follows: A may-
Immen fine of $10,000 or meximum imprisonnent of , pears. OF both.)
record before him and given the opportunity to present whatever
STREET OR RFO
CITY AND STATE
election after the assistance of his counsel and with the assistance of
DATE
SIGNATURE OF APPLICANT
his counsel to the Board in writing. So we didn't see anything useful
substantially to be gained.
NOTE: If veteren to deceased OF incomplant and the application 10 therefore signed by # person other then whose - appears in Item , above,
As a practical matter, given the caseload out there, particularly
Indicate status in nox below, " vateran - deceased. application will be signed by his spouse, next of km or legal guardian. Legal proof of
death or Incompatency must accompany application.
during the early stages, I think it probably would have been a detri-
OF
SURVIVING SPOUSE
ment to the program in terms of expeditious proceeding and really
Signature by mark (X) must he witnessed by FWD persons to whom the applicant is personally well known.
SIGNATURE AND ADDRESS OF PERSON WITNESSING MARK
SIGNATURE AND ADDRESS OF PERSON WITNESSING MARK
have very little substantive effect on judgments they were making.
I had very little opportunity to check with the Board following
DD
PREVIOUS EDITIONS ARE OBSOLETE
the judgment of the program.
FORM
DEC
42
293
Senator KENNEDY. That is the argument used for the Freedom of
Information Act; don't bother us with it because it will be a burden
Senator KENNEDY. With regard to an appearance, a representative
on us, don't set out procedures of the APA Act, even though it does
appearing for him, or clearly stating the reasons for a decision, pro-
grant rights to individuals, it will make the workings more complex
cedures do exist, as I understand it, under the Military Justice Code,
and costly. You hear the same argument here, and there are important
the Selective Service System, or even under the Administrative
individual rights that are being affected by it.
Procedures Act. Is that correct?
These are matters which I am sure you are sensitive to, but they
Mr. HOFFMANN. Yes, sir. I think from a legal point of view our
are procedures which in many instances I think deal directly with the
feeling is that this is an exercise of executive discretion rather than
145
144
to affect his entitlement to Veterans' Administration benefits one way
substance of whether justice is going to be achieved. Certainly one
or another.
of the major kinds of responsibilities of this subcommittee in relation-
The second aspect of the program which deserves individual com-
ship to regulatory agencies generally, and as a matter of considerable
ment is the extent to which the Department has endeavored to protect
interest, is how procedurally those particular rights are being protected
the rights of every individual processed under the program.
under this Executive order.
The Department of Defense has insisted that every individual being
We grant it is an Executive order, but it is of interest to us as well,
processed should have full and complete legal advice available.
since we have a legislative opportunity to move in this area and need
Senator KENNEDY. Just before we leave the questions of the clem-
to be informed of what is exactly being done here.
ency discharge, I would like to bring up the testimony we heard yester-
Mr. HOFFMANN. The details of the alternate service program are to
day from Mr. Goodell. When the Clemency Board's recommendations
be addressed by the Director of the Selective Service System. One point
carried out a clemency discharge granted by the Board, it would be
bears mention, however. The Selective Service System notifies the
automatically reviewed by the Board for upgrading by the panel.
individual's military service when he has satisfactorily completed his
This review would occur without regard to the offense pardoned. Would
alternate service. When this notification is received, the military
the Defense Department institute the same policy?
services will issue the individual a clemency discharge in lieu of the
Mr. HOFFMANN. We have that under study. I read the Senator's
undesirable discharge.
statement, and he indicated he had made that request of us. He made
A statistical summary of our implementation of the program, at-
a firm statement he would do that. We have to look at that to see
tached to this statement, reflects that as of 0800, December 16, 1974,
what the utility would be and whether or not it is appropriate under
we have received over 6,000 inquiries from all sources about the pro-
the circumstances.
gram. Also included are the numbers of cases completed and those still
Now, there is no question that each individual who wishes to have
being processed. Also reported is a breakdown of the disposition of
his discharge taken to the Discharge Review Board at any time may do
cases in terms of the period of alternate service prescribed. Let me deal,
SO. The question that was presented to me is whether that would be a
briefly, with certain aspects of the program that have been of particular
sua sponte review taken by the Review Board or whether we would
interest.
wait for the individual to come and apply.
The first is the nature of the clemency discharge. Military dis-
At a minimum, and I discussed this with the Senator, everyone
charges are designed to describe the quality of an individual's mili-
should be advised of their rights and provided with the forms and a
tary service. An honorable discharge is issued in recognition of honor-
briefing on the procedures which we could give, but whether a sua
able and faithful service during a committed period of military service.
sponte review by the Board would be appropriate we have to look at
The general discharge is given for satisfactory military service, and the
the cases.
undesirable discharge is given for unsatisfactory service. The bad
Senator KENNEDY. Are you also going to look at the offense which
conduct discharge and the dishonorable discharge are punitive dis-
they are being charged with?
charges, issued only by reason of an approved sentence of a special or
Mr. HOFFMANN. That is the responsibility of the Board, and the
general court martial.
reason for having it, once application is made for review of a discharge,
The usual eligible absentee is given an undesirable discharge. The
is to ascertain whether or not justice was done and whether or not
Department of Defense guidelines, and those promulgated by each
procedures were followed and whether a discharge was properly issued.
of the military departments, provide that an absentee must be fully
That is the whole point, that system has been in existence and has
counseled of the adverse nature of the undesirable discharge. He is
been in existence for years.
informed that it is a military discharge under conditions other than
Senator KENNEDY. When are you gong to make a decision? Under
honorable, and that generally he will not be eligible for veterans'
the President's order, there is not a great deal of time left.
benefits.
Mr. HOFFMANN. I am not sure when the decision would be made.
The clemency discharge is designed to be issued once a dischargee
We are moving on it expeditiously, and I think the services have
has satisfactorily performed his period of alternate service. It is, in ef-
presented their views or had presented them yesterday, and I will
fect, a testimonial to the fact that the individual has satisfied the ob-
make my decision on it when I get them. It wouldn't make much
ligation undertaken pursuant to the President's program. It is not
sense for the Clemency Board to provide that opportunity and the
intended, in any way to effect a change in the characterization of the
Defense Department not to.
individual's military service as unsatisfactory, or to effect a recharac-
They are asking us to undertake a sua sponte review in each case
terization of an other-than-honorable-conditions military discharge.
whether or not the man applied for it. But there is no question about
It is intended, however, to indicate as public testimonial that the in-
the right of the man to go over there in any case.
dividual has accepted the offer of clemency, and has complied with
Senator KENNEDY. It is different if it is a right or if they have got a
his undertaking pursuant to the President's program. For this he de-
voluntary kind of program available to them. And quite clearly there
serves recognition, which the President has sought to symbolize
is a difference in the way the Clemency Board is handling it and the
through the issuance of the clemency discharge.
way you are at the present time. You are reviewing it, but I would
With respect to Veterans' Administration benefits, the fact that an
think if there is a distinction in terms of procedure, there would be one
individual serves his alternate service and is thereafter awarded a
additional area where you have different implementation. This is a
clemency discharge in lieu of an undersirable discharge is not intended
matter of considerable concern to us. You have a sort of three-
146
147
prong different clemency program; one ordered from the President
Also, since veterans' benefits were not intended to be changed by
Mr. HOFFMANN. Let me make it clear I am attempting to discuss
reason of the clemency program, it would not appear appropriate
with you what the ingredients of that decision will be in the services,
to suggest, as a sua sponte review would imply, that more relief
but we have not made a decision. I am not prepared to say which way
would be forthcoming than the President presented in his program.
we will go on it. We will talk to Senator Goodell about his objectives.
I will agree the discharge review process is available to these indi-
Any former military member who feels that his discharge does not
viduals and should be available.
accurately reflect the quality of his military service, or who feels
[A copy of the DOD memorandum to the Chairman, Presidential
that an error or injustice was done in his case, has available the
Clemency Board, dated January 13, 1975, follows:]
procedures for review provided by sections 1552 and 1553 of title 10,
United States Code. This includes those former members who,
through the procedures of the Presidential Clemency Program,
receive a Clemency Discharge. All returning absentees who are
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
processed under the Department of Defense portion of the Clemency
WASHINGTON, D.C. 20301
Program are advised of the availability of these procedures. This
advice is also appropriate to those who receive a Clemency Discharge
13 January 1975
based on recommendations of the Presidential Clemency Board. The
Department of Defense will be pleased to provide this advice, together
with appropriate application forms, as a part of the package trans-
mitting the Clemency Discharge to these individuals.
MEMORANDUM FOR
Chairman, Presidential Clemency Board
THROUGH:
Mr. Thomas Latimer
Martin R. Hoffmann
THROUGH:
M/G Richard Lawson
Military Assistant to the President
Senator KENNEDY. Fine.
SUBJECT:
Review of Clemency Discharges by
Mr. HOFFMANN. Moreover, no information received from an indi-
Military Department Discharge Review
vidual inquiring as to his eligibility or during his processing will be
Boards and Boards for Correction of
used against him for prosecutive purposes. If there are legal defenses
Military (Naval) Records
available to him which would indicate that he could not be successfully
prosecuted for his unauthorized absence offense, it is the responsibility
You asked whether the Military Departments, acting through either
of his counsel, civilian or military, to make these facts known to the
their respective Discharge Review Boards or Boards for Correction
absentee himself or to the military discharge authority. The decision
of Military Records, would review, sua sponte, those cases in which
to request a discharge under this program, or to elect to have his case
former military members, through recommendation of the Presidential
processed under the normal military procedure, is a matter solely up
Clemency Board, have had their discharges upgraded to a Clemency
to the individual himself and his counsel.
Discharge. The purpose of such a sua sponte review would be to
Finally, in an effort to ensure that all eligible military absentees
determine if further upgrading of the discharge would be warranted.
receive notification of their eligibility if at all possible, the military
You further suggested that such a review should be conducted without
departments recently sent letters to the next of kin of those eligible
reference to the offense which led to his punitive or undesirable
absentees who had not already contacted us. We sent about 7,000 of
discharge, which, it appears, is intended to be the subject of a
these letters. Over 2,200 of these have been returned as undeliverable,
Presidential pardon.
but we have had 375 telephone inquiries in response to these letters
and about 68 individuals have returned to their military service with
Upon considerable reflection following our conversation, sua sponte
the letter in their posession.
review of discharges issued following recommendations by the
That concludes my prepared statement, Mr. Chairman. I will be
Presidential Clemency Board does not appear to have been envisioned
as a part of the President's Clemency Program, and does not appear
pleased to answer any questions which you may have.
appropriate based on the operation of the pardon itself.
Senator KENNEDY. Once again to get back to the point we talked
about earlier, responsibility. If there are legal defenses, and what you
While the pardon does serve to eliminate certain prospective
consider are the responsibilities of the Board toward those legal de-
effects of conviction, it does not operate to change existing or
fenses, whether they are noted by the applicant or not noted by the
accomplished facts, to change the other-than-honorable nature of
applicant or the defense attorney, do you think there is any positive
an individual's military discharge, or to eliminate the circumstances
responsibility at all for the Board to raise these points.
which underlay it.
Mr. HOFFMANN. Yes sir, I think there is. There is an affirmative
responsibility on the part of any member of the processing team
there at Fort Benjamin Harrison. If there may be a legal defense or
149
148
Mr. HOFFMANN. 53 total, sir, 53 officers.
some reason in the records, an imperfection, that they should bring
Senator HART. Is there any doubt that 53 are unaware of the
that to the attention of the individual. That is the whole thrust of
program? Isn't it a reasonable assumption that they know about
the program.
this program?
Senator KENNEDY. What if a participant doesn't participate in the
Mr. HOFFMANN. Well, I would think it was. As I indicate in my
alternative service program and merely accepts the undesirable dis-
testimony, we have attempted to reach everybody. There has been a
charge? Can he be prosecuted? I note that on September 19 the
considerable amount of publicity: (1) As to the fact there is a program;
Defense Department and Justice Department spokesman indicated in
and (2) with respect to where you can find out about the program and
the Washington Post that there was nothing the Department could do
what is going on.
to enforce the alternative pledge. And, you were quoted as saying they
I know, for instance, as a point of interest there have been several
would institute prosecution in appropriate cases. Can you tell us what
individuals returned from Canada and from Sweden who have ap-
the situation is?
parently reacted positively to the program and informed us that they
Mr. HOFFMANN. The situation is the latter view that was taken
were sending materials back. One of the individuals asked us for
which I believe I outlined at Camp Atterbury in a press conference.
packets of material he could send back to Canada to let them know of
There is a provision in the Uniform Code of Military Justice that says
the program.
if one fraudulently procures a discharge, he can be prosecuted. What
There have been organized communities, as in expatriot situations,
I stated was that prosecutions would be undertaken not on the basis
who have been reached by informing individuals about coming back
of harassment, but depending on whether or not a good case could
under the program. We had some 2,300 letters come back as addressee
be made.
unknown or undeliverable in which we couldn't make that contact.
Now, as a practical matter, in order to prove the charge under the
Senator HART. I am not sure where it leads me, but at least I
Uniform Code you have to prove that at the time the individual was
plead guilty to having a stereotype sort of notion who is out there.
procuring the discharge he did not have an intent to complete al-
It is an enlisted man, and he is either a sensitive conscientious objector
ternate service and I alluded to, as others have, the difficulties of
or a poor, befuddled fellow that couldn't learn how to strip a rifle
proof under that article of the Code. It is to some extent the same
and, you know, goofed off. Now, in the 53 officer personnel out there,
difficulties of proof that one has under the desertion article as opposed
what is the profile on them?
to the unauthorized absence article, because to establish disertion one
Mr. HOFFMANN. I don't believe we have a profile directed specifically
has to prove that at the time the man left he had an intent to stay
to them. I adverted earlier to a profile that we did have, which was
away permanently.
current as of I think December 1973, of the reasons and circumstances
To an extent, what we have said is that we acknowledge that
for desertion by those who went to foreign countries. You see, if they
prosecutions W 11 be difficult. If we have an appropriate case, as was
were in the country, they would be fugitive and we could identify
presented to us in press questioning by an individual who said he was
them. There was an effort to contact those absent. We have those
going to return to Camp Atterbury, and he had no intention of serving
figures if you would like to have them.
alternate service, though he represented he did. In such a case if he
Senator HART. I was not aware that there was that number of
were to go through and if he had then refused to do his alternate
commissioned personnel, carried how? As deserters?
service, we would prosecute.
Mr. HOFFMANN. The terminology is "dropped from the roles as a
What we have observed, I think in fairness, due to the way the
deserter." I think that is less than an adequate legal description,
facts are taken, it is not likely that we would have a great number of
because the one-until they came back and were discharged-
cases.
Senator HART. Why wouldn't the Department of Defense have very
Senator KENNEDY. Senator Hart.
strong motive to know the circumstances at least with respect to
Senator HART. Thank you.
officer personnel who are carried that way? Wouldn't you be able to
Mr. Hoffmann, I apologize for getting in late.
tell us for the record at least? There are only 50 men.
It is almost irrelevant, I suppose, but going through your prepared
Mr. HOFFMANN. I can check and see what information is available.
testimony I noticed that provision is made under the clemency
We do have an interest in that and that interest is being manifested
program in the military section for officers, commissioned officers. I
in the results of the program, and the reasons given by individuals are
have been thinking in terms of enlisted men. How many officers are
being collated out there SO we will get some information from that.
in this category?
There has been no study directed specifically to the profiles of the
Mr. HOFFMANN. We have had two, sir.
53 officer absentees who are eligible for this program. There is a general
Senator HART. Two who have come in under the program?
deserter-profile study done annually by the Department of Defense,
Mr. HOFFMANN. Have come in under the program; yes, sir.
however. The latest typical absentee deserter profile, fiscal year 1973,
Senator HART. Of the 12,000-odd whom you carry as eligible, is
S attached.
there any estimate as to how many officers are involved?
150
151
TYPICAL PROFILE
Mr. HOFFMANN. It would be undesirable. The board is composed of
FISCAL YEAR 1973
officers of senior grades, since these officers are either themselves the
officer exercising general court-martial jurisdiction, usually a general
or flag officer, or the direct representative of such an officer.
Typical Absentee/Deserter
Senator HART. I have a number of detailed questions that I will
Services
Charncterictics
Marital
Education
Time in
submit to you for information.
Age
Rank
Status
Level
Service
Enlistee
[The questions of Senator Hart and their responses from the
Clemency Board follow:]
Army
18-21
E-4 or
Single
Non-high
Less than
below
school
2 yrs
QUESTIONS FOR DEPARTMENT OF DEFENSE BY SENATOR HART
graduate
NUMBER OF APPLICATIONS
Non-high
18 mos
x
Question. Why has the Presidential clemency program not attracted a greater
Havy
21
E-3
Single
school
number of applicants? The number of applicants, compared with the number of
graduate
people qualified to apply, suggests that the program is headed for failure, isn't
(11 yrs)
that true?
Answer. Not in the view of the Department of Defense. As of 10 January 1975,
USMC
18-21
E-2 or
Single
Non-high
13-14
the DOD has processed 2,898 individuals, through its portion of the program.
E-3
school
mos
These men have been totally relieved of the burdens of court-martial trial and
graduate
punishment. They are no longer fugitives, and need no longer fear legal action
(10 yrs)
against them. It is very difficult to characterize as a failure a program which has
provided such benefits to such a large number of people.
USAF
25 or
E-4 or
Single
High school
2-4 yrs
below
below
graduate
Persons
Persons
qualified
processed
(approximate)
(approximate)
Percent
Other characteristics frequently identified with the military absentee are:
Clemency Board
112,000
800
0.07
Justice Department
7,000
130
2
1. Immature and irresponsible, with a history of personal failures in.
Defense Department
12,000
2,200
18
civilian life.
Question. How many have applied for the "clemency" program?
2. A product of an unstable home (either a broken home, or a home plagued
Answer. As of January 10, 1975, the DOD has processed 2,898 individuals.
by some type of secial/psychological maladjustment).
Question. Of these, how many turned themselves in? How many came to the
program from pretrial confinement?
3. Very emotional, with a low frustration threshold.
Answer. We do not have an exact number of those in pretrial confinement.
However, those awaiting trial not in confinement and those in pretrial confinement,
4. Is a repeat AWOL offender
thus far processed by DOD as of January 10, 1975 totaled 562.
5. Not adaptable to regisentation.
WALK-ONS
Question. The distinctions between men in pretrial confinement and "walkton"
6. One-third have a history of disciplinary and administrative action.
is not very clear. Apparently many of the walk-ons were arrested and placed in
Senator HART. Captain, did you wish to say something?
pretrial confinement, then turned themselves in (or were turned in) to the program.
Captain MILLER. No, sir.
Thus, how many of the "walk-ons" were people actually voluntarily turning
themselves in?
Senator HART. I just have a gut feeling that the Defense Depart-
Answer. All "walk-ons" are voluntary.
ment would give very high priority to trying to understand why
Question. How many were people apprehended and then referred to the pro-
commissioned personnel would walk off.
gram?
Now, on the other side of the coin, has any thought ever been given
Answer. None, except as they may be included in the 562 mentioned above.
in the Department to having an enlisted man on that board? You
THE PLEDGE
have four colonels or equivalents on it and there are 53 commissioned
Question. Why must draft resisters and deserters sign an oath and pledge that
men who may turn up and 12,000 enlisted men. Have you ever thought
forces them to turn against their beliefs and admit guilt when they believe they
about it? Would it be desirable or hurtful?
committed no crime by refusing to participate in the Indochina war?
Answer. There is no admission of guilt in any of the documents which a return-
Mr. HOFFMANN. I was not myself involved in any discussions with
ing absentee must sign. The reason for the new oath is that, by absenting them-
enlisted personnel. Parallel, of course, is the convening authority
selves without authority from their military service, the absentees violated their
which are the officers who convene courts-martial and whore view,
prior oath of induction or enlistment.
based on article 32, whether or not it should proceed and based on
WHO DECIDES QUALIFICATION
the testimony presented. That is the parallel, and I couldn't say
Question. When a military deserter inquires about his qualification to partici"
whether or not it was
pate in the clemency program who makes the decision on his qualification?
Senator HART. I know all the parallels in the service would not
Answer. The Clemency information point of the respective miltary service.
raise that question, but I raise the question, and not even I am im-
Question. Is a negative decision appealable? How?
Answer. Eligiblity is established by meeting qualifying standards. If the indi-
plying that I am convinced it would be a wise thing, but certainly it
vidual is under military control and has nonqualifying offenses, he can request the
is something that ought to be discussed.
commander exercising general court martial authority to dismiss the nonqualify-
ing charges. This would make him eligible, provided all other criteria were met.
153
152
would result in an honorable discharge-the attorney should, and no doubt does,
WHAT ABOUT IN SERVICE CLASSES
so advise his client, who should then elect to not participate in the clemency
program.
Question. The Secretary's memorandum of September 17, 1974 implementing
RIGHT TO COUNSEL
the clemency proclamation indicates that the persons who have been discharged
from the military by reason of an absence offense "or other purely military offense
Question. Does a military absentee being processed at Ft. Benjamin Harrison
directly related thereto" may apply for clemency to the Presidential Clemency
have an opportunity and time to consult military or civil counsel of his own choice.
Board. Why do the criteria for qualifying for amnesty for present members
Answer. Yes. Civil counsel of choice or military counsel as provided is a funda-
of offense? the military not also include "other offenses directly related" to the absence
mental element of the DOD program.
Question. To see the military personnel record which will be before the Joint
Answer. They do. Please see Presidential Proclamation 4313, paragraph 2.
Alternate Service Board in order to rebut inaccuracies or false information con-
tained in the file?
HOW MANY QUALIFIED
Answer. Yes. The individual and his counsel have complete access to his per-
Question. How many persons presently on the rolls of the military services are
sonnel, medical and finance records which the Board may review. He may submit
qualified to apply for clemency?
matters, in letter, affidavit, statement or other form to amplify, clarify or rebut
charged. Answer. About 13,000, less those who have already been processed and dis-
what appears in the files.
PROCEDURES
Question. How is that figure arrived at?
Question. Is the absentee told what the criteria are for mitigating the standard
Answer. The figure, as it relates to DOD represents those military members,
24-months alternate service period SO that he can inform the Joint Alternate
who, at the commencement of the program, were in status of unauthorized
Service Board of the mitigating circumstances in his case?
absence, or were in military control awaiting trial for such an offense, whose ab-
Answer. Yes, by counsel.
sence commenced during the eligibility period.
Question. Why does the Joint Alternate Service Board consist only of field
IS A LIST POSSIBLE
grade career officers whose view may likely be unsympathetic to those of the war
resisters and deserters?
Question. Does the Department have the capability of producing a list, e.g.,
Answer. The structure of the Board was determined by agreement of the
by computer, of persons presently being sought for unauthorized absence?
Secretaries of the Military Departments who were tasked by Presidential Procla-
Answer. Yes.
mation 4313 with determination the length of alternate service. These officers
Question. Can the list be made to show the date of the last unauthorized absence
are of senior grade, since they are either, themselves, the General court-martial
SO that the absentee's qualification for clemency can de determined?
authority-and hence, the discharge authority (Navy and Marine Corps)-or a
Answer. Yes.
direct representative of the discharge authority (Army and Air Force). These
Question. Is that list complete, i.e., can we have an authoritative list of all
officers are thoroughly experienced troop leaders and have been briefed with re-
persons in jeopardy of military prosecution under articles 85, 86, and 87, SO that
spect to their duties. In the determination of the required period of alternate
persons not on the list know they are not in jeopardy and do not need to apply
service, they reflect the appropriate sensitivity. This would not be enhanced by
for clemency?
placing e listed members on the board.
Answer. The listing is complete and authoritative.
Question. Do es the absentee have an opportunity to present his case to the
Question. Can the list be made available to agencies that provide counseling
Joint rnate Service Board, either in person or with his attorney?
and leg. 1 representation to military deserters.
Answer. He may present, in writing, any material to the Board which he desires.
An wer. No. The Department considers such would be an unwarranted invasion
In making this decision, and in preparing his presentation, he is entitled to-and is
of the privacy of individuals whose names appear on the list. Any individual can
provided free of charge-assistance of military counsel, or he may seek civilian
seek information as to his eligibility-without fear of legal action against him-
counsel of his own choice.
simply by calling his service clemency information point.
Question. Are the proceedings of the Joint Alternate Service Board public, and
LIST OF THOSE WITH OTHER OFFENSES
does the Joint Alternate Service Board state its reasons for assessing the particular
alternate-service sentence it metes out to returnees?
Question. Is a list available, or could it be established, that would inform a
Answer. The proceedings are not public. The Board does not state its reasons
"deserter-at-large" whether his record contains other offenses which may preclude
for assessing the mitigating circumstances.
his participation in the clemency program?
Question. Is the alternate-service sentence of the Joint Alternate Service Board
Answer. Yes, by the individual or interested party checking with the Clemency
appealable? To whom, and through what procedures?
Information Point at telephone numbers widely publicized. The records have been
Answer. There is no procedures provided for an appeal of their determination,
screened for eligibility.
although there is no reason why an individual could not request reconsideration
WHAT PROTECTIONS
by either the Board or by the Secretary concerned if he feels aggrieved by the
Question. What due process protections are afforded by the procedures estab-
determination.
lished by DOD?
Question. What care is taken to see that the returnee can claim whatever legal
Answer. Those individuals who inquire as to eligibility are advised, in writing,
defenses he may have to the absence charges (e.g., unlawful induction, wrongfully
of the requirements of the program. During initial processing, they are again
denied in-service medical, hardship, dependency, or conscientious objection
fully advised of the details of the program and of their legal rights. They are
claims) by reason of which the absence charges could not stand and he would not
afforded military lawyer counsel, free of charge, and afforded opportunities to
need clemency?
consult counsel of their choice. They are given an opportunity to present a written
Answer. Military legal counsel is provided. An individual's election to partici-
statement of matters which they wish considered in making a determination
pate in the program is made based on the advice of his counsel as to the availa-
whether or not the standard period of 24 months alternate service should be
bility and probable effectiveness of any defense which he may believe he has. If
reduced, and they are, thereafter, again provided advice of lawyer counsel. At
he feels his defenses are meritorious, he may, of course, elect to have them tested in
this point in the processing, the individual must make an election to participate,
the normal court-martial proceedings.
or not to participate, in the program. If he elects to participate, he is discharged
Question. What are the mitigating criteria for alternate service?
almost immediately.
Answer. See enclosed appendix.
Question. Are individuals afforded legal counsel concerning possible defenses
Question. Why are the criteria in mitigation of the 2-year period more restric-
to their absenteeism.
tive than those of the Presidential Clemency Board (e.g., the Presidential Clem-
(NOTE: One Army lawyer at Indianapolis said 50 percent of returnees could
ency Board's "evidence that the applicant acted in conscience, and not for manipu-
lative or selfish reasons")?
probably get honorable discharges through court-martial route.)
Answer. The DOD decision is similar to the exercise of prosecutorial discretion,
Answer. Yes, legal counsel is afforded free of charge. If there are legal defenses
of one who has not already been convicted or discharged. The Clemency Board's
available-and if it is probable that normal disciplinary processing procedures
154
155
determination relates to an entirely different dircumstance-pardon or clemency
jamin Harrison signed two oaths, one of allegiance and the other a promise to do
for one who has been convicted, discharged and/or who has served a period of
alternate service. While doing so, military personnel, some of whom were JAG
confinement. Also, we do not feel this is an acceptable reason for reducing one's
officers, told him specifically that as a practical matter it would be virtually im-
period of alternate service. It has never been considered as such in the administra-
possible to prosecute him if he failed to do the alternate service, because it would
tion of the conscientious objector alternate service program by the Selective
be SO difficult to prove his intention not to do it at the time he signed. In other
Service System.
words, the Army was overtly encouraging him to perjure himself.
Question. Does this not raise fundamental questions of equal protection and
He now has the stigma of an undesirable discharge which has less restrictions
fairness?
than a clemency discharge, but he is for the first time in 5 years free to come and
Answer. Please see answer immediately above.
go in this country, and to choose where he will ultimately live. He asked for an
BASES FOR ALTERNATIVE SERVICE LENGTH
extension of time of up to 3 years within which to start the alternate service, so
that he could return to Sweden to care for his two young children until his wife
Question. Regarding mitigating factors: The sentencing practices of the Joint
completes her graduate school professional training. This was denied, 80 he has
Alternate Service Board seem rather strange. The New York Times carried a
probably returned to Sweden anyway.
story of a man who served his full term in the Navy, was discharged honorably,
Considerations to bear in mind:
was drafted illegally, accepted induction, and then went AWOL. This would
1. He received almost the maximum alternate service with opposition to the
appear to be an airtight case, yet the man received a 3-month alternate service
Vietnam War not an allowable factor for mitigating circumstances.
assignment. How can such an action be justified? What effort is made to deter-
2. He does not know, and cannot know, whether on January 31, the door will
mine if a returnee has a defense to court-martial?
close forever on the chance for a restoration of his citizenship status.
Answer. The Joint Alternate Service Board does not issue a sentence. The agree-
3. Under our present law, if he becomes a Swedish citizen without submitting
ment to perform the required alternate service is a condition precedent to dis-
to the clemency program, he may not set foot in the United States again.
charge under the President's program. If the individual considers the required
period to be unfair or unjust, he may elect to be processed under normal disci-
WHY DOD ADVICE NOT TO DO ALTERNATE SERVICE
plinary procedures. See answers above relating to "legal defenses."
Question. Why are military attorneys at Fort Benjamin Harrison telling
Question. And where a defense is present, does the man have the right to with-
deserters that they don't have to perform alternate service after agreement to do
draw his "guilty plea" and present his defense?
so, when there is no clear understanding of that in the rules and regulations of
Answer. A returning absentee does not enter a "guilty plea." He may elect, at
the earned reentry program?
any time prior to discharge, to have his case heard through normal disciplinary
Answer. Advice provided by an attorney-including a military attorney-to
procedures, rather than to be discharged under the program. He is so advised by
his client is privileged, and is assumed to be a frank and candid explanation of
his counsel.
the legal consequences of any proposed course of action. If an individual elects
Question. Does a returnee have any right to a hearing?
to perjure himself to gain acceptance into this program, that is a decision for
Answer. If he elects the Clemency program, no.
which he, alone, is responsible.
Question. What are the exact legal prerogatives available to the military and/or
WAR RESISTANCE AS MITIGATING OR AGGRAVATING
the Department of Justice for prosecuting men who fail to perform alternate
Question. More on mitigating factors: It seems clear that war resistance is not
service after agreeing with the military to do so? Is prosecution contemplated?
only not a mitigating factor for a military returnee, but actually an aggravating
Answer. The following responds to both of the above questions:
factor. The following line of questions may help to bring this out. What is the
If an individual makes a pledge to perform alternate service, and then refuses
breakdown of alternate service assignments? How many have gotten what
to perform that alternate service, a question may arise as to whether he falsely
sentences?
represented his intent at the time he made this pledge. If it could be established
Answer. The characterization "sentence" is inappropriate. As of January 10,
that his representation was willful and false, prosecution by court-martial could
1975, the following periods of alternate service have been assigned:
lie under 10 U.S.C. 883, or by the Department of Justice under 18 U.S.C. 1001.
Months:
Total
The possibility is slight that any such prosecution would be feasible or that it
number
0
0
would be undertaken. However, it is legally possible, and in a flagrant case,
1 to 5
could well be undertaken.
33
6 to 12
Question. Since the DOD is in essence granting a de facto amnesty with the
385
13 to 18
only penalty an undesirable discharge, would it not be more honest, and therefore
200
19 to 24
legal, to legislate a de jure amnesty instead of condoning illegal responses to
2, 280
inequitable laws?
Question. Of the light sentences, how many were combat veterans?
Answer. The Department does not consider the issuance of an undesirable
Answer. Unknown.
discharge to be any form of amnesty. The failure to take advantage of the clem-
Question. How many were hardship cases? How many were war resisters?
ency discharge would be an unfortunate decision.
Answer. Unknown. Elements of each of the above may have applied to any case.
Question. If a prosecution on the alternate service pledge is made impossible
Question. Of the heavy sentences, how many were combat veterans?
by the applicant's good faith at the time of the signing, is this program not an
Answer. Unknown.
incentive to applicants to lie and to make a bad faith record of their good faith
Question. How many were hardship cases? How many were war resisters?
in obtaining the undesirable discharge?
Answer. Unknown. Elements of each of the above may have applied to any
Answer. Adherence to one's pledge, even though not legally enforceable, is a
case.
matter of conscience, and violation of one's pledge will ultimately reflect adversely
Question. We know from feedback from Fort Benjamin Harrison that military
on the individual involved.
lawyers have been advising returnees not to claim war resistance as a motive.
Does this indicate that war resistance may in fact be an aggravating factor in
NATURE OF CLEMENCY DISCHARGE
sentencing?
Question. What is the purpose of the "clemency discharge?"
Answer. We are unaware of the "feedback" mentioned in this question, but as
Answer. To provide testimonial that an individual has fully met the require-
was noted in Mr. Hoffmann's testimony on December 19, 1974, objection or
ments of the President's program.
resistance to the war is not a factor in making a determination of the length of
Question. It appears to have no positive value to the individual whatever.
alternate service.
Does it restrict the recipient from receiving veterans benefits?
ALTERNATE SERVICE (CASE)
Answer. This question should be addressed to the Veterans Administration.
Question. T.R. is in exile in Sweden having deserted the Army about 5 years ago
But see Presidential Proclamation 4313, paragraph 2.
from Germany. He was submitted to the clemency program, while at Fort Ben-
Question. Does it allow for review?
Answer. Yes.
55-550 O 75 11
156
157
Question. Does it typecast the recipient as a deserter when the form is shown to
employers and officials? If the clemency discharge is not reviewable and does not
entitle one to benefits, how does it constitute an act of clemency, especially when
APPENDIX
it is sure to stigmatize the veteran as a "deserter" (if not a "traitor") and what is
the incentive that would make applicants do up to 2 years of alternate service to
exchange their undesirable for a clemency discharge?
THE SECRETARY OF DEFENSE
Answer. The testimonial of good-faith performance of service to one's country
WASHINGTON. D.C. 20301
is intended as a positive affirmation in the individual's behalf and should be SO
regarded.
Question. Does it represent an upgrading of the returnee's discharge or is it
SEP 17 1974
another form of undesirable discharge?
Answer. It is a clemency discharge, reflecting satisfactory completion of al-
ternate public service. It does not, however, change the unsatisfactory char-
acterization of one's military service, or reflect a change in the characterization
of one's military discharge from under conditions other than honorable to under
MEMORANDUM FOR The Secretaries of the Military Departments
honorable conditions.
Question. Why was it not decided simply to upgrade the man's discharge to
SUBJECT: Implementation of Presidential Proclamation No. 4313
honorable at the end of assigned service? (There are very good arguments for such
of September 16, 1974
a policy, not the least of which is equity with others who performed alternative
service-conscientious objectors do not receive a discharge which stigmatizes.
Nor do returning draft resisters who perform assigned alternative service-at least
not in my reading of the regulatory materials, which are pretty ambiguous.
For the purpose of implementing Presidential Proclamation No. 4313
Answer. A military discharge is intended to characterize an individual's military
service. It would be an affront to those millions of former service members who
of September 16, 1974, the following instructions are provided:
have rendered "honorable" service to our armed forces, to characterize the service
of those absentees returning under this program as "honorable."
LESS-THAN-HONORABLE DISCHARGE
1. Return to Military Control
Question. Is it true that only men who received their less than honorable dis-
charge after conviction of violating articles 85, 86, or 87 of the UCMJ, are entitled
a. Military absentees seeking the benefits of the President's
to apply for relief to the Clemency Board? What of the overwhelming number of
program will be required to return to military control as
men who received and continue to receive administrative, "chapter 10", un-
a condition of participation.
desirable discharges, for unspecified reasons, shortly after returning to military
control from being AWOL? What avenue of relief do they have? What of the other
thousands of men with bad discharges who didn't go AWOL? Must they be
b. The Secretaries of the Military Departments will establish
branded for the rest of their lives by the sometimes arbitrary UCMJ system?
and announce procedures whereby absentees may make
Answer. This responds to the above four questions. The military discharge
system is not arbitrary, as these questions implv. Where an individual is being
initial contact with military authorities by mail or telephone
considered for discharge under less-than-honorable conditions, a full range of due
to establish their eligibility for the program and obtain
process rights are accorded to him. In those cases where discharge is affected by
reporting instructions.
sentence of court martial, full rights of appellate review are provided. See Uniform
Code of Military Justice, articles 59 through 76. In all other cases, DOD Directive
1332.14, Administrative Discharges, provides overall guidance. Where, in any of
the above cases, an individual feels aggrieved by the nature of his discharge, he
2. Centralized Clemency Processing Center
has available the review procedures provided by sections 1552 and 1553 of title
10, United States Code. Finally, the provisions of Pub. L. 89-690 are always
a. The Secretary of the Army shall designate a centralized
available.
NEUTRAL DISCHARGE CLASS
Clemency Processing Center to be utilized by all Services.
Question. Would it not be more appropriate if all military discharges were
The Army will provide facilities, medical, communica-
simply changed to a single, nonevaluative discharge?
tions and logistic support for all Services on a reimbursable
Answer. Such would not give credit to those who serve honestly and faithfully.
basis.
Question. In the absence of this, what is the value to an individual of applying
to the Clemency Board for relief?
Answer. Please see discussion above on nature of clemency discharge.
b. Each Military Service will establish a Clemency Processing
Question. There has always been a question about whether, if offered, a "con-
Unit at the site designated by the Secretary of the Army
ditional amnesty" would be accepted by those in need of amnesty. The response so
which will be responsible for the administrative processing
far seems to indicate a negative answer. Why do you feel they are not availing
of its own returnees.
themselves of your part of the program?
Answer. The response to the DOD portion of the program has been encouraging.
We hope that such will continue throughout the remaining time period.
Question. What could be done to change the structure of the clemency program
to achieve more effectively the President's stated objective of healing the wounds
of the war and of bringing about some national reconciliation?
Answer. In our view, the présent program represents a balanced approach to the
problem. It is necessary, of course, that those who are eligible for the program meet
their country half-way. This, in our view, is as it should be.
159
158
b. Officer and warrant officer personnel who meet the eligibility
3. Returnee Processing
criteria established in the Proclamation will be provided the
opportunity to tender a resignation in licu of trial by court-
a. An enlisted member who meets the eligibility criteria
martial. The letter of resignation will indicate that it is
established in the Proclamation (Enclosure 1) will be
submitted pursuant to the Presidential Proclamation.
provided the opportunity to request discharge for the
good of the service in accordance with the provisions
The minimum requirements for the acceptance of a resigna-
of DoD Directive 1332. 14 (Paragraphs VII. K. and VIII. D. 5).
tion under this program will be as follows:
The minimum requirements for the issuance of such a
(1) The member's prior conduct, which is the basis of his
discharge under this program will be in accordance with
eligibility for the program, renders him triable by court-
DoD Directive 1332. 14, as follows:
martial under circumstances which could lead to a dis-
missal;
(1) The member submits a resignation or a request for
a discharge for the good of the service;
(2) No formal charges and specifications will be necessary,
but the member must be advised that his prior conduct
(2) The member's prior conduct, which is the basis of
is characterized as a willful and persistent unauthorized
his eligibility for the program, renders him triable
absence;
by court-martial under circumstances which could
lead to a punitive discharge.
(3) The member has been afforded an opportunity to consult
counsel and certifies in writing his understanding that
(3) No formal charges and specifications will be necessary,
he will be separated under other-than-honorable conditions
but. the member must be advised that his prior conduct
and that he understands the adverse nature of such a sepa-
is characterized as a willful and persistent unauthorized
ration and the possible consequences thereof.
absence;
All resignations meeting the foregoing requirements which are
(4) The member has been afforded an'opportunity to consult
submitted by eligible officers and warrant officers will be
counsel and certifies in writing his understanding that
approved. The separation will be under conditions other than
he will receive a discharge under other-than-honorable
honorable unless otherwise directed by the Secretary concerned.
conditions and that he understands the adverse nature of
such a discharge and the possible consequences thereof.
C. Members eligible for participation in this program who are
currently awaiting trial will be provided the opportunity to
The request for discharge will specifically indicate that it
request discharge or tender a resignation as appropriate.
is submitted pursuant to the Presidential Proclamation. All
Any such member who is in confinement will be released
requests submitted by eligible members will be approved.
therefrom.
The separation will be under conditions other than honorable
unless otherwise directed. (See Paragraph V.A.5., DoD
Directive 1332. 14).
3
160
161
d. Members returning to military control and who are eligible to
participate in the program will not be placed in confinement.
recommend clemency in such cases. Where a member or
former member makes such an application, and where his
sentence to confinement is based solely on qualifying offenses,
4. Former members punitively discharged pursuant to sentence
his sentence to confinement should be suspended pending the
of a court-martial or separated with an undesirable discharge
Board's review.
Former members who:
6. Alternate Service
- have been dismissed from the service or discharged with
a dishonorable or bad conduct discharge pursuant to the
a. The period of alternate service for military members who
sentence of a court-martial imposed upon conviction of
apply under the President's program will be determined in
an absentee offense (10 U.S.C. S 885, 886, and 887) or
individual cases by the Secretary of the Military Department
other purely military offense directly related thereto
concerned or his designee,. The period will be indicated in
committed during the qualifying period, or
the agreement signed by the individual as a condition of
eligibility for the President's program. The period of alter-
- were separated with an undesirable discharge based on an
nate service will normally be twenty-four (24) months, but
act or acts committed during the qualifying period which
may be reduced in appropriate cases. Factors which will
rendered the member subject to trial by court-martial
be considered in determining the existence of an appropriate
for an absentee offense (10 U. S. C. $ 885, 886, and 887)
case are as follows:
or other purely military offense directly related thereto
(1) length of satisfactory service completed prior to absence
may apply to the Presidential Clemency Board prior to
31 January 1975 for an examination of their case. The Board
(2) length of service in Southeast Asia in hostile fire zone
will be empowered to recommend to the President that a
Clemency Discharge be issued and to qualify such recommen-
(3) awards and decorations received
dation with a requirement for alternate service in appropriate
cases. The Military Departments will not partici pate either
(4) wounds incurred in combat
in this review process or in monitoring performance of alter-
nate service.
(5) nature of employment during the period of absence
(6) such additional guidelines as experience indicates
5. Members or former members serving a sentence to confinement
appropriate and which are promulgated by future
memorandums
A member or a former member serving a sentence to confinement
based upon conviction of an absentee offense (10 U. S. C. $ 885,
b. Members separated under this program will be notified that
886, and 887) committed during the qualifying period or other
they must report to their State Director of Selective Service
purcly military offense directly related thereto may apply to
within 15 days of the date of receipt of discharge to arrange
the Presidential Clemency Board prior to 31 January 1975 for
for performance of alternate service.
an examination of his case. The Board will be ~powered to
7. Members against whom other offenses are pending
Members who would otherwise be eligible for consideration under
4
the Proclamation, but against whomother offenses under the
5
162
163
Uniform Code of Military Justice are pending, will not be
D/ this memorandum pursuant to Presidential Proclamation No. 4313
eligible to participate in the foregoing programs until the
Such certificates will be issued only upon receipt of certifica-
final disposition of such other offenses in accordance with
tion of satisfactory completion of alternate service by the
the law and Service regulations.
Selective Service System. Procedures should also include
issuance of a DD Form 215, "Correction of DD Form 214,
Armed Forces of the United States Report of Transfer or
8. Members who fail to meet the eligibility criteria
Discharge, " reflecting the reason for separation as stated
above and noting the issuance of the DD Form 1953 (Enclosure 2).
Members who fail to meet the eligibility criteria or fail or
The DD Form 215 should be included in the master military
refuse to execute the required documents, or decline to
personnel record.
submit requests for discharge or letters of resignation, as
appropriate, remain subject to trial by court-martial or
C. Service Secretaries will submit reports on a monthly basis
administrative disposition in accordance with existing law
at the end of each calendar month to OASD(M&RA)(MPP) by
and regulation.
the 10th of the following month. Reports will include infor-
mation specified in Enclosure 3.
9. Records and accounting
10. Public Affairs Guidance
a. Statistical records accounting will be accomplished in
accordance with the provisions of DoD Directive 5000. 12M,
Because of the overriding national interest in the President's
Manual for Standard Data Elements, 1 March 1970, as
announcement on clemency procedures for draft evaders and
changed. The appropriate computer designators for Separa-
military deserters, the Assistant Secretary of Defense (Public
tion Type and the specific Separation Reason as noted below
Affairs) is responsible for direction and coordination of all
will be entered on Service retained copies of DD Form 214.
public affairs activities concerning deserters, discharges and
The reason for separation shall be "Separation for the good
clemency. Maximum information will be disseminated to the
of the service by reason of a willful and persistent unauthor-
public while at the same time giving due consideration of the
ized absence, pursuant to Presidential Proclamation No. 4313
rights of the individual. The Clemency Processing Center
abbreviation SEP-PRES PROC, data code NL. The copy
(CPC) will be manned by representatives of all the Military
for Veterans Administration and the Selective Service System
Departments, and the CPC information chief will report
will contain only the narrative type of separation and reason
directly to the ASD(PA) for all public affairs matters.
for separation. All copies of the DD Form 214 will have
entered in the remarks section the following statement:
Public affairs guidance, recommendations and accompanying
"Subject member has agreed to serve
months alternate
Service implementing instructions to all commands, will be
service pursuant to Presidential Proclamation No. 4313. "
coordinated in advance with OASD(PA).
Those military services which have not implemented Change 10
to DoD Directive 5000. 12M will establish appropriate documen-
tation and accounting procedures consistent with the respective
type of separation and the exact wording of the reason for
James R.
separation.
b. Military Departments will establish procedures to recognize
the alternate service by issuance of the Clemency Discharge
certificate DD Form 1953 (Enclosure 2) which is established
Enclosures
6
164
165
Enclosure 1
Attachment to Enclosure 1
Conditions of Eligibility Pursuant to Presidential Proclamation No. 4313
PLEDGE TO COMPLETE ALTERNATE SERVICE
1. Unauthorized absence in violation of Article 85, 86, or 87,
or other purely military offense directly related thereto under the
Uniform Code of Military Justice, commenced during the period
August 4, 1964, through March 28, 1973.
On or about
, I voluntarily absented myself from
2. Other pending offenses under the Uniform Code of Military
my military unit without being properly authorized in contravention of
Justice have been finally disposed of in accordance with law.
the oath taken upon entering the nation's military service. Recognizing
3. The member reported to military authorities in a manner
prescribed by the Military Department concerned not later than
that my obligations as a citizen remain unfulfilled, I am ready to serve
31 January 1975.
in whatever alternate service my country may prescribe for me, and
4. The member has executed a statement or statements reaffirming
his allegiance and pledging to perform a specified period of alternate
pledge to faithfully complete a period of
months service.
service.
Attached to this enclosure are form statements for use by the Military
Departments in securing the reaffirmation of allegiance, admission of
absence, and pledge to perform alternate service. These forms may
be modified or combined with other documents for ease of administration
provided the substantive content is retained.
REAFFIRMATION OF ALLEGIANCE
I,
, do hereby solemnly reaffirm my
allegiance to the United States of America. I will support, protect and
defend the Constitution of the United States against all enemies, foreign
and domestic; and will hereafter bear true faith and allegiance to the
same,
I take this obligation freely without any mental reservation or
purpose of evasion.
167
166
AMENDED REPORTING REQUIREMENTS
CLEMENCY DISCHARGE
September 20, 1974
1. Number of applicants for President's Program
FROM THE ARMED FORCES OF THE
Members contacting CIP (mail/telephone/walk in's/installations)
1. Number eligible of those who made contact
UNITED STATES OF AMERICA
2. Number referred to JPC
3. Number reported in at JPC
THIS IS TO CERTIFY THAT
4. Number processed by JPC
a. Type of Separation (Manual for Standard Data Elements)
b. Character of discharge
WAS DISCHARGED FROM THE
c. Length of Alternate Service
UNITED STATES
(a) None
ON THE
DAY OF
(b) 1 - - 5
(c) 6- 12
THIS CERTIFICATE IS ISSUED ON THE
DAY OF
(d) 13 - 18
IN RECOGNITION OF SATISFACTORY COMPLETION OF ALTERNATE
SERVICE PURSUANT TO PRESIDENTIAL PROCLAMATION NO. 4313
(e) 19 24
SEPTEMBER
1974.
d. Race
(Manual for Standard Data Elements)
e. Date of absence by year (year last absence began)
5. Number not processed by JPC (Ineligible)
a. Offense not within period
b. Other offenses pending
C. Failed to execute required statements
d. Other
168
169
6. Disposition of those not processed by JPC (Ineligible)
THE
SECRETARY
OF
DEFENSE
a. Referred to trial by court-martial (GCM, SPCM, Summary)
WASHINGTON.
20301
b. Administrative separation
SEP 17 1974
c. Article 15 / returned to duty
d. Reprimand / returned to duty
Honorable William is. Saxbe
Attorney General
e. No action/returned to duty
Washington, D. C. 20530
Dear Mr. Attorney Coneral:
1. Other
This letter is written pursuant to the President's Proclamation announcing
7. Frocessed through medical channels
a program for the return of Victnam-era draft evaders and military
deserters. It is requested that you immediately instruct the Federal
8. Pending at JPC as of last working day of the month
Purcau of Investigation, the Lorigration and l'aturalization Service, and
the Federal Marshal' service to follow the following procedures at
border control points in the United States, until January 31, 1975, recard-
9. Cases requiring more than 7 working days (number)
inc admittance to the United States of persons whose names appear on a
"look out" list or NCIC list, for having committed an offense of absence
10. Cases requiring more than 14 working days (by name and reason)
or desertion under the Uniform Code of Military Justice (10 U.S.C. 835,
10 U.S.C. 686, and 10 U.S.C. 887) during the period from August 4, 1964,
to March 26, 1973, inclusive.
II. Number of eligibles who return to military control but who do not apply
1. The individual should be informed that there is an outstanding
warrant for his arrost for violation of the Uniform Code of Military
for benefits of Presidential Proclamation. (Report disposition as in
Justice.
Item I. 6. a. Lf.).
2. He should be permitted to read the contents of the Presidential
Proclamation and his attention directed specifically to that portion of the
Proclamation describing those military offenses which may be the subject of
clemency.
3. He should be advised that, if he returns to proper military control
within fifteen days of the date of his entry into the United States, the
warrant of arrest will not be executed against him. He should also be
advised that, should he attempt to exit the United States during the
fifteen day period, or should he not return to military control during
that period, the varrant will be executed.
4. In the event the individual is wanted by the military department
for other than a violation of 10 U.S.C. 835, 886, or 837, or is the suid-
ject of an arrest warrant or a fugitive felon warrant for a state or federal
offense, in addition to the absence or desertion violation, the individual
should be detained and the appropriate military department or the FBI immedi-
ately notified so that his apprehension may be effected in accordance with
established procedures.
2
170
171
5. Tnc names and dates of entry of all individuals entering the United
States pursuant to the Proclemation should be promptly furnished to the
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
local field office of the FBI. The names of military absentees should he
WASHINGTON, D. C. 20301
forwarded to the Army, Havy, Marine Corps, or Air Force Clemency Information
Point, United States Army, Fort Benjamin Harrison, Indiana 46249.
September 20, 1974
Sincerely,
Jams R. Schlesunge
MEMORANDUM FOR THE SECRETARIES OF THE MILITARY DEPARTMENTS
SUBJECT: President's Program for the Return of Vietnam-era Deserters
The Secretary of Defense has decided that information obtained from
military absentees inquiring about the President's Program will be
closely held by the Military Department concerned and will not be
used, during the eligibility period set forth in Proclamation No.
4313, against cither the absentee inquiring or other eligible
absentees, to effect an apprehension for unauthorized absence.
To do otherwise would not be in the spirit of the President's
Program. It is desired that this policy be disseminated to all
concerned without delay.
Moiting Martin R. Hoffmant
2
55-550 O 75 12
173
172
PROJECTED CLEMENCY ACTIONS
CASE 5 AND DO:
UNDER SENTENCE AND BCD/DD
RECOMMEN-
DATIONS
TO PRESIDENT
ALTERNATE
SERVICE
1-24
NONE
LEAVE
UNDER
OR
SENTENCE
PAROLE
BY
APPLICATION
RECOMMEN-
BCD
CLEMENCY
DATION TO
DD
BOARD
PRESIDENT
BY
APPLICATION
REQUEST
TO MILITARY
DEPT.
PROJECTED CLEMENCY ACTIONS
CASE III - UD's
CLEMENCY
BOARD
SELECTIVE
SERVICE
SYSTEM
ARTICLE 74b
BCD/DD
CLEMENCY
AND
OR IN
DISCHARGE
PRES. PROC.
CONF TO CD
NO ALT.
SERVICE
REQUEST
SELECTIVE
BCD/DD
TO MILITARY
SERVICE
ARTICLE 74b
OR IN
DEPT.
SYSTEM
CONF. TO UD
ALTERNATE
SERVICE 1-24
UD
ALTERNATE
SERVICE 1-24
UD
BY APPLICATION
REQUEST TO
MILITARY DEPT.
CLEMENCY
DISCHARGE
174
175
Senator KENNEDY. In the opening statement or comment I made
some observations or recommendations. Do you have any reaction
to any of those? One was with regard to records.
Mr. HOFFMANN. I can submit a reaction to you, Senator. I heard
you read it, and I have not had an opportunity as I have sat here
since to reflect upon it. We will be happy to submit in very short
order some reactions to it.
HONORABLE OR GENERAL
Senator KENNEDY. Thank you very much.
[The response of the Department of Defense to Senator Kennedy
follows:]
10
DEPARTMENT OF DEFENSE RESPONSE TO SENATOR EDWARD M. KENNEDY'S
STATEMENT OF DECEMBER 19, 1974
First, I believe that the criminal records-either civilian or military-of those
REQUIRED CLEMENCY ACTIONS
UD
ALTERNATE
SERVICE
receiving pardons or clemency discharges should be ordered sealed by the Presi-
24
NONE
dent, the Attorney General, or the Secretary of Defense. This appears not only
possible, but entirely desirable in light of our past traditions and in responses to
the spirit of President Ford's call for national reconciliation. These files should
not haunt the young men who complete the clemency process if our goal is to
remove the barrier to their full re-entry into our national life.
Military personnel records are records of one's performance of military service.
They are confidential and are not available to the public-and their public release
can only be authorized by the service member of former member involved. How-
ever, since they are of importance in making determinations as to the nature of
DOD
one's military service, it would be most inappropriate and undesirable to "seal"
any portion of them. Such, of course, is not the result of a pardon, which does not
operate retroactively to change an accomplished or existing fact, e.g., the fact
that the individual was in a status of desertion or unauthorized absence for an
PROCESSING
extended period of time and that certain action was taken against him. These
FOR
DISCHARGE
SELECTIVE
SERVICE
SYSTEM
are significant matters in making a determination of the quality of one's military
service, and they must continue to be available for that purpose.
Second, I think it imperative that the Justice Department, and/or the Selective
Service System, compile final and definitive lists of those in jeopardy, of pros-
ecution and of those whose files have been closed because of procedural errors
or any other reason. This list should then be provided to some intermediary
organization in confidence, where men can call or write without fear of self-
incrimination. The Department also should make its own effort to notify in-
dividuals who are no longer liable to criminal action.
Inasmuch as the above question could pertain to the Department of Defense
in a previous situation it was decided not to provide names and information to
outside intermediary organizations because the information is definitively de-
rogatory and would clearly and in an unwarranted manner invade the privacy
of those whose personnel records were involved. A military absentee can receive
IN SERVICE
ACTION
PENDING
BY APPLICATION
RETURNED
TO MILITARY
authoritative information regarding his situation-completely without fear of
CONTROL
BY APPLICATION
self-incrimination-from the clemency information point of his military service.
DEPT.
Third, even while recognizing the limitations of the President's conditional
approach, I believe it can be expanded to more closely approximate the goals of
leniency and evenhandedness. Particularly for the soldier who received an un-
desirable discharge, perhaps after protesting the war by refusing to return to
Vietnam, but who did not desert, the program seems unjust. If he had deserted
TO
he would be eligible for consideration for the program. But since he decided to
stay and accept imprisonment for disobeying an order, then he is ineligible.
Clearly, the program should be expanded to other recipients of dishonorable
discharges where there is any indication of a Vietnam-motivated action that led
to his discharge.
It is appropriate to note that the referenced program is a program for the return
Vietnam era draft evaders and military deserters rather than a more general
amnesty for all crimes, civil and military, against either institutions, persons, or
property. There does not appear to be any need or justification for expansion of the
President's program to cover such crimes.
Perhaps even more important, can a program that was ordered into effect
on September 16; a program that on December 16 had not yet notified all eligible
persons, can that program be ended on January 31 and be considered adequate?
Only the expansion and extension of the program beyond January 31 can begin
to alleviate these particular inequities.
177
176
The specific requirements for eligibility are set forth in the Presidential procla-
mation. They are as follows:
The program received wide publicity at the time of announcement and imple-
The unauthorized absence is in violation of articles 85, 86 or 87 during the
mentation, and throughout the period since that time. Additionally, the military
period August 4, 1974, through March 28, 1973.
departments have mailed notification and program information to the next of
Other pending offenses, if any, have been disposed of.
kin of those eligible absentees who have not already contacted us. There has
The member must report not later than January 31, 1975.
been ample publicity and ample time for eligible absentees to take advantage of
The member affirms his allegiance and pledges to perform the specified
the program if it is their desire to do SO.
period of alternate service.
Also, it seems unfair for a veteran, who came to the conclusion that he could
Certain aspects of the specific guidance issued by the Department of Defense
not participate further in Vietnam, to find that the Defense Department does not
should be highlighted:
count deep moral objection to Vietnam as a mitigating factor, although the
The deserter must return to military control-just as the draft evader
Clemency Board has.
must present himself to the U.S. Attorney.
There were procedures-other than desertion-available through which a
Eligibility may be determined by telephone or letter to the clemency
military member who was a conscientious objector could seek and be accorded
information point. The information disclosed in these inquiries will not be
relief from combatant duties or even complete discharge. We have undertaken a
used to apprehend the member for a desertion related offense during the
review of those cases where returning absentees claim their prior-to-absence
eligibility period.
request for conscientious objector status was improperly denied. The DOD does
Absentees coming into the country will not be apprehended at the border and
not consider an objection to the Vietnam war, however, as a factor which should
will be given 15 days to report to military authority.
reduce the period of alternate service which an individual should perform. It has
All participants will be centrally processed by the respective military service
never been so considered in the administration of the Selective Service System
at Fort Benjamin Harrison, Indiana.
conscientious objection program.
Participation in the clemency program further rests on agreement by the
Finally, I believe that each agency charged with administering portions of the
individual to the following:
clemency program must reform and adjust its practices and procedures to conform
A request for discharge for the good of the service must be submitted.
with the requirements of the Administrative Procedures Act-at the very least
The unauthorized absence would render him triable and could lead to a
with the minimal procedural protections that were available under the Selective
punitive discharge.
Service Act.
Issuance of formal legal charges is not required.
The President's program for the return of Vietnam era draft evaders and
The individual electing to participate in the program must reaffirm his
deserters is an exercise of the President's pardon power to which the provisions of
allegiance and execute a pledge to complete alternate service.
the Administrative Procedures Act are not applicable. The DOD portion of the
During the initial stages of processing, each individual is given a complete
program, however, does accord the participant with free lawyer counsel, an
legal briefing by a military attorney assigned to represent him. This involves a
opportunity to submit written data to be considered in his behalf, and full dis-
group session, with opportunity for individual sessions at that time or any time
cretion to either accept or reject the President's program. Should the individual
during processing. The consequences of an undesirable discharge are fully ex-
desire additional administrative or judicial due process rights, he need only elect
plained to him, as well as the legal implications of all aspects of the program.
not to participate in the program, and he will be processed through normal
Additionally, each member is advised that he is entitled to consult a civilian
disciplinary procedures where such are provided.
attorney of his choice He may have his own counsel if he has retained one. The
Mr. HOFFMANN. We appreciate the subcommittee's looking at the
local bar association in Indianapolis, at our request, has provided a referral service
of attorneys who provide advice, free of charge, to any returning absentee. Office
program, and I appreciate the opportunity for appearing here this
space at Fort Benjamin Harrison has been provided for private consultation
morning. Thank you.
between attorney and client.
[The prepared statement of Martin R. Hoffmann follows:]
After the individual has established his legal representation and been fully
advised, the processing continues. His pay accounts are placed in order and he
PREPARED STATEMENT OF MARTIN R. HOFFMANN, GENERAL COUNSEL, DEPART-
is given an opportunity to provide information to the Joint Alternate Service
MENT OF DEFENSE
Board at Fort Benjamin Harrison for its consideration in determining the amount
of alternate service he will be required to perform. He is also given a complete
Mr. Chairman, distinguished members of the Subcommittee on Administrative
physical examination. As the proclamation requires, each case is reviewed for
Practice and Procedure, it is a pleasure to be here to respond to your request for a
the assignment of alternate service; 24 months is the standard. The Board con-
description of the procedures by which military absentees are returned to and
siders reductions on an individual basis in the length of alternate service from
separated from military service under the President's clemency program. I am
the maximum of 24 months, taking into account the following circumstances:
accompanied by Captain William O. Miller, U.S. Navy of the Office of the
previous satisfactory military service; combat service; awards and decorations;
Assistant Secretary of Defense for Manpower and Reserve Affairs.
wounds and injuries; and nature of employment while absent.
The President's program is outlined in Presidential Proclamation 4313 and
The composition and procedures of the Joint Alternate Service Board may be
Executive orders 11803 and 11804 dated September 16, 1974. The implementing
of interest to you.
responsibility of the Department of Defense relates to those individuals who are
The Board was established jointly by the Secretaries of the Military Depart-
subject to military jurisdiction-that is, members of the military services who have
ments at the beginning of the program. All military absentees, under the juris-
been dropped from the rolls as deserters by reason of an unauthorized absence of
diction of the military departments, have had their alternate service determina-
more than 30 days between the dates August 4, 1964 and March 28, 1973. It is
tions made by the Joint Alternate Service Board. The Board is composed of one
estimated that 12,500 eligible absentees were at large. Also eligible were approxi-
0-6 grade officer; a Colonel or Captain of the Navy-from each of the military
mately 500 individuals who were in military custody at the time of the proclama-
services-Army, Navy, Air Force, Marine Corps. All four officers consider the
tion, but who for various reasons had not been separated from the military ser-
case of each returning absentee. The officer from the military service of the
vice or brought to trial for their offense.
absentee presides during the consideration of his case. In the case of a tie vote,
On September 17, 1974, the Department of Defense provided extensive guide-
that officer's determination is controlling. As noted earlier, the individual has
lines to the military departments on implementation of the program. A copy is
the opportunity to present a written statement to the Board. The Board will
attached to this statement. The controlling philosophy is that the program should
not consider his case until it determines that the individual either has taken
provide an effective, expeditious procedure fully protective of the rights and
advantage of the opportunity, or has specifically declined to do so. In the prepara-
options of the returnee whereby eligible military absentees may enter the program,
tion of this statement the individual has complete access to his counsel.
become separated from the military service and undertake alternate service.
Upon being advised as to the length of alternate service, the individual is given
Upon completion of the prescribed period of service, a clemency discharge would
a further opportunity to consult with his attorney or attorneys. He must then
be issued in lieu of the undesirable discharge previously received upon separation
from the military.
178
179
make his final determination as to whether or not he wishes to participate in the
That concludes my prepared statement, Mr. Chairman. I will be pleased to
program.
answer any questions which you may have.
In the great majority of cases processed through the Joint Processing Center,
action is completed within a 24-hour period.
Senator KENNEDY. Our next witness, the Deputy Assistant Attor-
The individual is advised that after discharge he must report to the Director
ney General, Kevin Maroney, testified at our Selective Service
of the Selective Service System in the state in which he intends to reside. The
Selective Service System thereafter works with him to provide a suitable alternate
hearing on amnesty in 1972. He has been in the Department of
service job.
Justice for over 25 years.
The details of the Alternate Service Program are to be addressed by the Direc-
Glad to have you with us.
tor of the Selective System. One point bears mention, however. The Selective
Service System notifies the individual's military service when he has satisfactorily
completed his alternate service. When this notification is received, the military
STATEMENT OF KEVIN MARONEY, ASSISTANT ATTORNEY GEN-
services will issue the individual a clemency discharge in lieu of the undesirable
ERAL, DEPARTMENT OF JUSTICE, ACCOMPANIED BY BRUCE FEIN
discharge.
A statistical summary of our implementation of the program, attached to this
AND ROBERT VAYDA, OFFICE OF JUSTICE PLANNING AND POLICY
statement, reflects that as of 0800, December 16, 1974, we have received over
6,000 inquiries from all sources about the program. Also included are the numbers
Mr. MARONEY. Thank you, Mr. Chairman.
of cases completed and those still being processed. Also reported is a breakout of
Mr. Chairman, Senator Hart, I am pleased to appear today to dis-
the disposition of cases in terms of the period of alternate service prescribed.
Let me deal, briefly, with certain aspects of the program that have been of
cuss the implementation of the President's clemency program with
particular interest.
respect to unconvicted alleged draft evaders by the Department of
The first is the nature of the clemency discharge. Military discharges are de-
Justice.
signed to describe the quality of an individual's military service. An honorable
I am accompanied by Mr. Robert Vayda and Bruce Fein, Office of
discharge is issued in recognition of honorable and faithful service during a
committed period of military service. The general discharge is given for satis-
Legal Counsel, presently assigned to the Office of the Attorney
factory military service, and the undesirable discharge is given for unsatisfactory
General.
service. The bad conduct discharge and the dishonorable discharge are punitive
My remarks will focus on the number of individuals eligible for the
discharges, issued only by reason of an approved sentence of a pecial or general
program, what participation in the program requires, measures taken
court-martial.
The usual eligible absentee is given an undesirable discharge. The Department
to inform eligible draft evaders of the program's existence, the number
of Defense guidelines, and those promulgated by each of the military departments,
who have participated, steps taken to insure uniform implementa-
provide that an absentee must be fully counseled of the adverse nature of the
tion, and a special review of draft evader casês undertaken by the
undesirable discharge. He is informed that it is a military discharge under con-
Department.
ditions other than honorable-and that generally he will not be eligible for
veterans' benefits.
An unconvicted draft evader is eligible for the clemency program if
The clemency dis harge is designed to be issued once a dischargee has satis-
he committed his offense between August 4, 1964, and March 28, 1973,
factorily performed his period of alternate service. It is, in effect, a testimonial to
and if he is not barred from reentering the country by 8 U.S.C.
the fact that the individual has satisfied the obligation undertaken pursuant to
1182(a)(22). Generally speaking, that latter provision would exclude
the President's program. It is not intended, in any way to effect a change in the
characterization of the individual's military service as unsatisfactory, or to effect
from the program any alien who has fled the country to avoid the
a recharacterization of an other-than-honorable-conditions military discharge. It
draft or a U.S. citizen who has done the same and subsequently
is intended, however, to indicate as public testimonial that the individual has
renounced his U.S. citizenship.
accepted the offer of clemency, and complied with his undertakings pursuant to
Senator KENNEDY. Why is renouncement of citizenship such a key
the President's program. For this he deserves recognition-which the President
has sought to symbolize through the issuance of the clemency discharge.
factor? Perhaps an individual goes overseas and doesn't feel there is
With respect to Veterans Administration benefits, the fact that an individual
any possibility of getting back. He then becomes'a citizen of another
serves his alternate service and is thereafter awarded a clemency discharge in
country and later makes a decision that he wants to come back. Why
lieu of an undesirable discharge is not intended to affect his entitlement to Veterans
should that be set as a prohibition for any consideration?
Administration benefits one way or another.
The second aspect of the program which deserves individual comment is the
Mr. MARONEY. Under the provisions of 1481(a) (1) or (2), an
extent to which the Department has endeavored to protect the rights of every
individual who has renounced his American citizenship is ineligible
individual processed under the program.
for reentry if he has left the country for the purpose of avoiding the
The Department of Defense has insisted that every individual being processed
selective service statutes.
should have full and complete legal advice available. Moreover, no information
received from an individual inquiring as to his eligibility or during his processing
Senator KENNEDY. As I understand, there was testimony yesterday
will be used against him for prosecutive purposes. If there are legal defenses
that I am unclear on, called landed immigrants in Canada, and that is
available to him which would indicate that he could not be successfully prosecuted
interpreted as a bar.
for his unauthorized absence offense, it is the responsibility of his counsel-civilian
Mr. MARONEY. That is not true, Senator.
or military-to make these facts known to the absentee himself or to the military
discharge authority. The decision to request a discharge under this program-or
Senator KENNEDY. Shaking your head won't help us. Maybe you
or to elect to have his case processed under the normal military procedure-is a
can clarify for the record.
matter solely up to the individual himself and his counsel.
Mr. MARONEY. Well, the only ones who are ineligible are those
Finally, in an effort to ensure that all eligible military absentees receive notifica-
individuals who left the country to avoid the draft and who have
tion of their eligibility if at all possible, the military departments recently sent
letters to the next of kin of those eligible absentees who had not already contacted
renounced their American citizenship.
us. We sent about 7,000 of these letters. Over 2,200 of these have been returned
Now, of course, that can be accomplished in a variety of ways, by a
as undeliverable, but we have had 375 telephone inquiries in response to these
formal renunciation to a representative of the State Department, I
letters and about 68 individuals have returned to their military service with the
believe, under most circumstances, I am sure, becoming a citizen of a
letter in their possession.
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responsibility of the Department to inform these people that there
foreign country. So that there are also other ways in which citizenship
isn't anything hanging over their heads?
can be renounced, but I don't think that is a real problem with respect
Mr. MARONEY. I don't think so, any more than anybody else is
to the situation that we are talking about.
ever notified that the Government is or isn't going to bring a criminal
The situations we are talking about are those few people, and I
case. No, sir, he got the order to report for induction. He knows that
understand there are only four or five who have become citizens of
he didn't obey the order and he was therefore in some jeopardy at that
Canada or perhaps a Western European country. Those individuals
point. He certainly could have made an inquiry through an attorney
are excludable under the immigration laws and therefore excluded
or otherwise as to whether or not an indictment was returned or
under the amnesty program. But a person who is a landed immigrant
whether or not a case was dismissed.
from Canada is allowed to return.
Senator KENNEDY. Don't you think it would be valuable to at
Senator KENNEDY. OK, sir.
least have a final list of those individuals that are under investigation
Mr. MARONEY. The department estimates that approximately 6,300
or liable for prosecution, SO that everybody knows that? Why is that
unconvicted draft evaders are eligible for the clemency program. Ap-
SO difficult to assemble?
proximately 4,190 are currently under indictment, of whom some 3,950
Mr. MARONEY. Well, it isn't SO difficult to assemble.
are listed as fugitives. It is estimated that 2,090 of the fugitives are in
The question would be the complete 100-percent accuracy of this.
Canada, and that an additional 560 are located elsewhere outside the
The only way we can guarantee that is on a case-by-case basis.
United States.
Senator KENNEDY. Why doesn't it make sense to say we will take
Senator KENNEDY. Do you have a final list of unconvicted draft
6 months or a year and review these cases and publish a final and
evaders that are eligible for the program?
complete list? Why can't you put an outside deadline on that and
Mr. MARONEY. We have a list of all those against whom indictments
produce a list so that everybody knows about it? Then, if your name
have been returned.
is on it, you are going to be either prosecuted, or if it is not, you can
Senator KENNEDY. Is that list public?
come back.
Mr. MARONEY. We have made it available to the ACLU on a re-
Mr. MARONEY. Well, even if we were to prepare a list based on
quest they made under the Freedom of Information Act and also to
complaints which have been furnished to us by the Selective Service
the United Church of Christ.
Boards, it wouldn't necessarily include, for example, an individual
Senator KENNEDY. That doesn't include any of those who are under
who had failed to register, let's say in 1968, 1967, or 1966, and who
investigation at the present time, does it?
were unaware of and the Selective Service Board was unaware of.
Mr. MARONEY. We did prepare at the outset an initial list that did
Senator KENNEDY. Let's eliminate nonregistrants. How about the
include both persons under indictment and person under investigation
rest?
by the FBI whose cases were actively pending in the U.S. attorney's
Mr. MARONEY. Well, we could prepare—
office. We purged that list to eliminate the latter group.
Senator KENNEDY. Say this is it, these are the people. Take what-
Senator KENNEDY. Is it a final list? Do you consider it to be a final
ever time is necessary, 6 to 8 months.
list?
Mr. MARONEY. Of course we only have until January 31 under this
Mr. MARONEY. Well, absolutely final and accurate, I don't think
program.
we can represent it to be so, no.
Senator KENNEDY. Yes, but it may be sufficiently important and
Senator KENNEDY. Could someone rely on it?
may very well be extended.
Mr. MARONEY. No, and when we have furnished a list to these
Why wouldn't this make sense in any circumstances, whether you
groups we have indicated that we can't vouch 100 percent for its
have a program or not?
reliability, and its a primary source, and that in addition, a direct
Mr. MARONEY. Senator, we can prepare a list, and we have as I
inquiry should be made either to the Selective Service Board or to
indicated. The first one we did prepare contained all indictments and
the U.S. attorney or to the Department of Justice here in Washington,
all cases under investigation. We could reproduce that list tomorrow,
and we will make a check and advise the individual or his repre-
probably. We could undoubtedly make it available to legal services.
sentative as to his exact status. We have done that in a number of
The problem would be in vouching for the 100 percent accuracy.
instances.
Remember, these are reports collected from 96 districts in the United
I myself have had a phone call from a man in Canada who wanted
States. In some of the districts, the southern district of California,
to know what his status was. He said he had been ordered to report
for example, they have a couple of thousand cases, I think, 1,500 cases
for induction in 1967 or something. We checked with the U.S. at-
in the selective service area. It would be a 99 percent accurate list.
torney's office. He did not have an indictment. We therefore then
I fail to see, frankly, the burden on an individual who has reason to
asked the Selective Service Board to give us their information, and
believe he may be in some jeopardy under the selective service statute
his file had been destroyed, I think, in 1972 and the case was closed
in making a direct inquiry. He will get a quick and immediate
and never proceeded to a prosecution.
response, and if he doesn't want to make it himself, he can make it
We advised him of that; obviously he is perfectly free to come back.
through an attorney.
He has nothing hanging over his head.
Senator KENNEDY. As you well understand, there is a nature of
Senator KENNEDY. If it was ended in 1972, why shouldn't he have
distrust about it-among many of those making direct inquiries with
been notified and allowed to come back before? Isn't there any
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183
the Department-and it seems to me that the Department could take
Senator KENNEDY. The President doesn't issue a clemency with
whatever period of time necessary and say this is final. You say that
regard to internal revenue violations, and certainly, this is a different
now it is 99 percent sure; can't you take another few weeks and make
circumstance. He has used very compassionate words, and he has
sure it is, at least as close as you can get to it? If you miss something
indicated his sense of leniency and reconciliation and mercy on this
and it falls through the cracks, at least making young people aware
issue. We are talking about a small percentage of 1 percent, and I am
through a public list of their eligibility or ineligibility, would be a
sure you can see both the desirability of getting a final determinant
useful device. You certainly could understand by your saying that
list, and why we can't get that.
the list is 99 percent but it is not 100 percent correct, that everyone
You yourself said the other list is 99 percent sure. You will have a
is going to feel that they might be the one that is the 1 percent and
few more weeks to make sure it is as tight as it can be. I think it would
feel that they are not even going to bother making the inquiry.
be of very important public value to say this is it, this is the list. That
Before announcing the President's program Mr. Saxbe himself
is what we are requesting, the final list by that time, or the reasons
talked about the various numbers-6,200 pending draft evaders. It
why not. I would hope that you could get it, not just for us, but for
seems to me that you could give it some consideration when we are
Senator Hart as well.
only 99 percent sure of asking for leniency where there are many, not
Mr. MARONEY. We will try to prepare such a list, and I will certainly
only those young people affected, but others lives, who would feel
take back the chairman's request that the list be regarded by the
this is a constructive step in carrying through leniency.
Attorney General as a final list and be published at that time.
Mr. MARONEY. Well, the Attorney General early in October, I
Senator KENNEDY. Fine.
think, directed all U.S. attorneys to review all their selective service
[See appendix, pp. 267-269, for relevant correspondence between
cases, both indictments and files that were pending in their offices,
subcommittee and Department of Justice regarding the list.]
and certainly most of the offices have reported by December 11. The
Mr. MARONEY. An estimated 2,130 individuals are under investiga-
balance of the offices who had more than 250 cases pending had until
tion for a draft evasion offense.
January 11. When they have completed their review, it will be fairly-
An unconvicted draft evader must report to the U.S. attorney in
you know, toward the middle-getting into the end of January, and
the district where his offense was committed by January 31, 1975.
at that point we will have a good, current list of all pending viable
There he executes an agreement with the U.S. attorney in which he
cases. We will also have a list of all cases which are being wiped out
acknowledges his allegiance to the United States by agreeing to per-
pursuant to this review. I assume those lists could be made available
form alternate service.
at that time.
Senator KENNEDY. Were you present earlier when we reviewed with
Senator KENNEDY. Could we have that? Senator Hart, do you want
the DOD certain mitigating factors?
to join me in requesting that we get a list, say by January 20? Could
Mr. MARONEY. Yes, sir.
we have the list?
Senator KENNEDY. The Justice Department has different regulations
Senator HART. I think the trick isn't SO much in our getting the
as well on this.
list, but having Joe Potatoes out there know whether he is or isn't
I have expressed my view on this. I don't know whether you want to
on it.
make any comments about it, about the criteria you use as compared
Mr. MARONEY. I understand, Senator, and that is why I am talking
to the Clemency Board or the DOD, and the differences for those
about the time frame that is involved, January 31 is our cutoff. Well,
factors. It does seem you have one Presidential order and three defini-
we will take back the request that such a list be compiled, if possible,
tions of mitigating circumstances.
by January 20.
Mr. MARONEY. I think our factors are consistent with the criteria
Senator KENNEDY. This is what we are looking at, the request for
used by the Clemency Board. The principal difference, I suppose, is
the list in time with the understanding that we are making the request
that the Clemency Board is handling cases of people who have been
that the list be made public. It would not include the nonregistrants,
convicted and many of whom have served time for the conviction,
but any of the others would know that it was the definitive list, and
which is a very substantial factor for them to take into consideration.
they would know that if their name were not on it, they wouldn't
Of course, we don't have that present in our consideration. We do
be subject to prosecution. If we could get that as a request-
try to take into consideration mitigating circumstances that deal with
Mr. MARONEY. I think we would have to represent it for what it is,
the mental state, I suppose, of the individual, the time of violation,
and that is a list of pending indictments and pending complaints or
the financial hardship that would be incurred by the individual and
investigations in the U.S. attorney's office.
his immediate family dependent upon the length of alternate service
Senator KENNEDY. If it is not final, then it doesn't do us a great
that was required. We have made a special effort to ensure on a nation-
deal of good. You can understand that.
wide basis that the criteria set forth in the prosecutive guidelines
Mr. MARONEY. Well, I understand it, but I must say
have been adhered to by the U.S. attorney and applied on a consistent
Senator KENNEDY. How old are these young men?
basis insofar as that is possible when you are dealing in this kind of
Mr. MARONEY [continuing]. I don't know why this is a different
thing.
situation than any other criminal violation. Regarding Internal
Senator KENNEDY. Do you have any other guidelines besides this
Revenue Service laws, we don't advise everybody whether his income
sheet, which is appendix B on Department of Justice item 4? You
tax return is all right or not, and they are not subject to prosecution.
have just this one? That is all we have received. I don't know whether
there is anything else.
185
184
was erroneously convinced by himself or by others that he was not violating
Mr. MARONEY. They are the guidelines.
the law;
Senator KENNEDY. Do you have any other information on miti-
(2) whether the applicant's immediate family is in desperate need of his
gating circumstance, any memorandums?
personal presence for which no other substitute could be found, and such
need was not of his own creation;
Mr. MARONEY. I could give you some representative illustrations
(3) whether the applicant lacked sufficient mental capacity to appreciate
of how some of these cases have been handled and the factors which
the gravity of his actions; and
led the U.S. attorneys to give differing periods of time, if that would
(4) such other similar circumstances.
V. In the determination by the United States Attorney of the length of service
be helpful.
as provided in IV, an applicant shall be permitted to:
Senator KENNEDY. Certainly their cases would be interesting, but
(1) have counsel present;
I was interested more in some documents that you would have that
(2) present written information on his behalf;
would elaborate or spell out the criteria that should be used.
(3) make an oral presentation; and
Mr. MARONEY. No.
(4) have counsel make an oral presentation.
An applicant shall not have access to investigatory records in the possession
Senator KENNEDY. Can I ask about the length of alternative
of the United States Attorney except as provided by 32 C.F.R. 160.32. The
service? The pages that were made available to the subcommittee
United States Attorney shall make his decision on the basis of all relevant infor-
indicate on page 2 and I will make this a part of the record acknowledg-
mation. No verbatim record of the proceedings shall be required.
ment of allegiance to the United States, signed by the violator as well
VI. If the alleged violator fails to complete the period of alternate service to
which he has agreed, the United States Attorney may proceed to prosecute the
as the U.S. attorney. It states: I agree to perform alternative service
case.
for a period of
months." This would indicate to us that it is
VII. If the United States Attorney receives a certificate from the Director of
an open factor. Is that the way you apply it? Do you know whether
Selective Service indicating that an alleged violator has satisfactorily completed
that is the form that is being used?
his period of alternate service, then he will either move the court to dismiss the
Section 12 indictment against the violator with prejudice, or terminate any
Mr. MARONEY. Yes, sir.
Section 12 investigation of the alleged violator, whichever is appropriate.
[The form referred to above follows, with a cover letter and prose-
VIII. If an alleged Section 12 violator is apprehended before January 31, 1975,
cutive policy guidelines.]
the violator will be treated as if he voluntarily presented himself to the United
States Attorney as provided in II, if the violator so desires.
IX. Upon request of any individual who thinks he may be under investigation
OFFICE OF THE ATTORNEY GENERAL,
for violating Section 12 of the Military Selective Service Act, the United States
Washington, D.C., September 16, 1974.
Attorney shall promptly review that individual's case file, if any exists, and in
To: All United States Attorneys.
any event inform the individual whether or not Section 12 charges against him
From: William B. Saxbe, Attorney General.
will be pursued if he does not report as provided in II.
Subject: Clemency.
X. An individual who is neither under indictment nor investigation for an
The attached documents are for use in implementing the President's Proclama-
offense covered by this directive but who reports as provided in II and admits
tion announcing a program for the return of Vietnam era draft evaders and
to such an offense will be subject to prosecution unless he makes an agreement
military deserters. All reasonable attempts should be made to notify those who
as provided in III.
are eligible to participate in the program.
XI. The U.S. attorney may delegate any function under this directive to an
For specific problems, please call Kevin Maroney, Criminal Division, 202-739-
assistant U.S. attorney.
2333.
Attachments.
PROSECUTIVE POLICY WITH RESPECT TO CERTAIN PERSONS ALLEGED TO HAVE
VIOLATED SECTION 12 OF THE MILITARY SELECTIVE SERVICE ACT (50 App.
U.S.C. 462) PURSUANT TO THE PRESIDENT'S PROCLAMATION
I. This directive applies to all persons eligible to participate in the alternative
service clemency program as provided in the President's Proclamation announcing
a program for the return of Vietnam era draft evaders and military deserters.
However, this directive is inapplicable to any person who has fled the country
and is prevented from re-entry by virtue of 8 U.S.C. 1182 (a) (22) or other law.
This directive alters the present Departmental policy to effectuate the Presi-
dent's declared policy of clemency to draft evaders and resisters.
II. Each eligible violator of Section 12 of the Military Selective Service Act
who is willing to perform alternate service as an indication of his allegiance to the
United States should report to the United States Attorney for the district in
which he violated or is alleged to have violated the Act.
III. Any person presently under indictment or investigation who presents
himself to the United States Attorney before January 31, 1975, and agrees to
perform a period of alternate service, under the auspices of the Director of
Selective Service, as an acknowledgment of his allegiance to the United States,
will not be prosecuted if he satisfactorily performs such service. If no agreement
is reached, the alleged violator may be prosecuted for the Section 12 violation.
IV. The length of alternate service shall normally be 24 months, but the
United States Attorney may reduce the term in light of the following circumstances:
(1) whether the applicant, at the time he committed the acts allegedly
constituting a violation of Section 12 of the Military Selective Service Act,
186
187
UNITED STATES OF AMERICA
- 2 -
VS.
As an acknowledgement of my allegiance to the United
States of America, I agree to perform alternate service for
Name
File No.
a period of
months in a job acceptable to the Director
of Selective Service as provided in President's Proclamation
announcing a program for the return of Vietnam era draft
evaders and military deserters. I will report to the Director
Street Address
Telephone No.
within
days. I also knowingly and voluntarily agree
to waive the constitutional right against double jeopardy
and the right to use any delay during the period of my alter-
nate service to establish a defense based upon Rule 48 (b)
City and State
of the Federal Rules of Criminal Procedure, the constitutional
right to due process or a speedy trial, and the statute of
limitations in a prosecution initiated because of my violation
of this agreement. I understand that I may be prosecuted if
AGREEMENT FOR/ ALTERNATE SERVICE
I violate this agreement.
It appearing that you have committed an offense against
In exchange for the promises of
#
the United
the United States on or about
in violation
States will defer any prosecution of
for
of Title 50 App. United States Code, Section 462, in that
violation of Title
, United States Code, Section
462 for a period of
months. The United States also
agrees to drop any investigation or indictment of
for
violation of the aforesaid offense with prejudice upon receipt
by the United States Attorney for the District of
of a certificate from the Director of Selective Service indi-
cating that
has satisfactorily com-
pleted his period of alternate service.
Therefore, on the authority of the Attorney General of
the United States, by
,
United States
In the event
is prosecuted under
Attorney for the District of
, prosecution
50 U.S.C. App. 462 if he violates this agreement, nothing
in this District for this offense shall be deferred for the
stated herein shall be used against him during the trial of
period of
months from this date, provided you sign the
such offense.
following agreement:
Agreement
Name of Alleged Violator
Name of Attorney for Alleged
I,
understand that the
Violator
Sixth Amendment to the Constitution of the United States
provides that in all criminal prosecutions the accused shall
enjoy the right to a speedy trial. I understand that the
Fifth Amendment prohibits double jeopardy for the same
Date
Date
offense. I understand that Rule 48(b) of the Federal Rules
of Criminal Procedure provides that the Court may dismiss an
indictment, information, or complaint for unnecessary delay
in presenting a charge to the grand jury, filing an informa-
tion or in bringing a defendant to trial. I understand that
Name of United States Attorney
constitutional due process may require dismissal of an
indictment that has been unfairly delayed.
Date
55-550 75 13
188
189
Senator KENNEDY. Is that when you apply the mitigating factors,
Re:
United States V.
before filling in that blank?
Mr. MARONEY. Before this is executed and before the U.S. attorney
Criminal File No.
advises the individual, based on all the circumstances, and based on
the representations and showing that the individual applicant may
make and his attorney may make in his behalf, the U.S. attorney would
Dear
:
advise him on the length of service that would be required. He, of
This letter concerns reports received by this office
course, is free to reject that if he wishes.
that you have committed an offense against the United States
Senator KENNEDY. I have another form that is apparently used in
on or about
in violation of Section 12 of
the U.S. Southern District of New York that has the 24 months written
the Military Selective Service Act.
right on it, typed on the form itself. It also has the blank places under-
lined for the person's name, the number of days when they ought to
In accord with the President's policy of granting
leniency to certain individuals who are charged with vio-
report, and other information that is left blank. Do you know why
lating Section 12 of the Military Selective Service Act, you
in that particular area 24 months would be written in and, that
are eligible for diversion to an alternate service program.
evidently in New York the 13 that have been processed all received
Should you agree to undertake acceptable alternate service
24 months?
as an acknowledgement of your allegiance to the United States
Mr. MARONEY. Well, of course, we had used 24 months as the
this office will refrain from prosecution. Note, however,
norm in accordance with the clemency proclamation.
that if no agreement is reached the United States will be
Senator KENNEDY. The thing I am trying to get out is our interest
free to prosecute you for the Section 12 charge. If the
Director of Selective Service certifies to us that you have
in the procedures being used here. The form that was supplied to us
successfully completed your service, the pending charge
had a blank, and the one that evidently is being used in New York
against you will be dropped. However, failure sutisfactorily
has 24 months printed on it, and furthermore, the 13 people processed
to complete the alternate service will probably cause us to
have gotten 24 months, which would seem to support that particular
resume prosecution of the Section 12 charge.
observation. It would appear that you are using one procedure one
place and another in other areas.
A decision to seek acceptance into this program is one
Mr. MARONEY. I think the procedure certainly is the same.
that must ultimately be made by you. Nevertheless, it is
important that you immodiately discuss this matter with your
Senator KENNEDY. Do you know if the form is the same? Evidently
attorney inasmuch as your participation in this program will
it is not.
require a waiver of certain rights afforded to you by the
Mr. MARONEY. We sent all the U.S. attorneys a sample form.
Constitution. For example, you must waive your right to a
Now, they, of course, had to reproduce their own form for their
speedy trial and right to have an indictment presented to
office. But it is based in most instances, certainly, on the form that
the grand jury, if one has not already been obtained, within
we sent each of them.
the prescribed statute of limitations. We suggest that you
Senator KENNEDY. Do you make any review to determine whether
consult with your attorney who will, explain the program to
you and the nature of the waivers mentioned above.
mitigating circumstances are being uniformly applied? In the southern
district of New York, they have processed 13 forms and 13 individuals
Very truly yours,
have received 24 months of alternative service. If you look through
the record of the other districts, you find again in California 10 out of
10, everyone has gotten exactly the same amount of time, 24 months.
In California the 10 young men there lacked sufficient mitigating
circumstances for any 1 of them to make it less than 24 months. The
United States Attorney
same thing happens to be true in New York. I am wondering what
procedures you are using in New York, and whether they are applying
By:
mitigating circumstances. In the eastern district no one got 24 months;
2 got 8 months, and 1 got 15 months. Yet, in the southern district, you
had 13 cases and they all got 24 months.
Mr. MARONEY. The procedure we followed, when this first started,
after we had sent out the prosecutive guidelines was to ask all the
U.S. attorneys who were about to enter into an agreement with an
applicant to first advise us SO that we could ensure that it was being
DOJ-1974-09
uniformly applied. The Deputy Attorney General personally reviewed
the circumstances with respect to the first 26 agreements that were
signed-for that very purpose. We then disseminated to all U.S.
attorneys the circumstances which were present in those first 26 cases,
which caused varying lengths of time, on the assumption that it would
190
191
certainly be used as a pretty good indicator of the kinds of circum-
stances that would lead to reductions of 6 months or 10 months or a
year or whatnot.
Now, we have not built that into the program.
With respect to the situation in New York where you have 13 out
Senator HART. Well, I understand the answer. Again, if I were
of 13 for a 24-month period, I will talk to the U.S. attorney to inquire
Joe Potatoes I wouldn't take much comfort that there is any appeal.
as to the question you are raising as to whether or not there are any
I can write Washington.
mitigating circumstances that should be taken into consideration and
I think it underscores the desirability of the point Senator Kennedy
have not.
was making that Washington spends more time evaluating the raw
Senator KENNEDY. Would you do the same for California?
data that shows the northern district of California is 10 and nothing
Mr. MARONEY. That is San Francisco? I know in one of the earlier
and southern New York 13 and nothing, or whatever it is.
Mr. MARONEY. Well, I can certainly assure you, Senator-
ones the U.S. Attorney entered into a 24-month agreement with the
understanding that he would consider a reduction.
Senator HART. That is my point, that there isn't any formal
Senator KENNEDY. Are you doing that in other places? Is that in
procedure for appeal.
your regulations? Can you start off with a 24-month agreement and
Mr. MARONEY. Right.
reduce afterwards?
Senator HART. That increases, I think, the obligation, if we are
Mr. MARONEY. No; it isn't in the regs, but I see nothing wrong
serious about this being a clemency action rather than a law en-
with it if it is freely entered into by the applicant and the U.S. attorney
forcement action, that the Department itself evaluate these field
decisions.
at the time.
Mr. MARONEY. We have discussed these factors and criteria
Senator KENNEDY. I see one rule in one place and another rule in
another. It seems to me you don't have anyplace where anyone can
many times with the U.S. attorneys-I say we, myself and the
Deputy Attorney General.
determine which rule will be applied to them.
At the last U.S. attorney's conference, which was about 6 weeks
Mr. MARONEY. It isn't a rule. It is judgment based upon mitigating
circumstances.
ago, we had a seminar with all 96 U.S. attorneys in four different
Senator KENNEDY. Are you going to use mitigating circumstances
groups in which this was a substantial part of the presentation and
discussion.
or not? And if you are, how do you justify this kind of differentiation?
You say you apply one thing to the subcommittee and suggest that
I know that Jim Browning in California is well aware and sensitive
mitigating circumstances are going to be considered. You have a
to the mitigating-factor criteria. I am giving you an illustration of
blank on some applications, and you find other ones where it is stamped
an early occasion which he specifically discussed with us. Now the
in. If you are going to use mitigating circumstances, then what are
circumstances which might lead to a reduction are not presently
you doing, Mr. Assistant Attorney General, to make sure they are
in existence. If a year from now the individual is able to get into
being applied?
college and if he cannot pursue that effort because of the alternate
service, the U.S. attorney will consider possible reduction.
Mr. MARONEY. I told you what we are doing.
Senator KENNEDY. I think that as far as I am concerned, I am sure
Senator KENNEDY. Well, the facts show something else.
Mr. MARONEY. I just indicated I would talk to the U.S. attorney
what the U.S. Attorney is thinking about in northern California is a
in the southern district.
good idea, but do they know that down in the southern district of
Senator KENNEDY. We are asking for California as well.
Alabama where they have three cases and they are all going for 24
Mr. MARONEY. I was explaining to you I had a number of conver-
months? Are you going to let the fellow up in northern California
be able to go to school while the southern fellow in Alabama works
sations with the U.S. attorney with respect to mitigating factors. I
in a hospital?
was trying to illustrate one early case in which I think the young man
indicated some interest in entering college next year. I think Mr.
I think it is marvelous that they will be able to go to school, but if
Browning indicated that if that came to pass he would consider a
those are the cases, then that kind of information ought to be available
to others as well; and if you are making that available, I would find
reduction based on that circumstance. I think it is a perfectly reason-
able way to approach it.
a great deal of interest in having that type of information, SO that we
Senator HART. Mr. Chairman, could I, just on this point, that is
know what we are doing, are in touch, know what's happening in
not in the sensitive area you were just talking to. What provision
this district, and are sending that out to the other districts. In that
is there for a man to appeal the term given by the U.S. attorney for
way we have sort of a sense of how it is being run with some com-
alternate service? Is there any recourse?
passion and understanding. If some particular Attorney General
Mr. MARONEY. Well, not other than as is implicit in anything
or U.S. attorney is imaginative and creative, fine. But I think it is a
that is done by the Department of Justice or any representative of
question, Senator Hart, about the effort to make sure these mitigating
the Department of Justice. I suppose if any representative of the
circumstances are realized. Let's proceed.
Department takes some action and the individual is dissatisfied
Mr. MARONEY. We were talking about the requirements for partic-
with that action he can go up through the chain of command of the
ipation in the program.
Department, either to the Assistant Attorney General or the Attorney
The normal term of alternate service is 24 months, but may be
General, possibly to ask for a review of the action.
reduced by the U.S. attorney if certain mitigating factors are present.
The alternate service is performed under the auspices of the Director
of Selective Service and must be in the national health, safety, or
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193
interest. The Director has promulgated regulations which define more
prosecutive merit. The review process will be completed by January 11,
specifically which types of jobs qualify for alternate service under the
1975. As of noon last Tuesday, December 17, 1974, 1,453 files had
clemency program. Upon satisfactory completion of the alternate
been reviewed and charges had been dismissed against 213 individuals.
service, the United States will dismiss the draft-evasion charge. An
Senator KENNEDY. What were the reasons for dismissals?
unconvicted draft evader who participates in the clemency program is
Mr. MARONEY. The reasons are varied but based on a thorough
assured of avoiding a felony conviction and any term of incarceration.
review of the files by the assistant U.S. attorneys. Some of these cases
The Department has taken several measures to inform those
were filed many years ago, and were affected by intervening Supreme
eligible for the clemency program of its existence. We have directed
Court decisions. So that a review of a particular case file today would
all U.S. attorneys to send letters to the last known address of in-
show that there is a good legal defense by virtue of intervening law,
dividuals currently under indictment or investigation informing them
and would result in a dismissal of the case.
of the program. We have publicly released a list of all individuals
Senator KENNEDY. With some Selective Service errors?
currently under indictment or investigation SO that an individual
Mr. MARONEY. Well, it is possible; yes. They should have certainly
reluctant to contact the Department may learn whether he is on the
been screened out in the beginning before an indictment was returned.
list from private sources. We have provided a phone number at the
But if it was missed at the time, a procedural defect, and were dis-
Department which can be called to ascertain whether a certain in-
covered now in this current review, then that would be cause for dis-
dividual is on the list and, if so, the U.S. attorney he should report to.
missal at this point.
Inquiries can be made anonymously and the Department makes no
But I would say by and large most of the cases that will be screened
attempt to learn the identity of those who call.
out in this reviewing process are the older cases where the indictments
Additionally, the Department has publicly urged eligible individuals
were valid when returned under then existing law, but the charge is
to seek counsel in connection with determining whether to participate
no longer valid by reason of intervening court decisions.
in the clemency program. As a result of these measures, and others, I
Senator KENNEDY. Do you notify these people?
think that the large majority of unconvicted draft evaders eligible
Mr. MARONEY. These people will be notified, yes.
for the clemency program are aware of its existence and terms.
Senator KENNEDY. You intend to finish all the cases by the middle of
As of noon last Tuesday, December 17, 1974, 144 alternate service
January. Is that correct?
agreements had been signed. As of this morning that number is 147.
Mr. MARONEY. Yes; offices are required to have this completed
Appendix A provides a breakdown with respect to the districts in
by January 11. Yes, sir, under the Attorney General's guidelines. We
which the agreements were signed and the length of alternate service
have a slight update on those current-
received under the agreements.
Senator KENNEDY. Will this include the numbers that may be
Several steps have been taken to insure uniform implementation of
dropped on the basis of any legal representation. You have about
the program by the 94 U.S. attorneys. All the U.S. attorneys have
15 percent of all cases being dropped by the Department, and I
received for use in implementing the program prosecutive guidelines,
suspect there will be another-at least a group-that may very well
a model alternate service agreement, and a model letter to send an
be dropped on the basis of representations made by challenges.
eligible draft evader. These documents are attached as appendix B.
Mr. MARONEY. Well, I am not sure how that would come about.
Uniform implementation is most difficult to assure in connection
Senator KENNEDY. What is the Department's record in terms of
with determining the length of alternate service. Under the program,
normal prosecution of these cases? I understand it is about 33-35
the normal length is 24 months, but may be reduced by the U.S. attor-
percent. Is that approximately right?
ney for mitigating circumstances. Paragraph IV of the prosecutive
Mr. MARONEY. Well, I understand of those that have actually gone
guidel'ne sets forth appropriate mitigating circumstances which, of
to trial there have been convictions of about 80-85 percent of the
necessity, leave room for discretion. To ensure that this discretion was
cases. A number of cases are dismissed in advance of trial.
being fairly and properly exercised from the outset, the Deputy Attor-
Senator KENNEDY. Give me those numbers. Let's put those figures
ney General personally reviewed the first 26 alternate service agree-
together.
ments before they were given approval. On the basis of that review, he
Mr. MARONEY. In 1974 we had-I will round these off-2,700
was satisfied that the U.S. attorneys were appropriately following the
reported violations, There were 879 cases initiated, 1,420 were con-
guidelines in determining the length of alternate service. The Depart-
cluded, 489 pleas of guilty, 63 acquittals, and 874 cases were dismissed.
ment has throughout the program received a weekly report from all
Some of the 1,400 cases-of the 800 cases-we dismissed 63 out of
U.S. attorneys indicating the number of alternate service agreements
879 brought, and 485 were convicted.
signed and the length of service assigned in connection with each
Senator KENNEDY. 874 were acquitted?
agreement. Nothing in these weekly reports has indicated that U.S.
Mr. MARONEY. Yes; these figures are garbled here, Senator. What
attorneys are not assigning terms of alternate service under uniform
we have is a table--
standards and with a proper exercise of discretion pursuant to the
Senator KENNEDY. Could we have the table? Do you want to
prosecutive guidelines.
submit it for the record?
In furtherance of the spirit of the clemency program, the Depart-
Mr. MARONEY. We have to get it in a little better form. It covers
ment has directed all U.S. attorneys to review the files of unconvicted
the period 1964-74.
draft evaders and to dismiss charges against those whose cases lack
Senator KENNEDY. All right.
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195
Mr. MARONEY. I might just update the figures on reviews. We
Senator KENNEDY. Finally, Mr. Schulz's appendix points out that
have as of last night 1,690 cases reviewed and 297 dismissed or 16.9
with the indictments and complaints disposed of in 1974 were 2,070.
percent of the cases that have been reviewed.
The convictions are 686, which is 33 percent. That is the U.S. Admin-
I believe that concludes our statement.
istrative Office of the Courts figures on this.
Senator KENNEDY. As you well remember, members of the sub-
Senator HART. May I submit some questions for the record?
committee had requested reviews of these cases back in 1972 in light
Senator KENNEDY. Yes. We will recess briefly.
of court decisions. I am glad that has taken place and can be com-
Mr. MARONEY. Yes, sir.
pleted by the end of January. I think it is certainly important. A
Senator KENNEDY. Thank you very much Mr. Maroney.
number of people, close to 20 percent, have had this hanging over
Mr. MARONEY. Thank you.
their lives for a very considerable period of time. It seems to be that
[The prepared statement of Kevin Maroney appears on page 281.]
this is the least that could and should be done.
[A short recess was taken.]
Senator HART. We are under notice that a rollcall is going on, so I
Senator HART [presiding]. The subcommittee will be in order.
will have to be very brief.
Senator Kennedy may not be able to return. In any event, he asked
It is in a sense very tentative. It is an impression I get from listening
me to resume the hearing in the interest of time, both of Mr. Pepitone
yesterday and today of the guidelines with respect to the direction to
and others.
the U.S. attorney which would suggest to me that the young man,
Our last witness today is the Director of the Selective Service Sys-
now not SO young, whose refusal to respond to the Selective Service
tem, Mr. Byron V. Pepitone. Mr. Pepitone has been with the Selective
law was based on a philosophical resistance to the war would have
Service since 1970, serving first as Deputy Director and later as
darned little reason to turn himself in to the U.S. attorney and would
Acting Director, was a former Air Force colonel, Military Executive
be much better off to get himself a lawyer, given the experiences of
Assistant Secretary of the Air Force for Manpower and Reserve
those who go to trial.
Affairs.
I say that for this reason. The only circumstance which would
I understand he is joined today by the General Counsel, Peter
justify that U.S. attorney in San Francisco or New York giving less
Straub and the legislative liaison officer, Mr. Shaw, and Mr. John
than 24 months would be: (1) if the fellow was erroneously convinced
Barber.
at the time that he was not violating the law. Now, that is not the
Proceed, sir.
case of the young man 5 years ago who was protesting the war, or
(2) whether his family is in desperate need for him, and that does not
STATEMENT OF BYRON V. PEPITONE, DIRECTOR, SELECTIVE SERV-
describe the son from a family of affluence.
ICE SYSTEM, ACCOMPANIED BY PETER STRAUB, GENERAL COUN-
Mr. MARONEY. But he may have married in the interim and have
SEL; SAMUEL R. SHAW, LEGISLATION AND LIAISON OFFICER;
a child
AND JOHN W. BARBER, RECONCILIATION SERVICE DIVISION
Senator HART. Suppose he is still very comfortable through acci-
dents of inheritance or otherwise, and he doesn't have that reason.
MANAGER
The third circumstance justifying an alternative service agreement of
Mr. PEPITONE. Thank you, Mr. Chairman.
less than 24 months would be whether he lacks sufficient mental
In response to your letter of December 12, I have come to inform the
capacity to understand the gravity of his offense, and clearly he did,
subcommittee of the fashion in which the Selective Service System is
or such other similar circumstance.
So hardship and ignorance would appear to be the only basis on
performing the functions which have been delegated to it as an out-
growth of the proclamation made by President Ford on September 16
which a U.S. attorney could give less than 24 months.
which announced a program for the return of Vietnam-era draft
Mr. MARONEY. And financial hardship, which is a very important
evaders and military deserters.
point.
The subcommittee has already heard that the President's program
Senator HART. Hardship and ignorance.
for the return of Vietnam-era draft evaders and deserters involves
But I am describing the son of a family that can hire himself a good
several agencies of the Federal Government and prescribes certain
lawyer. It is just, to me, if I was out in that great cruel world, and
actions to be taken in implementation of the program. The actions
lucky enough to be comfortably off, I would know that the odds are
themselves differ depending upon which type of person is involved:
much better for me not to go to the U.S. attorney under the so-called
clemency but to take my chances with the court system where even
evader, deserter, or convicted evader or deserter.
The Department of Defense acts initially with the individuals
those that are sentenced are sentenced to substantially less than 24
who are classified as deserters, the Department of Justice with those
months.
who are classified as evaders, and the Clemency Board with those who
Mr. MARONEY. I don't think the odds for getting off completely are
have been convicted of a draft evasion offense or those who received a
that good, Senator. Even if you get a sentence, let's say probation for
punitive or undesirable discharge from the Armed Forces because of a
a year, which is a common thing, you have still got that felony
military absentee offense, or were serving sentences of confinement for
conviction.
such violations. The Selective Service System, by contrast, and as a
Senator HART. Yes; that is right. That is so. You are right.
Mr. MARONEY. We recently had a case in West Virginia. Well,
result of the provisions of Executive Order 11804, bears a responsi-
bility for action in behalf of individuals identified under all three
OK. I am sorry.
groups eligible for the program.
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197
Executive Order 11804, which is entitled "Delegation of Certain
tions set forth the manner in which the Selective Service System
Functions Vested in the President to the Director of Selective Service,"
is a short one. It reads as follows:
establishes, implements, and administers the reconciliation work
program. The regulations became effective on September 26, 1974,
By virtue of the authority vested in me as President of the United States, pur-
in order to immediately accommodate those individuals described
suant to my powers under Article II, sections 1, 2, and 3 of the Constitution, and
in Proclamation No. 4313 who chose to avail themselves at an early
under section 301 of title 3 of the U.S. Code, it is hereby ordered as follows:
SECTION 1. The Director of Selective Service is designated and empowered
date of the benefits of the President's program.
without the approval, ratification or other action of the President, under such
The regulations are complete in that they provide the definitions
regulations as he may prescribe to establish, implement and administer the
of the service to be performed; they identify the referring authority
program of alternate service authorized in the Proclamation announcing a program
for the return of Vietnam era draft evaders and military deserters.
for each type of case; they prescribe the geographical area in which
SECTION 2. Departments and agencies in the Executive Branch shall, upon the
the returnee can expect to work and where he will commence his
request of the Director of Selective Service, cooperate and assist in the implementa-
enrollment procedures for work with Selective Service; they delineate
tion or administration of the Director's duties under this order to the extent
the levels of responsibility for the program establishing the functions
permitted by law.
of the National Headquarters of Selective Service and specifying the
Signed by Gerald R. Ford, The White House, September 16, 1974.
delegations of authority to the State Directors of Selective Service;
The alternate service referred to in the Executive Order is that
and the type of employer who will be considered eligible to employ
decreed by the President in Proclamation 4313 dated September 16,
returnees who will be performing this alternate service. The regulations
1974, wherein he pointed out:
further identify the criteria for jobs for returnees and the responsi-
*
that in furtherance of the national commitments to justice and mercy,
bilities of the returnee and those of the State Directors for locating
these young Americans should have the chance to contribute a share to the re-
jobs, initial placement, and reassignment from one job to another if
building of peace among ourselves and with all nations * *
and that they
necessary. I know that the subcommittee has an interest in some of
should be allowed the opportunity to earn return to their country, their com-
munities and their families, upon their agreement to a period of alternate service
the specific details of the regulations, and I will describe them in
in the national interest together with an acknowledgment of their allegiance to
greater detail as follows:
their country and its Constitution.
Eligible employers, which may be a subject of interest to the
The alternate service program prescribed in the proclamation is
subcommittee, are important with respect to the fashion in which the
for work which shall promote the national health, safety or interest.
program is being administered. Our regulations state that returnees
It is alternate service of the type described in section 6(j) of the Mili-
may be employed by the following employers: the U.S. Government;
tary Selective Service Act which prescribes that people who are
a State territory or possession of the United States or a political sub-
conscientiously opposed to participation in military service will, in
division thereof, or the District of Columbia; or an organization,
lieu of such induction, perform civilian work contributing to the
association or corporation which is primarily engaged either in a
maintenance of the national health, safety, or interest as the Director
charitable activity conducted for the benefit of the general public or
of Selective Service deems appropriate. The modifications to the
in carrying out a program for the improvement of the public health
Selective Service law in September 1971, of which I know this sub-
or welfare, including educational and scientific activities in support
committee has intimate knowledge, require that the Director of
thereof, when such activity or program is not principally for the benefit
Selective Service shall be responsible for finding civilian work for
of the members of such organization, association or corporation, or
persons who are exempted from training and service under the Mili-
for increasing the membership thereof, or for profit.
tary Selective Service Act under section 6(j) and for the placement of
Of equal importance and interest are the criteria which have been
such persons in appropriate civilian work contributing to the mainte-
established for the selection of jobs. Four elements are considered
nance of the national health, safety, or interest. The manner in which
by the State director as a basis for determining whether a specific
this program would be administered, Mr. Chairman, was the subject
job offered by an eligible employer is acceptable as service for a re-
of considerable discussion when the Selective Service System made
turnee:
a presentation before this subcommittee on February 28, 1972.
1. National health, safety or interest.-The job must promote the
The President chose the Selective Service System to establish,
national health, safety or interest.
implement, and administer the alternate service work program because
2. Noninterference with the competitive labor market.-The returnee
of its experience gained in the discharge of its responsibilities under
cannot be assigned to a job for which there are more numerous qualified
section 6(j) of the Military Selective Service Act.
applic ants who are not returnees than there are space available.
Actions to discharge the responsibilities delegated to the Director
3. Compensation.-The compensation will provide a standard of
under Executive Order 11804 commenced immediately following the
living to the returnee reasonably comparable to the standard of living
publication of the Executive Order on September 16, 1974, and have
the same person would have enjoyed had he gone into military service.
resulted in the publication of regulations for the establishment, imple-
This criterion may be waived by the State director when such action
mentation and administration of a suitable alternate service program.
is determined to be in the national interest and would speed the place-
On September 26, 1974, under title 2, chapter II, Selective Service
ment of the returnee in service. As a practical matter, the pay is the
System, part 200 C.F.R. entitled "Reconciliation Service" appeared
pay of other employees on the same job with similar skills.
in the Federal Register, volume 39, number 188. These basic regula-
4. Skill and talent utilization.-Where possible, a returnee will be
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199
permitted to utilize his special skills; in fact, we seek to assure this
utilization where we can.
After 20 days has elapsed, if the enrollee has not found employment
The administrative procedures and details of how the system
for himself, or any time prior if he is requests, it is the responsibility
operates the reconciliation service program are prescribed in great
of the System and the State Director of the State concerned to assign
detail, and amplify the regulation which I have described to you, in
the individual to an available job. During the period of the initial
a manual entitled "reconciliation service manual." I have a copy of
30 days-20 days or less in which the man seeks employment and the
it here; I will be pleased to provide one for the subcommittee, either
subsequent balance of time wherein he works jointly with the State
for inclusion in the record or for study by the members at a later time
Director of Selective Service-it is often the case that the two have
if they choose.
been working together almost continually to effect his assignment to
I know that you will be interested in the specifics of how the program
a suitable alternate service job.
is working, and I think a brief recitation of some of the actual pro-
I know that the subcommittee will be interested in our experience
cedures we used and the experience we have gained, between Septem-
with the program since its inception in September, and what the
ber 19 when our first enrollee arrived, until today, would be in order.
impact has been upon the job availability as a consequence of the
There are in excess of 650 offices of the Selective Service System
worsening situation with respect to employment in the United States.
throughout the United States where individuals may enroll in the
As I mentioned earlier, the first individual who sought enrollment
reconciliation service program. These offices are supervised by 56
for alternate service with a Selective Service Office did SO on Septem-
State directors, located in each of the 50 States plus New York City,
ber 19. Since that date, which was only 3 days after the President
the District of Columbia, Puerto Rico, Guam, the Canal Zone, and
announced his program, until December 16, 2,310 deserters have
the Virgin Islands.
been processed by the Department of Defense. Of this number, 1,569
A deserter who is processed by the military service at the Joint
have reported to the Selective Service System and are enrolled in the
Clemency Processing Center in Indianapolis is furnished a factsheet
alternate service program. During the same period of time, 131 evaders
which is given to him during his processing session and is instructed
who have been referred to the Selective Service System by a U.S.
that he should report, within 15 days after discharge, to the Selective
attorney have been enrolled in the alternate service porgram. Also,
Service office nearest the place in which he intends to reside. When
during this same period of time, and as a result of the meetings of
he reports to the nearest Selective Service office, he commences what
the Clemency Board on November 29, 1 individual from a group of
we call an enrollment procedure. During this enrollment procedure
10 to whom the President indicated an intention to grant a pardon,
we endeavor to procure sufficient information from him to permit,
conditioned upon completion of alternate service, has reported to the
assignment to work in accordance with the regulations I have de-
Selective Service System for enrollment and work.
scribed. We also explain to him his obligations to perform the service
Statistics of the Department of Defense show that the numbers
assigned by the military department and how we intend to report his
who have been processed at Camp Atterbury and Indianapolis, and
completion thereof to the military department concerned. We explain
statistics of the Department of Justice indicate that the number who
to him his opportunity to procure his own work and the degree to
have availed themselves of the program in both cases exceed the
which we are able to assist him in the location of suitable employ-
numbers of people who I have indicated to you here have enrolled
ment. Finally, we counsel him with respect to our responsibility to
with the Selective Service System. The fact that our statistics differ
find employment for him if he is unable to do so, and at what time
does not indicate an error, but rather relates to the fact that an indi-
his opportunity and our responsibility merge.
vidual, after having made his agreement with the U.S. attorney in
An evader who has been processed by one of the 96 U.S. attorneys,
the case of an evader, or having finished his processing in Indiana in
after having signed his agreement to work, is advised by the U.S.
the case of a deserter, has 15 days in which to report to a Selective
attorney to report in the same way and carry out the same enrollment
Service Office and enroll for the alternate service program. This
procedures as I have just described for the deserter.
15-day period accounts in many cases for the lesser numbers of people
A convicted evader or a person already discharged who might have
who are enrolled as compared to the numbers which the other agencies
applied to the Clemency Board for action, if he has been given a
have processed.
period of alternate service as a condition to a pardon, will receive the
Of the numbers who have enrolled with the System, as of Decem-
same general instructions with respect to reporting to the Selective
ber 16, 1974, 378 deserters and evaders are now at work. In addition
Service System as do the other two types of returnees. He then would
to the number now at work, 653 deserters and evaders are in the pro-
be subject to the same type of enrollment procedure.
cess of finalizing employment as a result of a specific job referral
After enrollment with the program, a time period of 20 days com-
by a State Director of Selective Service. Our records, as of Decem-
mences, during which time the returnee is encouraged to find appro-
ber 16, 1974, reveal that of the 1,878 deserters who were processed
priate employment for himself as close to the place he chooses to live
through the Joint Clemency Processing Center on or before Novem-
as he can. The employment he secures must match the job criteria
ber 15, 1974, 410 have not enrolled in the reconciliation service
that I have previously cited to you. In many cases he commences to
program.
seek employment using a series of leads provided to him from the
There is one other aspect of the program, which is an estimate
office of the State director of Selective Service.
based upon an evaluation of facts and circumstances to date, compiled
as a result of reviewing individual cases, and it is this: Of those who
do enroll, it appears some will not complete their alternate service
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201
for many reasons, such as personal inability to perform, no desire
our discharge of the responsibilities which President Ford delegated
to perform, incapacity to perform, and others. It is too early for us to
under Executive Order 11804 on September 16, 1974. I think it is too
know precisely what this number will be; however, we have established
early to assess the program and to make predictions with respect to
a rather comprehensive procedure whereby we intend to document the
its ultimate success. There could well be widely different definitions of
records of those who enroll and successfully perform as well as those
final success or failure in this venture. I think that the program is, up
who fail to perform, either for reasons beyond their control or for
to now, working well, and it appears that it should continue to work
reasons over which they have full control. Of those who have enrolled,
well. For my part, and speaking for the Selective Service System,
143 have indicated they do not want to participate.
I believe that we can provide the jobs required for these people, and
A word about job availability, in light of the general unemployment
we can oversee their work. We are grateful for the cooperation we are
situation in the United States since the program was announced on
receiving from the employers who make jobs available to us. I see no
September 16. We are experiencing the impact of the declining job
reason why the original numbers of people who were considered as
market in that the jobs which we thought might be available for
potential participants cannot be accommodated within the program.
people in the reconciliation service program are now more attractive
That ends my statement, Mr. Chairman, which you have recognized
jobs to other individuals who, when we established this program in
already.
September, would not have considered them as suitable. By this,
Senator HART. We appreciate your summation.
I mean that the low-paying jobs which many individuals in the recon-
Even that does not spare us from another recess, because that is
ciliation service program are willing to take, in order to discharge their
the second and last call for another vote. I am embarrassed to ask you
responsibilities, are becoming more attractive to other people who
to wait, because I am going to submit most of the questions I have
had higher paying jobs at the time we established the program. The
prepared to you for answers in writing, but there is one aspect.
program is now more difficult for us insofar as locating suitable
I will ask this, if there is no objection. Let me ask staff counsel to
jobs than it was in September. My personal view of the program is that,
raise with you the matter of files that are faulty and to what extent
although it is a more difficult task for us now, we merely have to work
you have and what you could do to advise individuals that they are no
harder to find jobs which we thought would be available when we
longer under the gun. Other than that, I will submit these questions
made our calculations in September. There have been individual
in writing.
contacts by the members of my staff and by myself with national
So when counsel has finished this one line of inquiry we will be
agencies which have indicated a willingness to cooperate. We have
adjourned at the call of the Chair.
been able to establish a series of regional coordinations which we
I think that will spare everyone's time.
believe will make jobs available to out State directors. National
Mr. PEPITONE. Thank you, Senator Hart.
religious, social and charitable organizations are the types of agencies
Counsel, may I ask that my full statement appear in the record?
to which I refer. For instance, within the past week the staff member
Mr. SNYDER. Your full statement will appear in the record.
who has day-to-day cognizance of this program for me was in New
We just had a statement from the Justice Department where we are
York City and worked with the national head of the Salvation Army.
still finding cases where there is procedural errors such as they could
He at the same time made contact with the executive secretary of
not prosecute or Supreme Court cases intervening where they could
personnel assignments of the United Methodist Church, and has as
not prosecute. I believe 213 of the first 1,400 cases that various U.S.
well been in contact with, and we anticipate successful results
Attorneys were going through were dismissed for those reasons.
from, the Synagogue Council of America. In addition, a number of
These individuals, therefore, presumably have been either in hiding
Federal agencies are assisting in locating jobs.
or under the threat of prosecution for substantial amounts of time
The President stressed, when he recited the aims of his program
unnecessarily. The question is what the Selective Service System has
last fall, that he wished for this to be a crisp program with constant
done to go through its files to find errors and notify registrants that
followup, good supervision, and the active participation of all Federal
they are no longer liable for prosecution?
agencies toward its successful accomplishment and for the attainment
Mr. PEPITONE. Well, the question, and I don't know whose question
of the aims which he set out for the program. We intend to continue
it is, indicates some failure to understand where the records of people
to pursue the placement of these people, to monitor their performance
who would be under investigation or prosecution might rest at any
during employment, and to ensure their treatment in a dignified and
given time. Those records, of course, rest with the U.S. Attorney,
reasonable fashion. We believe that we can in most instances, place
the review being made of them under the direction of the U.S. At-
the people for work within reasonable distances from the place at
torney General and a review five times over of all those files caused Mr.
which they desire to live and within reasonable enough circumstances.
Maroney during the course of his testimony to indicate only very few
If the enrollee considers alternate service in the context of work
had procedural error, the procedural error having eliminated the case
whereby he is earning his reacceptance into the American society and
before indictment.
is determined to do so, we believe we can work with him and enable
As to what I might do about records, I have no records in my pos-
him to attain the benefits which the President provides under Procla-
session of people upon whom complaints have been made where there
mation 4313.
has not been a resolution.
In closing, I would like to say that I have endeavored to describe
Mr. SNYDER. What generally occurs if the Justice Department were
for you the things we do and the experience we have gained to date in
to return such a file to the Selective Service System indicating that
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203
it does not intend to prosecute or that it intends to terminate the
of cases as we sat here last time and talked, and the numbers were
indictment?
in the thousands, they were reviewed extensively by the Selective
Mr. PEPITONE. Well, as Mr. Shulz said in his statement yesterday
Service System and the Justice Department and a combination of both
and in our publication the registrant processing manual of 1973, the
Departments.
local board sends the man a letter saying he is no longer considered a
Mr. SNYDER. And the process between 1972 and the 1973 date
violator.
that you mentioned earlier for those in which you found error or
Mr. SNYDER. A letter goes out that states that?
some reason not to go forward with the prosecution, during that time
Mr. PEPITONE. That is right.
period the individual would have been notified in all cases and prob-
Mr. SNYDER. In all instances?
ably, however, simply by a change in classification of the local board
Mr. PEPITONE. Since 1973, at least by regulatory device, and prior
sending out a new
to that time, by other devices.
Mr. PEPITONE. Essentially that is true.
I don't think there are all these people who are SO abused by lack of
Mr. SNYDER. Thank you very much.
information as perhaps some of the people who have testified before
Mr. PEPITONE. Thank you very much.
me have caused you to believe.
[The prepared statement of Byron V. Pepitone follows:]
For instance, when an individual who might have been charged for
failure to report and the case would have been returned as not pros-
PREPARED STATEMENT OF BYRON V. PEPITONE, DIRECTOR OF SELECTIVE SERVICE
ecutable, even before August 1973, that individual would have
Mr. Chairman, in response to your letter of December 12, I have come to inform
received another notice to report had he still been in the range of
the subcommittee of the fashion in which the Selective Service System is per-
liability or he would have received another classification card should
forming the functions which have been delegated to it as an outgrowth of the
he have been a person whose classification would have been changed.
Proclamation made by President Ford on September 16 which announced a pro-
gram for the return of Vietnam era draft evaders and military deserters.
Some action has taken place.
The subcommittee has already heard that the President's program for the return
Mr. SNYDER. That presumably would mean, or could mean, some-
of Vietnam era draft evaders and deserters involves several agencies of the Federal
thing as minimal as that he would have received, or his family has re-
Government and prescribes certain actions to be taken in implementation of the
ceived, in the mail a card with a different classification?
program. The actions themselves differ depending upon which type of person
is involved-evader, deserter, or convicted evader or deserter.
Mr. PEPITONE. That is right.
The Department of Defense acts initially with the individuals who are classified
Mr. SNYDER. Without any explanation that the Justice Department
as deserters; the Department of Justice with those who are classified as evaders;
has returned the file and you are no longer subject to immediate
and the Clemency Board with those who have been convicted of a draft evasion
prosecution.
offense or those who received a punitive or undesirable discharge from the armed
forces because of a military absentee offense, or were serving sentences of con-
Mr. PEPITONE. You are right.
finement for such violations. The Selective Service System by contrast, and as a
Mr. SNYDER. Am I correct?
result of the provisions of Executive Order 11804, bears a responsibility for action
Mr. PEPITONE. You are absolutely right.
in behalf of individuals identified under all three groups eligible for the program.
Mr. SNYDER. Is that still the process or has this changed since
Executive Order 11804, which is entitled "Delegation of Certain Functions
Vested in the President to the Director of Selective Service," is a short one.
Mr. PEPITONE. That has been changed by the recitation which I
It reads as follows:
thank Mr. Shulz for from our registrant processing manual of August,
"By virtue of the authority vested in me as President of the United States,
1973.
pursuant to my powers under Article II, Sections 1, 2, and 3 of the Constitution,
Mr. SNYDER. The other question relating to testimony that former
and under Section 301 of Title 3 of the United States Code, it is hereby ordered
as follows:
Selective Service Director, Curtis Tarr, gave before this subcommittee
Section 1. The Director of Selective Service is designated and empowered,
in which he stated that, and I quote:
without the approval, ratification or other action of the President, under such
regulations as he may prescribe, to establish, implement and administer the pro-
We found many cases awaiting indictment or trial often contain procedural
gram of alternate service authorized in the Proclamation announcing a program
errors or involve actions by the registrant that had already been set aside by the
for the return of Vietnam era draft evaders and military deserters.
courts.
Section 2. Departments and agencies in the Executive Branch shall, upon the
He then indicated he was setting up attorneys in each region to check
request of the Director of Selective Service, cooperate and assist in the imple-
the files. We haven't received any information as to what then oc-
mentation or administration of the Director's duties under this order to the ex-
tent permitted by law."
curred. Were all the files pending submitted to this inquiry to deter-
Signed by Gerald R. Ford, The White House, September 16, 1974.
mine whether or not there was an intervening Supreme Court case?
The alternate service referred to in the Executive Order is that decreed by the
Mr. PEPITONE. To the best of my knowledge there has been no
President in Proclamation 4313 dated September 16, 1974, wherein he pointed
more exhaustive review of Governmental paper than has taken place
out:
that in furtherance of the national commitments to justice and mercy,
subsequent to the February 28, 1972, testimony of Mr. Tarr before
these young Americans should have the chance to contribute a share to the re-
building of peace among ourselves and with all nations.
and
that
they
this subcommittee. We did literally employ teams of attorneys in re-
should be allowed the opportunity to earn return to their country, their communi-
gions in the United States and working with the U.S. Attorneys, re-
ties and their families, upon their agreement to a period of alternate service in
viewed the files.
the national interest together with an acknowledgment of their allegiance to their
Now, I should not mislead you. There were some files which we did
country and its Constitution."
The alternate service program prescribed in the Proclamation is for work
not review, and those, as I understand it, will be reviewed by Attorney
which shall promote the national health, safety or interest. It is alternate service
General Saxbe's direction at this very moment. But from the number
of the type described in section 6(j) of the Military Selective Service Act which
55-550 o 75 14
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205
prescribes that people who are conscientiously opposed to participation in mili-
and would speed the placement of the returnee in service. As a practical matter,
tary service will, in lieu of such induction, perform civilian work contributing to
the pay is the pay of other employees on the same job with similar skills.
the maintenance of the national health, safety or interest as the Director of
4. Skill and talent utilization-where possible, a returnee will be permitted to
Selective Service deems appropriate. The modifications to the Selective Service
utilize his special skills; in fact, we seek to assure this utilization where we can.
law in September 1971, of which I know this subcommittee has intimate knowl-
The administrative procedures and details of how the System operates the
edge, require that the Director of Selective Service shall be responsible for finding
reconciliation service program are prescribed in great. detail, and amplify the
civilian work for persons who are exempted from training and service under the
regulation which I have described to you, in a manual entitled "Reconciliation
Military Selective Service Act under section 6(j) and for the placement of such
Service Manual." I have a copy of it here; I will be pleased to provide one for
persons in appropriate civilian work contributing to the maintenance of the
the subcommittee, either for inclusion in the record or for study by the members
national health, safety or interest. The manner in which this program would be
at a later time if they choose.
administered, Mr. Chairman, was the subject of considerable discussion when the
I know that you will be interested in the specifics of how the program is working,
Selective Service System made a presentation before thie subcommittee on
and I think a brief recitation of some of the actual procedures we used and the
February 28, 1972.
experience we have gained, between September 19 when our first enrollee arrived,
The President chose the Selective Service System to establish, implement and
until today, would be in order.
administer the alternate service work program because of its experience gained
There are in excess of 650 offices of the Selective Service System throughout the
in the discharge of its responsibilities under section 6(j) of the Military Selective
United States where individuals may enroll in the reconciliation service program.
Service Act.
These offices are supervised by 56 State Directors, located in each of the 50 states
Actions to discharge the responsibilities delegated to the Director under Execu-
plus New York City, the District of Columbia, Puerto Rico, Guam, the Canal
tive Order 11804 commenced immediately following the publication of the
Zone, and the Virgin Islands.
Executive Order on September 16, 1974 and have resulted in the publication of
A deserter who is processed by the military service at the Joint Clemency
regulations for the establishment, implementation and administration of a suitable
Processing Center in Indianapolis is furnished a fact sheet which is given to him
alternate service program.
during his processing session and is instructed that he should report, within 15
On September 26, 1974, under title 2, chapter II-Selective Service System,
days after discharge, to the Selective Service office nearest the place in which he
Part 200 of the Code of Federal Regulations entitled "Reconciliation Service"
intends to reside. When he reports to the nearest Selective Service office, he com-
appeared in the Federal Register, volume 39, number 188. These basic regulations
mences what we call an enrollment procedure. During this enrollment procedure,
set forth the manner in which the Selective Service System establishes, implements
we endeavor to procure sufficient information from him to permit assignment to
and administers the reconciliation work program. The regulations became effective
work in accordance with the regulations I have described. We also explain to him
on September 26, 1974, in order to immediately accommodate those individuals
his obligations to perform the service assigned by the military department and how
described in Proclamation 4313 who chose to avail themselves at an early date of
we intend to report his completion thereof to the military department concerned.
the benefits of the President's program.
We explain to him his opportunity to procure his own work and the degree to
The regulations are complete in that they provide the definitions of the service
which we are able to assist him in the location of suitable employment. Finally,
to be performed; they identify the referring authority for each type of case; they
we counsel him with respect to our responsibility to find employment for him if
prescribe the geographical area in which the returnee can expect to work and where
he is unable to do so, and at what time his opportunity and our responsibility
he will commence his enrollment procedures for work with Selective Service; they
merge.
delineate the levels of responsibility for the program establishing the functions of
An evader who had been processed by one of the 96 U.S. Attorneys, after having
the National Headquarters of Selective Service and specifying the delegations of
signed his agreement to work, is advised by the U.S. Attorney to report in the
authority to the State Directors of Selective Service; and the type of employer
same way and carry out the same enrollment procedures as I have just described
who will be considered eligible to employ returnees who will be performing this
for the deserter.
alternate service. The regulations further identify the criteria for jobs for returnees
A convicted evader or a person already discharged who might have applied to
and the responsibilities of the returnee and those of the State Directors for locating
the Clemency Board for action, if he has been given a period of alternate service
jobs, initial placement and reassignment from one job to another if necessary. I
as a condition to a pardon, will receive the same general instructions with respect
know that the Committee has an interest in some of the specific detail of the
to reporting to the Selective Service System as do the other two types of returnees.
regulations, and I will describe them in greater detail as follows:
He then would be subject to the same type of enrollment procedure.
Eligible employers, which may be a subject of interest to the subcommittee,
After enrollment with the program, a time period of 20 days commences, during
are important with respect to the fashion in which the program is being adminis-
which time the returnee is encouraged to find appropriate employment for him-
tered. Our regulations state that returnees may be employed by the following
self as close to the place he chooses to live as he can. The employment he secures
employers: the U.S. Government; a state, territory or possession of the U.S. or a
must match the job criteria that I have previously cited to you. In many cases he
political subdivision thereof, or the District of Columbia; or an organization,
commences to seek employment using a series of leads provided to him from the
association or corporation which is primarily engaged either in a charitable
office of the State Director of Selective Service.
activity conducted for the benefit of the general public or in carrying out a program
After 20 days has elapsed, if the enrollee has not found employment for him-
for the improvement of the public health or welfare, including educational and
self, or any time prior if he so requests, it is the responsibility of the System and the
scientific activities in support thereof, when such activity or program is not
State Director of the state concerned to assign the individual to an available job.
principally for the benefit of the members of such organization, association or
During the period of the initial 30 days-20 days or less in which the man seeks
corporation, or for increasing the membership thereof, or for profit.
employment and the subsequent balance of time wherein he works jointly with
Of equal importance and interest are the criteria which have been established
the State Director of Selective Service-it is often the case that the two have been
for the selection of jobs. Four elements are considered by the State Director as
working together almost continually to effect his assignment to a suitable alternate
a basis for determining whether a specific job offered by an eligible employer is
service job.
acceptable as service for a returnee:
I know that the subcommittee will be interested in our experience with the
1. National health, safety or interest-the job must promote the national
program since its inception in September, and what the impact has been upon the
health, safety or interest.
job availability as a consequence of the worsening situation with respect to em-
2. Noninterference with the competitive labor market-the returnee cannot
ployment in the United States. As I mentioned earlier, the first individual who
be assigned to a job for which there are more numerous qualified applicants who
sought for alternate service with a Selective Service office did SO on September
are not returnees than there are spaces available.
19. Since that date, which was only three days after the President announced
3. Compensation-the compensation will provide a standard of living to the
his program, until December 16, 2,310 deserters have been processed by the
returnee reasonably comparable to the standard of living the same person would
Department of Defense. Of this number, 1,569 have reported to the Selective
have enjoyed had he gone into military service. This criterion may be waived by
the State Director when such action is determined to be in the national interest
206
207
Service System and are enrolled in the alternate service program. During the
intend to continue to pursue the placement of these people, to monitor their
same period of time, 131 evaders who have been referred to the Selective Service
performance, during employment, and to insure their treatment in a dignified and
System by a U.S. Attorney have been enrolled in the alternate service program.
reasonable fashion. We believe that we can in most instances place the people for
Also, during this same period of time, and as a result of the meetings of the Clem-
work within reasonable distances from the place at which they desire to live and
ency Board on November 29, one individual from a group of ten to whom the
within reasonable enough circumstances. If the enrollee considers alternate service
President indicated an intention to grant a pardon, conditioned upon completion
in the context of work whereby he is earning his reacceptance into the American
of alternate service, has reported to the Selective Service System for enrollment
society and is determined to do so, we believe we can work with him and enable
and work.
him to attain the benefits which the President provides under Proclamation 4313.
Statistics of the Department of Defense show that the numbers who have been
In closing, I would like to say that I have endeavored to describe for you the
processed at Camp Atterbury and Indianapolis, and statistics of the Department
things we do and the experience we have gained to date in our discharge of the
of Justice indicate that the number who have availed themselves of the program
responsibilities which President Ford delegeated under Executive Order 11804 on
in both cases exceed the numbers of people who I have indicated to you here have
September 16, 1974. I think it is too early to assess the program and to make
enrolled with the Selective Service System. The fact that our statistics differ
predictions with respect to its ultimate success. There could well be widely
does not indicate an error, but rather relates to the fact that an individual, after
different definitions of final success or failure in this venture. I think that the
having made his agreement with the U.S. Attorney in the case of an evader, or
program is, up to now, working well, and it appears that it should continue to work
having finished his processing in Indiana in the case of a deserter, has 15 days in
well. For my part, and speaking for the Selective Service System, I believe that
which to report to a Selective Service office and enroll for the alternate service
we can provide the jobs required for these people, and we can oversee their work.
program. This 15-day period accounts in many cases for the lesser numbers of
We are grateful for the cooperation we are receiving from the employers who make
people who are enrolled as compared to the numbers which the other agencies
jobs available to us. I see no reason why the original numbers of people who were
have processed.
considered as potential participants cannot be accommodated within the program.
Of the numbers who have enrolled with the System, as of December 16, 1974,
378 deserters and evaders are now at work. In addition to the number now at
work, 653 deserters and evaders are in the process of finalizing employment as a
result of a specific job referral by a State Director of Selective Service. Our records,
Mr. SNYDER. The subcommittee will stand in recess.
as of December 16, 1974, reveal that of the 1,878 deserters who were processed
[Whereupon, at 1:20 p.m., the subcommittee was adjourned
through the Joint Clemency Processing Center on or before November 15, 1974,
subject to the call of the Chair.]
410 have not enrolled in the reconciliation service program.
There is one other aspect of the program, which is an estimate based upon an
evaluation of facts and circumstances to date, compiled as a result of reviewing
individual cases, and it is this: of those who do enroll, it appears some will not
complete their alternate service for many reasons-such as personal inability
to perform, no desire to perform, incapacity to perform, and others. It is too early
for us to know precisely what this number will be; however, we have established a
rather comprehensive procedure whereby we intend to document the records of
those who enroll and successfully perform as well as those who fail to perform,
either for reasons beyond their control or for reasons over which they have full
control. Of those who have enrolled, 143 have indicated they do not want to
participate.
A word about job availability, in light of the general unemployment situation
in the United States since the program was announced on September 16. We are
experiencing the impact of the declining job market in that the jobs which we
thought might be available for people in the reconciliation service program are
now more attractive jobs to other individuals who, when we established this
program in September, would not have considered them as suitable. By this I
mean that the low-paying jobs which many individuals in the reconciliation service
program are willing to take, in order to discharge their responsibilities, are becom-
ing more attractive to other people who had higher paying jobs at the time we
established the program. The program is now more difficult for us insofar as
locating suitable jobs than it was in September. My personal view of the program
is that although it is a more difficult task for us now, we merely have to work harder
to find jobs which we thought would be available when we made our calculations
in September. There have been individual contacts by the members of my staff
and by myself with national agencies which have indicated a willingness to
cooperate. We have been able to establish a series of regional coordinations which
we believe will make jobs available to our State Directors. National religious,
social and charitable organizations are the types of agencies to which I refer. For
instance, within the past week the staff member who has day-to-day cognizance
of this program for me was in New York City and worked with the national head
of the Salvation Army. He at the same time made contact with the Executive
Secretary of Personnel Assignments of the United Methodist Church, and has as
well been in contact with-and we anticipate successful results from-the Syna-
gogue Council of America. In addition, a number of Federal agencies are assisting
in locating jobs.
The President stressed, when he recited the aims of his program last fall, that
he wished for this to be a crisp program with constant followup, good supervision,
and the active participation of all Federal agencies toward it successful accomplish-
ment and for the attainment of the aims which he set out for the program. We
APPENDIX
ADDITIONAL PREPARED STATEMENTS
PREPARED STATEMENT OF JEREL W. OLSEN, DIRECTOR, NATIONAL CAMPUS
ALLIANCE FOR AMNESTY
UNITED STATES NATIONAL STUDENT ASSOCIATION,
NATIONAL CAMPUS ALLIANCE FOR AMNESTY PROGRAM,
Washington, D.C., December 17, 1974.
This submission is made on the basis of 500 men whom I have counselled over
the past four years and who would qualify for the current presidential program
of "earned reentry." This counselling has occurred in my present capacity with
the National Campus Alliance for Amnesty, and in prior capacities. The submis-
sion also is made from information I currently have obtained in my role as con-
sulting Counselling Coordinator of the War Resistor Information program in
Canada, an "umbrella" organization composed of already existing counselling
Aide Centres there. The program to date has spoken with resisters in excess of
4,000. My submission is derived from individual contact with several hundred
men who have contacted that program, but does not necessarily represent policy
of the program.
This presentation of necessity must be other than comprehensive, as I under-
stand it must be submitted tomorrow. Nevertheless, I believe it accurately reflects
feelings of men whom I have counselled regarding the current "earned reentry,"
or "clemency," program. It is divided into two portions: the general perspective
into which most expatriated resisters place "clemency," and specific concerns
which they feel-and deeply-about the program.
Clemency in Perspective
Most expatriated resisters view "clemency" as demeaning penance: many have
reacted to the very concept in total outrage. Certainly more than a handful of
the expatriates point to years past in which fine religious leaders and Members
of Congress advocated opposition to the war in Southeast Asia. The country on
the whole now is opposed to our prior direct military intervention in Indochina,
as well as our continued support of the ongoing war.1 Some men took the lead
offered seriously. The question is whether or not they took it too seriously.
A clear majority of those men with whom I have spoken had-before becoming
expatriates-attempted to resolve their moral/religious dilemmas through legal
means. They attempted, then, to become draft avoiders like SO many of the rest
of us more fortunate. But through the notorious inequities of the Selective Serv-
ice System and the armed forces, they were made into draft, or military, resisters,
made to pay severe penalties many times over for their beliefs and political views.
They ask, must we still pay? At least 80 percent of the resisters with whom the
Aide Centres in Canada have spoken have made new homes in lands which have
accepted their beliefs. One-third of those who have contacted the centers (and
surely a higher percentage who ignore such contact) already have acquired Cana-
dian citizenship. Under present options available to them, many more will join
these men as they become eligible, SO long as we persist in vindictive treatment.
The 80 percent indicated ask but one thing, often at the persistent urging of
loved ones in this country: to be able to freely travel to their former homeland.
They ask to be able to do so without humiliating conditions, and without condi-
I The Administration requested $3.78 billion for Indochina during fiscal year 1975. $3.2 billion was spent
there in fiscal year 1974. Foreign aid for the rest of the world combined, by contrast, in fiscal year 1974 was
$3.542 billion. The Saigon government itself claims 340,297 military dead and wounded between the "cease-
fire" in January 1973 and September 1974. The Senate Subcommittee on Refugees lists an official U.S. count
of 43,166 wounded and admitted to hospitals in the first year of the "ceasefire," with an estimated 90,000
wounded or dead combined during that period. Both figures appear in its 27 January 1974 report. Estimates
for this year are far higher.
(209)
210
211
interest" is anything but clear in implementation. Skills and interests-another
tions which they often cannot possibly meet, which will be referenced below.
provision-appears to be playing a small role in actual job assignment.
Surely the vast majority of the expatriates will not and cannot submit to the
Could I be reassigned even after I have located my own work?-For unclear reasons,
punishment of "earned reentry." Even the Government's own statistics, which
State Directors for Selective Service, upon order from the Director, must change
I submit are distortions in order to justify the current program, reflect the futility
the place of employment of a returnee. and without justification or appeal! 2
of "earned reentry." Purportedly there are 12,500 "deserters-at-large," 7,000
After relocating (often with an acquired family), and while working satisfactorily
unconvicted draft resisters, 8,700 convicted draft resisters and somewhere in
at subsistence pay (see next paragraph), a returnee could be relocated without
excess of 100,000 veterans with bad discharges, who could qualify for the present
warning. Is there to be no voice in such unilateral decisionmaking?
program. It will not be necessary here to show that these figures are low. Even
What about pay?-Working at humiliatingly low pay, often far below what he
with their use, the current option for the expatriates is a failure. Less than 2,500
would have been making previously during his period of resistance, an expatriate
military absentees have opted for the program (including 800 resisters already
must support himself, and perhaps his new family, as best he can. Will this
incarcerated given the option of "clemency" instead of long stockade terms).
provision, too, vary from state to state? Even if an expatriate is prepared to
Somewhere in excess of 100 unconvicted have signed agreements to perform
accept the low pay required, this is not enough. The provision can be waived! a
alternate service under the program. The Presidential Clemency Board to date
Essentially, the effective compensation level is left, then, to the discretion of the
has an even poorer record. The remaining 45 days of the offer under the proclama-
Selective Service System.
tion cannot save the already apparent failure.
What about my citizenship?-More than one-third of expatriates who have
Expatriates fall into three separable categories:
obtained the security of Canadian citizenship (see above) are specifically barred
1. Resisters who demand full return to citizenship (not available under
from "earned reentry," a step far from the leniency purported by the President.
"clemency," which only bestows limited rights under the proclamation and
How about my Landed Immigrant Status?-Lengthly alternate service well may
subsequent directives), as well as acknowledgment by the American people and
disallow the expatriate who wishes to reside in Canada but serve his time in
government that their "premature" acts of belief and resistance in fact were
order that he freely could travel from country to country his right for permanent
right and proper;
residency in Canada. Today far stricter immigration practices make readmission
2. Those who merely want nonjudgmental rights to travel or reenter the
in that status highly unlikely. Particularly for an expatriate with a Canadian
mainstream of American society (which rightly could be called amnesty); and
wife, this is a true dilemma.
3. By far the smallest category of all expatriates, those who for compelling
Is their a "deserter's loophole?"-Men who have reported to the military indicate
personal reasons now say "let me return, but at a price I can pay."
they have been assured they can ignore the alternate service requirement. But
But even for these few who must return, albeit with penalty, the current costs
even should the military be sincere in their statements concerning nonprosecution
often are too high. (Note again the governmental figures on returnees.) For
for these men, in apparent violation of the proclamation, certainly the men are
many, as we shall see, present costs are impossible.
I submit from my experience over recent months that the majority of those
still subject to civilian law, e.g. 18 U.S.C. 1001, concerning false information
provided to a federal officer or agency. Recent indications suggest possible
who do submit to "clemency" do SO without a full understanding of the penalties
prosecution.
which in fact they receive. You will note from governmental testimony before
Can I be sure I in fact should apply?-Perhaps for some men "clemency" is
you that only a limited proportion of the returnees ultimately reported to the
the best way to "reenter" the mainstream of our society, if for whatever reason
Reconciliation Service administered by the Selective Service System, and far
they decide they must return. But they certainly should be allowed to know
fewer actually accepted job assignments and are now working.
Many of the expatriates with whom I have spoken who subsequently accepted
their legal circumstances with certainty prior to making their decision. There
are at least two requirements required by the Government to assure this due
initially the "clemency" program anticipated, for whatever reason, true leniency.
process. The first is that men be allowed ready access, by themselves or their
A large proportion, regardless of possible future jeopardy for noncompliance,
have returned to Canada in disgust. They, unfortunately too late, have learned
representatives, to their Selective Service or military files. The Marine Corps
that options to "clemency" in fact usually are better options. They have learned
certainly has been less than cooperative in this regard. For unconvicted draft
that most resisters can obtain discharge, acquittal or dismissal through judicial
resisters, at least two states-Minnesota and Indiana-are denying access, even
and administrative channels without many of the strings attached to "reentry"
to legal counsel with clear Power-of-Attorney, in violation of law.5 The second
requirement is that the Government provide fully and finally a list of all men
under the presidential program.
Expatriates, both those who attempt "earned reentry" and those who do not,
wanted for draft/military offenses. If 90 percent of those who went into hiding
raise the serious questions posed below about that program.
after receiving delinquency notices from their Local Boards of the Selective
Service System later never were even indicted (and often never informed of this
Some Specific Questions
fact), and if two-thirds of the resisters eventually indicted either were acquitted
The following are among the problem areas which expatriates have raised
or had charges dismissed, then it is only reasonable and just that those still in
concerning the current presidential proclamation regarding resisters. It in no
hiding know definitively whether or not they are sought. Could not some men
way is comprehensive.
unknowingly be induced into two years punitive service when they are not even
How long would I serve?-The proclamation calls for 24 months, which may be
criminals in the eyes of our laws? When the United Church of Christ, Office of
reduced for "mitigating" reasons. Many men would at least consider a few months,
Social Action, eventually obtained a list of men, though far from final and far
but not under possibility of 24 months alternate service. Some who have opted
from accurate by our experiences to date, inquiries doubled concerning return to
for "clemency" have done SO under severely false impressions. Apparently there
this society. Many who had intended to return to local prosecutors for "clemency"
are wide discrepancies under the Justice Department from district to district.
to sign required papers either found that they likely were not even wanted (which
The Department of Defense determines length of service required through a
later can be confirmed through court records), or found that counsellors could
Joint Alternate Service Board, which meets in private deliberations, without
indeed discover whether the case against them, under current case law and
ever meeting the returnee or his/her representative. It appears clear the military
regulations, could be successfully prosecuted.
considers opposition to the war as an aggravating factor in sentencing, rather than
a positive factor. Reduction of the 24-month proviso appears to be inversely
proportional to the strength of a resistor's opposition. Both for the Department
2 CF 200.5(b).
of Defense and for the Department of Justice no written reasons are given for the
2 CF 200.4(a)(3)
4 This is in apparent conformity with the outrageous Immigration and Nationality Act, sec. 212(a)(22),
determination of the length of service. There are no appeal provisions. (Even the
in which any draft/military resister obtaining the security of foreign citizenship, regardless of cause or
arbitrary decisions of the Selective Service under its Military Selective Service
reason, during a period of presidentially declared "national emergency, may be permanently excluded
Act affords appeals.) Many additional problems could be enumerated under
from ever again returning to live in the United States. Nothing short of superseding legislation can rectify
this situation, not even presently proposed "amnesty" bills. The United States has been in a declared
this section.
state of "national emergency" since 1950.
What work would I be doing?-Again, state-to-state incongruities exist here. A
# Cf. 32 CFF 1608.3.
provision of the proclamation requiring work "in the national health. safety and
212
213
AVC 1974 RESOLUTION ON AMNESTY
What about those papers?-A number of men, many of whom felt more strongly
Resolved that the American Veterans Committee suport a general conditional
about America and wanting to by example correct its wrongs than some people
amnesty for all persons who refused military service during the Vietnam conflict
in this country, are compelled to reject signing papers which in fact suggest that
and for all persons who were separated from service with other than honorable
they acted in an un-American fashion. Still others reject provisions requiring
discharge and persons who deserted from the Armed Services during said conflict.
them to waive constitutionally guaranteed rights. In doing so, they indeed are
Further resolved, that the American Veterans Committee explore the means
being treated in what rightly can be called an un-American manner.
to achieve the intent of this resolution and recommend to the membership action
"Clemency" must, when referring to the present situation, be left in quotation
programs for this purpose.
marks. It is neither lenient, nor merciful. We only will have clemency when we
legislate or proclaim true amnesty, one without conditions, and one applying
AVC 1974 RESOLUTION ON CONFERENCE ON AMNESTY
equally to all of those-in their own ways, to be sure-who resisted and resist
our outrageous and ongoing aggressive involvement in Southeast Asia. On be-
The 1974 Convention of AVC, having debated the issue of amnesty and having
half of the National Campus Alliance for Amnesty, I call upon your conscience.
adopted a position, asks the National Board to conduct a national conference
on the subject, involving persons with a broad range of opinions, within the coming
year.
AMERICAN VETERANS COMMITTEE,
PREPARED STATEMENT OF THE AMERICAN VETERANS COMMITTEE
Washington, D.C., September 5, 1974.
HON. GERALD R. FORD,
The American Veterans Committee hailed the Amnesty Program announced by
The White House,
President Gerald Ford at the V.F.W. Convention this August (see attached for
Washington, D.C.
Text of Telegram to the President). We looked forward to a meaningful program
DEAR MR. PRESIDENT: As we wrote to you on August 20th, the American Vet-
which would effect a reconciliation and heal the nation's wounds.
From this first statement, we have urged the President to include in the am-
erans Committee welcomes your initiative in seeking to bind the nation's wounds
nesty program those veterans, numbering approximately 350,000, who received
resulting from the Vietnam War by seeking ways of bringing draft evaders and
less-than-honorable discharges. AVC has insisted that no attempt to heal the divi-
deserters back into American society. At this time when you are evolving a policy
sions and wounds left by the Vietnam war can be just and equitable unless this
regarding amnesty for these groups, we respectfully request that you also review
the situation of the veterans who received less-than-honorable discharges. No
group is included in an amnesty program (see attached September 5 letter to the
President). We have been very disappointed that the present program does not
attempt to heal the divisions in our society caused by the Vietnam War can be
cover the majority of these young people who tried to fulfill their military obli-
considered just and equitable if this group of approximately 350,000 veterans is
left out of any program in the spirit of "amnesty.'
gation, but failed.
However, we have noted that under the present program, approximately 100,000
This large group of veterans who received less-than-honorable discharges during
veterans who received punitive and administrative discharges are eligible to
the Vietnam War were also young and immature, confused and unhappy. They
apply to the Presidential Clemency Board. We sent the attached letter dated
tried to serve but were unable to fulfill their obligations successfully according to
November 21 to the President outlining our concerns about the practices and
the rules and regulations of the armed services. Their situation is also grievous.
Even though they are living within the borders of the continental United States,
procedures of the Board and also recommendations for revising the program.
Also, AVC carefully studied the Proposed Regulations for the President's Clem-
they are effectively blocked from access to almost every avenue of American
ency Board published in the Federal Register on November 27, 1974 and sent
society because of the stigma of their discharge.
comments and suggestions to the Board (see attached comments, December 13,
We want to see this group of young people-like the group of those who either
didn't serve or deserted-brought back into the mainstream of our national life.
1974).
We would particularly urge that the January 31, 1975 deadline for application
Under the present circumstances of their discharges, they cannot get jobs, enroll
in apprenticeship and training programs, get unemployment insurance or receive
to the Board be extended for at least 1 year.
We will continue our review of the Clemency Board's program and operations
veterans benefits. Many of them are filling our prisons, drug abuse centers and
mental institutions-and many more are likely to sink into the sludge of human
and will send you our comments and suggestions as appropriate.
waste that this nation can ill afford.
The American Veterans Committee is an organization of Veterans of World
War I, World War II, the Korean conflict and Vietnam. Its program is built
The American Veterans Committee has been representing hundreds of these
around its credo that ex-servicemen are "Citizens First, Veterans Second."
veterans before the discharge review boards as they seek to have their discharges
upgraded. The rate of upgrading of discharges is very low; therefore, we have
found that most of those who have received these "bad" discharges are burdened
[Telegram]
AUGUST 20, 1974.
with them for life. There must be another way to bring these young people back as
productive citizens with a stake in our society.
Hon. GERALD R. FORD,
We cannot accept the premise that these individuals' situations have been
The White House,
resolved by the military justice system. The military justice system has resolved
Washington, D.C.
the problems of the armed services, in getting rid of the individuals they have
The American Veterans Committee, a national veterans organization based in
deemed unsuitable or unfit to carry out the military mission. The punitive actions
Washington, D.C. applauds and strongly commends your open attitude in your
of the armed services have posed a very serious dilemma for the larger civilian
recent statement on the subject of amnesty for Vietnam Veterans.
society. How to reintegrate into its ranks in a useful, productive manner those
Recognizing the urgent yet complex character of the problem, but the overriding
young people who failed to "make it" in the military, although they tried. They
need for action to overcome the continuing breach in our society left by the
are as much the victims of the Vietnam War as the wounded and the maimed.
Vietnam conflict, AVC has long advocated a national convocation of representa-
They are another group of casualities who should be considered during this period
tives from veterans groups, Congress, the military, religious and civic organizations
when a program is being evolved to reconcile society and some of its "lost" youth.
to debate, reconcile and present an acceptable means of resolving this open
We urge you to include the veterans with less-than-honorable discharges in any
wound in the American society.
"amnesty" plan SO that they too can make the contributions that they are capable
May your courageous statement be a first step in this process of national
of making-to their families, their communities and their nation.
reconciliation and healing.
The American Veterans Committee stands ready to assist in any way in the
ARTHUR S. FREEMAN,
devising of such a program or in convening a national conference to examine and
Chairman, American Veterans Committee.
explore the complex issues involved and how best to bring justice and healing to
this searing problem. Enclosed are copies of Convention resolutions on this subject.
215
214
3. That the Clemency Board establish and publish for comment procedures
Although we know your time is heavily burdened, we respectfully and urgently
which provide due process.
request an opportunity to present our views to you in person before you fully
4. That the recommendations made to the Board by its staff in each veteran's
determine your amnesty position.
case be made available to the veteran prior to the Board's decision and, if un-
Respectfully yours,
favorable, that the veteran be allowed to appear before the Board with a repre-
ARTHUR S. FREEMAN,
sentative to present evidence and arguments. If the Board's decision is unfavor-
National Chairman.
able, the veteran must be given a written statement of reasons and be allowed
a reasonable time in which to apply for a rehearing.
AMERICAN VETERANS COMMITTEE,
5. That the January 31, 1975 deadline be extended for at least one year.
Washington, D.C., November 21, 1974.
6. That it be made clear that the clemency program does not preclude a
Hon. GERALD FORD,
veteran from seeking and obtaining an upgrading of his discharge through the
The White House,
appropriate Discharge Review Board or the Board for the Correction of Military
Washington, D.C.
Records.
DEAR MR. PRESIDENT: The American Veterans Committee hailed your
7. That it be made clear that the veteran who complies with the program is
"amnesty" declaration and has looked forward toward a meaningful program
indeed "forgiven" for the offense and related conduct that produced the punitive
which would effect a reconciliation and heal the nation's wounds. In our letters
or undesirable discharge.
to you of August 20th and September 5, we recommended that all veterans with
Only with these changes do we feel that the program could be viewed as provid-
less-than-honorable discharges be included in the amnesty program. We are
ing "clemency" and genuine relief to the hundreds of thousands of veterans who
disappointed that it does not deal with the majority of the less-than-honorably
served and received less-than-honorable discharges. In view of the January 31,
discharged veterans.
1975 deadline for expiration of the program, we hope you will adopt our recom-
After thorough study and analysis of the present program and its implications,
mendations soon and thereby make this a meaningful program.
in light of the hundreds of veterans who have consulted with us, the AVC has
Sincerely,
reluctantly concluded that the program does not really benefit the 100,000
ARTHUR S. FREEMAN,
veterans with undesirable and punitive discharges whom it purports to help.
National Chairman.
The veteran who goes through the Clemency Discharge procedure, including
serving the prescribed alternate service, will not receive an honorable discharge
AMERICAN VETERANS COMMITTEE,
or a discharge under honorable conditions, pursuant to which he would receive
Washington, D.C., December 13, 1974.
veterans benefits. Instead he would receive a "clemency discharge" which bars
201.5 (b) After last sentence in paragraph, add the following sentence "How-
veterans benefits and which is widely regarded as a discharge for wartime deserters.
ever, the Board may not consider any aggravating circumstances revealed in such
Thus, even though the veteran's military difficulties may have been the result of
files unless the applicant or/and his representative are given the right to review the
personal or family reasons that had little to do with opposition to the war, the
files." This addition is necessary to assure that the applicant receives due process.
clemency discharge will probably be more, rather than less, damning to him in
201.6 (d) Change time for consideration of initial summary from 20 days to 90
the eyes of a prospective employer or the public than would be his original dis-
days. This additional time is crucial. Almost all if not all applicants will be rep-
charge.
resented by volunteer counsel. AVC knows from its long experience with volunteer
Second, an applicant to the Clemency Board apparently loses two important
counsel that due to other demands on their time, they need adequate time in
rights: a) the right to have his discharge reviewed by the proper Discharge Review
which to prepare. The review of the initial summary prepared by the Action
Board and Board for the Correction of Military Records, and b) the right to have
Attorney is the most crucial part of the preparation of the applicant's case. This is
his case individually considered by the Veterans Administration to determine
the period during which counsel must examine various records and gather evidence.
if he should receive veterans benefits.
Hence, 20 days is a totally inadequate amount of time for this preparation. An-
Third, it is unclear whether clemency means "forgiveness" for the offense and
other important fact is that these applicants are from all parts of the country and
related conduct. If it does not, the veteran, in future dealings with the Department
often do not have a fixed address. Therefore, the length of time for all contacts
of Defense and the VA, would have no assurance that he has been, in fact, forgiven
and questioning is considerably longer than under other circumstances. AVC's
for that offense and that any review or adjudication of benefits would be based
long experience in representing veterans with less-than-honorable discharges
solely on his prior record.
convinces us of the necessity for allowing at least 90 days in which to respond to
Fourth, as indicated above, the clemency discharge will not aid him if he
the initial summary.
applies to the appropriate military boards or the VA. In fact, the Boards and the
201.7 (b) Following the phrase in line 2 "consists of the initial summary" delete
VA apparently take the view that he has already received relief and only perfune-
"appropriate." In the third line, after "amendments and additions," add the words
torily consider his application. VA's lack of sympathy is already evident by
"submitted by the applicant and his representative."
Administrator Roudebush's recent statement that the VA will not provide any
201.8 (c) Delete the first two lines of this paragraph. Substitute the following
jobs for alternative service.
language for these lines: "An applicant and his representative have the right.'
Fifth, the January 31, 1975 deadline is obviously too restrictive. In view of
Change the length of time for the oral presentation to twenty (20) instead of the
the deficiencies and ambiguities of the program and the evident need for counsel-
ten (10) minutes indicated herein.
ing and careful consideration of the alternatives, it is most unfair to veterans to
We believe that it is an essential element of due process for the applicant to
require them to decide on whether to apply under the program in the brief period
have the right to an oral presentation, and that this right should not be discre-
allowed by this restrictive deadline.
tionary. Furthermore, since this oral statement may be critical in the applicant's
Sixth, the program evidently lacks the elements of due process.
presentation of his case, he should be given adequate time to discuss all the cir-
We therefore request that you revise the program in at least the following ways:
cumstances and background that he wishes to. Twenty minutes is a more
1. That the program be expanded to include all veterans with less-than-
reasonable period than ten minutes.
honorable discharges who were discharged between or because of conduct which
201.10 (b) Change 30 days to 60 days. This change is suggested for the same
occurred between August 4, 1964 and March 28, 1973, inclusive.
reasons cited before for a change of deadline-use of volunteer counsel, length of
2. That the discharge recommended by the Clemency Board (and granted
time required to contact and question veterans.
by the President) be an Honorable Discharge (not distinguishable from other
201.10 (d) In line 2, change "may" to "must". Change 15 minutes to twenty
honorable discharges) to be issued upon honorable completion of such alternative
minutes. We believe that the applicant has right to a hearing during the recon-
service as the Clemency Board, purusant to the Executive Order, has prescribed
sideration process as well as during the initial ajudication, if this reconsideration
for the applicant to perform to assure that the applicant's service (both military
process is to be meaningful. Otherwise, it could only be perfunctory and would
and alternative) is comparable to that of a person who had complied with Selective
not provide a genuine vehicle for relief. Again, the time should be extended SO
Service or military service requirements.
that it is adequate and reasonable to argue the case.
216
217
201.11 Delete the last two lines of this paragraph. Substitute the following
language "decision to grant executive clemency to an applicant which has been
Our objective has been to assist those persons affected in reaching their own deci-
accepted by the applicant." There is no justification for revealing negative deter-
sions, not be apologists for the President's program. As a result, we have been able
minations to other agencies, etc. Such decisions should not be revealed as they
to be fairly objective in our evaluation of the program. I am aware of no church,
might create prejudice against the applicant in other proceedings.
at a national level, that has endorsed the earned reentry program. To the contrary,
201.12 (a) In the fifteenth line, following "existence of a," change "violation of
the one religious organization which has met since the program's conception, the
law" to "serious crime." This is the language used in Appendix B of 201.14 (I).
governing board of the National Council of Churches, which consists of 31 Prot-
Other negative information revealed during the investigation of the Clemency
estant and Orthodox denominations, has adopted a statement critical of the
Board irrelevant to the scope of the inquiry should not be considered except for
program and calling for a genuine amnesty. I have included a copy of that
statement with this one for inclusion in the Congressional Record.
the existence of a serious crime.
202.2(a) At end of paragraph as written, put a comma instead of a period after
I am appreciative of this opportunity to present to you the response of the re-
202.4, and add the following phrase "or by the presence of any other mitigating
ligious community, and specifically the National Council of Churches, to the
circumstance which the Board deems appropriate in any particular case."
earned reentry program.
202.2(b) Insert on second line after "circumstance" the words "listed in 202.3."
RESOLUTION ON AMNESTY AND EARNED REENTRY
202.3(b) After "will take notice of" add sentence "These are the only aggravat-
ing circumstances which may be considered by the Board."
Soon after taking office, President Gerald R. Ford announced his intention to
Delete Subsection (1), (5), (6) and (7). These reasons as listed are irrelevant
bind up the wounds of the nation caused by the war in Southeast Asia. Many
and not proper considerations for determining the character of an individual's
church people and other Americans applauded that goal and watched in hope for
discharge. Harmon V. Bruckner, 355 U.S. 579 (1958). (Additionally, subsection (5)
him to announce his plans for "clemency."
is too vague.)
The President subsequently proclaimed his "Earned Reentry" program for
Change subsection (2) to read "Proof of an intentionally false statement made by
war resisters, which requires a maximum of 2 years of alternate service for un-
applicant to mislead the Clemency Board."
convicted draft resisters and deserters, the granting of a"clemency" discharge to
Change subsection (3) to read "Evidence of the intentional use of agressive force
deserters upon completion of their alternate service, and a case-by-case review
(not mere resistance to arrest, etc.) collaterally to AWOL, desertion, missing
of those deserters and draft resisters convicted under military or civilian law.
movement, or civilian draft evasion offense."
We deeply appreciate the courage of the President in raising the amnesty issue
Change subsection (4) to read "Desertion during combat conditions."
and for his expressed intention to further the healing of the wounds of the Vietnam
202.4(a) In second line after "circumstances listed herein," insert the following
War.
clause "or by the presence of any other mitigating circumstance which the board
We believe that this "Earned Reentry" program falls far short, however, for
deems appropriate in any particular case."
these reasons:
202.4(b)(3) Insert after physical illness "including alcoholism and drug
1. The program offers the war resisters little more redress than was already
addiction."
available. The number of acquittals in draft violation cases has been high in
202.4(b)(6) Put a comma after "zone" and add "and other periods of service
recent years. U.S. attorneys have decided not to prosecute in others. A number
which may be characterized as 'under honorable conditions.' Any tour of honor-
of options for discharge already existed for those in military which do not require
able service, whatever the location, should be recognized as a mitigating factor.
alternate service. As a consequence, few persons have used the President's plan,
202.4(b) Add new subsection (11). Voluntary enlistment and/or reenlisment.
and few are likely to use it in the future.
202.5(a) New subsection (5) should be added stating: That starting point will
2. The plan adds further ordeals to the personal suffering many have already
be further reduced by the amount of time which the applicant has served in the
endured: not only alternate service but a renewed oath of allegiance that many
military.
consider odious, because they believe that their acts were a valid expression of
Renumber rest of subsections accordingly.
their patriotism.
3. For military offenders, the plan merely substitutes one form of other-than-
honorable discharge for another: employers will probably look upon a "clemency"
discharge in the same way they now look upon other-than-honorable discharges.
PREPARED STATEMENT OF REVEREND RICHARD L. KILLMER, DIRECTOR, SPECIAL
4. The plan allows for continued inequalities based on race, class or regional
MINISTRIES/VIETNAM GENERATION
differences. Several categories of persons in legal jeopardy because of the war in
Southeast Asia are especially inadequately covered by the program. These include
When President Ford first announced his intentions to "bind up the nation's
Vietnam era veterans with other-than-honorable discharges and deserters who
wounds" the religious community responded with great enthusiasm at that time.
have been convicted or are accused of other violations. These categories contain
It also expressed its concern that the program that the President had hinted he
a large number of persons from minority and low income groups and from rural
would establish could not effect the kind of healing the President had hoped for
and inner-city pockets of poverty, because of the disproportionate number of
and which this country so desperately needs. Heads of various religious communi-
such persons in the armed forces during the Vietnam era.
ties in the U.S. wrote to the President urging that a genuine amnesty be granted
5. Rather than contribute substantially to a healing of the wounds of the
rather than an "earned reentry," as the best way in which this healing can be
Vietnam era, the President's proposed program may instead delay for 2 years or
achieved. Needless to say, their advice was not heeded, and thus the need for
longer the healing of these wounds.
these hearings.
The churches of the National Council of Churches will continue to express
We were also concerned about those individuals who might be affected by the
pastoral concern for the war resisters, as they do for the returned veterans whose
President's program. Special Ministries/Vietnam Generation, on behalf of its sup-
needs continue to be unmet. Because of the inadequacies of the "Earned Re-
porting denominations, has been involved in a pastoral ministry to those directly
entry" plan, a unit of the National Council of Churches, the Special Ministries
affected by the war in Indochina, both resisters, veterans and their families. It was
Vietnam Generation, has been impelled to develop a more extensive program of
realized before the President announced his program that whatever form that pro-
legal and pastoral counseling. This does not mean approval and support of the
gram took, people underground or in exile would have questions, and have to make
President's plan, but an expression of concern for the persons affected by it who
hard decisions about their future and there was a great need for accurate informa-
have already suffered 80 much.
tion and competent counseling for these individuals. Prior to President Ford's
The Governing Board of the National Council of Churches calls attention to
official announcement we made the decision to establish counseling centers in the
the following portions of its policy statement "The Indochina War: Healing the
U.S., Canada, and Europe. The establishment of these centers should in no way be
Divisions of the Nation" adopted by the General Board, December 2, 1972:
interpreted as our taking a position for or against the President's earned reentry
"Genuine reconciliation demands that amnesty be granted to all who are in
program as Mr. Goodell's testimony would seem to imply.
legal jeopardy because of the war in Indochia. The only exception would
218
219
be for those who have committed acts of violence against persons, and even
rather than through the more or less risky judicial process of trial (and all the
these cases should be reviewed individually to determine if amnesty is
above more or lesses are important!).
appropriate.
Such amnesty would include:
Weaknesses
(a) draft resisters and deserters who have exiled themselves to other
Unfortunately, this section will constitute the longest portion of the assessment.
countries;
In fairness to the President, I should first state that I believe that he acted in
(b) those currently in prison or military stockades, those on probation, those
good faith in regard to both his pardon of Mr. Nixon and his clemency for the
who have served their sentences, and those who are subject to prosecution
war resisters. While I agree with his basic intent in both instances. I question his
for violations of the draft or military law;
method of implementation. His elemency program has been a failure from a
(c) draft resisters and deserters who have gone underground to avoid
practical standpoint. From a moral standpoint it is simply a miscarriage of mercy.
prosecution;
Mr. Ford attempted to structure a plan which would serve the requirements of
(d) Vietnam era veterans with less-than-honorable discharges;
both justice and mercy. But his hastily-assembled plan, with its multiple ad-
(e) those who have committed civilian acts of resistance to the war or are
ministrative branches. has not served either value very well, as I will show below.
being prosecuted upon allegations of the same.
1. The program is seriously limited by time. The deadline for submission is
By granting amnesty and providing opportunities for those hurt by the war
January 31, 1975. Offenses covered must have occurred between August 4, 1964
in Indochina, we would begin to repair some of the damage to our nation
and March 28, 1973.
inflicted by that war."
2. The program is seriously limited in coverage. Many draft evasion offenses
For the foregoing reasons, we believe that the President's "Earned Reentry"
are covered, for instance, failure to register or failure to report for induction; but
program will not significantly lessen the nation's suffering caused by the Vietnam
some are not, for instance, destruction of one's draft card or damaging draft files.
War. That suffering is still going on. It will continue as long as some persons are
Many military offenses are covered, for instance, desertion and being AWOL;
still enmeshed in the administrative machinery of the government and as long
but some are not, for instance protest-leafleting and other actions that would
as others do not feel that they have anything worthwhile to gain from its proce-
not be criminal in a civilian context. Many bad discharges are subject to review,
dures. We commit ourselves to continue to work for full and genuine amnesty and
for instance, those issued for desertion or being AWOL; but some are not, for
we urge both the executive and legislative branches of the U.S. Government to
instance, those issued for such vague reasons as inaptitude or unsuitability.
grant such amnesty.
3. The program is fraught with objectionable conditions. The equivalent of a
Adopted by the Governing Board, National Council of the Churches of Christ
confession is explicitly required of deserters and implicitly required of draft evaders.
in the U.S.A., October 11, 1974.
The participants are required to do 24-months public service work at bottom-of-
the-scale wages. This period of time may be reduced for mitigating circumstances.
A suit is presently pending in a District of Columbia federal district court charging
that the Defense Department is significantly more restrictive in deciding how
PREPARED STATEMENT OF COMMITTEE FOR A HEALING REPATRIATION
much alternative service a person must perform than are other agencies. In
CHAMPAIGN, ILLINOIS, December 26, 1974.
addition, the suit objects to the required confession, to the lack of opportunity to
appear before the military clemency board, to the lack of reasonings for the
The following assessment of President Gerald R. Ford's clemency program
board's decisions, to the lack of appeal possibilities and to the lack of published
was part of a report presented to the annual meeting of the Board of Directors
rules and standards of conduct for the board.
of the Committee for a Healing Repatriation (a nonprofit corporation), in Peoria,
4. Participants in the program are required to waive their constitutional rights
Illinois, on December 26, 1974. The report was presented by the Rev. Robert
to due process of law, to a speedy trial, to guarantee against double jeopardy and
Newton Barger, president of the corporation and a Catholic campus minister
to guarantee against self-incrimination. It is only surprising that they are not also
at the University of Illinois at Urbana-Champaign:
required to waive their guarantee against involuntary servitude, since the 13th
In assessing President Ford's clemency program as it stands now one month
Amendment to the Constitution states: "Neither slavery nor involuntary servi-
before its conclusion, I would like to review the program's genesis, its strengths,
tude, except as a punishment for crime whereof the party shall have been duly
its weaknesses, its alternatives and then conclude with my own recommendations.
convicted, shall exist within the United States, or any place subject to their
Genesis
jurisdiction."
On August 18, 1974, an article was published in The New York Times in which
5. The response to the clemency program thus far has been underwhelming.
I made the following comment: "Granted that the situations of Mr. Nixon and
Even according to the Government's figures, at least 126,500 persons are eligible
the war resisters are different though containing many parallels, for all the aliena-
for the program, but with one month remaining till its expiration only 3,200
have come forward. The breakdown is as follows: The Presidential Clemency
tion involved on both sides perhaps we should grant an amnesty in both cases
Board has about 8,700 convicted draft evaders eligible for clemency hearings;
and call it a draw." The next day, August 19, 1974, with pencilled-in remarks
to the V.F.W. convention, President Ford first publicly indicated his intention
SO far, only about 220 have applied. Only about 550 of the conservatively estimated
110,000 veterans with bad discharges have applied to the board. There are 12,500
to give clemency to the war resisters. Then on September 8, 1974, he proclaimed
deserters eligible for elemency through the Defense Department. So far, 2,283
a full, free and unconditional pardon for Mr. Nixon, also recommending "transi-
have applied. The Justice Department still has 6,300 cases open against draft
tion" expenses for him of $850,000. Finally, on September 16,1974, he inaugurated
evaders, although it is reviewing them and may throw some more out. Still,
the "earned reentry" program for resisters who would agree to serve 24 months
in the "lowest paying jobs possible." (This denouement was obviously not what
only 147 draft evaders have applied through the Justice Department for clemency.
Testimony at last weeks Senate hearings before Senator Edward M. Kennedy's
I had in mind in my Times article!).
Subcommittee on Administrative Practice and Procedure (held in Washington
Strengths
on December 18 and 19, 1974) revealed that there are some 40,000 to 70,000
1. The clemency program represents a first-step away from the closed-minded-
young men who are in limbo, suspecting they are in violation of draft law but not
ness and cold-heartedness of the Nixon administration's position on this issue.
knowing of their innocence because of illegal practices in their regard by the
President Nixon had said, early on, that he would be very generous in the granting
Selective Service System. I mentioned earlier that the estimate of 126,500 people
of amnesty after the Vietnam war was over. His position later hardened to the
eligible for clemency was a government estimate. However, some 2,000,000
point where he said that for him to grant amnesty would be the most immoral
persons may never have registered for the draft (a Federal offense) and so may
thing I could think of.
not be presently known to the government or included in its figures, but they
2. The Ford plan makes it possible for most draft evaders and deserters who
are still subject to prosecution until their 31st birthday under the present statute
are in exile, underground in the U.S. or already convicted to be more or less fully
of limitations. Additionally, there are 500,000 people with war-related bad
reconciled with the U.S. through a more or less predictable administrative process
discharges, but only one-fifth of them are eligible for elemency under the Ford
55-550 o 75 15
220
221
program. Then, of course, there are the legal draft evaders and deserters who have
nizational affiliations sit on CALCO's Steering Committee: American Civil
no need of clemency: the more articulate in petitioning their boards, those rich
Liberties Union Foundation; Central Committee for Conscientious Objectors;
enough to go to college, those with a high draft number, those with medical
Clemency Information Center of the National Council of Churches; Friends
discharges, etc.
Committee on National Legislation; Lawyers Committee for Civil Rights Under
6. There is a lack of even-handedness in assignment of alternative service.
Law; National Interreligious Service Board for Conscientious Objectors; National
As mentioned earlier, the guidelines for mitigating circumstances are different
Legal Aid and Defender Association; Public Law Education Institute; United
for each of the three clemency agencies (Justice Department, Defense Depart-
Church of Christ, Center for Social Action; Washington Council of Lawyers.
ment, and Presidential Clemency Board). In the Justice Department the local
U.S. district attorney fixes the length of service. At the senate hearings last
CALCO's purpose has been to coordinate the effort to provide legal counsel and
week it was alleged that the New York and San Francisco district attorneys
representation to individuals who are eligible for one or more of the clemency
were imposing nothing less than the maximum 24 months of service, regardless
programs.
of the circumstances. Senator Philip A. Hart said after reviewing the Justice
To accomplish this purpose, money has been raised from several sources; an
Department guidelines: hardship and ignorance seem to be the only way
office with full-time help and a toll-free telephone number have been set up; an
to get less than 24 months. Deserters have loopholes to receive an undesirable
initial, limited solicitation of the private bar was made and a pool of volunteer
discharge outside the clemency program or work through it but not perform the
lawyers has been established; a tentative program of educating the volunteer
alternative service. Draft evaders have no such loopholes and remain subject
attorneys by publishing legal materials and conducting seminars has been under-
to prosecution until completion of their assigned service Even if deserters com-
taken; and numerous meetings with officials responsible for administering the
plete their alternative service and have their undesirable discharge upgraded to
clemency programs have been held. In short, CALCO has quickly responded to
a clemency discharge, it may not be of much worth to them. It may carry with
your clemency programs by attempting to establish the mechanism by which
it a stigma as far as employers are concerned, it will certainly not make the
eligible individuals could be assured of adequate legal counseling and repre-
person eligible for veterans' benefits and it may not be subject to a real upgrading.
sentation.
Alternatives
However, as time has passed and experience has been gained in counseling
eligible individuals, it has become clear that there are certain fundamental flaws
1. Judicial possibilities.-Because of illegal procedures on the part of the
and shortcomings in the programs which are thwarting our efforts to provide
Selective Service System, many evaders would be better off going through the
effective counsel and representation. As a result, CALCO has decided to withdraw
courts. About 90 percent of those people referred by Selective Service for prosecu-
publicly our cooperation from the clemency programs. We will set forth in the
tion during the war were never indicted because of Selective Service errors. Of
remainder of this letter the specific defects in the programs which have compelled
those who were indicted, almost two-thirds had their indictments dismissed or
us to take this drastic action.
were acquitted. Last year, for instance, only a third of those prosecuted for draft
violations were convicted and their average sentence was only 14.4 months before
1. THE PRESIDENTIAL CLEMENCY BOARD
parole. In 1960 it was 37.3 months. Trial may be in a sense more risky, but at
least it assures the person of due process. The A.C.L.U. has stated: 'Most of
Representatives of CALCO have met on a number of occasions with representa
those who fall under the provisions of the "clemency" have better legal options
tives of the Clemency Board in order to arrive at some mutually satisfactory
outside the program than within it." I agree.
arrangement for the orderly, fair, and responsible processing of cases in a manner
2. Legislative possibilities.-Professcr Harrop A. Freeman of Cornell University
consistent with your avowed goal of national reconciliation. After careful analysis,
Law School has testified before the House Judiciary Subcommittee on Courts,
we have decided that there are five minimum requirements which must be satisfied
Civil Liberties and the Administration of Justice (March 11, 1974): "It can be
in order to make the activities of the Board meaningful:
fairly readily ascertained that the power to pardon is only in the President.
(1) civilian and military applicants must be granted full and unconditional
It is submitted that the power of anmesty belongs only to the United States
pardons for convictions related to war resistance;
Congress." Congressman Robert W. Kasternmeier, chairman of the above-
(2) the discharge offered to deserters who "earn reentry" by fulfilling their
mentioned House subcommittee, has indicated to me (in a letter of October 31,
alternate service requirement must be an Honorable Discharge instead of a
1974) that he intends to hold hearings early in 1975 on the clemency program.
"clemency discharge" which is in many respects the worst discharge any
Perhaps out of the recent Kennedy hearings, and the upcoming Kastenmeier
veteran could have; 2
hearings, will come the basis for a real amnesty through its proper executor, the
(3) opposition to the Vietnam war must be considered as a formal criterion
Congress.
for mitigation with respect to the length of alternate service;
Recommendations
(4) the standards applied by the Board in processing cases must be pub-
lished and the Board must give a written statement of reasons explaining the
As I said last March in testimony before the House Judiciary subcommittee,
disposition of each case; and
grace cannot be conditional, forgetting cannot be partial and mercy cannot be
(5) the procedures of the Board must be published and conform to accepted
strained. The only kind of clemency that can achieve the kind of healing repartria-
standards of due process-including the right of the applicant or his represent-
tion that we all seek is a nonjudgmental and nonpunitive one, one that neither
ative to appear before the Board.
exonerates nor condemns. The only kind of clemency that meets these specifica-
All of these points have been discussed with the General Counsel (and other
tions is a universal and unconditional amnesty. Most people think that there
staff members) of the Clemency Board. Not a single one of these suggestions has
has been an amnesty and that the problem is now solved. Such is not the case. I
been accepted or acted upon. While we understand that some procedures may
suggest that we not let the country-or the Congress-forget what amnesty
finally be published this week (after many cases have already been decided) and
really means.
that a handful of pardons will be meted out in the near future, we view these
1 Several of these organizations are committed to the achievement of a universal and unconditional
CLEMENCY/AMNESTY LAW COORDINATING OFFICE,
amnesty for all those who came into conflict with the law because of opposition to the Vietnam war. These
Washington, D.C., November 25, 1974.
groups, and a great many others in our country, were and are dissatisfied with the assumptions and concep-
THE PRESIDENT,
tion of the clemency programs established on September 16. However, without yielding in their advocacy
of what they believe to be in the best interest of American society, they are nonetheless assisting CALCOin
The White House,
its efforts SO that the interests of the war resisters might be furthered where possible by the process of furnish-
Washington, D.C.
ing legal counsel and representation to those war resisters who might wish to examine their options within
the clemency programs.
DEAR MR. PRESIDENT: The purpose of this letter, which is written on behalf
The views set forth in this letter are those of CALCO and do not necessarily reflect the policy of any other
of the Clemency/Amnesty Law Coordinating Office ("CALCO"), is to relate to
organization. 1 There is no justification for requiring an applicant to sacrifice up to two years of his life in alternate service
you our views, recent experience, and deep concern with respect to the various
in order to procure 8 "clemency discharge." In addition to branding the holder a "war time traitor or cow-
clemency programs announced on September 16, 1974.
ard" in the eyes of many, the clemency discharge, unlike other types of less than honorable discharges, may
CALCO is an ad hoc group of concerned individuals which was formed shortly
preclude any future chance of upgrading by the Discharge Review Board.
after your September 16 announcements. Individuals with the following orga-
222
223
responses to be belated and of minimal importance in view of the grave defects
"obligations as a citizen remain unfulfilled," while most of these individuals
which continue to go unremedied.
believed, at great risk and pain to themselves, that their obligation as citizens
Our decision to withdraw cooperation from the clemency programs has not been
was to refuse to participate in what they believed to be an immoral and unlawful
reached easily. However, in view of the unwillingness or inability of the Board to
war. The pledge, in other words, forces many of these young men to lie to the
respond satisfactorily to the five points discussed above, we are compelled to the
government if they expect to participate in this clemency program.
conclusion that we cannot responsibly coordinate efforts to represent clients
The military Joint Alternate Service Board ("JASB") at Fort Benjamin
when neither the procedures nor remedies are known in advance of the ex parte
Harrison is composed of four career field-grade officers, each representing one of
decision by the Clemency Board. We refuse to grace what is basically a "role of
the military services. Their sympathies are predictably not engaged by the
the dice" with the appearance of legal process. In short, CALCO declines to play
concerns of deserters and war resisters. There is no enlisted person on the Board,
a role in fostering an unsound, unstructured, and unfair system which denies the
nor is there nonmilitary participation in its deliberations. The proceedings of the
most basic elements of due process.
JASB suffer many of the same defects outlined earlier with respect to the Clemency
Although our involvement has centered on the Clemency Board, we have, by
Board. For example, neither the applicant nor his counsel is given the right to
necessity, also dealth with those portions of the clemency programs administered
appear before the Board. Similarly, the JASB gives no accounting of the reasons
by the Department of Justice, the Department of Defense and the Selective Serv-
for its particular disposition of individual cases with respect to the length of
ice. With respect to all these agencies, we have encountered practices and defi-
alternate service imposed.
ciencies which, in our view, contradict your announced objective of achieving
The Department of Defense has acknowledged publicly that the pledge to do
national reconciliation and which preclude effective counseling and representation
"alternate service" by persons processed by the JASB is probably unenforceable,
of many individuals eligible for one or more of the programs.
except in those rare instances where it might be possible to show fraudulent intent
not to do the alternate service at the time the pledge was signed. Nevertheless,
2. THE DEPARTMENT OF JUSTICE
this threat of prosecution keeps people away from the clemency programs, and
impels applicants to make a record of "good faith" intent to fulfill their pledge.
In attempting to work with the Department of Justice we have found one
In other words, the present system contains an open incentive for applicants to lie
inexplicable and insurmountable obstacle: the prosecutive guidlines issued to all
to the government.
U.S. Attorneys instructing them to use the clemency programs to elicit admissions
4. SELECTIVE SERVICE
on which to base prosecutions of men who, before September 16, were not the sub-
ject of investigation or indictment. In addition to posing a clear violation of the
The aspect of the clemency program designated "Reconciliation Service,"
constitutional right against self-incrimination, this policy is at direct odds with
which is administered by the Selective Service System, is defective in several
your stated goals of reconciliation and putting the war behind America. It also
major respects. First, it is conducted by the Director of Selective Service under
signals to those who looked upon your proclamation as a magnanimous and open
terms of a Presidential delegation of power by which you formally renounce any
offer, that they cannot trust the Department of Justice to carry out your commit-
continuing authority over the alternate service program. This unusual abdication
ment. To those of us with the responsibility of providing legal representation
of influence is unwise in our judgment because the elemency program is conducted
under the program, it has another consequence-so long as this prosecutive
on behalf of the President and should reflect his oversight. This is especially the
directive stands, it is impossible to compile a complete and accurate list of
case because Selective Service, whatever its technical ability, has earned justi-
those eligible for clemency under your programs. Without such a list, the status
fiable criticism in the past for arbitrary and inequitable practices in managing the
of literally thousands of potential returnees is not clear, and it becomes extremely
Vietnam-era alternate service program. As evidence that this problem continues,
difficult to induce or advise their return.³ It is this uncertainty more than anything
it now appears that Selective Service is following standards regarding acceptable
else that has kept men at bay who might otherwise be entitled to resume normal
work assignments which have previously been held invalid by the Federal courts.
lives, either under your programs, or free of an unfounded fear of criminal liability.
Another action by Selective Service which we consider to be particularly mis-
The Attorney General has recently taken the commendable step of directing
guided is the failure to promulgate for public comment the regulations establishing
a critical review of every outstanding draft file. This process should result in a
the Reconciliation Service. This practice of barring the interested public from the
revised roster of those eligible for the programs by reason of being presently
rule making process has been a prime source of difficulty for Selective Service in the
under investigation or indictment. It is nonetheless our opinion that this action
past. It conflicts with the express policy and terms of the draft statute, the
will be insufficient to restore confidence in the program unless the Department of
Administrative Procedure Act and the Federal Register Act. By failing to permit
Justice now completes and closes the list of those eligible by expressly withdrawing
comment on these regulations, Selective Service has rekindled doubts about its
its instruction to prosecute Vietnam-era draft violators who have not at this
adequacy to the task of reconciliation, denied itself the benefit of constructive
point been brought under investigation or indictment. If this is not done, it is
criticism, and increased the likelihood that the Reconciliation Service scheme will
probable that fewer than 15 percent of those eligible for the Department of
be successfully challenged in court on the grounds that it was invalidly
Justice's program will enter it before January 31, 1975, leaving thousands subject
promulgated.
to prosecution after that date. We cannot believe that you can wish or accept
The fact that only a miniscule percentage of the eligible individuals have SO far
this result.
applied under the clemency programs dramatically affirms the unsatisfactory and
3. DEPARTMENT OF DEFENSE
unacceptable nature of these programs. Without an immediate restructuring of
the programs, your goals of reconciliation and healing will be completely frustrated.
Problems with the clemency program administered by the Department of
Furthermore, the present programs will be remembered as the greatest failure of
Defense have arisen from two separate sources: first, on the "loyalty oath"
any such clemency program in the history of this country.
required of unconvicted military applicants; and second, on the composition and
CALCO has decided to take the drastic step of withdrawing our offer to coordi-
procedures of the Joint Alternate Service Board.
nate the provision of legal counsel and representation before the Clemency Board,
The "reaffirmation of allegiance and pledge to do alternate service" that
only after doing our very best to make these programs work in a fair, equitable
unconvicted military applicants must sign is deeply offensive to the sensibilities
and meaningful manner. By so withdrawing, we recognize that those programs
of the war resisters. The pledge requires a "reaffirmation of allegiance" from
are likely to be administered in an even more chaotic and unsatisfactory manner-
persons who have not and cannot be charged with disloyalty to their country,
if that is possible-than they have been administered to date. Nevertheless, faced
but rather-at the worst-with a different interpretation of what allegiance and
with the grievous defects outlined in this letter, CALCO has no other responsible
loyalty demanded in the context of the Vietnam war. The pledge requires that
alternative. We do, however, stand willing to renew our offer of full cooperation
they affirm their willingness to support, protect, and defend the Constitution of
and assistance in putting the bitterness and divisiveness caused by the Vietnam
the United States, even though some of them may be conscientious objectors
war behind America, if the flaws discussed in this letter are satisfactorily remedied.
who will find the oath "to protect" violative of their deeply held moral and
Sincerely yours,
religious beliefs. Worst of all, the pledge requires an admission that the applicant's
STUART J. LAND,
Chairperson, CALCO Steering Committee.
3 CALCO requested such a list and related documents from the Department of Justice under the pro-
visions of the Freedom of Information Act of November 4, 1974. No response has been received as of this
date.
225
224
INTRODUCTORY NOTE
FINAL
The Committee gratefully acknowledges the major
contribution made by John Kernodle, a second-year law student,
in the preparation of this report. Three sources consulted
in the course of the preparation deserve special mention.
One was the unpublished background paper on amnesty prepared
for the Committee on Federal Legislation of the Association
of the Bar of the City of New York by a subcommittee
consisting of Charles L. Knapp, chairman; Peter Fleming;
Bruce Rabb; and Brenda Soloff. The other two were papers
prepared as part of this effort for the Committee on
Military Justice and Military Affairs under the supervision
of Gregory Pressman of the Council of New York Law Associates.
The two were incorporated in condensed form in this position
AMNESTY:
paper. One was "History of Amnesty" by Alfred. Litman, and
the other was "Amnesty: A Blanket Amnesty or an Amnesty
A Position Paper
Review Board" by Alan B. Katz.
Prepared for the Committee on Military Justice and Military
Affairs of the Association of the Bar of the City of New
York by the Committee's Task Force on Amnesty
David N. Brainin
Thomas M. Conerford
Joan E. Goldberg
Kenneth H. Hirsch
Peter Weiss, Chairman
-1-
227
226
The unresolved question of amnesty for Americans
CONTENTS
who violated the law in the course of their refusal to
perticipate in the war in Viet Nam is one of the most
HISTORY
troublesome legacies of that war. As a direct or
The Meaning and Tradition of Amnesty
1
indirect consequence of their opposition to the war,
Amnesty and United States History
2
tens of thousands of Americans are living under the
AMNESTY TODAY
ever-present cloud of a less than honorable discharge,
The Arguments for and against Amnesty
4
a criminal record, self-enforced exile, or the threat
PENDING LEGISLATION
of criminal prosecution.
Legislative Proposals for Amnesty
10
Amnesty is an emotionally laden issue. Feelings
COVERAGE
on all sides of the question run deep. It is the respon-
Who Should Be Included?
11
sibility of those dedicated to the rule of law to
TERMS
undertake a dispassionate examination of the issues
What Kind of Amnesty Should Be
involved and to give perspective to the larger public
Granted?
17
debate.
LEGALITY OF THE WAR
The Legality of the War
22
The Meaning and Tradition of Amnesty
CONCLUSION
Amnesty is an old and hallowed legal concept. The
Conclusion and Recommendations
24
word 1s derived from the Greek term "amnestia," meaning
FOOTNOTES
1
oblivion, forgetfulness, or an intentional overlooking.
Footnotes
27
It comes from the same root as the word "amnesia."
APPENDICES
Amnesty is an act of the legal sovereign voluntarily
Appendix A: Amnesties in American
History
A-1
extinguishing certain criminal acts against the state, and
2
Appendix B: Amnesty Legislation
B-1
it almost always involves political offenses. Amnesty
refers to the remission of punishment with respect to a
named class of offenders, without regard to their personal
3
identities or individual circumstances.
The first recorded act of amnesty appears to have been
performed by the Athenian, Thresybulus, in 403 B.C. After
-11-
-1-
228
229
expulsion of the Tyrants from Athens, Thrasybulus forbade
except in cases of impaachment 11 From George Washington
any punishment of citizens for their past political acts
to Harry S. Truman, this authority has been used to grant
and exacted an oath of amnesty to eliminate civil strife
amnesty--the words "pardon" and "amnesty" often being used
from legal memory. 4 In Biblical times, a form of amnesty
together or interchangeably, although technically pardon
occurred every seventh year. Old grudges were forgotten
refers to individual rather than collective grants of
as part of a cyclical celebration. 5 And, in the days of
12
reprieve.
the Roman Empire, numerous amnesties were granted to
During the Civil War period (1862-1869) Congress, as
6
political and military opponents.
well as the President, participated in granting amnesties.
In more recent times, many countries have seen fit
Legislation was passed authorizing amnesties and then later,
13
to grant amnesties as means of reconciliation. France,
during the administration of Andrew Johnson, repealed.
Italy, Belgium, and Canada were among the states granting
The Supreme Court held that the President's authority to
amnesty to political prisoners after World War I. 7 With
grant amnesty rested in Article II Section 2 of the Consti-
the end of World War II, Belgium, France, Norway, Germany,
tution and, therefore, could not be withheld by the
14
Japan, the Netherlands, Bulgaria, Greece, India, Italy, the
Congress
U.S.S.R., and Yugoslavia were among the nations that granted
It is currently the position of the Office of the
8
amnesties.
Attorney General of the United States that the power to
15
During the occupation period following World War II,
grant amnesties belongs exclusively to the President.
General Lucius Clay proclaimed amnesty for more than one
While the scope of Congress' pardoning power is less
million German political offenders, and General Douglas
clear than that of the President's, two United States
MacArthur similarly granted amnesty to almost a million
Supreme Court cases appear to confer an amnesty power
9
political prisoners in Japan.
upon the Congress.
More recently, the French, after resolution of the
In 1893, Congress enacted an amnesty that granted
Algerian conflict, granted amnesty to most of those who
immunity from prosecution to all witnesses testifying
10
16
had illegally resisted the government's policy.
before the Interstate Commerce Commission.
In Brown V.
17
Walker
the Supreme Court held that this act did have
Amnesty and United States History
the full effect of an amnesty. The Court stated that
The United States stands within this tradition of
although the Constitution vests the pardoning power in the
nation states that have granted amnesty. Although the
President; "this power has never been held to take from
word amnesty 1s not used in the United States Constitution,
the Congress the power to pass acts of general amnesty."
that document does give the President power "to grant re-
In addition, the Supreme Court has upheld, in The
18
prieves and pardons for offenses against the United States,
Laura,
the remission of a fine by the Secretary of the
-2-
230
231
Treasury pursuant to Congressional authorization. The
draft-age men, this opposition placed them in an extremely
Court held that the President's power to pardon offenses
difficult position. They were called to serve in the military
and remit penalties was not exclusive and that Congress
and fight, kill, and risk death in a war that they believed
had frequently, and properly, authorized subordinate
to be wrong. Often they were left with no alternative but
officials to remit fines and penalties. "Since the remission
to disobey the law or to disobey their own consciences.
of 8 fine is nearly equivalent to a pardon, if Congress can
Some young Americans served honorably in the military,
delegate government officials the power to remit fines, it
most were never called to serve, and some felt that they had
seems to follow that Congress itself has the power to grant
19
no honorable alternative but to refuse to serve. This last
pardons
category--those who, in conscience, refused--includes those
Amnesties granted in the United States have varied
at whom an amnesty is primarily directed. This includes
from broad, sweeping ones such 88 those after the Civil War
persons who in conscience refuse to participate in all
to narrow, restrictive ones such 88 Calvin Codlidge's restor-
wars and also those who in conscience refused to be a part
ation of citizenship to some 100 men who deserted after the
of this particular military effort (a position sometimes
Armistice had been signed but before the fighting on the
referred to as selective conscientious objection). It also
front had ceased in World War I. Most American amnesties
includes both those with clearly articulated explanations
have been conditional ones, with the conditions ranging
of their. positions and those who, although less skillful
from oaths of allegiance for participants in the Whiskey
in expressing themselves, also came to deeply oppose partici-
Rebellion of 1794 to return to active duty for deserters
pation in the war through their personal experiences with the
during the War of 1812. A summary of the dates and terms
Selective Service System or the military.
of United States amnesties is included as an appendix to
Pressure for granting amnesty to them has come from
this report. (Appendix A)
American religious bodies, 20 peace and liberties or-
ganizations 21 members of Congress, 22 and former government
The Arguments For and Against Amnesty
officials who served in the Johnson and Nixon administrations
Amnesty is now being urged for those who incurred or
during the war years. 23 Their arguments for amnesty, while
who remain in jeopardy of incurring criminal penalties or
diverse, contain several important common threads: the war
less than honorable military discharges because of their
caused great divisions among the American people, 1t is in
deep-sested, often morally based, opposition to the United
the national interest to attempt to heal these divisions, and
States war effort in Indochina. During the decade of overt
the nation has a special responsibility to the casualties of
American military involvement, an increasingly large number
the war (to disabled veterans; to families of those who
of Americans came to oppose the role of the United States
died; to the Indochinese who have suffered for so long; and
in Indochina. For thousands of young persons, especially
-5-
232
233
to the opponents of the war who remain in exile, carry prison
return to the full rights of citizenship without any penalty,"
records or less than honorable discharges with them, or face
Tarr testified, "then it would be difficult to justify the
the risk of potential prosecution). Amnesty 1s, therefore,
continuation of inductions. Our youth could not understand
seen by its proponents as a necessary part of the whole
29
such opposing policies.
process of reconciliation that is necessary after particularly
A similar threat to the military itself is seen by
divisive national conflicts, such as the United States war
Major General Leo Benade, who represented the Department of
effort in Indochina.
Defense at the Senate hearings. He opposed amnesty for deserters,
The press for amnesty has met with strong resistance
saying "the deserter's absence has a direct impact on the
from established veterans' groups. 24 the Department of
Armed Forces, and under certain circumstances such as combat,
Defense, members of Congress, 25 and national government
perhaps a critical impact The deserter by his absence
officials including President Nixon and former Vice President
not only avoids his military obligations, he also violates the
26
Agnew.
oath he took upon entry into military service, and he violates
The position of those opposed to amnesty is summed up
military law. 30
in the remarks of President Nixon at a news conference in
These concerns about the impact of amnesty upon the rais-
late 1972:
ing and maintaining of the armed forces of the country, are
coupled by most amnesty opponents with a concern for affording
Those who served paid their price. Those who deserted
must pay their price, and the price. is not a junket in the
proper respect to those who served and to their families and
Peace Corps, or something like that, as some have suggested.
The price is a criminal penalty for disobeying the laws of
loved ones. Presenting the position of the American Legion
the United States. If they want to return to the United
States, they must pay the penalty. 27
at the Senate hearings, John H. Geiger, then national
commander of the legion, asked:
Amnesty opponents are firm in their position that
amnesty should not be granted because one must obey the law
How can amnesty be explained to parents, wives,
children--all those who have lost a son, a husband, or
and, if one does not, then one should expect no relief from
a father in their country's service? How can we excuse
ourselves to the prisoners of war, the missing in action,
its sanctions at some later time. Those against amnesty
or to their suffering families for offering amnesty?
Futhermore, what would be the effect on the morale of our
assert that this is especially true in such a sensitive and
armed forces if amnesty were granted to those who have
28
violated the law and their oath. of service by turning their
important area as national defense.
backs and fleeing their country? In our opinion, it could
only badly undermine that morale and cheapen the value of hon-
Curtis W. Tarr, former director of the Selective Service
orable service to one's country-at the very moment these
values are most in need of strengthening. 31
System, testified during the 1972 Senate hearings on amnesty
that a grant of amnesty would place a major burden on any
Besides, amnesty opponents assert, justice can be
present or future draft. "If amnesty made possible the
done without a grant of amnesty since the courts, the
military, and the governmental agencies involved can be
-6-
-7-
234
235
trusted to exercise considerable discretion in
They have spoken out in favor of amnesty, insisting that
each case as it comes up, including requests for pardons by
their own suffering will not be lessened by forcing others
those who have already served prison sentences. "Americans
to continue to suffer as well.
are not a cruel or vindictive people," according to Repre-
Amnesty proponents are firm in asserting that normal
sentative John P. Murtha (R-Pa.), a Viet Nam veteran who
military and civilian justice procedures are insufficient
opposes amnesty. "If the draft evaders and deserters turn
to provide relief to those who would be covered by a grant
themselves in for trial, they will find no eye-for-an-eye
of amnesty. They cite the uneven treatment that deserters
vengeance being inflicted upon them. They will find instead
who have returned have received, 37 and the widely documented
a system of justice that emphasizes, whenever it can,
inequities of the Selective Service System.
38
"
32
clemency.
In response to the concern being voiced over the size
Amnesty opponents also note that no reprieve in the
and scope of a Viet Nam-era amnesty, proponents note that
past, with the possible exception of the ones after the
each grant of amnesty must be designed to meet the needs
Civil War, has been as sweeping as the one now proposed.
33
of the specific situation to which it is a response. They
It is impossible to assess, therefore, what the extent of
further note that the Civil War was followed by the most
the impact from such an action would be, and, amnesty opponents
comprehensive acts of amnesty in United States history,
conclude, it would be unwise to take such a risk.
ending eventually with a universal and unconditional amnesty
The anti-amnesty position raises serious questions about
for all rebels except the most senior members of the Con-
the consequences of a grant of amnesty both because of the
federate government and military command. The dissension
importance of the issues raised and because these views are
which has swirled around the United States war effort in
so deeply held by a significant number of Americans.
Indochina, amnesty proponents assert, was also particularly
In response, those favoring amnesty note that both in
deep-seated, probably the most intense ever generated by
this country and elsewhere grants of amnesty have not, by
American military action abroad. Surely, they conclude, it
themselves, proven to be major obstacles to military prepared-
was intense enough to justify a broad amnesty.
39
ness nor to a nation's ability to raise or maintain a disciplined
The central anti-amnesty argument, that based on the
34
standing army.
Amnesty proponents also assert that an
rule of law, is challenged by the serious and persistent
amnesty now should be only one part of a larger response to
questions about the legality of the Viet Nam war and of its
all of those whose lives have been affected by the U.S. war
conduct that have been raised, to an extent not applicable
effort in Indochina.
35
Significantly, a number of Viet Nam
40
to any previous amnesty situations in United States history.
36
veterans and gold star mothers have adopted this position.
Further, amnesty is itself a legal act sanctioned by centuries
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-9-
55-550 0 75 16
236
237
of legal tradition. It is an example of the magnanimity of
46
various forms of conditional and less-inclusive amnesty
41
which the law is capable.
Resolutions introduced by three Representatives oppose
amnesty altogether, expressing the sense of Congress that
Legislative Proposals for Amnesty
no amnesty, reprieve, or pardon should be granted to draft
As part of the controversy over annesty a number of
refusers and deserters.
47
bills and resolutions have been introduced in the Congress
All of the legislation that has been proposed favoring
and others are currently in preparation. 42 All of those
amnesty, wheter broad or narrow in scope, has had to address
which have been introduced are presently in committee.
two questions: (1) who should be included, and (2) what
(For a listing of all of the bills and resolutions, along
kind of amnesty should be granted?
with the names of those sponsoring them and a brief descrip-
tion of the provisions of each, see Appendix B.)
Who Should Be Included?
In the House of Representatives, where the bulk of
The following groups would be covered by one or more
the proposals have originated, hearings were held in March,
of the bills currently pending in the Congress.
1974, by the House Committee on the Judiciary's Subcormittee
--Draft Refusers and Violators. According to the
on Courts, Civil Liberties, and the Administration of
Selective Service System, 7,933 men have been convicted by
Justice.
43
Because the full Judiciary Committee is now
the federal courts of draft violations during the Viet Nam
devoting its time to the consideration of the impeachment
48
era.
Department of Justice figures indicate that there
of the President of the United States, the subcommittee's
are also 8, 893 men who are currently deemed liable for
report on amnesty has been postponed until after the
49
prosecution.
The Selective Service System has referred
committee finishes its consideration of the impeachment
to the Justice Department the cases of over 30,000 additional
issue.
men that it lists as draft violators. In addition, the
Only one amnesty measure 1s currently before the United
Selective Service System acknowledges that thousands never
States Senate. Although Senate hearings on a similar measure
registered for the draft and, therefore, have no present
were held in 1972 by the Senate Committee on the Judiciary's
record of delinquency, but would be subject to prosecution
Subcommittee on Administrative Practice and Procedure, no
if their violations come to the government's attention.
Senate hearings have been held during the current session
Further, there are an unknown number of individuals whose
44
of the Congress.
files lie unexamined in local draft board offices and who
The bills and resolutions that have been submitted fall
would be found in violation of the draft law if their files
into three categories. One set of bills provides for a general
were reviewed. These violations range from conscious acts
and unconditional amnesty. 45 Several other bills provide for
designed to avoid induction to technical violations such
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-11-
238
239
50
as failure to inform the board of a change of address.
themselves, the American Civil Liberties Union Foundation's
--Deserters. According to the Department of Defense,
Project on Amnesty estimates that there are currently
51
there are some 30,000 deserters "at large.
They are
30,000 to 40,000 resisters and deserters in exile (most
either in exile abroad or they live underground in the
of them in Canada, with a few hundred living in Sweden,
United States. It has been the experience of groups offering
54
England, France, and elsewhere).
counseling services to deserters that many of those who have
Persons with Court-Martial Convictions. Almost
fled the military did not have the benefits of an advanced
550,000 men and women were convicted by military courts
education nor of much reading and discussion about the merits
of offenses that would not be crimes in a civilian context:
of the war in Indochina prior to their period of military
over half of them for absence without leave, about one-tenth
service. It was not until after they were in the military
for disobedience, others for conduct bringing discredit
that they found they could not participate in the war effort.
upon the armed forces, and the like. The proportion of
Some saw active and honorable front-line service in Viet Nam
minority-group GI's and GI's from poorer and less educated
only to begin, at a later stage, to question the war and
segments of American society who were court martialed was
their involvement in it. 52
especially high.
55
It should be noted that absence without leave does not
--Persons with Other Than Honorable Discharges. Approxi-
become desertion unless certain other elements are present,
mately 450,000 Viet Nam-era veterans have other than honorable
such as intent to remain away permanently or intent to
discharges. Such discharges were given either "administra-
53
avoid hazardous duty or to shirk important service.
It
tively"
is highly unlikely that any Viet Nam-era member of the armed
"general" and "undesirable" discharges--or as
forces absent without leave from his unit and living in
the result of court martials "bad conduct" and "dishonorable"
exile or underground would not be subject if apprehended to
discharges.. In numbers greatly disproportionate to their
a charge of desertion.
presence in the general military population, men and women
--Exiles. Unlike other categories of amnesty recipients,
from minority communities and from the less well-educated
this one is by its very nature numerically hard to identify.
and poorer segments of society received less than honorable
It contains both draft refusers and deserters who are living
56
discharges.
abroad. General estimates of their numbers vary widely.
-Civilian Protesters and Resisters. During the years
After a detailed study of the statistics compiled by U.S.
of the war in Indochina, hundreds of thousands of Americans
government agencies, other governments, religious groups
protested the war in demonstrations and other acts of resistance.
working with exiles and their families, and the exiles
Thousands were arrested on charges ranging from the minor,
such as disturbance of the peace, to the serious, such as
conspiracy and violation of the espionage acts. 57
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-13-
240
241
Once these categories have been identified, the task
who have not yet been charged or brought to trial.
remains of considering whether all, some, or none should
Deserters, those favoring amnesty argue, often reached
be included in a grant of amnesty. There are strong argu-
the same conclusions about the war as draft violators. Once
ments for including each of these groups, with three of
in the military, however, they faced even less favorable
them-draft refusers and violators, deserters, and exiles--
prospects for having their appeals for discharge or conscien-
being closely interrelated.
tious objector status heard. Some deserted without even
Men who committed violations of the draft laws are
knowing that such options were available to them. 64 Amnesty
included in all of the amnesty proposals currently before
proponents assert that to deny deserters amnesty while
the Congress. Acts of conscience against the requirements
granting it to draft violators would be clear discrimination
of the Selective Service System were among the earliest
on the basis of class and race. Just as the burdens of the
expressions of opposition to the Viet Nam war. 58 With the
draft and of combat fell disproportionately on the poor,
shift to a "volunteer army" came the acknowledgement that
less educated, and non-white segments of American society,
65
the draft had been an inequitable, inflexible, and unjust
so too is this imbalance represented among deserters.
means of military recruitment. 59 Throughout the 1960's,
Exiles are, in reality, one sub-group within both the
local draft boards re-classified registrants as a punitive
draft violators and deserter categories. They are men-
measure for acts of protest against the war, a Selective
tioned specifically in some amnesty proposals because their
Service practice that was ruled illegal after January 31,
acts of conscientious resistance are so obvious and because
1970, by the United States Supreme Court in Gutknecht V.
they, along with their families and loved ones here in the
United
States. 60 Likewise, until the cases of Seeger V.
United States, live under especially strained circumstances
United States 61 and Welsh V. United States 62 broadened the
since they cannot return home without risking prosecution
definition of conscientious objection as it was interpreted
and already suffer one of the most severe forms of punishment
by the Selective Service System, many local draft boards
conceivable. 66 In addition, for the few hundred men who
refused to grant conscientious objector status except on
have renounced their U.S. citizenship, a special grant of
the narrowest, most traditional grounds. 63 Proponents of
amnesty would be necessary in order for them to regain
67
amnesty assert that, as a result of these practices, it is
it.
possible that many of those who were found guilty of draft
Court-martial convictions and less than honorable
violations would never have had their futures placed in such
discharges are also often grouped together. Again, the
jeopardy if the laws had been interpreted more broadly or
less educated and members of racial minorities constitute
if a lottery system had existed earlier. That uncertainty
a disproportionately high percentage of the men in these
also persists for those who may have been in violation but
categories.
68 In regard to court-martial convictions,
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242
243
amnesty proponents note that they came about during a war
that was widely opposed, that they were received by men
war protesters. They note that draft violators and deserters,
who would not have been in the military in many cases
including exiles, are those who were most directly and
except for the inequities of the draft, and that many were
obviously damaged by the collision of conscience and the
received for offenses that would not have been considered
72
criminal if committed in a civilian context. 69 In the
call to serve.
Those who oppose amnesty altogether reject the claims
case of less than honorable discharges, men are left
of all of the groups and insist that it is in the national
carrying severe disabilities for the rest of their lives,
interest to continue to require that those who ran afoul
including loss of veteran's benefits, disqualification
73
of the law live with the consequences of their actions.
from civil service and other employment, and the inability
70
They assert that the law leaves adequate room for compassion
to get licenses and other forms of government certification.
and that acts of pardon are available, on an individual
Civilian protesters and resisters are also included
basis, to those true conscientious objectors who failed to
in some amnesty proposals on the grounds that such
convince the appropriate military or civilian authorities
principled, nonviolent disobedience and resistance to
of the worthiness of their stands. Further, anti-amnesty
the war in Indochina should not carry criminal penalties
71
advocates assert that many, perhaps most, of those included
and life-long disabilities.
in the groupings above would fail to meet the traditional
If a Viet Nam-era amnesty is truly to be an act of
tests of conscientious objection and, therefore, should
"intentional overlooking" of a "named class of offenders,
not even be considered for amnesty.
without regard to their personal identities or individual
circumstances,' some amnesty proponents assert, it would
What Kind of Amnesty Should Be Granted?
be an arbitrary and an incomplete act of overlooking to
In addition to the decision as to whom should be
include some of those who have resisted, who have been
penalized, or who face possible prosecution while excluding
covered by a grant of amnesty, two further choices are
required:
others.
(1) Should the amnesty be general or selective?
Some amnesty proponents disagree. While they would
(2) Should the amnesty be unconditional or granted
include draft violators and, usually, deserters in a
only in return for sometaction by the recipient?
grant of amnesty, they would not include military personnel
Each decision to grant amnesty is a unique act by a
who received less than honorable discharges and court-
74
sovereign.
This is clearly evident in the varied types
martial convictions for offenses that would not be crimes
of amnesty that have been granted in the history of the
in a civilian context, nor would they include civilian
United States. 75 Each time amnesty has been proclaimed
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244
245
decisions as to whom it shall affect and how it shall be
to screen applicants and evaluate motivation will simply
done have had to be made afresh, tailored to meet the needs
perpetuate some of the inequities that created refusers
of that particular time and place. Current proposals
and deserters in the first place, namely that the
before the Congress for a Viet Nam-era amnesty reflect the
articulate and the well educated will be able to make the
variety of alternatives available.
process work for them while the poorer and lesser educated
81
Some of the measures support a general, inclusive
will continue to be excluded from meaningful consideration.
amnesty,
76 while others authorize the granting of amnesty
Supporters of a general amnesty assert, further, that moti-
by a review board whose task it would be to determine
vation, especially in times of stress, is seldom pure and
eligibility on a case-by-case basis, much the same way
unambiguous, and, in many cases, men will be reconstructing
draft boards determined the eligibility of conscientious
views and feelings upon which they acted as long as a
82
objector applicants. 77
decade ago.
Those who support a review procedure assert that such
They also acknowledge that a general grant of amnesty
a process is necessary to screen out those who did not act
would cover some persons who did not act out of conscience,
out of reasons of conscience. 78 This requires the measur-
including those who merely sought to avoid the hardship
ment of motive and, implicitly, suggests that only a limited
of military service or who actively supported the efforts
number of persons will actually qualify for amnesty. 79
of those fighting on the other side in Indochina. But,
Proponents of the review board approach note that this was
amnesty proponents assert, including such persons would
the process employed by President Truman in the aftermath
be within the spirit of "forgetting" that amnesty connotes
of World War II. 80 As in that situation, only those who
and would clearly be preferable to a procedure that would
could meet traditional conscientious objector standards
exclude some who did act conscientiously but who, for
(morally based opposition to participation in all war)
whatever reason, might fail to convince review board- of
83
would be granted amnesty by a Viet Nam-era review board.
that fact.
Conceptually, a case-by-case weighing of individual
decisions runs counter to the very nature of amnesty as a
84
blanket grant to an entire class of offenders.
Pragmati-
cally, the experience with an amnesty review board after
World War II suggests that such a course would be difficult
under present circumstances. The Truman review board had
only 15,805 cases with which to deal (of which only 10
Those favoring a general amnesty insist that attempts
percent received a recommendation for amnesty), 85 while
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246
247
the daily fear that their pasts will catch up with them.
a Viet Nam-era amnesty would affect possibly fifty times
86
Many have received and served prison sentences or possess
that number.
Even if adequate funds and staff were
less than honorable discharges that they have had to carry
made available, this could mean that the board would, in
with them as they have sought employment and normal
order to give a fair and impartial hearing to each applicant,
acceptance by society. Many more suffer permanent estrange-
be hearing and reviewing cases well into the next decade.
ment from parents, loved ones, and former friends and exist
This could force upon an applicant the difficult task of
in circumstances that make it impossible for them to live
trying to convince a board in 1980 of the sincerity of
91
normal lives.
his acts in 1964 and would leave many applicants without
It is also necessary to remember, advocates of uncon-
effective recourse for too long a period.
ditional amnesty note, that unlike most previous wars, the
The other major area of disagreemnt among those
Viet Nam war called only a relatively small percentage of
advocating amnesty is over whether the grant of amnesty
young Americans to the colors. 92 As a result of student
should be conditional or unconditional. Those favoring
and occupational deferments, conscientious objector status
conditional amnesty predicate the granting of amnesty on
for the more articulate and traditional in their views,
an individual's willingness either to complete military
and the lottery system during the last years of the war
service or to engage in some alternate form of public
most young Americans never faced military service during
service, such as in VISTA or the Peace Corps, for a
93
87
the Viet Nam era.
specified period of time, usually two years.
Such
In response to the charge that the American public will
service is necessary, they argue, to provide some form of
88
not accept amnesty unless it is coupled with requirements
redress for the violations of law that have occurred.
for further service to the country, proponents of uncondi-
Further, an alternative service requirement tests the
tional amnesty assert that since the signing of the Paris
sincerity of those eligible for amnesty and offers a
"proof" of love of country. 89 Such a service requirement
agreements and the return of U.S. soldierssand war prisoners
there has been a steadily growing openness to amnesty for
is necessary, they also insist, in order to make the whole
94
draft
violators
and
deserters.
Although
still
not
over-
matter of amnesty more palatable to many Americans who would
whelming, this growth suggests toathe supporters of uncon-
otherwise oppose it, and it is in keeping with the pattern
90
ditional amnesty that what may be needed to win acceptance
of most past U.S. amnesties.
from the American public at large is not an amnesty with
Those committed to an unconditional grant of amnesty
conditions attached but, rather, the strong advocacy of
assert that the persons who would be eligible have already
95
amnesty by the President or by a majority of the Congress.
"paid" a significant price for their decisions. They have
Questions of who should receive amnesty and on what
lived underground or in exile for as long as a decade with
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248
249
terms are placed in sharper relief when seen in the light
the legality of the war under the Constitution to be a
of the debate which has raged over the legality of the
non-justiciable political question, the Supreme Court
United States war effort in Indochina.
has consistently refused to grant certiorari in at least
sixteen cases raising this issue.
101
The Legality of the War
Yet, at one time or another, at least five of the
From its very outset, the U.S. involvement in the
members of the Supreme Court indicated that they thought
war in Indochina evoked strong opposition from some
the court should address the issues on their merits.
102
segments of American society. As the war grew in size
96
To recognize that there was, and that there remains,
and scope, this opposition also expanded.
The conflict
considerable disagreement within the legal community over
deeply divided the American people and forced millions
the legality of the war is not to assert that only those
of young men to choose either to participate in the war
who believe that the war was illegal favor amnesty. Indeed,
or to risk violation of the law.
prominent supporters of the war are among those now urging
Much of this opposition was based on legal arguments
some form of amnesty, including former Secretary of Defense
drawn from international law as well as from the Constitu-
Melvin Laird
103
97
and former Assistant Secretary of Defense
tion.
From 1965 on, numerous suits were brought by
104
Robert Froehlke.
servicemen (both enlisted and inducted), persons about to
The debate over the war's legality 1s significant,
be inducted, persons subject to the draft, reservists,
rather, because it raises, in a way unprecedented in American
parents of draft-age youths, taxpayers, members of Congress,
history, the question of how to judge the citizen who
and ordinary citizens. In addition, at least two states
sincerely believes that his refusal to fight or to allow
sought to litigate the consitutionality of the war in the
himself to be drafted is justified not only by moral
hope that a governmental suit might fare better than a
98
scruples but by a deeply held belief that the performance
private complaint.
rather than the refusal of military service makes him a
Until the decision of the Court of Appeals for the
law breaker. His dilemma, and the dilemma of his society
Second Circuit in Berk V. Lair, 99 on June 19, 1970, no
in dealing with him, is only heightened by the refusal or
court had treated the constitutionality of the war as a
unwillingness of the courts to state clearly whether his
cognizable issue, and, to this day, no court has agreed
perception of the law is correct, or merely a self-serving
to rule on the arguments based on international law.
distortion of legal principles.
With the exception of an inconclusive summary affirmance
100
in Atlee V. Laird,
of a district court decision holding
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-23-
250
251
Conclusion and Recommendations
since many of the offenses were committed support a similar
In the view of this Committee, the potential benefits
blanket grant today, even though this will mean that some
of granting amnesty clearly outweigh the potential costs,
who acted out of less than pure motives would reap the
and a broad, unconditional amnesty is preferable to a
benefits. Such an approach would, ipso facto, dispense
case-by-case determination and to the imposition of altérna-
with the need for a review board, at least for draft violators
tive service, or some other form of atonement, as a condition
and deserters.
for amnesty.
With respect to court martial convictions and less
Specifically, we favor unconditional amnesty for all
than honorable discharges, it is necessary to distinguish
draft violators and deserters, 105 namely:
between three types of offenses giving rise to such con-
(1) All persons convicted of violating Article
victions or discharges:
85 (the desertion article) of the Uniform
Code of Military Justice for a desertion
(1) desertion;
which began after July 1, 1963, or ended
before July 1, 1973; or convicted or charged
(2) offenses other than desertion which would not be
with violating the Selective Service Act
punishable in a civilian context, such as AWOL,
for a violation that occurred during this
malingering, failure to salute, or "conduct of
same period.
a nature to bring discredit upon the armed services:"
and
(2) All persons, at home or abroad, who if
they were apprehended or turned themselves
(3) all other offenses.
in, could be charged with violation of
the Selective Service Act or of Article 85
Category (1) offenders, i.e. deserters, would be sub-
of the Uniform Code of Military Justice for
an alleged desertion beginning after July 1,
ject to automatice amnesty under the preceding recommenda-
1963, and before July 1, 1973.
tion. As for categories (2) and (3), we recommend one of
Although desertion is a graver offense than violating
two courses of action: either a blanket amnesty for category
the draft laws, 1t would be highly inequitable to include
(2), and amnesty upon application and review for category
draft violators and omit deserters from a blanket grant of
(3), or amnesty upon application and review for categories
amnesty, since, as has been argued earlier in this paper,
106
(2) and (3).
this would in practice constitute discrimination against
The argument for a blanket amnesty for category (2)
the underprivileged, the non-white, and the lesser educated.
is that many "non-civilian" offenses, particularly AWOL,
It is true that such a blanket amnesty would include
committed during the Viet Nam-era were, in fact, motivated
many who have not articulated a conscientious objection to
by conscious or unconscious opposition to, the war, or to
participation in the U.S. war effort. It is important to
fighting in general, and that it would be inequitable to
note, however, that except after World War II earlier United
amnesty deserters but not, for instance, AWOL's, who, in
States amnesties have not drawn a distinction between those
a sense, may be regarded as lesser deserters. The argument
who objected out of conscience and those who refused to
against such a blanket amnesty is that many offenses in
serve or deserted for other reasons. The difficulty in
category (2) had nothing to do with conscience or conviction,
weighing individual motives and the time that has elapsed
-24-
-25-
55-550 75 17
252
253
and that there are limits to which one can carry the notion
FOOTHGTES
of including the chaff with the wheat for the sake of
administrative convenience.
1. 1 Encyclopedia of the Social Sciences, 36 (E. Seligman
ed. 1937).
With respect to category (3) which deals with "ordinary"
2. Law and Social Order, Arizona State University Law Journal
offenses cognizable as such in a civilian context, it may be
Vol. 1971, No. 3, 1971, pp. 515-534, "An Historical Justi-
fication and Legal Basis of Amnesty Today, by Harrop A.
argued that there is no better reason to offer the possibil-
Freedman.
ity of amnesty upon review to a military than to a civilian
3. 1 Encyclopedia of the Social Sciences, op. cit., 36.
burglar, rapist, or murderer. True enough, but the charge
4. Law and Social Order, op. cit., 518.
of selective enforcement against conscientious objectors
5. Id., 518.
and war resisters is frequently heard, as is the charge that
6. Id., 519.
many Viet Nam veterans would not be branded for life with
7. J. Etridge, "Amnesty: A Brief Historical Overview," 118
Cong. Rel. 7040, daily ed., March 6, 1972.
court martial convictions or less than honorable discharges,
8. Id., 7040.
if they had not been plucked from civilian life and compelled
9. Law and Social Order, op. cit., 522.
to fight in a war which, at best, they failed to understand
10. J. Etridge, op. cit., 7040.
and, at worst, they abhorred. A general amnesty should,
11. United States Constitution, Article II, Section 2.
therefore, include some machinery for an amnesty reviewing,
12. Editorial Research Reports, Vol II, No. 6, August 9, 1972,
according to standards to be defined more precisely, of
pp. 609-614, "Amnesty Question," by Helen B. Shaffer.
Viet Nam-era court martial convictions and less than honorable
13. Columbia Human Rights Law Review, Vol. 4, 1972, pp. 529-540,
"A History and Discussion of Amnesty," by Norman Weissman.
discharges.
14. Harvard International Law Journal, Vol. 13, 1972, pp. 115-116,
Amnesty for civilian protesters against the war would
"American Deserters and Draft Evaders: Exile; Punishment, or
Amnesty?" by Douglas W. Jones and David L. Raish.
round out the process of post-war reconciliation. This
15. Statement of Leon Ulman, Deputy Assistant Attorney General,
subject, however, falls outside of the scope of this committee.
testifying before the Subcommittee on Courts, Civil Liberties,
and the Administration of Justice of the Committee on the
If these recommendations were adopted, tens, perhaps
Judiciary, House of Representatives, March 8, 1974.
hundreds of thousands of young Americans would find their
16, Act of February 11, 1893, Ch. 83, 27 Stat. 443.
way "home," literally and figuratively. Unconditional amnesty,
17. 161 U.S. 591 (1896).
at this juncture, would be a signal act of national grace
18. 175 U.S. 411 (1885).
and, more importantly, a manifestation of national strength.
19. Harvard International Law Journal, op. cit., 120. On the
topic of Congressional and Presidential power to grant
amnesty see also Vanderbilt Law Review, Vol. 25, 1972,
pp. 525-555, "Congressional Amnesty for War Resisters:
Policy Considerations and Constitutional Problems, by
Louis Lusky.
-27-
-26-
254
255
20. Twelve Protestant denominations, the National Conference
37. Guide for the AWOL G.I., published by the Central Committee
of Catholic Bishops, the National Council of Churches of
for Conscientious Objectors, pp. 13-14.
Christ in the U.S.A., the American Jewish Congress, the
Union of American Hebrew Congregations, and eleven other
38. See cases reported in the Selective Service Law Reporter
national religious organizations have called for amnesty.
during the years 1967-present.
See Religious Statements on Amnesty, 3rd ed., 1974, James
E. Tomlonson, ed., published by the National Interreligious
39. Columbia Human Rights Law Review, op. cit.
Service Board for Conscientious Objectors, Washington, D.C.
40. The arguments in support of this position are presented in
21. Including the Fellowship of Reconciliation, the War
the section of this paper entitled "The Legality of the War,"
Resisters League, and the American civil Liberties Union.
pp. 22-23 supra.
22. Four Senators and thirteen Representatives have sponsored
41. Journal of Family Life, University of Louisville Law School,
amnesty legislation in the 93rd Congress.
Vol. 12, 1972-73, pp. 63-80, "Amnesty: An Historical Justi-
fication for its Continuing Viability," by Daniel M. Migliore.
23. Including former Attorney General Ramsey Clark and former
Secretary of Defense Melvin Laird--Clark favoring general
42. S. 2832, H.R. 236, H.R. 674, H.R. 675, H.R. 2034, H.R. 2167,
and unconditional amnesty, while Laird favoring a more
H. Con. Res. 86, H.R. 3100, H.R. 4238, H.R. 5195, H. Con. Res.
limited and conditional amnesty.
144, H.R. 10979, H.R. 10980, H. Con. Res. 385; additional leg-
islation is currently being drafted by Senator Philip Hart
24. Including the Veterans of Foreign Wars and the American
(D-Mich.).
Legion.
43. Transcripts of the hearings are currently being printed and
25. Three Congressmen have introduced sense of Congress resolu-
should soon be available from the House Judiciary Committee
tions opposing amnesty.
and the Government Printing Office.
26. Although indicating that he might be open to amnesty after
44. Hearings on Amnesty, op. cit.
the end of the war, President Nixon spoke out adamently
against it after the signing of the Paris agreements.
45. Sponsors include Representatives Abzug (D-N.Y.), Conyers
Former Vice President Agnew spoke out against amnesty
(D-Mich.) Dellums (D-Calif.), McCloskey (R-Calif.), and
consistently during his time in office.
Mitchell (D-Md.).
27. Amnesty? The Unsettled Question of Viet Nam, 1973, p. 58,
46. Sponsors include Senators Taft (R-Ohio), Pell (D-R.I.),
"Amnesty: Never!" by William A. Rusher.
Packwood (R-Ore.), and Biden (D-Del.); and Representatives
Koch (D-N.Y.), Roybal (D-Calif.) Brown (D-Calif.) Nix
28. Id., 65.
(D-Pa.), Conyers (D-Mich.), Hawkins (D-Calif.), Helstoski
(D-N.J.), Rees (D-Calif.), McCloskey (R-Calif.), and
29. Hearings on Amnesty, Feb. 28, 29, March 1, 1972, Subcommittee
Rosenthal (D-N.Y.).
on Administrative Practice and Procedure, Committee on the
Judiciary, U.S. Senate, P. 46.
47. The sponsoring Representatives are Bevill (D-Ala.), Hogan
(R-Md.),. and Bowen (D-Miss.).
30. Id., P. .268.
48. Interview with Col. Greenleaf, Registrant Service Officer,
31. Id., P. 240.
National Headquarters, Selective Service System, June 13,
1974. The Viet Nam era is used as a designation by the
32. The American Legion Magazine, Vol. 97, No.1, July, 1974,
Selective Service System and other federal agencies to
"Draft Resisters and Deserters: Pardon Perhpas, But Amnesty
cover the period FY1964-FY1973.
No," by John P. Murtha, p. 19.
49. Id.
33. Amnesty? The Unsettled Question of Viet Nam, "Amnesty: Never!"
op. cit., P. 79.
50. "Amnesty: Questions and Answers," American Civil Liberties
Union, 1973, compiled by Henry Schwarzschild.
34. Columbia Human Rights Law Review, op. cit.
51. Interview with Henry Schwarzschild, director, Project on
35. This is especially true of statements supporting amnesty
Amnesty, American CivillLiberties Union Foundation, June
that have been adopted by national religious bodies.
6, 1974.
Many of these statements stress the need for also assisting
veterans and the families of those who died in Indochina.
52. "Amnesty: Question and Answers," op. cit.
36. Several veterans and gold star mothers testified in favor
53. 10 U.S.C. 885.
of amnesty before both the Senate and House subcommittees.
July 4, 1974, saw several thousand members of V1et Nam
54. "Amnesty: Questions and Answers," op. cit.
Veterans Against the War and other veteran's groups
demonstrating in Washington, D.C. both for better treatment
for veterans and for universal and unconditional amnesty.
-29-
-28-
55-550 18
256
257
55. Report of the Task Force on the Administration of Military
Justice In the Armed Forces, Vol. I, 1972, pp. 30-32,
82. Id.
Department of Defense.
83. Interview with Henry Schwarzschild, op. cit.
56. Id., Vol. I, pp. 108-111; Vol. II, pp. 31-36; Vol. III,
pp. 69-88, 143-280.
84. Harvard International Law Journal, op. cit., pp. 88, 126.
57. "Amnesty: Questions and Answers," op. cit.
85. Id., p. 124.
58. Draft card burning and refusing induction were acts of
86. See section on "Who Should Be Included?" supra, pp. 11-17.
protest against the war as early as 1964.
.87. S. 2832, H.R. 675, H?R. 2034, H.R. 2167, H.R. 4238, H.R. 10979
59. Amnesty? The Unsettled Question of Viet Nam, 1973, pp.
09Brd Congress).
105-148, "Amnesty: If... by Mark O. Hatfield.
88. The Civil Liberties Review, op. cit., p. 192.
60. 396 U.S. 295 (1969).
89. Id.
61. 380 U.S. 163 (1965).
90. Amnesty? The Unsettled Question of Viet Nam, op. cit.
62. 398 U.S. 333 (1970).
91. See In the Service of Their Country: War Resisters in
63. Yale Review, Vol. 57, June, 1968, pp. 481-494, "Conscience
Prison by Willard Gaylin, M.D.; The New Exiles: American
and Anarchy: The Prosecution of War Resisters, by J.L. Sax.
War Resisters in Canada, by Roger Neville Williams: and
The Amnesty of John David Herndon, by James Reston, Jr.
64. The Nation, April 16, 1973, pp. 1-10, "The truth About
Deserters, by Robert K. Musil. Based upon statistics
92. Interview with Henry Schwarzschild, op. cit.
compiled by the Central Committee for Conscientious Objectors.
93. Id.
65. Id., and also "Amnesty: Questions and Answers," op. cit.
94. A nationwide show "Duty Bound" presenting the amnesty
66. Harvard International Law Journal, op. cit.
issue on television in 1973 and requesting viewers to
write giving their vote for or against amnesty drew a
67. 8 U.S.C. 1481.
67% "for vote out of 11,978 responses received. A March,
1973, Louis Harris poll showed 24% in favor of amnesty,
68. Report of the Task Force on the Administration of Military
67% against, and 9% not sure.
Justice in the Armed Forces, op. cit.
95. Vanderbilt Law Review, op. cit. pp. 553-554.
69. "Amnesty: Questions and Answers," op. cit.
96. Reaching a high in public opinion polls of 70% of those
70. The Civil Liberties Review, Vol. I, No. 1, Fall, 1973,
responding saying that they opposed U.S. military involve-
pp. 189-192, "The Amnesty Question,' by Edward M. Kennedy.
ment in Indochina.
71. Vanderbilt Law Review, op. cit., pp. 554-555.
97. See The Viet Nam War and International Law, by Richard A.
Falk, ed., 1968, and The Judiciary and Viet Nam, by Anthony
72. Amnesty? The Unsettled Question of Viet Nam, "Amnesty: If...
A. D'Amato and Robert M. O'Neil, 1972.
op. cit.
98. The Judiciary and Viet Nam, op. cit., pp. 3, 11.
73. Amnesty? The Unsettled Question of Viet Nam, "Amnesty: Never!"
op. cit.
99. 429 F.2d 302 (2d Cir., 1970).
74. 1 Encyclopedia of the Social Sciences, op. cit., p. 36.
100. Atlee V. Laird reached the Supreme Court as Atlee V.,
Richardson, 93 S.Ct. 1545 (1972).
75. Editorial Research Reports, op. cit., p. 611.
101. Perkins V. Laird, 405 U.S. 965 (1972); DaCosta V. Laird,
76. H.R. 236, H.R. 3100, H.R. 5195, H.R. 10980 (93rd Congress).
405 U.S. 979 (1972); United States V. Pratt, 401 U.S. T012
(1972); Massachusetts V. Laird 400 U.S. 886 (1970); Crocker
77. S. 2832, H.R. 236, H.R. 10979 (93rd Congress).
V. United States, 397 U.S. 1011 (1970): Leavy V. United States.
397 U.S. 1076(1970): Battaglia V. United States, 396 U.S. 848 (191
78. Hearings on Amnesty, op. cit., pp. 255-263.
Owens V. United States, 397 U.S. 997 (1970); Ashton V. United
States, 394 U.S. 960 (1969); Prince V. United States, 393 U.S.
79. Vanderbilt Law Review, op. cit., note 12, p. 528.
946 (1968): McArthur V. Clifford, 393 U.S. 1002 (1968):
United States V. O'Brien, 391 U.S. 367 (1968): Hart V. United
80. Id.
States 391 U.S. 956 (1968); Holmes v. United States, 391 U.S.
936 (1968): Mora V. McNamara, 389 U.S. 934 (1967): Mitchell
81. Amnesty: The Record and the Need, 1973, by John Swomley,
V. United States, 386 U.S. 972 (1967).
published by Clergy and Laity Concerned, New York City.
-31-
258
259
102. "There 1s a considerable bocy of opinion that our actions
in Viet Nam constitute the waging of an aggressive war."
APPENDIX A
(Douglas, J. dissenting from denial of certiorari in
Mitchell V. U.S., 386 U.S. 972, 1967): "There exist in
this case questions of great magnitude," (Stewart, J.,
AMNESTIES IN AMERICAN HISTORY
dissenting from denial of certiorari in Mora V. McNamara,
389 U.S. 934, 1967): "As a matter of substantive constitu-
tional law, it seems likely that the President may not
wage war without some form of Congressional approval,"
DATE
ISSUED BY
PERSONS AFFECTED AND
TIME LAPSE
(Marshall, J., sitting as Circuit Justice, on motion to
NATURE OF ACTION
FROMOFFENSE
vacate stay in Holtzman V. Schlesinger, 94 S.Ct. 1, 1973):
TO PROCLAMATION
(IN MONTHS)
Justices Harlan, Douglas, and Stewart dissented from the
denial of motion by the Commonwealth of Mass. to file a
July
Weshington
Whiskey Insurrectionists (several hundred)
bill of complaint in Mass. V. Laird, 400 U.S. 886 (1970):
General perdon TO all who agreed to thereafter oney
the law.
13
Brennan, J., joining Justices Douglas and Stewart, would
May 21, 1800
Adams
Pennsylvania insurrectionists. Prosecution of
have noted probable jurisdiction and set the case for
participants ended. Pardon not extended to THOSE
Indicted or convicted.
oral argument in Atlee V. Richardson, 93 S.Ct. 1545 (1972),
14
Oct. 1807
Jefferson
and he also joined Justice Douglas In favoring a grant of
Deservers given full perdon it they surrencered
within months.
certiorari in Perkins V. Laird, 405 U.S. 965 (1972).
Feb. 1012
Madison
Oct. 1812
Deserters-3 proclamations. Given full perdon if
June 14, 1014
they surrendered within months.
103. Former Secretary Laird voiced his position at a press
Feb. 1815
Madison
Pirates who tought in Wer of 1812 perdoned of all
conference shortly before stepping down as Secretary of
previous acts of piracy for which any suite, In-
60 from first
dictments or prosecutions were initiated.
offense: from
final offense
Defense.
June 1 1030
Jackson
Deserters, with provisions: (1) those in continement
(War Dept.)
returned to 12) those at large under sentence of
104. Mr. Froehlke testified in favor of conditional amnesty
death discharged, never again to be enlisted.
Feb. 14,1862
Lincotn .
during the House subcommittee hearings in March, 1974.
Political prisoners peroled.
(War Dept.)
July 17, 1842
Congress
105. See pages 11-13 supra.
(Confiscation Act)
President authorized TO extend perdon and amnesty
to rebels.
March 10. 1863
Lincoln
Deserters restored to regiments without punish
106. A case can also be made for blanket amnesty for all "bad"
ment, except forfeiture of pay during absence.
discharges (but not court martial convictions), whether in
Dec. 1943
Lincoln
Full pardon to all implicated in OF participating in
categories (2) or (3). See "Amnesty and Bad Discharges"
the "existing rebeflient with exceptions and subject
to oath.
24
by Robert K. Musil, a former Army Captain, in the March
Feb. 1854
Lincoin
Deserters' sentences mitigated. some restored to
4, 1974, issue of American Report.
(War Dept.)
duty.
March 26, 1864
Lincoin
Certain rebels (clarit cation of Dec. a. 1863
proclamation).
March 1865
Congress
Desertion purlished by forfeiture of citizenship,
President to perdon all who return within 60 days.
March 11. 1865
Lincoln
Deserters who returned to post in 60 days. as
required by Congress
May 29. 1865
Johnson
Certain rebels of Contacerate States (qualified).
36 from first
offense
July 0, 1866
Johnson
Deserters returned to duty without punishment
(War Dept.)
except forfeiture of pay.
Jan. 21. 1867
Congress
Section 13of Confiscation ACT (authority of President
to grant perdon and amnesty) repeated.
Sept. 1867
Johnson
Rebels--additional amresty including all but certain
officers of the Confederacy on condition of an oam,
July 1868
Johnson
Full parden to all participants in "the late rebellion"
except those indicted for treason or felony
84 from first
offense
Dec. 25. 1868
Johnson
All rebels of Confederate States (universal and
unconditional).
84 from first
offense
May 23, Ta72
Congress
General Amnesty Law reenfranchised many
thousands of former repeis.
May 24, 1884
Congress
Litted restrictions on for mer rebels to allow jury
duty and civil office.
Jan. 1893
Marrison
Mormons-Hiability for polygamy amnestied
132 from first
offense; 24 from
last offense
Sept. 1894
Cleveland
Mormons-in accord with above.
March 1894
Congress
Litted restrictions on former rebets to allow ap.
paintment to military commissions.
June 1898
Congress
Universal Amnesty Act removed all disabilities
against all former Febels.
(continued)
-32-
260
261
AMNESTIES IN AMERICAN HISTORY
APPENDIX B
(continued)
AMNESTY LEGISLATION
93rd Congress, 1st Session
July 1902
T. Roosevelt
Philippine insurrectionists. pardon and amenty
SENATE
to all who took on dath recognizing "the supreme
authority of the United States of America in the
Philippine Islands."
S 2832 "Earned Immunity Act of 1974." This bill provides for
June 14, 1917
Wilson
3.000 persons under suspended sentence because of
the creation of an Immunity Review Board which would
change in law (not relates).
Aug. 21. 1917
examine every case of draft violation during the Viet
Wilson
Clarification of June 14, 1917 proclemation.
Nam era. The Board would have the power to grant immunity
March 1924
Coolidge
More than 100 deserters-es to loss of citizenship for
Up 72
those deserting since W.W. 1 armistice.
from prosecution upon the person's agreeing to serve two
Dec. 1933
years in either the military or a civilian alternate
F. Roosevelt
1.500 convicted of having violated espionage or draft
laws (W.W. 0 who had completed their sentences.
Up 192
service program. Those already convicted and imprisoned
Dec.24,1945
Truman
Several thousand ex-convicts who had served in
could be released, with the time already served counted
W.W. " for at least one year. (Prodemation 2676.
Federal Register. p. 15402.)
toward the required two years up to a maximum of one
year. [Robert Taft (R-Ohio) and Claiborne Pell (D-R.I.)
Dec. 1947
Trumen
1,523 individual perdons for draft evasion in W.W. 11,
based on recommendations of President's Amnesty
Dec. 19, 1973; Robert Packwood (R-Oregon) Feb. 6, 1974;
Board.
Joseph Biden (D-Del.) Feb. 8, 1974]
Dec. 24. 1952
Truman
Ex-convicts who served in armed forces not less man
1 year after June 25. 1956.
Dec. 24, 1952
Truman
All persons convicted for having deserted between
Aug. 15. 1945 and June 25. 1950.
HOUSE OF REPRESENTATIVES
HR 236 "War Resisters Exoneration Act of 1973." This bill calls
for a general and unconditional amnesty for draft resisters
and military resisters alike, to include: restoration of
all civil and political rights, immunity from criminal
prosecution, expunging of criminal records, granting of
honorable discharges to those who received other than
honorable discharges, and nullifying all other legal
This summary is taken from Editorial Research Reports,
consequences of the violation. It would also create an
Vol. II, No. 6, August 9, 1972, P. 611, "Amnesty Question"
Amnesty Commission to review all other criminal violations,
by Helen B. Shaffer. Editorial Research Reports is a
with the power to grant amnesty upon finding that the crime
publication by Congressional Quarterly.
was committed out of opposition to the war and did not
result in substantial personal or property damage. Even
in cases of such damage, the Commission could grant
amnesty if it found that the act was justifiable on the
basis of a deeply held ethical or moral belief. [Bella
Abzug (D-N.Y.) Jan. 3, 1973]
HR 674 This bill authorizes and approves Presidential amnesty
for draft and military resisters to the extent and
on the conditions set forth by the President.
[Edward Koch (D-N.Y.) Jan. 3, 1973]
HR 675 This bill seeks, by amending title 18 of the United States
Code, to provide a conditional amnesty for draft resisters.
Upon two years service in the military or a civilian
alternate service job, any draft resister could have the
charges against him dropped. [Edward Koch (D-N.Y.) Jan. 3,
1973]
HR 2034 This bill would amend the definition of conscientious
objector in the Selective Service Act to include selective
conscientious objection, i.e. objection to a particular
war. The provision would apply retroactively and would
allow any person, no matter what his current legal status,
to claim conscientious objector status. Presumably, if
conscientious objector status was then granted by the
Selective Service System, the person would have to perform
alternate service. [Edward Koch (D-N.Y.) Jan. 15, 1973]
B_1
262
THE ASSOCIATION OF THE BAR
HR 2167 "Amnesty Act of 1973." This bill is essentially identical
OF THE CITY OF NEW YORK,
to Rep. Koch's HR 675, with the difference of providing a
New York, February 12, 1975.
conditional amnesty without the amendment of the United
Mr. MARK L. SCHNEIDER,
States Code. [Edward Roybal (D-Calif.) Jan. 15, 1974]
Office of Senator Edward M. Kennedy,
Washington, D.C.
H Con Res 86 This resolution would express the sense of Congress
that no amnesty, reprieve, or pardon be given to draft
DEAR MR. SCHNEIDER: In December, Peter Weiss sent you a copy of the Posi-
evaders or deserters. [Tom Bevill (D-Ala.), Jan. 22, 1973]
tion Paper on Amnesty adopted by our committee last July. The enclosed dissent
has just been received and out of fairness ought to be published along with the
HR 3100 "War Resisters Exoneration Act of 1973." This bill is
majority position. A new page showing the votes of the committee members is
identical to Rep. Abzug's HR 236. [Ronald Dellums (D-Calif.)
also enclosed.
Jan. 29, 1973]
Please feel free to contact the committee on matters concerning amnesty or
military justice or military affairs.
HR 4238 This bill is identical to Rep. Koch's HR 675. Its
Very truly yours,
reintroduction simply reflects the addition of seven more
GEORGE H. WELLER,
sponsors. [Edward Koch (D-N.Y.), George Brown (D-Calif.),
Chairman.
John Conyers (D-Mich.), Augustus Hawkins (D-Calif.), Henry
Enclosure.
Helstoski (D-N.J.), Robert Nix (D-Pa.), Thomas Rees (D-Calif.),
and Benjamin Rosenthal (D-N.Y.) Feb. 8, 1973]
Frank C. Bateman, III
Kenneth H. Hirsch
David N. Bottoms, Jr.2
Edward Reese Hughes
HR 5195 This bill is identical to Rep. Abzug's HR 236, with the
Wallace J. Borker
Nancy R. Hunter 2
addition of two more sponsors. [Bella Abzug (D-N.Y.),
David N. Brainin
Steven J. Hyman
John Conyers (D-Mich.), and Parren Mitchell (D-Md.)
John Carro (Hon.)
Nathaniel Jones
March 6, 1973]
James Carroll
Thomas B. Kingham 1
Thomas M. Comerford 2
David McLean
H Con Res 144 This resolution is essentially identical to
H Con Res 86. [Lawrence Hogan (R-Md.) March 7, 1973]
Russell N. Fairbanks
Leonard P. Novello
S. Newton Feldman 2
Theodore W. Volckhausen
HR 10979 "Amnesty Act of 1973." This bill would provide amnesty
David L. Fox
Peter Weiss
for draft resisters and deserters on the condition that
Joel Gora
George H. Weller
they serve two years in the military or civilian alternate
Joan E. Goldberg
service. It provides for the establishment of an Amnesty
Commission to serve as an administrative body. [Paul
DISSENTING REPORT
McCloskey (R-Calif.), Oct. 17, 1973]
We regretfully must disagree with the amnesty proposals of the majority of
HR 10980 "Amnesty Act of 1973." This bill provides for a complete
the committee as expressed in this report, and certain unsound arguments and
and unconditional grant of amnesty for draft resisters
questionable statements on fact on which these proposals are based. An uncon-
and deserters. It would grant immunity from prosecution
ditional amnesty to all offenders against the draft laws, to all deserters, and
and punishment, release from prison with the remaining
possibly to all persons with court martial convictions for offenses with no civilian
punishment waived, pardon for past convictions, and
counterpart, or to all persons convicted by a court martial for any offenses during
restoration of citizenship 1f renounced because of opposi-
tion to the Viet Nam war. [Paul McCloskey (R-Calif.)
the period of the Vietnam war, is unjust, unfair, and historically unprecedented.
Oct. 17, 1973]
It is unjust because the rule of law, on which our government is based, means
that constitutional laws duly enacted and published must be obeyed, both by
H Con Res 385 This resolution is essentially identical to H Con
public officials and private citizens. Citizenship has responsibilities as well as rights
Res 86 and H Con Res 144. [David Bowen (D-Miss.) Nov. 28,
and one of these responsibilities, by law, is the responsibility to serve one's country
1973]
when called, and no one is dispensed from the duty to obey this law. It is true that
pardons and amnesties have been granted to those who have disobeyed laws, but
amnesty is an act of grace on the part of the sovereign which should be granted
sparingly, with a view towards the best interests of the public and not those to
be covered by the amnesty. Viewed in that light, one cannot ignore the fact that
the vast majority of the American public obeyed the law and that this majority
will certainly perceive (quite accurately in our minds) an unconditional blanket
This summary of Amnesty legislation was compiled by
amnesty to be unjust. No society can long survive when each member of that
the National Interreligious Service Board for
society is free to decide whether he chooses to obey its laws or not, solely by ref-
Conscientious Objection, Washington, D.C. It is
erence to his subjective determination of their justness.
current through June 7, 1974.
It is unfair because an unconditional amnesty fails to distinguish between those
who served honorably and those who evaded the draft or deserted. During the
Vietnam war, millions of young men were compelled to enter the armed forces
1 Messrs. Bateman and King abstain.
B-2
a Ms. Hunter & Messrs. Bottoms, Comerford, Feldman and Volckhausen dissent for the reasons set forth
in the statement on pages 38-45 below.
3 Mr. Borker personally concurs with the Report but feels that a Bar Association committee should not
have set forth any recommendations on this matter.
(263)
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265
and were subjected to hardship and danger. (Indeed some of them were compelled
interest, lack of patriotism, even treason. to receive the same treatment as those
to serve only because others called to serve before them had evaded the draft or
who acted out of conscience
had deserted.) It is unfair to them to proclaim, in effect, that their obedience to
Moreover, the United States has long made it policy (as in the case of amnesty,
the law makes no difference. It is also unfair to punish some draft evaders and
by an act of grace) to excuse those who have severe moral scruples against fighting
deserters and forgive the rest solely because they successfully evaded apprehen-
in wars. Thus, despite problems, especially before Welsh in 1970, conscientious
sion until now.
objector status was easily obtainable. (Except for selective conscientious objectors.
It is historically unprecedented because, as the report has proved conclusively,
Since the Supreme Court has recently upheld the requirement that objections
there has never been an unconditional blanket amnesty for those who failed to
must be against all wars and not selective, we see no reason to grant selective
heed their country's call.
conscientious objector status through an amnesty.) The fact that this act of grace
We suggest that those who have violated the laws and who now wish to return
has been unevenly granted does not prove that it has failed and must yield to a
home submit themselves to the ordinary judicial processes of this country and be
blanket amnesty.
prepared to accept any penalties for their conscious and deliberate violation of its
A society which sets a high value on individual conscience can enlarge the
laws. If they do, we believe they will find our processes to be among the fairest
sphere in which individuals are free to do what they please and it can avoid com-
in the world.
pelling people to do what they do not want to do, but it cannot devote itself to
Our position is not vindictive. We, like the majority of this Committee, have
these goals to the exclusion of all others. The law will always have to set limits.
appealed to both history and to a sense of justice, a justice tempered with mercy,
Congress set them in the Selective Service Act and the Uniform Code of Military
to reach our position, and we believe our position is more in keeping with the
Justice, and it is not unfair to enforce those limits as it set them.
"hallowed American tradition" than that of the majority.
(3) An attempt is made to argue that because the lawfulness of the war was
The report uses the following unsound arguments and questionable statements
widely questioned, those who refused to take part in it deserve amnesty. In fact,
of fact to reach its conclusions:
the courts almost unanimously rejected legal challenges to the war, and with
(1) When it claims that amnesty is an old and hallowed legal concept and goes
no exceptions, none cited at any rate, held, whatever their opinions about the
on to indicate that the United States stands within the tradition of granting
war, that the refusal to enter the military was not justified because of the character
amnesty, citing examples, one is led to conclude that amnesty is "as American as
of the war. It is hard to think of any legal question on which there was more general
apple pie." In reality, since 1795, as the report notes, there have been only 35
agreement. In view of the virtual unanimity of the lower courts, the failure of the
instances of amnesty in this country (there were two clarifying proclamations)
Supreme Court to make a definite ruling hardly leaves the legal question open.
only 12 of which applied to draft evaders or deserters, and not one of the amnesties
Moreover, the feeling that the war was a mistake should not be confused with the
in these 12 cases was unconditional. (It is true that in several cases the condition
feeling that the war was illegal. There are many Americans who grew to oppose the
was simply a loyalty oath but the majority of this committee is not disposed to
war because of the way it was fought, that is, with limited resources and an un-
accept even this condition.) It would be fairer to state that in the history of this
certain purpose. It is disingenuous to equate this general dislike of the war to a
country amnesty has hardly been a common occurrence and is definitely not a
general feeling that the war was illegal. (This is why the results of opinion polls
great part of the American tradition. It also seems relevant to note that although
which asked a question along the following lines: "Do you favor the United States'
pure and simple forgiveness may have been the motive for the exercise of the
role in or conduct of the Viet Nam war?" cannot be used to buttress opponents of
amnesty power in some situations, there are many cases where the grant of
the legality of the war.)
amnesty appears to have been calculated more to secure possible military benefits
(4) The fact that the draft excused some and not others does not make it
than to justify national compassion, much less national admission of guilt. (For
unjust. It is wrong to make no distinction between those who were excused as a
instance, Lincoln's initial amnesty in the Civil War was to deserters provided
result of previously debated public policy and those who excused themselves.
they returned to their regiments within a certain amount of time. He followed
Ironically, some of those now proposing unconditional amnesty on the grounds
this with a promulgation of amnesty to all rebels who would take a loyalty oath to
that too many were unjustly excused, were themselves proponents of the exemp-
the Union. Shortly before his death, he once again granted amnesty to Union
tions, arguing for instance, that the nation needed college educated youth or that a
deserters who would return to their posts.)
lottery was fair. Now they seek to base their arguments on amnesty on the very
(2) The report begins its arguments for an unconditional amnesty by showing
distortions which they themselves countenanced.
that many opposed the war as an act of conscience, thereby appealing to the
(5) It is claimed that the deserters and evaders have suffered enough. This
high value that our legal and social traditions assigned to conscience. Having
is a highly subjective claim and we are uncertain as to its application. If it is taken
established this, it next moves to encompass selective conscientious objectors and
seriously, it would call for a case by case examination to find out who has suffered,
then those who may have felt an inarticulate but apparently morally based opposi-
how and for what, and not for a general amnesty. Nor do the cloying arguments
tion. Finally, it moves to encompass those who it concedes may have had purely
about the great loss of this nation's youth seem any more appealing. The nation
selfish motives. It argues that to screen applicants and evaluate motivation will
seems to have survived for a number of years without them. In fact, other than
simply perpetuate some of the inequities that led to the desertion and evasion,
those involved and their immediate relatives or friends, few seem to miss them
since motivation, especially in times of stress, is seldom pure and unambiguous.
at all. It can, on the contrary, be argued that the nation is better off without
It concludes, therefore, that a general grant of amnesty in the spirit of forgiving
those who run away whenever their country needs them. Clearly they did not
and forgetting, even though it would cover some undeserving people, would be
ask "What can I do for my country?"
preferable to a conditional amnesty which would possibly exclude some who did
(6) A suggestion is made that the proponents of amnesty are attempting to
act conscientiously but could not convince a review board or a court of this fact.
heal the divisions of the country, to bring about national reconciliation. (The
To us, this seems to be "absolution by association."
report does not actually say amnesty will heal divisions; a statement like that
We too acknowledge the value of conscience, but when one consciously decides
might be difficult to prove.) As the report notes "Amnesty is an emotionally
that the laws of his society are too offensive for him to live with, he can violate
laden issue. Feelings on all sides of the question run deep." Therefore, it is im-
these laws and take his chances that he will be disciplined for such violation, or he
probable that granting an unconditional, blanket amnesty will produce recon-
can flee that society. Those who take such actions should not complain if they are
ciliation. More likely it will outrage the feelings of one side.
forced to live with the results of their decisions. Perhaps they can take solace in
(7) Amnesty should not extend to convictions for offenses that would not be
the thought that they have obeyed a higher law, but they are still subject to the
crimes in a civilian context. There are many military offenses that had nothing
processes of the laws of their society. While disobedience as an act of conscience
to do with opposition to the Vietnam war. We cannot agree with a position that
might cause society to mitigate the punishment for the act, this does not change the
would amnesty every private who decided he was not going to make reveille.
fact that such disobedience violates the law. In fact any unconditional blanket
(8) The argument that amnesty will make it more difficult to raise and support
amnesty would allow those who acted out of the worst possible motives, fear, self-
armed forces cannot be simply dismissed as is done in the report. Precedent in
our society is important. Anyone who is skeptical about that may consult the
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267
report, which attempts to list every amnesty granted since the whiskey rebellion,
that in February 1973 only 24 percent of the public favored unconditional amnesty.
arguing that at least some of them are analogous to its proposal. What will
This increased to only 36 percent by September 1974 after President Ford indicated
happen if the next war is like the last one, small but prolonged? There will cer-
that he was going to propose a conditional amnesty (Long Island press, September
tainly be opposition to it, no matter what the circumstances. We can confidently
19, 1974, page 12). As noted by Mr. Harris, amnesty without any service require-
expect that the whole paraphernalia of draft counsellors, resistance committees
ments for deserters or evaders of the Vietnam war has never received the support
and exile organizations, manned by the same type of people who manned them
of anything close to a majority of the public (ibid).
last time, will appear and make potential draft evaders and deserters aware of
Respectfully submitted.
prior amnesties and the possibility of future amnesties. It has been suggested
DAVID N. BOTTOMS, Jr.
that soldiers are not motivated by fear of the consequences of their actions;
THOMAS M. COMERFORD.
rather, the primary motivation for sticking with, for example, a combat infantry
S. NEWTON FELDMAN.
platoon is group loyalty. It is probably true that group loyalty is primary, but
NANCY R. HUNTER.
the suggestion that sanctions against desertion are not needed does not follow.
THEODORE W. VOLCKHAUSEN
The report argues that proponents of amnesty can meet these objections by
two arguments: First, previous amnesties have not proven to be major obstacles
to military preparedness, and secondly, an amnesty now should be only one part
of a larger response to all of those lives were affected by the United States' war
ADDITIONAL CORRESPONDENCE
effort in Indochina. The first argument is specious because the unconditional
blanket amnesty proposed by the report goes beyond any previous amnesty, and
U.S. SENATE,
the expected draft counselling would encourage similar conduct on the part of
January 13, 1975.
potential draftees in the future; we fail to see how the second argument meets the
Hon. LAURENCE SILBERMAN,
objections in regard to the difficulty in maintaining an Army.
Deputy Attorney General, Department of Justice,
(9) The report uses some objectionable techniques in framing its arguments:
Washington, D.C.
(a) The suggestion that the growing openness toward amnesty shows that what
DEAR MR. SILBERMAN: Last month the Senate Subcommittee on Administra-
may be needed to win acceptance by the American public is a strong advocacy of
tive Practice and Procedure held hearings on the operation of the President's
amnesty (i.e. unconditional amnesty) by the President or by Congress is unworthy
Clemency Program. Mr. Kevin Maroney testified on behalf of the Department of
of the majority of this committee. As the war recedes sympathy for some kind of
Justice concerning its role in processing unconvicted draft evaders.
amnesty will increase, but as we understand this argument, the President and
During our hearings, I raised two matters with Mr. Maroney which involve
Congress should manipulate public opinion in much the same way that Presidents
followup by the Department. Because of your central role in the administration
Johnson and Nixon were accused of doing during the war. Such manipulation is
of the program by the Justice Department, I am writing you to reemphasize my
bound to cause a further deterioration of trust between government and people.
interest in these matters.
It is more logical to argue that the amnesty which might win acceptance from
First, I believe it would be highly desirable to have a comprehensive, final list
the American public is amnesty only to those who deserve it, that is, a selective
of those individuals remaining under investigation for Selective Service offenses
amnesty, SO that the American public is not left with the feeling that while some
(excluding nonregistration) and those under indictment. I understand that a
served, openly flouted the draft and got away with it.
preliminary list of this kind has already been made available to some counselling
(b) It is inappropriate to equate the opponents of the war to those who suffered
groups, and that a review is presently underway to finalize this list.
and died in it. Can we seriously regard equally as casualties the deserter and the
There may well be a small margin of error in any such list. I propose, however,
man who was called up to replace him and then killed or maimed?
that in the light of the principles of justice and leniency espoused in the President's
(c) The racial references are a "red herring." Whether men of different races
announcement of the clemency program-and the experiences of a number of
were evaluated and disciplined in the same or different standards has nothing to
men who have had problems determining their precise status without risking
do with whether there should be an amnesty for everyone.
self-incrimination-the Department should complete a final and definitive list,
(d) At the risk of stating the obvious, we would point out that the articulate
of those liable for prosecution under the Selective Service laws (for offenses other
and well educated generally do better than the poor and less educated under any
than nonregistration). This list should be made available to an independent third
proposals on any subject.
party who can inform individuals on request whether their names appear on the
(10) The Report contains some questionable facts:
list.
(a) The figure of 800,000 persons to be covered by an amnesty is vastly inflated,
Mr. Maroney testified that "We will try to prepare such a list, and I will
unless one counts everyone who received an Article 15 during the period in question.
certainly take back the request that the list be regarded by the Attorney General
The figure of 30,000 deserters "at large" attributed to the Department of Defense
as a final list and be published at that time." I hope to hear from you on the 20th
includes desertions from July 1, 1966, to December 21, 1973, but clearly a great
of this month the results of this request.
part of these occurred after the fighting stopped. (The September 1974 figure is
I also raised with Mr. Maroney the question of even-handed imposition by
approximately 12,000, of whom some also must be post war absences.) The figure
United States Attorneys of the alternate service agreement provided in the
for exiles attributed to Mr. Schwarzschild of the American Civil Liberties Union
Clemency Program. The Subcommittee obtained a copy of a printed alternate
is likewise questionable, absent some indication of how the figures were compiled.
service agreement apparently utilized by the U.S. Attorney for the Southern
(It does seem that the Report relies on a source whose interest lies in high figures.
District of New York which, in lieu of a blank space, contains the notation
Perhaps we should consider this figure as the last body count of the war and have
"24 months" where the alternate service assignments is ordinarily to be filled
equal faith in it.)
on a case-by-case basis.
(b) Footnote 94 does not support the fact that there is a growing openness
Statistics supplied by the Department on alternate service agreements con-
toward amnesty. The poll referred to shows simply that 67 percent of the viewers
cluded through early December reflect that all thirteen participants in the Clem-
of this program who wrote the network were in favor of some kind of amnesty,
ency Program in the Southern District of New York were in fact assigned 24
not necessarily unconditional. Moreover, to many viewers, this program was a
months alternate service. A similar pattern appears in the agreements concluded
"sob sister" approach to the problem. We as lawyers know that "hard cases
in the Northern District of California.
make bad law.' If this is so, then artificially selected cases make worse law. The
These patterns appear to reflect the absence of any discretion being applied
resisters on the program were articulate and seemed to be basically good citizens
to the clemency cases processed in those districts, contrary to the President's
of their new countries. If we produced a program with resisters who had become
and the Department's directions. I believe that the Department should reexamine
rapists and muggers and asked the audience: "Do you think we should give these
the cases in both of those districts to determine whether there may have been
creeps an unconditional blanket amnesty?" We suspect we would get a majority
mitigating circumstances which were overlooked by those making the alternate
of "no" answers. Moreover, the Harris Survey, cited in the footnote, indicated
service assignment.
In light of the fact that the elemency program is slated to terminate at the
end of this month, I hope that these matters can be followed through without
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268
In utilizing the lists already provided, these organizations have been aware
delay and that you will report back to the subcommittee on the results of your
that, by confirming the fact that someone is under investigation, the source
efforts early next week.
necessarily reveals the existence of a federal investigatory file. They also under-
Sincerely,
stand that under the recent Freedom of Information Act amendments, the Justice
EDWARD M. KENNEDY,
Chairman, Subcommittee on Administrative Practice and Procedure.
Department is directed to release such information only so long as it will not con-
stitute an "unwarranted invasion of personal privacy." Although the immediate
need to determine the clemency eligibility of thousands of young men clearly
WASHINGTON, D.C., January 21, 1975.
warrants disclosure of the sort proposed here, the organizations named above will
convey information from the lists only to individuals, their families, or represent-
Hon. EDWARD M. KENNEDY,
atives, and will not generally publicize the names they contain. In this way we
Subcommittee on Administrative Practice and Procedure,
hope to assure the subcommittee that, in entrusting the lists to outside organiza-
Washington, D.C.
tions, it will not indirectly be responsible for a broader use of the lists than would
DEAR SENATOR KENNEDY: During your subcommittee's December 19 hearings
be authorized by the Freedom of Information Act.
on the clemency program, Deputy Assistant Attorney General Kevin Maroney,
We are informed that the requested lists are to be delivered to the subcommittee
representing the Justice Department, agreed to provide lists of all those under
this week, leaving only a few days during which they can be fruitfully used before
indictment or investigation for Selective Service Act violations as of January 12,
the expiration of the clemency program's enrollment period. We are anxious to
1975. Mr. Maroney also agreed to convey your recommendation that the Depart-
plan now to make the most of the brief interval and to that end we are available
ment regard this compilation of names as the "final list" of those Vietnam-era
to meet with you or the subcommittee staff at your earliest convenience to resolve
draft violators who remain liable to prosecution, and hence eligible under the
any remaining matters concerning the use of these lists.
President's Clemency Program. The single exception to this declaration of finality
Sincerely yours,
would be the Department's reservation of the option to proceed criminally against
PUBLIC LAW EDUCATION INSTITUTE.
those who did not register before March 28, 1973, and whose failure to register
CENTER FOR SOCIAL ACTION, UNITED CHURCHES OF CHRIST.
became known to the Selective Service System or the Department only after the
CLEMENCY INFORMATION CENTER.
beginning of the eligibility period under the program.
WAR RESISTER INFORMATION PROGRAM.
From our experience with individuals who would benefit most from an effective
CENTRAL COMMITTEE FOR CONSCIENTIOUS OBJECTORS.
clemency program, we can say that the preparation of a "final list" of those eligible
NATIONAL COUNCIL FOR UNIVERSAL AND UNCONDITIONAL AMNESTY.
would be the single most important objective which legislative oversight hearings
AMERICAN CIVIL LIBERTIES UNION.
could achieve at this time. The one further step needed to confirm the value of
this approach is to designate responsible and accessible nongovernmental agencies
to make this information available in a manner consistent with the degree of
confidentiality which we presume all those under criminal investigation would
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
desire.
Washington, D.C., January 24, 1975.
As the subcommittee knows, ten organizations have for three months been
Hon. EDWARD M. KENNEDY,
using an early and incomplete list of those under indictment or investigation, and
Chairman, Subcommittee on Administrative Practice and Procedure, U.S. Senate,
we remain confident that these same groups would employ the final list with
Washington, D.C.
complete discretion. However, should the subcommittee have serious misgivings
DEAR MR. CHAIRMAN: During Mr. Kevin Maroney's appearance on Decem-
about broad distribution of the list, a smaller group of three or four organizations
ber 19, 1974, before the Subcommittee on Administrative Practice and Procedure
could be agreed upon, although with some loss of effectiveness in using the list over
concerning the President's elemency program, you requested that the Department
the next few days. To help make such a choice, if it becomes necessary, we have
submit a final listing of all draft evaders whose cases have been reviewed by U.S.
arrived at several criteria for determining the most suitable agencies to whom the
Attorneys and found to have prosecutive merit.
lists should be entrusted, and have agreed upon four which seem to us to qualify
There are enclosed three copies of a list which includes the names and selective
best. The criteria are:
service numbers, where available, of all individuals who are presently charged
1. Responsibility and experience.-The organization or agency should be one of
by indictment, information or complaint, and those who are under investigation
those which has received and employed the incomplete list of all indictments
for draft offenses during the Vietnam era, where the case is believed to have prose-
and investigations, which the Justice Department made available in October 1974.
cutive merit. With the exception of those individuals who may be subject to
2. Reputation among the class potentially eligible for clemency.-The organization
criminal process for late or nonregistration occurring during the Vietnam era, this
or agency should be known as a reliable source of information concerning the
list is considered final by the Department of Justice, and those whose names appear
clemency program, and should be trusted to maintain the confidentiality of in-
may consider themselves eligible for the clemency program.
quiries made to it.
The Department has no objection to the subcommittee's release, to responsible
3. Accessibility of information.-The organization or agency should, if possible,
counseling agencies, of the names of those individuals against whom process is
maintain a toll-free or toll-collect phone and be adequately staffed to handle the
outstanding. However, we believe that public disclosure of the names of the
expected volume of requests coming to it or referred to it from other cooperating
persons still under investigation would constitute an invasion of their right to
organizations.
privacy and would be violative of the spirit underlying the Privacy Act of 1974,
4. Future operations.-The organization or agency should be reasonably certain
Public Law 93-579, enacted December 31, 1974.
of continued operation into an extended election period under the clemency
If I can be of any further assistance, please contact me.
program, should one be approved. In addition, at least one of the agencies selected
Sincerely,
should be capable of responding to inquiries regarding criminal liability and eligi-
LAURENCE H. SILBERMAN,
bility after the conclusion of the current election period.
Deputy Attorney General.
Although several organizations meet the above qualifications, in the interest
Enclosure.
of limiting distribution of the lists, we have arrived at four which we feel are par-
JANUARY 27, 1975.
ticularly qualified and which would stand ready to maintain an information service
THE PRESIDENT,
based on these lists.
The White House,
Center for Social Action, The United Churches of Christ, 1100 Maryland Avenue
Washington, D.C.
NE., Washington, D.C. 20002.
DEAR MR. PRESIDENT: On December 18 and 19, 1974, the Senate Judiciary
The Clemency Information Center, 110 West 42d Street, Indianapolis, Ind.
Subcommittee on Administrative Practice and Procedure held hearings regarding
46208.
the Presidential clemency program established September 16. These hearings were
War Resister Information Program, 567 Broadway Avenue, Winnipeg, Manitoba
R3C OW2.
The American Civil Liberties Union, 22 East 40th Street, New York, N.Y. 10016.
270
271
designed to determine whether the program's procedures and practices are in
As I indicated to you last summer following your speech to the Veterans of
keeping with the goals of leniency and reconciliation which you expressed in
Foreign Wars, I believe that the vast majority of Americans across the country
establishing it.
agree with you that reconciliation is a precondition for national unity and progress.
The hearings permitted us to compare the procedures of the Department of
Your initiation of the clemency program in September reflected both courage
Justice, the Department of Defense, and the Presidential Clemency Board. We
and compassion. When you announced the program, you cited the example of
believe that certain of the concepts, procedures, and practices of the program
President Lincoln's compassionate attitude of clemency after the Civil War.
should be changed to meet more fully the objectives you set forth. Since these
A continuation, expansion, and improvement of the present Clemency Program
findings may be of some help to you in your decision whether to extend the program
will move that program closer to this ideal.
beyond January 31, 1975, I would like to offer them along with certain specific
Sincerely,
recommendations for the improvement of the program.
EDWARD M. KENNEDY,
I want initially to commend the Department of Justice for making available
Chairman, Senate Subcommittee of Administrative
a definitive and final list of those who remain liable for prosecution for violation
Practice and Procedure.
of the Selective Service laws. This will now allow men to determine their eligibility
to participate in the clemency program without use of selfincrimination. The
U.S. SENATE,
compilation of this list by the Department and its transmittal to the Senate
February 12, 1975.
Subcommittee on Administrative Practice and Procedure.
Hon. EDWARD LEVI,
First, there is the question of the program's extension. It was clear even at the
Department of Justice,
time of our hearings in mid-December that many eligible individuals still were in
Washington, D.C.
the process of learning about the program. Letters had not been sent to even the
DEAR MR. ATTORNEY GENERAL: On January 24 I received from the Depart-
8,000 men who had been convicted and completed their sentence. The January
ment of Justice a list of all draft evaders whose cases have been reviewed by
cutoff date would clearly deny some who might wish to participate in the clemency
United States Attorneys and have been found to have prosecutive merit. In his
program of the opportunity to do SO. In Massachusetts, for example, there are
cover letter transmitting this list, Deputy Attorney General Laurence Silberman
numerous persons whose indictments for offenses committed in 1970 and 1971
indicated that this list would be treated by the Department as complete and
were not returned until late 1973 or 1974. Many of their cases will not be concluded
final for the offenses and time period covered. I want to take this opportunity to
until after the January 31 date. This means they would be denied the opportunity
again commend the Department and Mr. Silberman for the responsiveness and
to participate in the program. Further, the regulations of the Board were not
sensitivity to the principles underlying the President's clemency program which
issued until late November, and the procedures of the Justice Department and
this action reflects.
the Defense Department also were not available until well into the program.
As your staff is aware from discussions with Subcommittee staff, a number of
Finally, the Justice Department has only last Friday made available to the sub-
questions have arisen concerning the apparent unwillingness of U.S. Attorneys
committee the final list of men liable for prosecution for Selective Service violations
to be bound by the finality of the list. I am in receipt of a copy of a telex of
and thus eligible to participate in the clemency program. I thus believe the pro-
January 29, 1975 from Robert W. Vayda to all United States Attorneys, and
gram should be extended beyond the present termination date.
while I interpret this as instructions to U.S. Attorneys, there seems to be a
Second, it should be emphasized that improvements in the program structure
feeling among various counselling groups that the telex merely authorizes, but
could encourage a more positive response from those who are eligible. Thus,
does not require, the dismissal of indictments and closing of investigations for
the Presidential Clemency Board has established guidelines for "mitigating
individuals who do not appear on the list. It is also my understanding that
circumstances": which seem comprehensive and just, but the Department of
United States Attorneys have refused to acknowledge that these individuals are
Defense and the Department of Justice have guidelines that appear neither
free from any criminal liability for violating relevant Selective Service laws.
comprehensive nor consistent. Consistency in this important area would seem
Specifically, the following names have been brought to my attention as falling
crucial to the fairness of the overall program. For instance, while hardship is a
within the category of those not on the list but also not able to get confirmation
factor in the Clemency Board considerations, it is not considered by the Depart-
of nonliability from U.S. Attorneys:
ment of Defense. This would seem even to contradict the normal administrative
discharge process in the military, where individual hardship is accorded major
Harry F. Clark, Southern District, Michael Lennon, Eastern District, New
consideration.
Illinois.
York.
In this regard, full procedural protections should be extended to participants
Henry J. Ladd, Middle District, Carl L. Passen, Southern District, New
Georgia.
York.
including the right to make a personal presentation. At the least, this and other
Alan Lopez, Denver, Colo.
Simon Thomas Waters, Richmond, Va.
rights which were incorporated by the Congress in the Selective Service Reform
Act of 1971 should be part of the Clemency program's procedural protections.
Sam Lucas, Little Rock, Ark.
Mark Michael Wayne, New Jersey.
Third, the Presidential Clemency Board has announced a policy of review of
To clarify this matter I would appreciate confirmation from the Department
military records to determine whether there are any offenses other than the
1) of the nonliability of the above listed individuals; 2) that the list provided to
"absentee" offense. If no such offense exists, a recommendation to upgrade the
the subcommittee continues to be treated as closed and final for the offenses
"clemency discharge" to a "general discharge" would be made. Also, "clemency
covered; and 3) that the necessary clarification of these two points will be brought
discharges" granted by the Clemency Board are to be automatically reviewable by
to the attention of the U.S. Attorneys.
the military discharge review P rocess without regard to the offense pardoned. The
In view of the time limitation on the operation of the clemency program, I
Department of Defense seems to differ on these sound policies. Again, consistency
hope to receive your response by February 18. Finally, I believe it would be useful
with the Board's position would seem appropriate and desirable.
for the Department or U.S. Attorneys to provide written confirmation, to those
Fourth, the hearings indicated that the pardon would not expunge the par-
requesting it, of their status in order to avoid possible problems that might arise
doned individual's record, but only be added to the conviction record. If we are
in the future through computer error or the like.
to achieve reconciliation and encourage these young men to contribute fully
If the names of any other individuals in this class are subsequently brought to
to this society in the future, it would be appropriate to expunge or at least to
my attention, I hope we can be assured that their cases will be disposed of in a
seal the relevant records of men who complete the clemency program.
similar manner.
Fifth, the program now covers veterans with less than honorable discharges
Sincerely,
for "absentee" offenses, but does not cover veterans with SECH discharges for
EDWARD M. KENNEDY, Chairman,
offenses less serious than desertion, who may be equally deserving of leniency.
Subcommittee on Administrative Practice and Procedure.
To exclude those men from the clemency program seems to be an oversight that
inevitably produces inequities, especially since identical motivation may have led
different men to different action which should not merit different treatment under
the clemency program.
55-550 O 75 19
272
273
OFFICE OF THE ATTORNEY GENERAL,
absence violations and are not on the Department's final list of January 24, 1975,
Washington, D.C., February 27, 1975.
cannot as a matter of law be held to have left the country in order wrongfully to
Hon. EDWARD M. KENNEDY,
avoid or evade military training or service. It thus seems to me indefensible and
Chairman, Subcommittee on Administrative Practice and Procedure,
inequitable to exclude these persons from this country, even for a visit to their
U.S. Senate,
families, on the administrative determination that they are excludable under
Washington, D.C.
8 U.S.C. 1182(a) (22). The thrust of the President's Clemency Program also sup-
DEAR MR. CHAIRMAN: This is in reply to your letter of February 12, 1975
ports a more lenient attitude towards those who had previously, but wrongfully,
with respect to the finality of the list of Selective Service violators eligible for the
been accused of violating draft laws.
clemency program which was furnished to your subcommittee on January 24, 1975.
I would be interested in knowing the asserted legal basis for exclusion deter-
The list is final except with respect to individuals subject to criminal prosecution
minations in these instances. If you agree that present INS exclusion actions
for late or nonregistration.
cannot be justified as to persons who were not convicted and are not charged with
Individuals who had executed clemency agreements before the list was delivered
draft violations, it would be appropriate to require the Commissioner of the
you on January 24 and who were omitted from the list were not currently
Immigration and Naturalization Service to conform his determinations of ex-
to subject to prosecution when the final list was compiled. Thus, it is understandable
cludability with those of the Department on violations of the Selective Service
why these individuals were omitted and the question of finality did not relate to
and military law.
them in any event.
Sincerely,
Some individuals were inadvertently omitted by U.S. Attorneys because they
EDWARD M. KENNEDY.
were involved in on-going negotiations with the apparent intent of concluding
agreements, or had contacted a U.S. Attorney and stated that they did not intend
DEPARTMENT OF JUSTICE,
Washington, D.C., April 18, 1975.
to participate in the clemency program.
The Department can understand the argument that such individuals should
Hon. EDWARD M. KENNEDY,
be subject to prosecution because of the fact that they knew of their criminal
U.S. Senate,
liability if they failed to execute an alternate service agreement and thus suffered
Washington, D.C.
no actual prejudice because of their inadvertent omission from the final list.
DEAR SENATOR KENNEDY: The Attorney General has asked me to reply to your
However, the Department will not prosecute such individuals because it is our
letter of March 11, 1975 concerning the basis on which the Immigration and
position that we shall adhere to the representations made in the Depart mental
Naturalization Service enforces the exclusion statute concerning aliens who have
letter of January 24 to you. All alternate service agreements made by individuals
departed from or remained outside the United States to avoid or evade training
whose names were omitted from the final list and executed after January 24 are
or service in the armed forces in time of war or national emergency, section 212
deemed null and void by the Department.
(a) (22) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (22)). You
The eight individuals whom you named in your letter are not on the final list the
suggest that it is illegal for the immigration authorities to apply the statute to
and are not subject to prosecution for draft evasion offenses covered by
persons who have not been convicted of draft or military absence violations and
clemency program.
are not presently charged with having violated Selective Service or military laws.
If I may be of any further assistance in this matter, please contact me.
You also suggest the relevance of the President's clemency program.
Sincerely,
Taking the last and simpler point first, I must disagree that the clemency pro-
EDWARD H. LEVI,
gram has any bearing on the interpretation or application of the statute. It was
Attorney General.
expressly stated in Proclamation 4313 of September 16, 1974: "However, this
program will not apply to an individual who is precluded from reentering the
United States under 8 U.S.C. 1182(a) (22) or other law."
U.S. SENATE,
Section 212(a) (22) of the Act is derived from section 3 of the Immigration Act
March 11, 1975.
of 1917 (8 U.S.C. 136) as amended by the Act of September 27, 1944 (58 Stat.
Hon. EDWARD LEVI,
746). The legislative history of the 1944 addition to the exclusion law reveals an
Department of Justice,
intention to permit the immigration authorities to make their own determination
Washington, D.C.
of excludability, without dependence on the actions or advice of Selective Service
DEAR MR. ATTORNEY GENERAL: Thank you for your letter of February 27,
or military authorities or criminal prosecutors. House Report No. 1229, March 3
1975, which confirms the representations made by the Department of Justice
1944, to accompany H.R. 4257, contained this statement:
concerning the completeness and finality of the list of alleged Selective Service law
"It was explained to the committee that it would be the primary duty of
violators who are eligible for the Presidential clemency program. This list was
either the United States Consular Service of the Department of State or the
furnished to the Subcommittee on Administrative Practice and Procedure on
Immigration and Naturalization Service to determine the questions of fact
January 24, 1975. I am grateful for this renewed assurance; it conclusively re-
as to whether any aliens who had left the United States during the war had left
solves any remaining uncertainties that had arisen with respect to the legal status
for the purpose of evading the draft."
of a number of persons who reasonably believed that they were in jeopardy of
Nothing else in the legislative history of either the 1944 law or its reenactment
in the 1952 Immigration and Nationality Act indicates a contrary legislative
prosecution. On a related matter the subcommittee has received reports in recent days that
intent.
the Immigration and Naturalization Service, relying upon 8 U.S.C. 1182(a) (22),
From the beginning, the Immigration and Naturalization Service has made
excludes from admission into the United States such aliens (including former
independent determination in quasi-judicial exclusion proceedings whether an
citizens of the United States) as it determines to have left this country or re-
alien had departed or remained outside the United States for the primary purpose
mained abroad in order to evade or avoid military training and service. INS
of evading his military obligations. Selective Service and military records, when
victed of violating nor are charged with having violated the Selective Service
apparently applies this provision to exclude persons who have neither been con-
relevant, are incorporated in the record of proceeding. Although the Act (section
315(b), 8 U.S.C. 1426(b)) prescribes that the records of the Selective Service Sys-
laws or the military law against unauthorized absence or desertion.
tem or of the National Military Establishment shall be conclusive regarding
Under our constitutional system, of course, a person is presumed innocent
whether an alien was relieved from liability for training and service, on his applica
unless duly convicted by a court of law. Aliens, including former U.S. citizens,
tion, because he was an alien, there is no corresponding prescription regarding
who have been neither convicted of nor charged with a violation of law, it seems
the evidentiary value of such records where alleged excludability rests on de-
to me, should enjoy the same presumption with respect to the very consequential
parture or remaining outside for the proscribed purpose.
determination by an agency of the Department of Justice regarding their admis-
The case law confirms the authority of the Immigration and Naturalization
sibility to this country: Persons who have not been convicted for draft or military
Service to assume primary responsibility for fact finding. In Holz V. Del Guercio,
259 F.2d 84 (9th Cir. 1958), the Court said, at page 86:
274
275
"The court also upheld the order for deportation on the ground that Holz, an
alien, had departed from the United States and gone to Mexico, in order to avoid
PUBLIC LAW EDUCATION INSTITUTE,
or evade service in the armed forces in time of war. There was clear, satisfactory
and convincing evidence to sustain this charge also. But it need not be reviewed.
EDWARD M. KENNEDY,
Washington, D.C., April 4, 1975.
The interview of Holz with officers of the Immigration Service contains a direct
Chairman, Subcommittee on Administrative Practice and Procedure, of the Senate
and positive admission that this was his purpose in departing from the United
Judiciary Committee, Washington, D.C.
States.
"The only point Holz makes is that certain proceedings before the Draft
December testimony before your subcommittee concerning the Justice Depart-
DEAR SENATOR KENNEDY: An account in the Washington Star-News of my
Board, which ended in an order to report for service should be reviewed. This is
ment element of the Presidential clemency program reported that my client,
beside the point. The only question before the Special Examiner was whether
Alan K. Merkle, had been indicted for draft violations in Michigan. This prompted
the charge was proved as laid."
In Ramasauskas V. Flagg, 309 F. 2d 290 (7th Cir. 1962), after determining that
that an indictment was ever returned against Merkle.
Acting Assistant Attorney General John Kenney to write you in January denying
the finding by the special inquiry officer of the Service was supported by substantial
that my client was not indicted. That is technically correct, for a criminal
Mr. Keeney's denial is open to two interpretations. He may mean to claim only
evidence and must be sustained, the Court remarked, at page 294:
"The fact that petitioner voluntarily served in the army after his return to the
United States can have no legal effect upon his status at the time of his departure.
however, actually charged, or so I was told telephonically on Tuesday, Decem-
complaint, not an indictment, was used to charge Mr. Merkle. Mr. Merkle was,
The legal effect of his departure to avoid service in the Armed Forces is that he
is excluded from admission to the United States and thereby becomes deportable."
In Alarcon-Baylon V. Brownell, 250 F. 2d 45 (5th Cir. 1957), the Court said,
of charging, is pertinent to my criticism of Justice Department policy.
at (313)234-5208. Of course, only the fact, not the technical form, the manner,
ber 17, 1974, by one John P. Conley, Assistant U.S. Attorney in Flint, Michigan,
at page 47:
If, on the other hand, Mr. Keeney intends to deny that my client was ever
We agree
that the evidence on which the deportation order was based
charged at all, I again invite reference to my telephonic communication with
fully supports it, and that appellant's contention, that the visa and the draft
Assistant U.S. Attorney Conley, supra. Not only did Mr. Conley tell me the date
board classification have precluded the inquiry here made, are (sic) untenable.
Mr. Merkle was charged (September 17, 1971), but also the criminal complaint
No such effect is accorded by law to such administrative actions
number (71-3459), both of which, you may recall, I cited in my written statement
See also Riva V. Mitchell, 460 F. 2d 1121, 1123 (3rd Cir. 1972); Jolley V. Immi-
(p. 7).
gration and Naturalization Service, 441 F. 2d 1245 (5th Cir. 1971), cert. denied,
404 U.S. 946 (1971).
Merkle. I trust that this explanation will set the record straight concerning Alan K.
In short, both the legislative history and the case law solidly support the
Sincerely yours,
application of the law whereby the Immigration and Naturalization Service
adjudicates exclusion cases arising under section 212(a) (22) of the Act without
JOHN E. SCHULZ,
Editor-in-Chief, Military Law Reporter.
regard to determinations not to prosecute and without regard to treatment
signifying condonation by Selective Service or military authorities.
Sincerely,
A. MITCHELL McConnell, Jr.,
ADDITIONAL MEMORANDUMS
Acting Assistant Attorney General.
DEPARTMENT OF JUSTICE,
DEPARTMENT OF JUSTICE,
To: The United States Attorneys.
Washington, D.C., March 6, 1975.
Washington, D.C., January 28, 1975.
Re List of Selective Service Violators.
Hon. EDWARD M. KENNEDY,
Chairman, Subcommittee on Administrative Practice and Procedure,
There is enclosed for your information, a copy of a list of names of individuals
U.S. Senate, Washington, D.C.
within your judicial district subject to prosecution for selective service offenses
occurring during the Vietnam era and believed eligible for the Presidential
DEAR MR. CHAIRMAN: This is in reference to an article which appeared in the
Clemency Program. This list which is a reproduction of the list which you sub-
December 19, 1974, issue of the Washington Star-News, regarding testimony on
mitted in response to the Deputy Attorney General's request of December 20,
December 18 by an attorney, John Schulz, who appeared before the Senate
1974, was furnished to the Chairman of the Senate Subcommittee on Administra-
Subcommittee on Administrative Practices and Procedure. The article reported
tive Practice and Procedure on January 24, 1975. In providing this list to the
that Mr. Schulz testified that one of his clients, Alan K. Merkle (mistakenly
Chairman, the Department represented it as a final list except for those individuals
identified in the article as Alan K. Markle), had been indicted for a draft law
who may be subject to prosecution for late registration or non-registration
violation in September, 1971, in Detroit, and that the indictment had been dis-
offenses which occurred during that era. Thus, those individuals whose names
missed in 1972, but because Mr. Merkle did not receive notice of the dismissal,
have been inadvertently omitted from this list, should be treated in accordance
he was forced to live as a fugitive for two additional years.
Mr. Schulz's testimony, according to the records of the U.S. Attorney, was in
States Attorneys on February 27, 1975.
with the procedures outlined in the Attorney General's teletype to all United
error. We have been informed by the U.S. Attorney for the Eastern District of
Sincerely,
Michigan that no indictment was ever returned, and no warrant was issued,
JOHN C. KEENEY,
against Mr. Merkle who had been declared delinquent by his local Selective
0
Acting Assistant Attorney General.
Service Board for failure to report for induction on May 13, 1971. In August,
1972, the state headquarters, Selective Service System, advised that a procedural
error had been found in Mr. Merkle's file and that prosecution would not be
pursued. Consequently, on August 16, 1972, the Detroit Office of the FBI was
To: All U.S. attorneys.
advised that prosecution was not desired, and the matter was closed by the FBI
From: Edward H. Levi, Attorney General.
with no further investigation conducted.
Subject: Final list of draft evaders eligible for the clemency program.
We wish to point out that Mr. Merkle, or his attorney or other representative,
could have ascertained the status of this matter at any time by making an inquiry
chairman Procedure: of the Senate Judiciary Subcommittee on Administrative Practice and
The following letter was sent on February 27, 1975, to Senator Kennedy,
to the U.S. Attorney in Detroit.
I trust that this information will be of assistance to your subcommittee in its
consideration of the clemency program.
with respect to the finality of the list of selective service violators eligible for the
DEAR MR. CHAIRMAN: This is in reply to your letter of February 12, 1975
Sincerely,
JOHN C. KEENEY,
clemency program which was furnished to your subcommittee on January 24, 1975.
Acting Assistant Attorney General.
tion for late or nonregistration.
The list is final except with respect to individuals subject to criminal prosecu-
276
277
Individuals who had executed clemency agreements before the list was delivered
authorization for dismissal, United States Attorneys may contact criminal
to you on January 24 and who were omitted from the list were not currently
division attorneys Robert W. Vayda, telephone No. 202-739-4520 or Bernard J.
subject to prosecution when the final list was compiled. Thus, it is understandable
Atchison, telephone No. 202-739-4524.
why these individuals were omitted and the question of finality did not relate to
WILLIAM B. SAXBE,
them in any event.
Attorney General.
Some individuals were inadvertently omitted by United States attorneys be-
cause they were involved in on-going negotiations with the apparent intent of
concluding agreements, or had contacted a U.S. attorney and stated that they
To: All U.S. attorneys (including overseas).
did not intend to participate in the clemency program.
From: William B. Saxbe, Attorney General.
The department can understand the argument that such individuals should
Subject: Review of files of unconvicted draft evaders eligible for the clemency
be subject to prosecution because of the fact that they knew of their criminal
program.
liability if they failed to execute an alternate service agreement and thus suffered
In furtherance of the spirit of President Ford's clemency program, I am
no actual prejudice because of their inadvertent omission from the final list.
directing all U.S. attorneys to commence reviewing all case files on unconvicted
However, the department will not prosecute such individuals because it is our
draft evaders who are eligible for the program. If after reviewing such a case file,
position that we shall adhere to the representations made in the departmental
the U.S. attorney determines that it lacks prosecutive merit, he should move to
letter of January 24 to you. All alternate service agreements made by individuals
dismiss the indictment or terminate the investigation, whichever is appropriate.
whose names were omitted from the final list and executed after January 24 are
Once a decision has been made that a case lacks prosecutive merit, all reasonable
deemed null and void by the department.
steps should be taken to notify the individual, directly or indirectly, of that fact,
The eight individuals whom you named in your letter are not on the final
and the individual should be informed that he will not be required to perform
list and are not subject to prosecution for draft evasion offenses covered by the
alternate service to escape a draft evasion prosecution.
clemency program.
All U.S. attorneys who have fewer than 250 case files to review should have
If I may be of any further assistance in this matter, please contact me.
the review process completed by December 11, 1974. All U.S. attorneys who have
Sincerely,
250 or more case files should have the review process completed by January 11,
EDWARD H. LEVI,
1975.
Attorney General.
Upon completion of the review process, each U.S. attorney should notify Robert
In accord with the policy decisions embodied in this letter, all U.S. attorneys
W. Vayda, Criminal Division, together with a statement indicating the number
will undertake the following:
of cases determined to lack prosecutive merit, the total number of cases reviewed,
(1) Dismiss draft evasion indictments covered by the clemency program
and the number of active cases then remaining after completion of the review
against all individuals whose names were not submitted to the department in
process.
accordance with the departmental instruction of December 20, 1974;
(2) Cancel alternate service agreements made by individuals whose names were
DEPARTMENT OF JUSTICE,
omitted from the final list and who executed such agreements after January 24,
Washington, D.C., December 16, 1974.
1975 and
Unclassified.
(3) Respond in writing to written inquiries from individuals not on the list
Re Robert W. Vayda.
confirming that, except for the possibility of a prosecution for a late or non-
All U.S. attorneys (including overseas).
registration offense, they are free from prosecution for an offense covered by the
clemency program.
Prosecutive Policy With Respect to Certain Persons Alleged To Have Violated
In the January 29, 1975 instruction, an error was made in referring to 8 U.S.C.
Section 12 of the Military Selective Service Act (50 U.S.C. App. Section 462)
1402. The proper reference was 8 U.S.C. 1481.
Pursuant to the President's Proclamation
In conjunction with my initial directions dealing with the procedures to be
followed in implementing the President's clemency program for draft evaders,
DEPARTMENT OF JUSTICE,
all U.S. attorneys were requested to make reasonable attempts to notify by
Washington, D.C., November 21, 1974.
letter all individuals who were eligible for clemency. Although most United States
Unclassified.
attorneys have substantially complied with this order, there have been some
Re Robert W. Vayda.
cases where no attempt has been made to contact those individuals who are
All U.S. Attorneys (including overseas).
fugitives. Therefore, at this time, and in connection with my order of November 13,
Subject: Review of files of unconvicted draft evaders eligible for the amnesty
1974, requiring a review of all case files of unconvicted draft evaders, all United
program.
States attorneys are directed to communicate immediately with all evaders who
United States Attorneys are advised that the directions contained in my
are eligible for clemency, regardless of their states as fugitives, and advise them of
message of November 18, 1974, requiring a review of draft evaders files, does not
the Presidential clemency offer. For your assistance, there is transmitted herewith
negate the requirement of obtaining prior departmental approval for a dismissal.
a copy of a form letter which may be used for this purpose.
Therefore, if subsequent to the review of a file, it is determined that a factual, or
In regard to those fugitive evaders residing outside the United States, and
legal basis exists which would preclude successful prosecution, a form U.S.A.
those whose whereabouts are unknown, the letter should be directed by certified
900, "Request and Authorization to Dismiss Criminal Case," should be com-
mail to the last known address, return receipt requested. A record of this notifi-
pleted and forwarded to the internal security section, criminal division pending
cation should be maintained in the individual's case file. United States attorneys
receipt of departmental authority, United States Attorneys should take no action
should not construe this order as relieving them of the obligation to notify those
with regard to filing a motion to dismiss with the court, or notifying the individual
individuals whose cases have been reviewed, and found lacking in prosecutive
of the requested authorization. Although procedures have been adopted by the
merit, that they will not be required to perform alternate service to escape their
department to insure expeditious processing of Forms 900, it is envisioned that
draft evasion prosecution.
time lags may occur between the time a request for dismissal is submitted and
The following is the suggested form letter to be utilized in notifying draft
departmental authorization is received due to the holiday mailing season and the
evaders of the clemency program:
expected influx of Forms 900. In view of these factors, United States Attorneys
Re United States v.
should make every effort to complete their reviews as quickly as possible.
Criminal File No.
As in the past, when circumstances arise requiring immediate departmental
DEAR
: This letter concerns reports received by
this office that you have committed an offense against the United States on or
about
in violation of section 12 of the military selective service act.
279
278
DEPARTMENT OF JUSTICE,
In accordance with the President's policy of granting leniency to certain indi-
Washington, D.C., January 13, 1975.
viduals who are charged with violating section 12 of the military selective service
Unclassified.
act, you are eligible for diversion to an alternative service program. Should you
Re Robert W. Vayda.
agree to undertake acceptable alternate service as an acknowledgement of your
All U.S. attorneys (including overseas).
allegiance to the United States this office will refrain from prosecution. Note,
however, that if no agreement is reached the United States will be free to prose-
REPORTING PROCEDURES TO BE FOLLOWED IMMEDIATELY WHICH DEAL WITH THE
cute you for the section 12 charges. If the Director of Selective Service certifies to
RESULTS OF THE REVIEW OF UNCONVICTED DRAFT EVADER FILES, AND LISTINGS
us that you have successfully completed your service, the pending charge against
OF INDIVIDUALS WHOSE FILES HAVE BEEN REVIEWED AND ARE ELIGIBLE FOR
you will be dropped. However, failure satisfactorily to complete the alternate
THE PRESIDENTIAL CLEMENCY PROGRAM
service will probably cause us to resume prosecution of the section 12 charge.
A decision to seek acceptance into this program is one that must ultimately be
It is imperative that all United States attorneys who have not already done
made by you. Nevertheless, it is important that you immediately discuss this
so, immediately report the results of the review of files of unconvicted draft
matter with your attorney inasmuch as your participation in this program will
evaders. The report should set forth the total number of cases reviewed, the num-
require a waiver of certain rights afforded to you by the Constitution. For example,
ber found lacking in prosecutive merit, and the number of active cases remaining
you must waive your right to a speedy trial and right to have an indictment
after completion of the review. Additionally, United States attorneys should
presented to the Grand Jury, if one has not already been obtained, within the
treat with utmost urgency the requirement that they forward by January 13,
prescribed statute of limitations. We suggest that you consult with your attorney
1974, a listing of all draft evaders, identified by name and selective service num-
who will explain the program to you and the nature of the waivers mentioned
ber, whose files have been reviewed, found not lacking in prosecutive merit, and
above.
eligible for the President's clemency program. The listings should be submitted
Very truly yours,
in the format set forth in the teletype of December 20, 1974. These reports should
be directed by teletype to Robert W. Vayda, Criminal Division, Room 203,
(U.S. Attorney)
Federal Triangle Building, 315 9th Street, N.W., Washington, D.C.
By:
WILLIAM B. SAXBE,
WILLIAM B. SAXBE,
Attorney General.
Attorney General.
DEPARTMENT OF JUSTICE,
DEPARTMENT OF JUSTICE,
Washington, D.C., January 29, 1975.
Washington, D.C., December 29, 1974.
Unclassified.
Unclassified.
Re Robert W. Vayda.
Re Robert W. Vayda.
To all United States Attorneys (including overseas).
All U.S. attorneys (including overseas).
Subject: Procedures to be completed by United States attorneys no later than
February 14, 1975 in those draft evader cases where declination or dismissal
REPORTING THE NAMES OF INDIVIDUALS ELIGIBLE FOR THE PRESIDENTIAL CLEMENCY
was warranted as a result of the recent review.
PROGRAM
With respect to the recent review of draft evader files, and the submission to
the Department of the names of all persons whose cases contain prosecutive
In conjunction with my directions of November 18, 1974, requesting United
merit and are eligible for the President's Clemency Program, a listing was pre-
States attorneys to report the results of the review undertaken with regard to
pared and submitted to the Senate Subcommittee on Administrative Practice
draft evaders eligible for the clemency program, it is requested that a list con-
and Procedure with the following cover letter.
taining the names and selective service numbers of all draft evaders whose cases
have been reviewed and found not lacking in prosecutive merit be prepared and
Hon. EDWARD M. KENNEDY,
forwarded to the Department no later than close of business on January 13, 1974.
Chairman, Subcommittee on Administrative Practice and Procedure, U.S. Senate,
United States attorneys with less than 250 cases are requested to provide this
Washington, D.C.
listing by January 8, 1975.
The listing should be prepared SO that each draft evader may be identified by
DEAR MR. CHAIRMAN: During Mr. Kevin Maroney's appearance on Decem-
ber 19, 1974, before the Subcommittee on Administrative Practice and Procedure
name and selective service number as falling within one of the following categories:
A. Indicted draft evaders whose cases retain prosecutive merit. (Do not include
concerning the President's clemency program, you requested that the Department
those individuals where a USA Form 900, "Request and Authorization to Dismiss
submit a final listing of all draft evaders whose cases have been reviewed by United
States attorneys and found to have prosecutive merit.
Criminal Case," has been submitted).
There are enclosed three copies of a list which includes the names and Selective
B. Draft evaders against whom criminal complaints are outstanding and whose
cases retain prosecutive merit on the basis of available information.
Service numbers, where available, of all individuals who are presently charged by
C. Individuals under investigation whose files appear to have prosecutive merit
indictment, information or complaint, and those who are under investigation for
on the basis of available information.
draft offenses during the Vietnam era, where the case is believed to have prosecu-
These reports should be directed by mail to Robert W. Vayda, Criminal Divi-
tive merit. With the exception of those individuals who may be subject to criminal
sion, Room 203, Federal Triangle Building, 315 9th Street, N.W. Washington,
0
process for late or nonregistration occurring during the Vietnam era, this list is
D.C., or by teletype to Mr. Vayda, Criminal Division, Department of Justice.
considered final by the Department of Justice, and those whose names appear
may consider themselves eligible for the clemency program.
WILLIAM B. SAXBE,
The Department has no objection to the subcommittee's release, to responsible
Attorney General.
counseling agencies, of the names of those individuals against whom process is
280
281
outstanding. However, we believe that public disclosure of the names of the
persons still under investigation would constitute an invasion of their right to
PREPARED STATEMENT OF KEVIN T. MARONEY,
privacy and would be violative of the spirit underlying the Privacy Act of 1974,
DEPUTY ASSISTANT ATTORNEY GENERAL,
Public Law 93-579, enacted December 31, 1974.
CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
If I can be of any further assistance, please contact me.
Sincerely,
Dear Mr. Chairman:
LAURENCE H. SILBERMAN,
Deputy Attorney General.
Mr. Chairman and members of the Subcommittee, I am
In connection with the foregoing expression of departmental policy, United
States attorneys may forego the earlier requirement that departmental authority
pleased to appear today to discuss the implementation of
to dismiss must be obtained prior to filing a motion to dismiss with the court.
Thus, United States attorneys are authorized on this one-time basis to move
the President's Clemency Program with respect to uncon-
immediately to dismiss indictments against those draft evaders whose cases were
found devoid of prosecutive merit as a result of the review recently conducted
victed alleged draft evaders by the Department of
pursuant to the Attorney General's order of November 13, 1974. Along with filing
a motion to dismiss, United States attorneys should insure that outstanding war-
rants of arrest against persons affected by this order are dismissed and the names
Justice. My remarks will focus on the number of in-
of these individuals purged from the N.C.I.C. list no later than February 14,
1975. In those cases where the United States attorney deems it impossible to in-
dividuals eligible for the program, what participation in
sure that individuals who are no longer subject to criminal process may not be
arrested after that date, the names of these individuals should be sent by Teletype
the program requires, measures taken to inform eligible
to Mr. Robert W. Vayda, Criminal Division. In those cases where forms 900 have
already been submitted to the Department, United States attorneys are author-
draft evaders of the program's existence, the number who
ized to forgo departmental approval and to follow the procedures outlined above.
For management purposes, however, United States attorneys are requested to
have participated, steps taken to insure uniform implementa-
prepare and forward to the Department forms 900, on each case where dismissal
occurred noting the reasons for the dismissal. In addition, a copy of the form 900
tion, and a special review of draft evader cases undertaken
should be included in the file to be closed.
In those cases where during the review it was determined that the draft evader,
by the Department.
though no longer liable for his violation of the Military Selective Service Act, has
renounced his American citizenship or become a foreign national in accordance
Eligible Draft Evaders
with title 8 U.S.C. sec. 1401, or was an alien, his name should be forwarded to the
Immigration and Naturalization Service in order that the provisions of title 8,
An unconvicted draft evader is eligible for the Clemency
U.S.C. sec. 1182(a) (22) may be invoked. In those cases where during the review
it was determined that the case retained prosecutive merit and the individual
was residing in a foreign nation, United States attorneys are requested to take
Program if he committed his offense between August 4, 1964
immediate action to furnish the name of such an individual to the State Depart-
ment in order that restrictive passport action may be taken. The names of those
and March 28, 1973 and if he is not barred from re-entering
individuals falling in this category should be directed to Francis G. Rando, Chief,
Foreign Operations Division, Passport Office, Department of State, Washington,
the country by 8 U.S.C. 1182 (a) (22). Generally speaking,
D.C., 20520.
LAURENCE H. SILBERMAN,
that latter provision would exclude from the program any
Deputy Attorney General.
alien who has fled the country to avoid the draft or a
All unconvicted draft evaders, of course, are presumed
innocent until proven guilty. The Clemency Program does
not affect the right of an individual charged with a
draft evasion offense to challenge that charge in court.
The term "draft evader" in this statement is used for
purposes of brevity and is not meant to prejudge the
11
guilt or innocence of any individual charged with a draft
evasion offense.
282
283
United States citizen who has done the same and subsequently
qualify for alternate service under the Clemency Program.
renounced his U. S. citizenship. The Department estimates
Upon satisfactory completion of the alternate service, the
that approximately 6,300 unconvicted draft evaders are
United States will dismiss the draft evasion charge.
eligible for the Clemency Program. Approximately 4,190 are
An unconvicted draft evader who participates in the
currently under indictment, of whom some 3,950 are listed
Clemency Program is assured of avoiding a felony conviction
as fugitives. It is estimated that 2,090 of the fugitives
and any term of incarceration.
are in Canada, and that an additional 560 are located else-
Informing Unconvicted Draft Evaders of the Existence
where outside the United States. An estimated 2,130 in-
of the Clemency Program
dividuals are under investigation for a draft evasion
The Department has taken several measures to inform
offense.
those eligible for the Clemency Program of its existence.
We have directed all United States Attorneys to send letters
Requirements for Participation in the Clemency Program
to the last known address of individuals currently under
An unconvicted draft evader must report to the United
indictment or investigation informing them of the program.
States Attorney in the district where his offense was com-
We have publicly released a list of all individuals cur-
mitted by January 31, 1975. There he executes an agreement
rently under indictment or investigation so that an
with the United States Attorney in which he acknowledges
individual reluctant to contact the Department may learn
his allegiance to the United States by agreeing to perform
whether he is on the list from private sources. We have
alternate service. The normal term of alternate service is
provided a phone number at the Department which can be
24 months / but may be reduced by the United States Attorney
called to ascertain whether a certain individual is on the
if certain mitigating factors/are present. The alternate
list and, if so, the U. S. Attorney he should report to.
service is performed under the auspices of the Director of
Inquiries can be made anonymously and the Department makes
Selective Service and must be in the national health,
no attempt to learn the identity of those who call.
safety, or interest. The Director has promulgated regula-
tions which define more specifically which types of jobs
284
285
Additionally, the Department has publicly urged eligible in-
Uniform implementation is most difficult to assure in
dividuals to/seek counsel in connection with determining
connection with determining the length of alternate service.
whether to participate in the Clemency Program. As a result
Under the program, the normal length is 24 months, but may
of these measures, and others, I think that the large
be reduced by the U. S. Attorney for mitigating circum-
majority of unconvicted draft evaders eligible for the
stances. Paragraph IV of the prosecutive guidelines sets
Clemency Program are aware of its existence and terms.
forth appropriate mitigating circumstances which, of neces-
sity, leave room for discretion. To insure that this
Number of Participants in the Clemency Program
discretion was being fairly and properly exercised from
As of noon last Tuesday, December 17, 1974 /144/ alternate
the outset, the Deputy Attorney General personally reviewed
service agreements had been signed. Appendix A provides a
the first 26 alternate service agreements before they were
breakdown with respect to the districts in which the agree-
given approval. On the basis of that review, he was satis-
ments were signed and the length of alternate service re-
fied that the U. S. Attorneys were appropriately following
ceived under the agreements.
the guidelines in determining the length of alternate
Insuring Uniform Implementation of the Clemency Program
service. The Department has throughout the program received
Several steps have been taken to insure uniform im-
a weekly report from all U. S. Attorneys indicating the
plementation of the program by the 94 United States
number of alternate service agreements signed and the length
Attorneys. All the U. S. Attorneys have received for use
of service assigned in connection with each agreement.
in implementing the program prosecutive guidelines a model
Nothing in these weekly reports has indicated that U. S.
alternate service agreement, and a model letter to send an
Attorneys are not assigning terms of alternate service under
eligible draft evader. These documents are attached as
uniform standards and with a proper exercise of discretion
Appendix B.
pursuant to the prosecutive guidelines.
286
287
Review of Draft Evader Files to Determine
APPENDIX A
Prosecutive Merit
JUDICIAL DISTRICT
MONTHS OF SERVICE
In furtherance of the spirit of the Clemency Program,
T 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6
the Department has directed all U. S. Attorneys to review
Alabama N.
0
the files of unconvicted draft evaders and to dismiss
Alabama M.
0
charges against those whose cases lack prosecutive merit.
Alabama S.
3
3
The review process will be completed by January 11, 1975.
:-
Alaska
0
As of noon last Tuesday, December 17, 1974 1,453 files had been
Arizona
3
2
reviewed and charges had been dismissed against 213 in-
dividuals. Attached at Appendix C is a district-by-district
(
Arkansas E.
0
breakdown of these figures,
Arkansas W.
0
California N.
10
10
Conclusion
California E.
2
2
The Department of Justice has acted pursuant to the
directives and in furtherance of the( spirit/of the Clemency
California C.
12
6
1
3
2
Program in connection with its implementation. In my judg-
California S.
6
3
3
ment, the program has been fairly and effectively
Canal Zone
0
administered.
Colorado
1
1
Attachments
Connecticut
2
2
Delaware
0
D.C.
0
Florida N.
1
1
Florida M.
5
2
1
2
Florida S.
0
Georgia N.
1
1
Georgia M.
0
Georgia S.
1
Guam
0
Hawaii
0
55-550 O- 75 20
288
289
JUDICIAL DISTRICT
JUDICIAL DISTRICT
MONTHS OF SERVICE
MONTHS OF SERVICE
3
2
T 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6
T 24 23 22 21 20 19 18 17 16 15 14 13 12 11' 10 9 8 7 6
Idaho
Missouri E.
0
1
1
Illinois N.
2
1
1
Missouri W.
0
Illinois E.
0
Montana
0
Illinois S.
0
Nebraska
1
1
Indiana N.
Nevada
1
1
0
Indiana S.
0
New Hampshire
0
Iowa N.
0
New Jersey
7
6
1
Iowa S.
1
1
New Mexico
0
Kansas
0
New York N.
1
1
Kentucky E.
0
New York S.
13
13
Kentucky W.
1
1
New York E.
8
2
1
4
1
New York W.
8
3
1
2
1
1
Louisiana E.
0
Louisiana M.
0
North Carolina E
0
Louisiana W.
0
North Carolina M
1
1
Maine
0
North Carolina w.1
1
Maryland
1
N. Dakota
2
1
1
1
Massachusetts
7
4
3
Ohio N.
12
1
1
Michigan E.
7
4
3
Ohio S.
3
1
1
1
Michigan W.
1 1
Oklahoma N.
0
Minnesota
2
1
1
Oklahoma E.
0
Mississippi N.
2
2
Oklahoma W.
0
2
1
1
Mississippi S.
2
2
Oregon
290
291
JUDICIAL DISTRICT
MONTHS OF SERVICE
JUDICIAL DISTRICT
MONTHS OF SERVICE
4
5
T 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6
T 24 23 22 21 20 19 18 17 16 1514 13 12 11 10 9 8 7 6
Wisconsin E.
Pennsylvania E.
0
2
1
1
Wisconsin W.
Pennsylvania M. 0
0
Pennsylvania W.
4
4
Wyoming
0
Puerto Rico
0
144
91
1
3
1
7
2
18
5
1
10
2
1
2
Rhode Island
0
S. Carolina
0
S. Dakota
0
Tennessee E.
0
Tennessee M.
o
Tennessee W.
0
Texas N.
11
Texas S.
11
Texas E.
11
Texas W.
11
Utah
11
Vermont
0
Virgin Island
0
Virginia E.
3 1
1
1
Virginia W,
11
Washington E.
1
1
Washington W.
1
1
W. Virginia N.
0
W. Virginia S.
1
1
292
293
(4) such other similar circumstances
will be subject to prosecution unless he makes an agreement
V. In the determination by the United States Attorney
as provided in III.
of the length of service as provided in IV, an applicant
shall be permitted to:
XI. The United States Attorney may delegate any func-
tion under this directive to an Assistant United States
(1) have counsel present;
Attorney.
(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 C.F.R. 160.32. The United States Attorney
shall make his decision, on the basis of all relevant infor-
mation. No verbatim record of the proceedings shall be required.
VI. If the alleged violator fails to complete the period
of alternate service to which he has agreed, the United
States Attorney may proceed to prosecute the case.
VII. If the United States Attorney receives a certifi-
cate from the Director of Selective Service indicating that
an alleged violator has satisfactorily completed his period
of alternate service, then he will either move the court to
dismiss the Section 12 indictment against the violator with
prejudice, or terminate any Section 12 investigation of the
alleged violator, whichever is appropriate.
VIII. If an alleged Section 12 violator is apprehended
before January 31, 1975, the violator will be treated as if
he voluntarily presented himself to the United States Attorney
as provided in II, if. the violator so desires.
IX. Upon request of any individual who thinks he may
be under investigation for violating Section 12 of the
Military Selective Service Act, the United States Attorney
shall promptly review that individual's case file, if any
exists, and in any event inform the individual whether or
not Section 12 charges against him will be pursued if he
does not report as provided in II.
X. An individual who is neither under indictment nor
investigation for an offense covered by this directive but
who reports as provided in II and admits to such an offense
294
295
UNITED STATES OF AMERICA
Re: United States V.
VS.
Criminal File No.
Name
File No.
Dear
:
This letter concerns reports received by this office
that you have committed an offense against the United States
Street Address
Telephone No.
on or about
in violation of Section 12 of
the Military Selective Service Act.
In accord with the President's policy of granting
City and State
leniency to certain individuals who are charged with vio-
lating Section 12 of the Military Selective Service Act, you
are eligible for diversion to an alternate service program.
Should you agree to undertake acceptable alternate service
AGREEMENT FOR ALTERNATE SERVICE
as an acknowledgement of your allegiance to the United States
this office will refrain from prosecution. Note, however,
It appearing that you have committed an offense against
that if no agreement is reached the United States will be
the United States on or about
in violation
free to prosecute you for the Section 12 charge. If the
of Title 50 App. United States Code, Section 462, in that
Director of Selective Service certifies to us that you have
successfully completed your service, the pending charge
against you will be dropped. However, failure satisfactorily
to complete the alternate service will probably cause us to
resume prosecution of the Section 12 charge.
A decision to seek acceptance into this program is one
that must ultimately be made by you. Nevertheless, it is
Therefore, on the authority of the Attorney General of
important that you immediately discuss this matter with your
the United States, by
,
United States
attorney inasmuch as your participation in this program will
Attorney for the District of
, prosecution
require a waiver of certain rights afforded to you by the
in this District for this offense shall be deferred for the
Constitution. For example, you must waive your right to a
period of
months from this date, provided you sign the
speedy trial and right to have an indictment presented to
following agreement:
the grand jury, if one has not already been obtained, within
the prescribed statute of limitations. We suggest that you
Agreement
consult with your attorney who will explain the program to
you and the nature of the waivers mentioned above.
I,
understand that the
Sixth Amendment to the Constitution of the United States
Very truly yours,
provides that in all criminal prosecutions the accused shall
enjoy the right to a speedy trial. I understand that the
Fifth Amendment prohibits double jeopardy for the same
offense. I understand that Rule 48 (b) of the Federal Rules
of Criminal Procedure provides that the Court may dismiss an
United States Attorney
indictment, information, or complaint for unnecessary delay
in presenting a charge to the grand jury, filing an informa-
tion or in bringing a defendant to trial. I understand that
By:
constitutional due process may require dismissal of an
indictment that has been unfairly delayed.
296
297
UNCONVICTED CASES
DECLINED OR
UNCONVICTED
PENDING
DISMISSED
CASES PENDING
Idaho
25
5
20
Alabama N.
18
4
14
Illinois N.
/
Alabama M.
2
0
2
Illinois E.
20
0
20
Alabama S.
Illinois S.
Alaska
Indiana N.
Arizona
62
4
58
Indiana S.
Arkansas E.
10
0
10
Iowa N.
22
2
20
Arkansas W.
Iowa S.
23
0
23
California N.
Kansas
21
0
21
California E.
Kentucky E.
California C.
Kentucky W.
17
4
13
California S.
Louisiana E.
9
0
9
Canal Zone
2
1
1
Louisiana M.
0
0
0
Louisiana W.
11
0
11
Colorado
Connecticut
59
19
40
Maine
Delaware
Maryland
D.C.
Massachusetts
Florida N.
16
0
16
Michigan E.
Florida M.
14
2
12
Michigan W.
84
15
69
Minnesota
70
8
62
Florida S.
Georgia N.
Mississippi N.
Georgia M.
Mississippi S.
19
14
5
Georgia S.
Guam
Hawaii
299
298
Pennsylvania E.
Missouri E.
Pennsylvania M.
Missouri W.
67
0
67
Pennsylvania W.
Montana
Puerto Rico
2
1
1
Nebraska
Rhode Island
Nevada
S. Carolina
New Hampshire
11
2
9
S. Dakota
New Jersey
77
16
61
Tennessee E.
New Mexico
8
0
8
Tennessee M.
New York N.
91
9
82
Tennessee W.
New York S.
24
2
22
Texas N.
New York E.
Texas S.
46
9
37
New York W.
204
41
163
Texas E.
North Carolina E.
North Carolina M.
Texas W.
North Carolina W.
Utah
15
1
14
Vermont
N. Dakota
0
0
Ohio N.
180
10
170
Virgin Island
0
Virginia E.
103
22
81
Ohio S.
0
8
Virginia W,
8
Oklahoma N.
Oklahoma E.
1
0
1
Washington E.
74
22
52
Oklahoma W.
16
0
16
Washington W.
7
0
7
Oregon
W. Virginia N.
W. Virginia S.
7
0
7
300
Wisconsin E.
Wisconsin W.
Wyoming
8
0
8
TOTALS
1,453
213
1,240
14.6% of unconvicted cases dismissed or declined
Pursuant to Attorney General's Order of Nov. 13, 1974.