Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
1506010
label
Memoranda - Internal (1)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
1506010
sourceUrl
contentType
document
title
Memoranda - Internal (1)
citationUrl
collections
Charles E. Goodell Papers
Presidential Clemency Board Subject Files
subjects
President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
Amnesty
iiifBase
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
1506010
coverageEndDate
logicalDate
1975-08-31
month
8
year
1975
coverageStartDate
logicalDate
1974-09-01
month
9
year
1974
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
url
mediaId
95ef9dda6bb49c9b
ocrText
The original documents are located in Box 7, folder "Memoranda - Internal (1)" of the
Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 7 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
To: CEG
From: RAK
Pursuant to a request from Lee Robinson of the Second floor, I today
had Lee Beck share with a Mr. Frakes of the second floor compies of the following:
1. the Codebook for the Demographic study
2. the Program for the Demographic study
3. the System Documentation for the NASA programming.
FORD & CERALD LIBRARY
The Board has had the Codebook for some time; the other materials only
tell what the computer is doing, not the results or the uses to which the
results are put.
I had a fruitful meeting with Captain Robinson today about lowering the
level of controversy bewteen the two staffs for the final report. He brought
with him Mr. Frakes, who is another reservist, with the Michigan arm y
National Guard, who is the head data processor the for the National Guard
in Michigan.
I further asked X Captain Robinson for information about the addl staff
that he and Genl Wals expected to arrive from outside the PCB. He
promised a response by COB today, Thursday.
FORD is LIBRARY 076839
3:30PM
THE WHITE HOUSE
WASHINGTON
CoG:
Y
Pleas read, phone in changes
The agenda the a draft.
to me, and we Uget it
out with
stuff this afternoon
Please advice re
demency discharge memo.
D 3 A I'm having production
problems caused by Trady a
being the only secretary outside.
the has to type, answer
phones, and key a stram
of visitors out of my huir.
Please telk to mott he
getting Kinghly and Pat the
secretary) out of here fast
RT
THE WHITE HOUSE
WASHINGTON
Senstor 2
LIBRARY GERALD R. FORD
should we
- send this out at it,
or
- name retype to under the Board my
Car your name), or
- niether ?
It responds expicially
to Bof F inch 'R quention
R.
FORD LIBRARY is SENALD
Dear General Walt:
It is my view that the Presidential Clemency Board
should spend the first day of our meeting next week discussing
major policy issues that will enable us to begin disposing of
cases. I have, therefore, asked the Defense Department to
postpone its briefing of the Board until Tuesday.
We hope to have the personnel files and records of
were
the 103 individuals who are in federal prisons and the 195
in
individuals who were/military stockades at the time of the
President's procl@mation. This will be our first priority.
At last report the military had released 155 men on furlough,
and the Bureau of Prisons had released 84 prisoners pending
review by the Clemency Board.
Since we are going to be dealing with detailed personnel
to
records, our twetday medting will be closed to the public and the
press.
I shall open the meeting Monday with a discussion
of our proposed two-day agenda so that the Board can make any changes it
wishes. Depending on our progress on Monday, we may schedule a press
briefing Tuesday morning.
It's my suggestion that we schedule a fifteem minute
coffee break mid-morning and mid-afternoon of each day. In
addition we will leave about 30 minutes after lunch for Board
members to take a walk or whatever else they desire. Please
count on the Board meetings starting promptly at 9 a.m. and
extending until 6 p.m. each day.
I am enclosing some material which you may wish to
look over before the meeting. Enclosed are:
You will note that the first item is a list of possible
issues for the Board to confront in our meeting. It is by
no means exhaustive, but I thought it might be helpful in
giving you some idea of the agenda for the two-day meeting.
I look forward to seeing you next week and working
with you on this matter which is of such critical importance to
our nation.
With sincere regard, I am
Very truly yours,
2 7n 3,
PRESIDENTIAL CLEMENCY BOARD
APPLICATION
&
The undersigned does hereby apply to the Presidential Clemency Board for
consideration.
I. CANADA
Applicant
Name:
Last
First
Middle
Social Security No.
Date of Birth
Place of Birth
Mailing Address
No.
Street
City
State
Zip
Phone
D. Military Applicant IF IF you WERE COURT MARTALED OK DISCHARGED FROM
A
MILITARY SERVICE PLEASE COMPLETE THE FOLLOWING)
Branch of Service
Military Service No. (if applicable)
(if same as Social Security No. so indicate)
Year Entered Military Service
Date of Discharge
Type of Discharge
How Discharge Awarded: (check one)
Court Martial ( ) Admin. Discharge Board ( ) Own Request to avoid
trial ( )
Offenses on which Discharge Based
(Describe specifically and as accurately
as possible. Include dates of offenses & conviction and type of court
or non-judicial punishment. )
ding III. Applicant Selective dates was of offense Service convicted and Applicant of annu conviction.) (Describe as specifically SIGNATURE as possible, inclu-
-2-
Location of Federal District Court where convicted.
Location of Prison where confined.
Any alternate service performed on probation.
IV.
In addition to your official record, which the Board will obtain and consider,
you have the right to submit additional material to the Board which may
affect its consideration of your case, including, but not limited to, a
written statement, and character references.
Such additional materials:
( ) are attached. ( ) will be forwarded by the applicant within 21 days.
( ) I do not desire to submit additional material to the Board.
Date
Signature of Applicant
Mail to: The Presidential Clemency Board
Room 460
Old Executive Office Building
Washington, D.C. 20500
INSTRUCTIONS FOR APPLICATION FOR CLEMENCY
PRESIDENTIAL CLEMENCY BOARD
I
The following persons may be eligible for clemency:
1) All persons who have been convicted of draft evasion offenses,
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 induction examination; failure to report
for or submit to or complete service, during the period from
August 4, 1964 to March 28, 1973.
2) All persons who have received undesirable, bad conduct, or
dishonorable discharges for desertion, absence without leave, or
missing movement, and for offenses directly related thereto, be-
tween August 4, 1964 to March 28, 1973.
If you believe you fit the above categories, but are not certain
of your status, make application to the Board. Your case will be
reviewed and you will be considered.
II
The Board will obtain your official files, and will consider any
additional information you may wish to submit, as described in
the application form.
III
Each person who believes he is eligible should apply regardless
of the present status of his case on appeal.
IV
It is believed that the application form is self-explanatory. If you
have any questions please contact your attorney or call or write the
Presidential Clemency Board, Old Executive Office Building,
Washington, D.C. 20500. (202) 456-6476.
V
This application should be completed and mailed to the Board
no later than midnight, January 31, 1975.
FORD & 078880 LIBRARY
CEG:
5:00 PM
Bob Horn and Jay have had some
words over phone,
triggered by Jay's telling Bob that Phil Buchen has signed
FORD
memo to you on 3 points, all xxi generated by General Walt
The points are--
Total kt time Pardens
LIBRARY
1. Buchen is worried about the Board's having brought some
cases up a second time before a different panel (panel-
Vo explain this
shopping), and wants those cases separated out by name
in the warrants. Our last 3 packages have been returned
by Jay for this purpose, and
Illentiations
2. in order to separate outby name all felony cases. General
Walt has a letter, which he has given Jay, allegedly
from you or a staff member, soliciting applications from
2 Federal penitentiaries in June.
Unpertanted 6000
3. He is also asking that all late application cases be
segregated out in the warrants. Jay believes there are
many.
Mayl
There apparently was a letter to penitentiaries sent out by either
Larry or Gretchen in June; Bob is getting a copy now. Precisely
what that letter says--whether it was actually solicitation of
applications--: in doubt. Jay has the text, however, and
at least he is not in doubt.
The Buchen memo, notwithstanding Jay's claim to Bob, has not
yet been received by Marilyn. She was trying to get a copy.
In order to try to avoid this series of problems before it
becomes formalized on paper, I have called Buchen's secretary,
asked her whether he actually has signed the memo yet, and asked
her to intercept it prior to signing if he has not--in order
to make it possible for the two of you to talk first on these
points, if you so choose. Her impression is that it is on his
desk, with signing imminent. He has people in his office now,
but when they leave, she will put a hold on it until you call
Buchen or I call her back.
You may want to think about calling Buchen immediately after
the Board breaks, or perhaps even before that. Although Eva
is willing, I am not sure that she can stop the memo--and it
is much better handled informally, by speaking to the erroneous
facts on all 3 points, rather than formally after a memo has
and leaves the office before
you brenk.
been signed off on. also would Mr R. pitz if he segns off
Jay wants to know which case board members expensed
from the panels to the board, which cases the computer
system referred back and which neferrals resalled from
foram shopping Rth
27 Cares foul douller
dos
bereggins
10 nigiout pardens
(8 more suche)
6 AS to lades
5 1
6 1-2-10 Chargein AS
about
to AHys Bnnance
5 New info
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
Senator,
I peeved at you for always asking me if the applicant has a
prior felony conviction. I know you think that I would have failed to
make the board members cognizant of that fact on one of my cases at
Camp David, but the felony conviction was mentioned in the summary
and I was addressing your question about the instant felony convictions
in the case.
I'd appreciate it if you demonstrate a kinder judgment to me at
the time of presentation.
Thanks,
Lyman Goon
FORD i GERALD LIBRARY
Memos To Cob
FORD & LIBRARY
Fin LNB
Ri: Jouble lanel Submissions
hand on our "verification" $
procedure, we have identified 39
lases submited to two pamela. of
the total, 14
received failure. /a seven cares, the
also
recond result was a a parder) 6 the
received 3 months, ad the last,
9 months. One of there 14 has
been fnwarded to the Pres. Dat.
All are listed G their carzinal
decision
of the Lemaining 25, 15 resulted
Ib u less severe recommendation the
seend time, In 3 of there, the
difference was mue than 3 mos change.
A total of 7 of the cases resultad in
falms at the sund famel.
of the 25, three cares received
the same to paition the second has, and
3 others a more serve disposition.
In to me case, the hist
panel unult Th not murked, at we
can not tell whether in fast the
lare was decided, n whether it we
tabled for mue information In wither
lane, the send fund tabled the love,
and in a Third, it was
the full Band because of a
split decision,
three
18
of add the loves not receiving a
pader on the first submission, the
sant to the Pres
recommendation in two f then was
the anyoal decision In als me
lase was the seend result Chan
6 months to 3 menths) sent to the
Present. This was came # 7021,
which was a Housed are
be have the for investigated
29 of the yo double - decisions
Mine renetal pm the reseipt of new
information subsquent to the hist dearing
Nine thus were presented S a New
a Hurung unaw are f the put product
in. Le H other, the same atorag
re-presented the lane, but the bist
cleanion was a panden. In oly Z
cans did the game
the case without any appart
the organd act
being n pardon.
Leaser
(ase #
1st Dec
2d Am
Pearc
9125
7AS
4MOS
Into
7021
6
M
Play
1074
3
P
3593
3
P
1904
9
P
5137
W
P
5959
6
3
6254
6
P /
4200
6
e ,
12294
3
P
10232
6
3
14712
9
6
6595
Y
3
ito
4006
6
3
7573
9
6
Into
1904 Presented to the 1st time. Sant to
Full Bo
6254
Run into
10232
Same othy no up landing
10283
Sure ally New into
10306
Summe atty, seal into
14712
Same ath, New info
3543
Zatty, poer summary. Playged computer
m 1st result (AS also Ayg).
7744
Two othy in ignorame
8906
Same aty, new into, wase mult
9125
Two altys, new info.
10182
The attag, gnorance, both P
31/56
Two atep Tynerames, P Ther ats.
6595
YAS, letter of felong, 305,
1757
Two attys, Ignarame both P
1/332
Same altey, both 'p
4867
2 attys, the same result, ne into.
16658
2 attay, Successing deep, same 3TS,
4006
Alty game to another, didn't know f
panel hearing.
7573
1st decision appearly tentestive for
more 1070.
654
Same day, but aplit. Paul lane to remalt
1444
Same alty, cl days, Urginally ltug.
6682
lat by substitute heal AA cenaware,
12294
Same atty no eas /
15124
Now info on filay
963
No 1070 in 1st . Atty eern.
772
New info.
11200
265
lut Same. decision P. AK each
376
1074
1st decision 385.2d B. he explands.
Case almody sent to Ones before
2d decision,
More n Game
3456
P
664
6
6
772
6
9
661.2
3
9
15124
6
w/L
10283
3
3
B086
9
9
So
V
4867
3
3* 3 x G/s)
-
/ agree with Nia. Originally we
Though we would send Pot
A periodic reputs; but the
Final Report will do as
well. / will handle J
you like.
be
PRESIDENTIAL CLEMENCY BOARD
MEMORANDUM
Lany like
CEGAMINED
TO:
SENATOR GOODELL
cc: Larry Baskir
FROM:
Nia Nickolas
SUBJECT:
Professor William Anthony of Texas A&M
Concerning Information he requires for
the book he is writing on the Clemency Program
On Tuesday, August 20th, Professor Anthony expects to be in Washington, D.C.
During his earlier visit here, he had chatted with Larry Baskir and indicates
to me that Larry had consented to forward to him weekly reports of the
Board's decisions. He has been calling from Texas regularly both to Larry's
office and to me concerning this type of background information. It would
seem to me that these decisions are still a private matter and not for
distribution to the outside -- however, that is yours and Larry's decision.
He would like to have an interview with you Senator --- and if Larry is
back --- with Larry also.
I have been trying to channel all this information thru the Press Office
simply to be sure we have some record of what is being given to him.
Actually, I feel it is best to wait until the Final Report comes out
and then decide what we want him to have -- since a book on the Clemency
Program would be a lasting and historical snapshot of what we have done
and should be dealt with as correctly and factually as possibly.
Please advise what your thoughts are and if you agree.
Thank you.
P.S. He had also talked with Lee Beck and Bill Strauss who both
indicated he could have their computer print-out information and
statistical date. Do you agree?
FORD & GERALD LIBRARY
TEXAS A&M UNIVERSITY
COLLEGE OF LIBERAL ARTS
COLLEGE STATION, TEXAS 77843
Department of
POLITICAL SCIENCE
Mr Counselor Baskir, and Clemency Board members
et al.
It would be of great interest to obtain the views on the following
questions;
1. What is the organizational "lashup" to/at the "White House?
2
Sequence of event leading up to the Presidents initial decision?
3
The relationship of Clemency decision with the Nixon Pardon -if
any?
4
What sort of information was presented to President Ford during
decision process?
5
What roles did the DOD: Selective Service: and The Justice Dep
artment have in the decision making?
6
What do various organizations think should be done now?
7
How is/was the administrative processing handled by; The White
House Exec branch; The Clemency board; The Military; The
Department of justice, and the Selective Service Bureau?
8
Were any public opinion polls taken on the Clemency issue:
Before initial decision/ after initial decision?
9
Is there any evidence of dissatisfaction by the Presidential
Clemency Board on the administration of the Program by DOD:
Selective Service; Dept of Justice, and any other?
10
What are the considered views of knowledgeable people about
revisions in stand-by selective service laws to ease problems
in future wars?
11
How did administrators put out the word to deserters/evaders about
the Presidents Clemency Program offer?
12
What private groups have become involved in this Program; pro
groups? con groups? In what manner did they help or hinder the
program operation, administration, processing and reviews?
13 Is the issue solved for the near-term; for the long term??
( 14 What is the operational procesing, policy, and functions that are
carried out by the offcie in the over-all administration of the
Presidents Clemency Program what documents and data are avail-
able for research data.)
To he asked of TIERRVING all group M&A but SAXET
Senater Bookell has Lest 10 respit
to president & semove 64895 BAXST HOLTATS supportion
азиво?
.is is
etedmem biso8 bns Tolesnuo) Ill
ontwollor gdd no ewelv gdf nisido of Jastein} Issig to ed bloow JI
tensidesup
YeavoH stidw" odd JB\03 "qudes!" grit el tsHW .1
incleiseb Isitini eineblasm grif of qu gnibsel Ineve to sonsupe2
S
92- nobIsq nox10 sitt ddiw noteloob yoneme10 to qidenolisism grlT
w
Syne
onliub biol inebiest9 of befaseerq BEW notisment to Jroe Jariw
A
notelosb
980 soffeul sdT bns :000 edj bib esfor JedW
a
Spoixem nolelosb grit ni eved Insmits
Swon enob ed bluode >Inidd evoltsv ob Jarly
a
offim edT and beloned svijenjeinimbs add esw\ei waH
Y
GMT adT :bisod voneme13 edT prionsed 08x3 sauch
PUBBIUB arts bns ,ssideut 90 Inemissqe0
Tousel grit no nexts elloq noinigo aliduq YOB steW
8
incleiseb Isitial Istis \noteloob Isitini STOTES
Isitnsbiest9 add vd notiostalisseib 90 sonshive yns stadt aI
e
1000 vd ESTOOT9 edd to nolissjeinimbs gdf no biso8 vonemeis
Tredito yns bns 10 tood evijosie2
Juods elqueq To swelv bezeblenes grit 976
or
emeldong 9888 of ewsI solvies evitosies vd-bnsie ni enolaiver
TSTSW STUJUT nt
Juads of brow add tuo sud bib well
"
978790 msagor9 yoneme13 ejnebise19 arlt
019 aid# nl bevievel smoked svsd equote sisving sr
BAG Isbnid TO gied yedd bib Tonnam $ sriw nI fequore noo fequoze
Tewsiver bns .noltsmieinimbs
gnol add TOT add TOP bevine sueel sitt al Er
STS tarit anoitonut bns ,voiloq Isnolisteqo edj al fed AT )
orit to Ile-T9VO orig ni B10790 grit vd two belines
-Iisvs BTS sisb bns adnemusab fedw
MSTDOT9
(.6jsb 109 elds
Senator,
This is all d have of PCB.
filer re SSS. l've heard that it
went up and we lost; d sort of
expected that I'll call you tommorrow
The
686-3803
GERALD FORD
RECOMMENDATIONS ON PROBLEMS RELATED TO BAD DISCHARGES
I. Tim Craig's recommendations.
1. Legislate the regionalization of Discharge Review Boards
in all services, and require that Vietnam Veteran enlisted
persons be on each board.
2. Amend the definition of "Veteran" so that a disabled
veteran with a bad discharge becomes eligible for V.A.
medical benefits.
3. Review automatically each of the 500,000 Vietnam era
"bad paper" discharges. Either keep PCB in existence to
do that or have the President require the services to do it.
4. Designate one person on the White House staff to have full-
time responsibility for veterans' affairs.
5. Get a commitment from the NAB and other business organiza-
tions to communicate to employers that holders of a Clemency
Discharge should not be discriminated against.
6. Request Roudebush, or have the President direct Roudebush,
that the V.A. be generous in construing holders of Clemency
Discharges to be eligible for veterans benefits.
7. Remove the 10-year elimiting date on use of educational
benefits.
8. Organizationally shift the Veterans Employment Service
(VES), in accordance with Thurmond bill, so that the
Director of the VES reports directly to the Secretary of
Labor.
9. Continue the VCIP program in HEW after it runs out next
year. Full funding ($300 per capita).
10. Restore GI education benefits, which have been ended by an
Executive Order marking the legal end of the Vietnam-era.
11. Set up a meeting between the President and heads of Vietnam
Veterans organizations to talk about Vietnam Veteran pro-
blems.
II. Jim Maye's recommendations:
1. In summary, Mr. Mayeproposes that apparently mentally
restricted individuals be given an enlistment contract
for a year or less with an option to re-enlist. If the
person cannot perform satisfactorily because of his mental
restriction, he would receive an administrative honorable
discharge. Staff personnel should receive special training
on working with such inductees (our Category 4 people).
BERALD FORD LIBRARY
Page 2
III. Recommendations of Admiral James Wilson, (Chief of Naval
Education and Training, and former Commander of Naval
Forces in Vietnam)
1. Change the curriculum in all military services'
basic training to incorporate an orientation on the
legal remedies (hardship discharge, compassionate
reassignment, etc.) available to a recruit with
family hardship or mental stress, and to include
information on the resources available to help that
recruit.
2. Employ voluntary agencies on every military base
to help young recruits with family hardship or
emotional problems. Red Cross people, for instance,
would-unlike the first sergeant, the military chaplain
or the JAG officer--be perceived by the recruit in
trouble as outside the chain of command, and therefore
possible trustworthy sources of help in stress. There
is precedent for this, since the Red Cross and other
voluntary agencies already help base commanders to
verify alledged recruit family problems on some bases.
IV. General Consensus of Veterans Service Organization Staff,
and Capitol Hill Veterans Committee Staffs
1. Direct automatic review by the military of all bad
discharges.
2. Create a direct link between the VES and the Secretary
of Labor.
3. Educate sergeants and platoon and company level officers
on the legal remedies and the counseling resources
available to help kids with sudden family problems or
sudden mental stress.
4. Through OMB, or through the Federal Regional Council
direct the VA, HEW, and the Labor Department (DOL)
to cross-train their local and regional people so that
each office knows the benefits available to veterans
in each other office. For instance, every VA local
person ought to be aware--and most seem not to be--that
HEW-funded vocational rehabilitation programs
and DOL-funded on-the-job-training programs are
preferentially available to veterans. A GAO study
published last month shows that there are tens of
thousands of OJT slots which have been developed by
the VA and are not filled because local Employment
Service people have no contact with their VA counterparts.
5. Notify all veterans with "bad paper" of the upgrading
options legally available to them.
page 3
IV. 6. Establish national VA standards as to which types of
UD offenses make a person ineligible for benefits
and which do not. Currently, the VA turns down
98% of the requests for benefits by holders of UD's
on the basis of standards no more specific than "moral
turpitude."
7. Consder folding General Discharge and UD's into one,
neutral, "Certificate of Discharge." (Endorsed by
the Chairman of the House Armed Services Committee
and nearly a hundred of his colleagues.) Alternatively,
bring procedural due process into the administrative
discharge system.
8. Per the Steiger-Bennett bill, restrict the release of
information by the services, to other agencies and to
employers, about veterans with bad discharges.
9. Require the services to adhere to their own regulations
by refering a physically and mentally apparently
disabled individual to a "medical board", and then to
a Physical Evaluation Board, when he displays erratic
behavior. If those regulations were adhered to,
allegedly a number of Vietnam Veterans would have received
a medical discharge disability rather than
"bad paper", and would be eligible for "disability
retirement benefits.
10. Require the VA, HEW, DOL, and HUD to implement far
greater out-reach for veterans eligible for benefits
administered by those agencies. For instance, use
public assistance and unemployment compensation offices
and mailings to get the word out.
11. Ensure that the President gets briefed by the Vietnam Veterans
organizations on the problems of the Vietnam eterans.
12. Revise the services basic training in order to ensure
that recruits understand why it is that they may be
fighting in a war, and what their objectives are in
defending the country. The hypothesis
is that there would have been far less battlefield
stress in Vietnam, and far fewer AWOL$ and desertions,
fighting. if the war had had some psychological meaning to the people
13. Issue a Presidential Bicenntenial statement praising
the sacrifices of Vietnam Veterans and proposing
several new remedies to assist them.
14. Re-examine the services' selection-out procedure
for
recruits who display mental problems during
basic training and who ask for discharges.
15. Direct the military to re-examine whether JAG officers
15. and chaplains are too susceptible to command influence
to be sympathetic to a recruit who claims a hardship,
at a time when the commander is under pressure to send
large numbers of troops into the field.
page 4
IV. 16. Direct DOD to re-examine trade-offs between calling
up the reserves in a Vietnam-type situation and sending
draftees into the field.
17. Direct the Department of Defense to establish an
automatic discharge review mechanism so that all bad
discharges are reviewed after a specified period of
time (5 years?) after issuance.
18. Direct DOL to evaluate the utility of its Examplary
Rehabilitation Certificate, and of the need for a
three-year waiting period after discharge before
eligibility for it.
Recommendations For Future
Military Enlistment Program
One of the most pronounced problems uncovered by the work of the
Presidential Clemency Board is the inordinate number of less than honorable
discharges given to men with a significantly defecient intellecutial capacity.
Various Defense Department statistics indicate that men with such mental
deficienties, classified as categories IV or V, were inducted at a rate
of 12% to 18% annually. The rate of category IV and V personnel processed
through the Presidential Clemency Program shall surly exceed twice the
Defense Department annual rate of induction.
The philosophy set forth by the military in permitting men of
Lan
limited mental capacity to serve in the Armed Services is not with merit.
Many persons who are handicapped by organic organs mental limitationsor for
anvironmental
emotional or social reasons are functional retarded, preform very well
That
in highly structured and well supervised position$ or can be offered by
the armed services. Unfortunately only superficial research and prepera-
tion was conducted before instilating a program to induct or to allow
the enlistment of men will limited mental capacity. One such program
and the most popular being "Project 100,000".
The Defense Department utilizes the Armed Services Qualification
me
To determine both mental Achivement And
Test designed specifically educational achivement of persons
entering the military service. This particular test has a recognized
weakness in attempting to MEASURE meerace intellectual levels outside the normal
range or to accuratly determine the mental capacity of persons with very
limited or very highly educated. In other words the person with less
than a eighth grade education or with limited mental resourceses will not
have an accurate indication of his capacity indicated in his test profile.
The AFQT is a very useful tool in determining the general classification
of military applicants but upon the indication of a possible mental
And
limitation futher testing evaluation should be made by a qualified
psychologist, F from this evaluation can be developed an accurate profile
TO
in determining
of the individual be utilized to determine the applicants
eligibility for military service, possible military occupation status,
and assist staff personnel work with the applicant in his tour of service.
The
1/8
A second weakness of most recent Defense Department Program for
FOR
military service of persons with restricted mental capacity was not
¿but unsluke
making provisions for handling those accept the ones unable to function
Sustisfactorily. For the retarded individual accepted into military
service, the level of expection of his performance was the same as all
other inductees. by No New prograph
Fortunatly most were able to perform to the minimal requirements
and still allow Theys distinquished themselves and the military. For those
who could not function to the minimal standards the only resource was
to give them an administrative discharge. Because of their poor per-
formance combined with their inability to cope with discipline and
follow orders the usual form of administrative discharge was was under less
than honorable conditions. The results of the lack of preparation to
deal administratively with those retarded individuals who are obviously
WAS A
a greater risk for failure is discharge that scare the recipient&s
and further handicap Ph11 him in civilian life. In order to prevent this
injustice a special category of discharge should be instituted for the
mentally handicapped man who fails to perform as required. It should be
under honorable conditions so as not to prejudice his military record.
Eligibility for such a discharge should be noted in his permenant file
from the day of induction, and to be determined by a qualified psychologist
under the supervision of appropriate administrative personnel.
Third, many times recruiting offices enlist men with limited mental
with No
AS to the
abilities to excessively long tours of service will not regard to the
individuals potential to fulfill such an enlistment. Many enlistees
become disenchanted when they fail to accomplish goals elaborated
by lover anxious recruiters. A better method to evaluate individualswith
Aw individuaL's AbiLity
with mental restrictions abricklety to serve in the military would be to limit
his initial enlistment contact to a period not to exceed one year.
This would allow him to complie basic and advance training schools
and become acclimated to military routine. Upon successful completion
of the first year of service he then exercises the option of second
enlistment. If he cannot perform to the satisfaction of the military se
service his contract would not be renewed and he would receive a
honorable discharge and have compléted his obligation to his country.
Finally it is highly recommended that staff personnel receive
orientation as to how to work with persons who for varied reasons have
marked restrictions in mental abilities. The results of such training
will be a higher level of performance from the described individuals.
In summary the recommended changes are as follows:
1: More intensive evaluation of mental capabilities of
persons suspected to be mentally retarded.
2:
The formulation of an administrative discharge non
prejudicial to the applicant who because of his
limited abilities fails to perform satisfactorily.
3: A first enlistment period of no more than one year.
4:
A basic orientation course to staff personnel that may
work with the new inductees.
Futher results
The cost of such administrative change would be mininal.
Compared
would be
to-the increased efficient of personnel acceptable for military service V
through fewer lost man hours and greater retention of qualified men
for a second tour of service the cost then becomes less-a factor
But of greater importance is the contribution to the general public to
be made by the military's recognition and appropriate training of these
men who limitations may restrict but need not destroy their capability
to contribute to the good of all..
MEMORANDUM
GERALD
From: J. Schulz
Sept. 25, 1974
To: R. Tropp
Re: Questions for Mr. Goodell regarding handling of unconvicted
draft evaders by the Dep't of Justice (DOJ)
The following questions are designed to establish that a large but
indeterminate number of registrants reasonably believe that they
violated §12 of the selective service act, while in fact they did not;
and that the DOJ's current program does not adequately screen such
men from unwarranted participation in "earned" reentry. All but one
of the questions are for the Attorney General; the exception is
no. 10, which might be addressed both to Mr. Saxbe and to Mr. Pepitone.
Henry Petersen
Q1: Assistant Attorney General/this spring informed a congressional
committee that between 1963 and 1974 the Selective Service System
(SSS) reported a total of 206,775 delinquent draft registrants to the
Justice Department for prosecution under §12. How many of these
were in fact prosecuted? A: 19,271. [Tell him if necessary.]
Q2: Why were over 90% of these men not prosecuted? A: [He will
probably answer that many agreed to submit to induction in exchange
for dismissal of charges, and that the others' violations were
"not willful."]
Q3: Can you give us a rough breakdown of these dispositions? What
fraction, approximately, submitted to induction, and whatfraction
were found not to be willful offenders? A:
.
Were there any other reasons for non-prosection? A: [He may admit
that some cases were worthless due to faulty SSS processing; if so,
use his answer later (Q7 &8).]
-2-
Q4: The Administrative Office of the U.S. Courts reported this
spring that the conviction rate in selective service cases, which
has lagged well below 50% for several years, dropped in fiscal
1973 to a new low of 28%. This is rather striking given the fact
that you chose to prosecute one-tenth of the cases, and that the
conviction rate in federal court is usually on the order of 90%,
To what do you attribute your low rate of success? A: [Saxbe will
probably attribute it to the same factors he used to explain
his non-prosecutions.]- ]-
Q5: Again, break down won the totals, please. Agreement to accept induction?
*
Non-willful violations?
.
SSS errors?
.
Q6: What exactly do you mean by non-willful violations [or
whatever term he has used]? A:
[There is no good answer. In criminal law generally, one is
presumed to intend one's acts; in S.S. law, there is no requirement
of specific intent, and until this year registrants were conclusively
presumed (under 32 CFR $1641.2) to have received any notice mailed
to them by their local boards. Pressure Saxbe on this, then:]
Q7: Is it not the law that induction (or other) orders issued by
S.S. local boards may be invalidated by procedural errors and
arbitrary decisions of those boards. A: Yes.
Q8: So, in fact, is it not the case that your refusals to prosecute
and the courts' dismissals of prosecutions, both of which you attributed
to
non-willful violations, were in fact due to selective
service errors which made it impossible to convict the men in question?
A:
#
-3-
Q9: In FY 1974, the conviction rate in S.S. cases was 33%.
Again, why so low? A: [Same as above, or
]
[If Saxbe claims dismissals were due to acceptance of induction
or enlistment, you've got him, since there were no inductions
and DOD refused to let draft evaders enlist. In any event,
you can perhaps force him to concede, retroactively, that only
5% (28-33) of the dismissals in prior years were given for
agreements to submit to inductions.]
Q10: [For Pepitone, too] What was done to inform those you
decided not to prosecute and those whose indictments were
dismissed of this fact? A:
-
[It seems
little has been done, if anything].
Q11: So there may be some 190,000-odd young men who are in fact
innocent but don't know it. How will you screen them from
participating, in ignorance, in the earned return program?
[A: They can ask if prosecution is intended, according to
the DOJ prosecutive policy.]
Q12: Are U.S. Atty's aware of this policy? A: Yes. Are
registrants? Should this matter not receive full publicity
and since to decide whether or not the S.S. law was violated
is quite complicated, should you not establish some public
adversary mechanism and supply defense counsel to evaluate
these cases? Should you not at least publicize the list
of the 4350 men currently under indictment and, since probably
-4-
only about 1/3 of these are in fact guilty, should you not
take steps to dispose of such cases, even of those of absent
defendants, along the lines of U.S. v. Lockwood, currently
pending before Judge Weinstein in Brooklyn? [This week,
I have learned, D.O.J. has refused to supply the list of
inducted S.S. "violators" to both the National Council of
Churches and Senator Hart. On Sept. 20, Judge Weinstein denied a
government motion to vacate his order appointing Prof. Louis
Lusky as special magistrate to review files of 25 indicted
but absent registrants. In his opinion, he observed (pp.7-8)
that the White House fact sheet reads the term "unconvicted
draft evaders" more narrowly than the D.O.J. prosecutive policy,
which is cited and quoted there.]
JESCHAL
Memo to:: Larry Baskir
December 2, 1974
Rick Tropp
From: Bill Strauss
FORD
Subject: PCB Research Requirements
GERALD
The small number of clemency applications indicates that
the program has not yet reached many eligible persons for whom
it presumably was intended. In the case of the PCB's own
prospective applicants, this may be attributable to a widespread
unawareness of eligibility standards. It may also be due to a
misunderstanding about how an applicant has nothing to lose by
applying. For the clemency program as a whole, the problem may
be that the needs or circumstances of some categories of possible
applicants are inadequately considered.
Right now, one could conjecture about what could be done
to deal with these problems. Eligibility ânnouncements could
be mailed to persons on lists provided by DOD and DOJ, for example.
A new baseline approach, possibly with additional mitigating
factors, could be applied to unconvicted draft resisters.
However, we know so little about the problem that we cannot be
sure that our responses would work, and we have nothing with
which to substantiate the need for any deadline extensions or
liberalized terms. With data in hand, even if imperfect, we
can have both a justification for not acting sooner (if we need
one) and a basis for taking appropriate action at a chosen time.
I suggest that we undertake three research efforts --
two to provide the basis for new policy actions and one to evaluate
actions after-the-fact.
(1) Of special importance to the PCB itself would
be data explaining how many prospective PCB applicants
understand their eligibility for the program, the fact that
they have nothing to lose by applying, the criteria being
applied in clemency decisions, the outcome of the first
announced dispositions, and the benefits which executive
clemency can bring to them. Certain categories of prospective
applicants may know less than others, and the best way to
reach them may not be a general mailing. It is likely that
those with less education know less about the program; if so,
the documentation of that fact could help us extend the
deadline for applications. We also need to learn what one
or two pieces of information to stress in any public infor-
mation effort. We might also learn which other public and
private agencies are best suited to help in any such effort.
This would require a survey of prospective applicants,
probably through in-person interviews. Probably 300 - 500
interviews would be sufficient, supplemented by discussions
2 : :
with community spokesmen and experts on the subject who
might help us interpret our results. The interviews should
be conducted in eight or ten sites across the country.
My best guess for a cost is about $25,000, which would
pay for a contractor to assemble and analyze the data
without a formal report (which might cost another $10,000).
The cost could be reduced by conducting telephone rather
than in-person interviews, but this would produce less
reliable data and might cause suspicions among interviewees.
If a contractor could begin work shortly, we should have
at least preliminary results before the January 31 deadline.
(2) We need cross-sectional data to learn what kinds
of people the overall clemency program is and is not reaching.
The data we have already from PCB applicants is more than
sufficient, but we need comparable data about DOD and DOJ
applicants -- and especially from eligible persons who have
so far not applied. We should probe every factor which
would either reflect an inequity (race, education, socio-
economic background, ability of one's family to visit),
a possible mitigating characteristic (years in exile,
number of dependents, years in military service, Vietnam
combat experience, and perhaps evidence of sincerity),
or any other characteristic which might account for a
failure to apply for clemency (age, marital status, job
status, and citizenship status). If we can identify any
major differences between applicants and non-applicants,
we might learn more about how the clemency program could be
tailored to reach more of the latter.
The problem is finding the data; I dannot see how we
can learn about Canadian non-applicants without the help of
exile organizations, for example. The data itself is of
a simple, yes/no nature and can be obtained via telephone
interviews better than the subjective data needed for the
first research proposal. Again, 300 - 500 interviews should
be sufficient for a wide-ranging inquiry (not counting data
extracted from applicants' files). The number could be
smaller if the data search were focused to include only
convicted-and-released draft resisters, Canadian exiles,
or any other discrete group. Before we contact anyone
about doing the interviews, we should learn what data is
available. I suggest we do this ourselves; $2000 in travel
and miscellaneous funds should be enough. Once we learn
what research can be done and obtain the cooperation of
those who must help us identify non-applicants, another
$15,000 should be sufficient for a contractor to assemble
and analyze the raw data (again without a report). If we
are to learn anything before the January 31 deadline, we
should begin looking for data at the soonest possible moment.
If we are to look at persons other than convicted draft
resisters and punished military absentees (as I think we
should), we might consider a cooperative research enterprise
with DOD and DOJ. They would soon be aware of our research
in any event, and they would be correct in interpreting it
as a PCB effort to second-quess their dispositions.
3 --
(3) A less urgent research need is an oncoing
evaluation of the impact of PCB actions. We should
monitor the alternate service program, through data
obtained with Selective Service's help, to learn how
the applicants are finding jobs, what the jobs are,
what they pay, and how many clemency recipients change
jobs or quit the program. We should track the progress
of individuals who have received pardons or clemency
discharges to learn what the benefits of clemency can
be to an individual (in the short-run, at least).
We might also try to gauge the views of applicants
and elicible non-applicants about the fairness of our
procedures, criteria, and dispositions. Our findings
from these evaluations would enable us to reassess
the clemency program within the next few months, and
they might substantiate any actions we might take to
improve the status of veterans with clemency discharges.
While much of what we might learn would come too late
for remedy, it still would be useful for us (and perhaps,
via a formal report, the public) to learn what went right
and what went wrong.
This evaluation would be so closely attuned to our
actual policies that it should not be done by contract,
but it may be helpful to hire individual consultants to
conduct special assignments. Instead, we should seek the
detail of an imaginative evaluation professional in the
human resources field. That one person, with acconsultant
budget of no more than $5,000, should get the job done.
There probably would be little to evaluate until another
month or two has passed, however.
These research efforts would be in addition to our ongoing
assessment of the consistency and pattern of PCB dispositions
-- a task which requires much less staff time and no money,
assuming computer time is at our disposal.
My dollar estimates for the three are $47,000 without
reports and $67,000 with reports. These figures are quite
conservative, but I have a hunch that we can convince contractors
to work at an unusually rapid pace for less money than they
ordinarily would receive. Some might perceive it as an exciting,
high prestige assignment, and they would recognize our inability
to pay more if we do in fact raise the funds from private sources.
Recommendations:
(a) We should immediately obtain $2,000 to do preliminary
work on the cross-sectional research effort. We should contact
**ile groups and others who might help us find data, and I should
plan on spending several days out of town in the search.
(b) We should begin looking for the needed $45,000+ while
'pproaching contractors to see if my estimates are realistic.
-- 4 -- -
(c) We should develop a working relationship with the
policy planning staffs of DOD and DOJ. We shall need at least
their cooperation (and maybe their active participation) in
all three research efforts.
(d) We should locate a willing evaluation specialist
in HUD, HEW, DOL, or elsewhere for a 90 - 120 day detail
beginning January 1st for the impact evaluation effort.
(e) We should continue our ongoing assessment of PCB
dispositions without any additional resources.
*
*
*
Agenda
11/28/74
1. Demographic Characteristics of prospective applicants: age, educational background,
SES. What media do they watch/listen to/read? Does DoD have this info? Psycho
logists such as Lifton, or others who have written about military returnees or about
military justice? (Job for Harry Scarr? Ford Foundation contract?)
2. Survey research: What do prospective applicants think about the clemency program?
What percentage of them, defined by what characteristics, are really "potential
applicatits", versus those who fall into the ostensible universe described by the
Proc lamation but who in reality will never apply? What do we have to do to get them
H
to apply?
3. Statistics on related offenses: If the parameters of the Proclamation were to be
broadaned in scope so as to incorporate all civilian offenses related to conscientious
opposition to the war, and to incorporate further all military offenses (including
those subject to administrative discharge) so related, specificallyncki which offenses
would we be including which are not now included? What would the program's
(the Board's? ) potential universe of applicants then become? What demographic
breakouts? )
4. Clemency discharge: What do se want to do either to maximize the utility of
the clemency discharge or to replace it? How to go about doing that?
5. Employment and other reintegration for all recipients of clemency: What to do,
through which Departments/agencies and how, to maximize employment and
reintegration among those to whom the President proffers clemency? Which steps
require that we do the same for all, or certain classes of, veterans? What about
sealing of criminal records? /J.R.?/
What should be added in order to maximize the Board's
fulfillment of the Proclamation's objectives?
December 7, 1974
MEMO FOR:
CHARLES E. GOODELL
FORD is LIBRARY CIVE
FROM:
LARRY BASKIR
SUBJECT:
Clemency for Military Cases
Summary (insut)
Background
The Proclamation and the Executive Order do not define the nature of
the clemency to be offered civilians. It has been confirmed by the
President that a full parden is the nature of the elemency he contem-
plated, and that is now the PCB's practice.
The Proclamation and Executive Order are not any more precise when
addressing the nature of the elemency available in military cases. It
states only that a Clemency Discharge may be offered, and that a
Clemency Discharge confers no automatic rights to Veterans Adminis-
tration benefits. The Proclamation and Executive Order do not state
that a Clemency Discharge is the exclusive remedy for PCB military
cases.
In our discussions with the Department of Defense, other government
agencies, and outside sources, it is clear that a Clemency Discharge
at best may confer little on its recipient. Most probably it is no better
than the Undesirable Discharge, the Bad Conduct Discharge, or the
Dishonorable Discharge it replaces. If the PCB may offer only a
Clemency Discharge, the Presidential Clemency Program has little
or no meaning for the Board's military cases. Further, it places
former military personnel, many of whom actually served honorably
in Vietnam combat or had other long creditable service, in a worse
position than those convicted of Selective Service violations. In
comparison with the remedies available to the Department of Justice's
unconvicted draft evaders, the injustice is even more glaring.
2
A Pardon
It is clear that the President may grant a pardon for military convictions.
It is also clear that a parden goes to the act, and not only to the criminal
senction that was or could have been imposed for the offense. Thus the
President may certainly grant pardons for AWOL's and desertions,
whether followed by administrative sanctions (Undesirable Discharge) or
courts-martial (Bad Conduct Discharge or Dishonorable Discharge).
It is also clear that the Presidential intent is to grant pardons to the
civilian coming before the PCB. It is no less implicit--and not pre-
cluded by the Proclamation or Executive Order-that they be granted
in military cases.
To ensure that military cases are treated fully equally with civilian
cases, therefore, a parden should be the normal consequence of elemency
for military cases as well as for civilians. And, as for civilian con-
victions, the pardon does not suggest that the original governmental
action was in any way improper. In civilian cases, the PCB first
determines whether elemency should be granted. Having done this, it
distinguishes between especially westby cases and others by determining
the amount of alternative service required to earn the pardon. This
should be the same approach in military cases.
Military Discharges
The armed services not only punish unautholsed absences by trial,
conviction and sentence, but also characterize the type of service by the
nature of the discharge adjudged. This means that military cases come
to the PCB with two disabilities--an offense and conviction, and an
adverse discharge. This discharge preciudes veterans' benefits and
severely impaire the opportunities available in later civilian life.
Therefore, grant of clemency must not only address the offense by
giving a parden, but should also address the nature of the discharge that
that offense warranted. A perdon does not by itself change or affect an
adverse discharge. Similarly, a Clemeney Discharge is not a significant
improvement in the individual's circumstances. Therefore, the grant of
elemency should enable the individual to improve his discharge paper
beyond the Clemency Discharge which the PCB will normally recommend.
The PCB does not wish to intrude upon the decisions made by the
Department of Defense or other government agencies as to who should
3
receive up-graded discharges or veterans' benefits. Therefore, in
most cases, it would not be advisable for the PCB itself to recommend
mere than a Clemency Discharge. However, the armed services
regularly review Bad Conduct Discharges, Disheuerable Discharges,
and Undesirable Discharges through a number of methods. These
include the Discharge Review Boards and Boards for the Correction of
Military Records and direct elemency action through the service
Secretaries.
Because the grant of a Presidential pardon for an unauthorised absence
is a substantial change in the circumstances that led to the issuance of
the Undesirable Discharge, Bad Conduct Discharge, or Dishenerable
Discharge, it is extirely proper that the appropriate military bedies
review the cases to determine whether an up-graded discharge is
warranged. It would be appropriate, therefore, If each elemency
recommended by the PCB and approved by the President were to be
forwarded automatically to the armed services for review as to possible
up-grading.
The Unique Cases
Im our review of the first 80 military cases, it is apparent that there
are some cases in which further action is required. Some absences
followed long and distinguished service in combat. Others may have
been preveked by a combination of circumstances beyond the individual's
control. There may even be a rare case of an injustice warranting
immediate correction.
For these extremely unusual cases, the transmittal of the discharge to
the armed forces for possible up-grading is inadequate. It will be an
empty act, first, because it is a self-ovident case for up-grading.
Second, there is no reason why the President should not exercise his
own elemency powers and Commander-in-Chief powers to effect the
up-grade himself. For Rigese rare cases, the PCB would recommend
that the President order an up-grade of the bad discharge beyond the
Clemency Discharge to s General Discharge or Honorable Discharge, as
warranted.
Alternative Service
The foregoing discussion does not consider the requirement of alternative
service. In each case, however, the grant of elemency would of course
be conditional on the satisfactory completion of the period of Alternative
Service, If any, .which the Board determines necessary to earn the
elemency it has recommended.
THE WHITE HOUSE
WASHINGTON
12/9/74
TO:
SENATOR GOODELL
FROM:
RICK TROPP
See especially page 19.
FORD & LIBRARY GERALD
DEPARTMENT OF THE ARMY PAMPHLET
27-100-59
MILITARY LAW
REVIEW
VOL. 59
Articles
THE GRAVITY OF ADMINISTRATIVE DISCHARGES:
A LEGAL AND EMPIRICAL EVALUATION
ATTITUDES OF US ARMY WAR COLLEGE STUDENTS
TOWARD THE ADMINISTRATION OF MILITARY JUSTICE
MY 1A1 AND MILITARY JUSTICE-TO WHAT EFFECT?
Comments
COMA REVIEW
THE MILITARY LAW SYSTEM IN INDONESIA
THE KNOX COURT-MARTIAL: W. T. SHERMAN
PUTS THE PRESS ON TRIAL (1863)
Recent Developments
Book Reviews
HEADQUARTERS, DEPARTMENT OF THE ARMY
WINTER 1973
MLR
MILITARY LAW REPORTER
PUBLIC LAW EDUCATION INSTITUTE
THE GRAVITY OF ADMINISTRATIVE
DISCHARGES:
A LEGAL AND EMPIRICAL EVALUATION*
By Major Bradley K. Jones**
The consequences of the general and undesirable dis-
charges are frequently little considered by their recipi-
ents. Similarly they are little understood by the JAG
officers asked to "counse" the recipients. The author
examines the consequences of the administrative dis-
charge from the standpoint of governmental benefits
iost and civilian opportunities prejudiced. A survey of
employers, unions, colleges, and professional examiners
reveals some of the difficulties facing the serviceman
discharged under other than honorable conditions.
I. INTRODUCTION
There & can be no doubt that ;an undesirable] discharge
is
punitive in nature, since it stigmatizes the serviceman's reputation,
impedes his ability to gain employment and is in life, if not in law,
prima facie evidence against the serviceman's character, patriotism
or loyalty.'
This federal district court statement aptly describes the present
view of military administrative discharges thought to be held
by most Americans. The undersirable discharge is the object of
great concern and has evoked increasing Congressional interest
in changing the procedural framework under which it is ad-
ministered.
This article will attempt to determine whether the administra-
tive discharges, although not designated punitive actions at
law, do, in reality, have pragmatic consequences equally or more
deleterious than punitive discharges. The legal background and
consequences of administrative discharges will be discussed first
*This article was adapted from a thesis presented to The Judge Advocate
General's School, US Army, Charlottesville, Virginia, while the author was
a member of the Twentieth Advanced Course. The opinions and conclusions
presented herein are those of the author and do not necessarily represent
the views of The Judge Advocate General's School or any other govern-
mental agency.
**JAGC, US Army; Office of the Staff Judge Advocate, XVIII Airborne
Corps, Fort Bragg, North Carolina; B.S., 1963, United States Military
Academy; J.D., 1971, William and Mary College.
Stapp V. Resor, 314 F. Supp. 475, 478 (S.D.N.Y. 1970).
1
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
to present the factual background of the present stigma today there are three administrative discharges and two puni-
ment. Empirical data will then be used to test and evaulate argu-
tive discharges in the following order: honorable, general, un-
the stigma argument. It should be noted that punitive discharges
desirable, bad conduct, and dishonorable.
are discussed only for purposes of comparison, since this article
The administrative discharge system in the Army is implement-
deals primarily with administrative discharges and their prag-
ed with the honorable discharge used as the measuring para-
matic effects.
meter. This discharge is awarded when there has been proper
military behavior including proficient performance of duty."
II. THE LAW OF ADMINISTRATIVE DISCHARGES
When a service.nan's in-servite record seems undeserving of an
honorable discharge, one of the two remaining administrative
Л. HISTORY AND PRACTICE
discharges, the general or the undestrable, may be awarded If
basis, the power to discharge enlisted men has been almost as
With broad enabling authority granted by Congress the
his behavior and duty performance are sufficiently below the
standards for an honorable discharge so as to warrant one of
totally left to the discrețion of the Secretaries of the Military
these lesser discharges. The four categories of grounds for
Services.' Therefore, the law of administrative discharges is
these discharges are unsuitability, unfitness, misconduct, and
embodied largely in regulations published by the appropriate
request for discharge for the good of the service, Discharge by
lineated therein.' The Secretarys' discretionary power is limited
Secretary or his agents and is enforced by the sanctions de-
reason of unsuitability will normally result in the issuance of
a general discharge when the serviceman is unsuitable for
form minimum guidelines for the several armed services.
only by the Department of Defense directive prescribing uni-
further military service because of inaptitude, character and
behavior disorders, apathy, defective attitudes, inability to ex
honorable and without honor, whereas the only punitive dis- as
Administrative discharges were originally characterized
pend effort constructively, enuresis, alcoholism, in-service homo-
sexuality, and financial irresponsibility." Discharge by reason of
charge was labeled dishonorable. The "unclassified" discharge
unfitness will normally result in the award of an undesirable
but was added in 1913, becoming the third administrative discharge,
discharge when a serviceman's military service record in his
into by the "blue" discharge. In 1947, the blue discharge was
it and the without honor discharge were supplanted in 1916
current period of service includes one or more of the following:
frequent involvements of & discreditable nature with civil or mill-
tive classifications of discharges to insure more categories of
Veteran's Administration pressure for an increase in the defini-
the general and undesirable discharges as a result of split the
tary authorities; sexual perversion to include lewd and lascivi-
ous acts, homosexual acts, and sodomy; drug abuse; established
eligibility for benefits among discharged servicemen." The
pattern for shirking; established pattern showing dishonorable
failure to pay just debts; dishonorable failure to support de-
ble discharge was under honorable conditions whereas the undesira- general
pendents; and unsanitary habits." Discharge by reason of mis-
was termed as under conditions other than honorable. Thus,
conduct will normally result in an undesirable discharge when
one or more of the following conditions exist: conviction by civil
Lane, Act 1(b), 50 U.S.C. App. $ 454(h) (1970). For parallel & Service
"See $ 10 U.S.C. s 1169 (1970); Universal Military Training
authorities of an offense for which the maximum penalty is
95-100 Evidence (1972). and the Administrative Discharge Board, 55 discussion, MIL L. REV. sea
confinement in excess of one year or of an offense involving
moral turpitude, procurement of a fraudulent enlistment or
Reg. No. 635-212 Jul. 1966), Army Reg. No. 635-206 (15 Jul. 1966), Reg. No.
635-200 The current (15 Army regulatory provisions are found in Army
induction, and prolonged unauthorized absence of one year or
objectors (15 Jul. 1966). Special provisions concerning conscientious and Army
more." Discharge by reason of a request for discharge for the
are found in Army Reg. No. 635-20 (31 Jul. 1970).
good of the service will normally result in an undesirable dis-
$ U.S. Dep't of Defense Directive No. 1332.14 (Dec. 20, 1965).
108 (1962) of the Senate Comm. on the Judiciary, 87th Cong., on Constitu- 2d
stitutional tional Rights dighta of Military Personnel Before the Subcomm. on Con
Cope CONG., AND ADMIN. NEWS, 2643 (1967) Hearings
* Army Reg. No. 635-200. para. 1-5 (15 Jul. 1966).
DOD Dir., supra note 4. para VI-A.
Id. para VII-G: Army Reg. 635-212, supra note 8, para Bb.
Army (testimony of Alfred B. Fitt, Deputy Under Secretary Sess.
DOD Dir., supre note 4, para VII-I; Army Reg. 635-212, supra note $,
charges-What It's All About, 25 ARMY DIGEST No. 9, p. 5 (1970).
[hereinafter cited as 1962 Hearings] Offer, Administrative of Dis- the
pars 6a.
DOD Dir., expre note 4, para VII-J; Army Reg. 635-206, supra note 3.
2
8
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
discharge." After studying the grounds within each of a punitive
court-martial under circumstances which could lead to i
charge where a serviceman's conduct rendered him triable
or sexual perversion." Generally, all services consider convictions
to attach at the termination of the trial even though an appeal
man's concerning matters and problems which are beyond the of at
gories, it should be noticed that unsuitability is a word the cat
is pending. However, the Air Force holds any administrative
discharge procedure in abeyance until the appeal is finally re-
art for control whereas unfitness and misconduct service
viewed. If the appeal results in the sentence being set aside,
gories is the customary discharge awarded for each of the al
though acts which are voluntarily performed. Additionally, are words 0:
then no discharge procedure is initiated. The Army starts the
discharge procedure immediately but no discharge is issued until
classification upgrade any of the discharges to à more has the
power to as mentioned above, the convening authority cate
the appeal is finally denied or the serviceman has waived his
right to await final review." Finally, the Air Force and Army
warrant when the particular circumstances in a given favorable case
prohibit the issuance of a discharge less favorable than that
such action."
recommended by an administrative board whereas the Coast
All the armed services utilize the four categories of
Guard, Marine Corps, and Navy permit the reviewing authority
identical for administrative discharges aforementioned. All have grounds
to change the board's recommendation to the detriment of the
from the discharges. There are, however, some minor issuing
these guidelines in their individual regulations for nearly
serviceman."
unfitness Guard, Marine Corps, and Navy have one issuance.
The Coast Army system in procedure and grounds for deviations
B. REVIEW AND REMEDIES
as the ground, "for other good and sufficient reasons," additional 16
The administrative discharge appellate system consists of local
habits Air Force has three additional grounds for where-
convening authority review and two administrative review boards.
moral and traits of character tending towards antisocial unfitness:
The local judge advocate normally reviews the legal sufficiency
trends, conviction by a court-martial with im-
of the findings and recommended disposition of the board of
ized confinement greater than six months, and established sentence of
officers." Reversible error is rarely found and the convening
inadvisable. absence 16 of less than one year but court-martial is unauthor-
authority customarily issues a discharge in accordance with
constitutes Another difference is in the interpretation deemed
the board's recommendation.
conduct a conviction by a civil court for determining of what
Subsequent to the discharge, the individual, now a civilian.
and sufficient for discharge. The Coast Guard, Marine mis-
has the right to have his case reviewed by the Army Discharge
turpitude whereąs the Air Force and Army have moral tur-
pitude," Navy do not spell out what offenses involve Corps,
Review Board (ADRB). 22 If the ADRB denies the request for
change and issuance of a new discharge, the individual may
to include only offenses involving narcotics narrowed violation moral
petition the Army Board for Correction of Military Records
(ABCMR) 23 The scope of inquiry of the ADRB is limited to
Ch. 23 DOD 10; JAGA Dir., nupra 1969/3538, note 4, 25 para Mar. VII-K; 1969. Army Reg. 635-200, supra note 8,
determining whether the type of discharge received was equita-
note Supra, Army 3, para Reg. 30; 635-200, Army Reg. supra 635-212, note 3, supra para 10-8; note Army Reg. 635-206, supra
bly and properly given under the specific facts presented. It does
not review all the merits or the facts of each individual's career.
Man. Nos. 12-B-10. 12-B-12, 12-B-13, 12-B-15; Guard Reg.
12-B-6; note 3; Air Force Reg. Nos. 39-10 & 3, 39-12; para 4a Const & b.
The ABCMR provides review of service records in order to
3840080, 6012 3850120, & 6016-6019; 3850220, Navy 3850300, BuPersMan 3420180, Marine 3420220, Corps 3420240, Sep.
30 Army Reg. No. 635-206 para 39; Air Force Reg. No. 80-12.
se Id.; Dougherty & Lynch, supra note 13, at 504; Lerner, Effect of Charao-
498, The 501 Administrative (1961). Discharge: Military 3860140; Justice?, 33 Dougherty GEO. WASH. & L Lynch, REV.
ter of Discharge and Length of Service on Eligibility To Veteran's Bene-
fits, 13 MIL. L. REV. 121, 133 (1961).
course,
$5 DOD control. Dir., gupra note 4. The specific requirements of the Directive, of
20 Dougherty & Lynch, supra note 18, at 515.
" Review by a Judge Advocate is required prior to the issuance of an
BuPersMan 30 Coast Guard 3420220. Reg. No. 12-B-12; Marine Corps Sep. Man. 6017; Navy
undesirable discharge under Army Reg. No. 635-212, para 19a (15 Jul.
1965).
IT Air Force Reg. No. 39-12.
- Army Reg. No. 15-180 (9 Feb. 1965).
BuPersMan Coast Guard Reg. No. 12-B-13, Marine Corps Sep. Man. 6018; Navy
Army Reg. No. 15-185 (8 Jan. 1962). There is no right to a hearing
3420240 & 3860140.
at the ARCMR. In fact petitions are often denied for failure to state a cause
for relief or for failure to exhaust other administrative remedies. See AR
4
16-183. para &
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
correct errors or remove an injustice and thus has a broader
scope of review and remedial power than does the ADRB.
Other partial remedies exist, but are merely laudatory in na-
Several problem areas in the review system exist. Most note-
ture and do not alter the discharge. The Department of Labor,
worthy is the time perspective and attitude within which ad-
upon individual request and documentation, will issue an Ex-
ministrative discharge appeals occur. The review occurs
emplary Rehabilitation Certificate 27 to aid discharged servicemen
discharge at a time when the individual is a civilian. Thus, post- he
in combating the effects of a less than honorable discharge. The
no longer has free military counsel provided for his appeal
certificate, issued by the Secretary of Labor, is a remedy for
he would in the case of a punitive discharge. Additionally, unlike as
that express purpose, but in no way alters the less than honora-
punitive discharges, there is virtually no review after approval
ble discharge received. The certificate states that the individual
and prior to execution of discharge. Thus, the petitioner is
has been rehabilitated as an exemplary citizen as judged by his
challenging a fait accompli.
performance during the preceding three year period and that he
is entitled to special job counseling and job placement services.
by the American Legion, American Red Cross, Disabled Ameri-
An inadequate solution to the lack of counsel problem is offered
To obtain the certificate, the individual must have been an ex-
emplary citizen for a minimum of three years subsequent to
can Veterans, and Veterans of Foreign Wars, who provide free
advocates for the petitioner before the ADRB and ABCMR. 24 The
discharge and complete an application with recommendations
from the chief law enforcement agency in his community, pres-
counsel provided by these organizations are very experienced in
ent and past employers, and five character references. He ac-
practicing before these boards but are not legally qualified counsel.
crues no benefits from the certificate except those to which he
They will accept all cases, however, and advocate them through-
was already entitled when he received his discharge." The in-
out the approximately one year period needed for complete
adequacy of the certificate is illustrated by the fact that since
appellate review. However, the individual's hopes should not be
set high. Since the inception of the ADRB in 1944, there have
1966, there have been 3,500 requests for the application, only
been 94,700 cases considered, but only 8,900 changed to honora-
566 returned completed, and of those, only 460 certificates ac-
ble and 5,960 changed to general discharges. Thus, the 14,860
tually issued. The program seems to be unpublicized, unknown,
upgrading his discharge."
changes indicate that the individual has a 15.7% chance of
and of doubtful help.
C. PROPOSALS FOR CHANGE
An inadequate alternative to the military appellate system
would be for the individual to bring suit directly before the
Criticism of administrative discharge procedures seemed to
United States Court of Claims or a federal district court. These
snowball after Chief Judge Robert E. Quinn of the Court of
courts will review the discharge solely to determine whether the
Military Appeals stated that he was aware of occasions on which
requirements of due process have been fulfilled and will not
the administrative discharge was being used by the services to
peer into the merits of the discharge decision. Thus, the individ-
circumvent the judicial safeguards of the Uniform Code of
ual must present a justiciable violation of individual rights tan-
Military Justice." The fallout ignited Congressional investigation
tamount to a denial of due process or establish that the service
of the administrative discharge system during the 1962 military
this agency involved did not follow its own regulations. Obviously,
justice hearings 81 and the introduction of legislation by Senator
avenue is rarely utilized because of the prohibitive expense.
BY 29 U.S.C. §§ 601-007 (1970).
29 U.S.C. h 604 (1970).
in 25 H Washington, Telephone interview D.C., 20 with Dec. 1971. Mr. Campbell, American Red Cross Counsel,
20 Engelhardt, Many Learn-Too Late, ARMY DIGEST p. 68, 67 (May 1969).
se United States V. Phipps, 12 U.S.C.M.A. 14, 30 C.M.R. 14 (1960). Judge
Chief p. 2 (June 1971); Telephone interview with Col. Richard F. ARMY
DIGEST Comment, Chance of Getting Undesirable Discharge Reversed, 1969)
Engelhardt, Little Many Learn-Too Late, ARMY DIGEST p. 66 (May
Quinn stated:
I am also aware of circumstances tending to indicate that the undentrable discharge has
been used as a substitute for a court-martial, even in deprivation of an accused's rights
1972. Counsel Army Council of Review Boards, in Washington, D.C., Selbert, 5 Jan.
under the Uniform Code of Military Justice. However, the remody for this troublesome
situation rests In the hands of Congress.
(1958) Roberts V. Vance, 343 F. 2d 236 (D.C. Cir. 1964).
" Beard v. Stahr, 37p US 41 (1962) Harmon V. Brucker, 855 U.S. 579
Id., at 16 Sudge Quinn reiternied his opinion during his testimony at the
Senate committee hearings in 1962. 1952 Hearings 179.
# 1962 Hearings 2.
6
7
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
by the criticism and issued a new directive which increased the
Sam J. Ervin (D-NC). 32 The Secretary of Defense was swayed
by a stronger Bennett bill 41 which incorporated some of the
rights of servicemen in discharge proceedings and enlarged
provisions of the previously introduced Ervin bill. The Bennett
hearings dealing with the rights of servicemen were held in
viously skimpy procedural guidelines. Additional Congressional pre-
bill has Department of Defense backing and in fact, is that
Department's substitute bill.**
Senator Ervin the next year."
1966 34 and gave birth to a new, more detailed bill offered by
These bills are intended to increase the rights of servicemen
to ensure due process at administrative discharge proceedings.
Such Congressional activity stirred considerable discussion of
Normally, a serviceman may not be less than honorably dis-
the administrative discharge system 36 and the American Bar
charged except upon the recommendation of a board of officers.
Association's Special Committee on Military Justice issued
However, the decisional procedures of the board are administra-
ommendations for minimum standards in 1968. These recom- rec-
tive in nature and :nost of the safeguards found in criminal
mendations later formed the substance of legislation submitted
judicial proceedings are lacking. Respondents are generally en-
by Representative Charles E. Bennett (D 38 The bill and
titled to the following rights: a hearing, notice, statement of
ABA recommendations are general in purview and place few
allegations, names of adverse witnesses, presence of available
limitations on the particular service Secretary's discretion. In
witnessès, counsel, and cross-cxamination of witnesses present."
1971 a more drastic Ervin bill 40 was introduced, followed shortly
On the other hand, practically anything is admissible as evidence
and there are no rights of mandatory attendance of witnesses
cerning military justice. S.2002-19, 88th Cong., 1st Sess. (1963).
tem contained in several of the eighteen bills he introduced con- sys-
- Senator were Ervin's proposals for legislative changes In the discharge
or in-hearing confrontation and cross-examination. The Bennett
and Ervin bills attempt to cure these particular problems of the
rective with Department of Defense Directive 1332.14 (Jan. 14, 1959) The 20, 1965)
Compare Department of Defense Directive 1332.14 (Dec.
present system by an overhaul which results in additional
rights for the servicemen. The Ervin bill would prohibit is-
ceptions, whereas the previous regulation was very permissive several ex-
made representation by lawyer-counsel mandatory, with new di-
suance of an undesirable discharge unless the serviceman is
view requirement, The sections of board procedures, former jeopardy, as to this
represented by legally trained counsel at the proceeding. Also,
commanders. action were greatly expanded with increased limitations placed and re- on
a serviceman would be entitled to the right of confrontation
Joint Hearings on S.745 (and other bills) Before the Subcomm.
and cross-examination of witnesses while the administrative
Subcomm. stitutional Rights of the Senate Comm. on the Judiciary and the on Con-
board would have concomitant subpoena powers over witnesses."
(1966) of the Senate Comm. on Armed Services, 89th Cong., 2d Special Sess.
In contrast, the first Bennett bill added little to the current
[hereinafter cited as 1966 Hearings].
Senator Cong., Sess. (1969); reintroduced as S.2247, 92d Cong., 1st Sess. S.1266, 91st
S.2009, 1st 90th Cong., 1st Sess. (1967); reintroduced as
Department of Defense Directive except to grant subpoena power
to the board of officers and require board decisions to be based
containing Ervin's bill proposes a new chapter to Title 10, United States (1971).
on a preponderance of the evidence." The new Bennett bill "
through establish an entire statutory discharge system from pages. jurisdiction bill
would twenty-six sections and covering twenty-seven The Code,
would allow an undesirable discharge to be given a serviceman
REV. Lynch. The Administrative Discharge: Changes Needed? Secretary.
See final review, with little discretion vested in the
without board action for: 1) AWOL for one year or more, 2)
conviction by a civil court for an offense which under the UCMJ
dulum L. 141 (1970); Everett, Military Administrative Discharges-The 22 MAINE
carries confinement in excess of one year, and 3) an aggregate
Discharges: Swings, 1966 DUKE L. J. 41; Dougherty and Lynch, Administrative Pen-
" Military Juntice?, 33 GEO. WASH. L. REV. 498
of three separate courts-martial or civilian convictions within a
discovery rights, and findings based on a preponderance of the process,
(1968). recommendations included the power to issue REP. greater 577
Report The of the Special Committee on Military Justice, 93 (1964). A.B.A.
H.R. 10422, 92d Cong., 1st Seas. (1071).
Dep't of Defense Substitute Bill, Hezrings on H.R. 523 (H.R. 10422)
Cong., 1st Seas. (1971).
H.R. 19697, 90th Cong., 2d Seas. (1968). reintroduced as evidence. 11.R. 523, 92d
Before the Subcomm. to Limit the Separation of Members of the Armed
Forces Under Conditions Other Than Honorable of the House Comm. on
The Bennett bill proposes to amend 10 U.S.C. I 1161 alone, and
Armed Services, 92d Cong., 1st Seas., nt 5840-8 (1971) [hereinafter cited
detailed only three pages. The bill follows the ABA committee's philosophy that covers the
as 1971 Hearings]: H.R. 10422, 1971 Hearings 6034-7.
service secretaries' administrative discretion and that only policy guidance is
provisions in Senator Ervin's bill would improperly invade the
Army Reg. 15-8 para 8, supra note s1; Army Regs. 635-200, 206, 212,
supre note 3.
needed. 93 A.B.A. REF. 577, 580 (1968).
2247 SL.: Cook, 1st Sear (1971).
S.2247, 92d Cong., 1st Seas. (1971).
H.R. 10422, 92d Cong., 1st Seas. (1971).
11.
8
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
three year period. Additionally, no undesirable discharges could
The greatest economic impact of the undesirable discharge in
be awarded unless the respondent were defended by a legally
causing lost government benefits is in the area administered by
qualified attorney and the board of officers would have subpoena
the Veterans Administration (VA). Confusion exists in the
powers over witnesses. Board decisions would be based upon
public mind as to which discharges bar the ex-serviceman from
the preponderance of the evidence rule and a Department of
which benefits. A good deal of this riddle can be solved when it
Army review board would be established to enable respondents
is understood that only "veterans" are eligible to receive VA
to appeal an adverse officers board decision prior to his dis-
benefits and a "veteran" is defined as "a person who served in
charge into civilian status. Thus, the new Bennett bill provides,
the active military, naval, or air service, and who was discharged
in moderation, many of the proposed safeguards of the more
or released therefrom under conditions other than dishonora-
drastic Ervin bill.
ble." Thus, a veteran, in VA terminology, may receive a dis-
charge worse than honorable but better than the dishonorable
III. THE PUNITIVE ASPECTS OF THE ADMINISTRATIVE
and still qualify for VA benefits. Congress obviously intended
DISCHARGE
to make the maximum number of servicemen eligible without
including incorrigibles when it defined veteran in such broad
Spurring the various proposals for new administrative dis-
terms. The question is then reached as to where the general and
charge legislation is the belief that any less than honorable
undesirable discharges fall. The very terms of the general dis-
discharge $7 may substantially hinder the post-service life of its
charge, under honorable conditions, and the statutory language
?
recipient. Clearly the military itself promotes this belief. Scho-
qualify the recipient for all federal benefits whether administered
MATTOR
larly comment," testimony before leglislative bodies 50 and court
by the VA or other federal agency. it is the undesirable dis-
OF RIGHT?
opinions 81 also mention a stigma attaching to administrative
charge which creates the difficulty. The determination of who is
OR ascro-
discharge recipients. The exact nature and extent of the stigma,
a veteran qualifying for benefits in the case of the undesirable
TION?
however, are rarely discussed. Often hearsay substitutes for legal
discharge is an administrative determination within the discre-
knowledge, and personal experience suffices in view of the lack
tionary power of the Veterans Administrator pursuant to the
of empirical data.
guidelines cstablished by statute and agency regulations." The
A. GOVERNMENT BENEFITS LOST
Administrator's determination is final and conclusive without
being subject to review by other agencies or the courts." He
The tangible detriment to the administratively discharged
has authority to promulgate regulations controlling the nature
serviceman involves his eligibility for the multitude of post-
and extent of evidentiary proof necessary before the VA Board
service benefits provided by federal and state agencies.
and to establish the procedures for collecting and furnishing this
evidence to the Board to aid it in reaching its decision." Ex-
The term "less than honorable discharge" is used to denominate the
amples of benefits which hang on the discretion of the VA Board
general, undesirable, bad conduct, and dishonorable discharges. The term
are the payment of dependency and indemnity compensation,
"administrative discharge" is used to refer to the general and undesirable
Servicemen's Group Life Insurance, educational assistance under
discharges.
48 Army Reg. 635-206, flg. 1 (15 Jul. 1966) Army Reg. 635-212, flg. 1
the GI Bill, home and other loans, and funeral and burial
(15 Jul, 1966). A soldier being discharged from the Army is advised that
expenses.
an undesirable discharge results in the loss of many or all veteran's benefits
and causes substantial prejudice in civilian life. See Lynch, The Adminis-
Guidelines utilized for the exercise of VA discretion are fairly
trative Discharge: Changes Needed?, 22 MAINE L. REV. 3 (1970).
broad, but they specifically deny certain grounds for the
See generally Dougherty & Lynch, supra note 13; Susskind, Military Ad-
issuance of an undesirable discharge from qualifying as other
minintrative Discharge Boards: The Right to Confrontation and Cross-Ex-
amination, 44 MICH. STATE BAR J. 25 (1965); Creech, Congress Looks to
than dishonorable. A discharge received for any of the following
the Serviceman's Rights, 49 ABAJ 1070 (1963); Bednar, Discharge and Dis-
missal as Punishment in the Armed Forces, 16 MIL. L REV. 1 (1962)
38 U.S.C. $ 101 (2) (1970) (emphasis added).
Metsch, Stigmatic Military Discharges, 57 A.B.A.J. 1068 (1971).
23 C.F.R. 3.12 (10,1),
See footnotes 64-71 in/ra.
38 U.S.C. 211a (1970).
See text and cases cited qt footnotes 72-76 infra.
38 U.S.C. 210c (1970).
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
reasons is considered to have been issued under dishonorable
question as to fitness for employment such as criminal convictions
conditions:
or immorality." Thus, the administrative discharge would rarely
1. acceptance of undesirable discharge in lieu of a general court-
be the sole basis for inability to acquire federal employment;
martial,
inability to acquire a security clearance is a contributing factor.
Additionally, federal agencies look askance at the hiring of in-
2. mutiny or spying,
dividuals discharged from other federal agencies. The inability
3. conviction of an offense involving moral turpitude (felony)
to obtair 9 security clearance also creates employment difficulties
4. willful and persistent misconduct (This includes a discharge
with private firms performing under Federal Government con-
under other than honorable conditions, If it is issued because of
tracts. There are no statutory bars nor mandatory contract
willful and versistent misconduct. A minor offense discharge will
not be considered willful and persistent if the individual's service
clauses which preclude the employment of administratively dis-
was otherwise honest, faithful, and meritorious.), and
charged individuals by the prime or sub-contractors. Again,
5. homosexual acts."
however, the inability io obtain a security clearance creates the
same effect as with federal employment.
Additionally, a discharged serviceman who was a conscientious
State veterans benefits may also be denied. For example, in
objector who refused to perform military duty, wear a uniform,
New York a general discharge bars the individual from receiving
comply with lawful orders of military authorities, or who was
state veteran benefits similar to those he is simultaneously
a deserter, is totally barred from receiving any VA benefits
eligible for under federal law since a prerequisite for the state
regardless of the type discharge received."
benefits is an honorable discharge." Also, if state law interprets
Certain benefits administered by the military services are
a "conviction" to include an undesirable discharge, the individual
denied the recipient of an undesirable discharge. These include
would lose additional benefits and property rights as well as
payment for accrued leave, transportation of dependents and
acquire damaging civil disabilities." Thus, it is arguable that
household goods, and burial in a national cemetery. Similarly,
an undesirable discharge might result in the same lost rights,
benefits administered by other federal agencies such as the five
under state statute, as would a criminal conviction."
point veteran federal civil service preference and reemployment
rights which assure restoration to a job if application for reem-
B. CIVILIAN COMMUNITY EFFECTS
ployment is made within 90 days subsequent to discharge are lost.
While an undesirably discharged serviceman may never care
If a serviceman is improperly awarded an other than honorable
to use VA benefits or take a job requiring a security clearance,
discharge which is later upgraded by a review board, he can claim
he will almost certainly be wanting to work or go to school
back pay to a maximum of $10,000 by entering the Court of
Claims. However, he has lost a property right to any back pay in
F.P.M. 731-7 (Inst. 85, 27 Jan. 1967), para 3-3a; F.P.M. Supp. 837-72.
32 C.F.R. parts 1-39 (ASPR) (1971). See "clauses" in part 7 therein.
excess of the court's jurisdictional limit.⁵*
61 Schustack v. Herren, 234 F. 2d 134 (2d Cir. 1956).
There are no statutory þars precluding the employment of
a Special Project-The Collateral Consequeness of a Criminal Conviction:
administratively discharged individuals for Federal Government
Civil Disabilities, 23 VAND. L. REV. 929 (1970). Examples are disfranchise-
ment, loss of right to hold public office, and loss of employment, judicial,
jobs. However, in the case of the undesirable discharge and the
domestic, and property rights.
absence of any extenuating circumstances, the individual may not
A profitable followup study might examine the policies of state employ-
be accepted until the lapse of one year subsequent to his dis-
ment boards and state licensing agencies regarding less than honorable dis-
charges. The Virginia Employment Commission. indicated that its policy is
charge. Further, he is subject to appropriate investigation to
to ignore discharge classifications and provide its employment services to all
ensure that the grounds for the discharge do not raise a serious
individuals. Interview with Virginia Employment Commission, Charlottes-
ville, Virginia, 28 December 1971. A similar check with the Virginia Alco-
holic Beverage Control Board indicated that an administrative discharge in
38 C.F.R. § 3.12d (1971),
no way tainted an ex-serviceman's application for a liquor sales license.
C.
38 C.F.R. 809 3.12c (1&4) (1971).
Virginia prohibits the issuance of the license when the applicant has been
28 U.S.C. $ 1491 (1970); Voira, Extraordinary Relief of Punitive and
convicted of n felony involving moral turpitude. Interview with Local Di-
Administrative Discharges from The Armed Forces, 7 Duq. L REV. 384
rector, Virginia Alcoholic Beverage Control Board, Charlottesville, Virginia,
(1968-69).
28 December 1971.
13
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
somewhere. In this area the effects of the administrative dis-
You don't go into detail to find out what makes him undesirable.
charge may be most serious and are least known.
You think he may be a thief, he may be a homosexual, he may not
be supporting his children, his family, in the minds of some people,
The consensus of opinion among witnesses at various Con-
but he is undesirable, you don't want him around.
It
is
a
gressional hearings, which have produced many outspoken critics
liability and a heavy one.
of the severity of administrative discharges, has been that a
The Congressional hearings are replete with similar criticism by
It
stigma does attach However, their opinions have never been
witnesses. Thus, there are many who believe that an undesirable
verified by an empirical study or other collected data. Major
discharge is tantamount to or even worse than a punitive bad
General Kenneth J. Hodson testified that he had no evidence to
conduct discharge. Similar, but less severe stigma has been said
refute the stigma allegation." In testimony concerning the un-
to attach to the general discharge."
desirable discharge, former Chief Judge Quinn of the Court of
Many civilian courts have felt that any discharge other than
Military Appeals testified:
honorable carries with it some degree of stigma and depriva-
I think, generally speaking, Mr. Chairman, it is worse than a bad
tions."
conduct discharge, as far as its implications are concerned, and the
results are also quite severe. You cannot get a job in a bank, or
[A]ny discharge characterized as less than honorable will result in
in a trust company or for the government
or any of the places
serious injury. It not only means the loss of numerous benefits in
where there is any confidential requirement. They will not give work
both the federal and state systems, but it also results in an un-
to a man with an undesirable discharge. It is a very severe penalty."
mistakable social stigma which greatly limits the opportunities for
both public and private civilian employment."
Chief Judge Quinn's rationale for this statement is that while
people may overlook one act of bad conduct, they are not so
Since most soldiers are discharged from the service with honor-
prone to overlook undesirability. In a similar vein, Congressman
able discharges, an undesirable discharge places great stigma
Clyde Doyle stated that the results of a quick poll of industry
on the ex-serviceman." Some courts have been more forceful in
indicated that & man with an undesirable discharge would gen-
clearly stating that undesirable discharges carry the same stigma
erally not be granted an interview," and in discussing why an
as punitive discharges."
undesirable discharge creates a life stigma, he stated:
" Id. at 328.
I think it is, because with the ordinary person you will say a man
TO 1983 Hearings 15-18, 004 64 (BCD and undesirable discharges produce
is an undesirable citizen in civilian life, that is a life stigma. He is
very similar stigma and hardships) 1906 Hearings 834-35 (undesirable
an undesirable. You don't want to have anything to do with him.
discharge is a flagrant act of character assassination); 1966 Hearings 335
(undesirable discharge carries with it the suspicion of homosexuality) 1971
H 1962 Hearings 5, 315-28, 335-36 (testimony of Senator Kenneth Keating
Hearings 5825, 5900 (BCD is better than an undesirable discharge since
(R-NH), Representative Clyde Doyle (D-Cal), and Charles H. Mayer). In
the undesirable cannot be explained away-testimony of Representative
the Senate report it was stated that the subcommittee had received letters
Charles E. Bennett); id. at 5856 (Bennett-an undesirable discharge
from many ex-servicemen who accepted undesirable discharges without a
carries the connotation of being penal in nature); 1971 Hearings 5855.
full understanding of the stigma and the difficulty it created in obtaining
1962 Hearings at 328, 330-41 (a general discharge carries an implied
employment. Subcommittee on Constitutional Rights of the Senate Comm. on
stigma in the eyes of prospective employers since the overwhelming num-
the Judiciary, 88th Cong., 1st Sess., Summary Report of Hearings on Con-
ber of discharges are honorable); 1971 Hearings 6000 (testimony of Kar-
stitutional Rights of Military Personnel Pursuant to S. Res. 58 2 (1963);
patkin, ACLU General Counsel-the public equates anything other than
1971 Hearings 5825-5938.
honorable with undesirable).
1966 Hearings 381 (testimony of Brigadier General Kenneth J. Hodson,
" Beard V. Stahr, 370 U.S. 41 (1962), J. Douglas dissent at 42-45; Nelson
Assistant Judge Adyocate General). General Hodson was appointed The
V. Miller, 373 F. 2d 474 (3d Cir. 1967); Van Bourg v. Nitze, 388 F. 2d 557
Judge Advocate General of the Army later that year and promoted to Major
(D.C. Cir. 1967); Bland V. Connally, 293 F. 2d 852 (D.C. Cir. 1961);
General. At subsequent hearings, he testified that the undesirable discharge
Unglesby v. Zimny, 250 F. Supp. 714, 716 (N.D. Cal. 1965) Conn V. United
tags a man and has an adverse effect upon gaining civilian employment. 1971
States, 376 F. 2d 878, 881 (Ct. CI. 1967) Sofranoll v. United States, 165 Ct.
Hearings 5916.
CI. 470 (1964); Murray v. United States, 154 Ct. CI. 185 (1961); Claekum
1962 Hearings 188.
V. United States, 148 Ct. CI. 404 (1960); Stapp v. Resor, 314 F. Supp. 475,
Id. Not many people outside the military realize that the bad conduct
478 (S.D.N.Y. 1970).
discharge is the result of a criminal conviction. The natural tendency is to
# Bland V. Connaily. 293 F. 2d 852 (D.C. Cir. 1961).
suppose that a man found undesirable by the military is also undesirable
Id. at 858.
for civilian society, while bad conduct is only a one-time mistake. 1962 Hear-
- Van Bourg V. Nilse, 388 F 2d 557 (D.C. Cir. 1967): Stapp V. Resor, 314
ings 328 (testimony of Representative Clyde Doyle (D-Cal) ).
F. Supp. 475, 478 (S.D.N.Y. 1970) Glidden v. United States, 185 Ct, CL
P 1962 Hearings 315 (testimony of Representative Clyde Doyle (D-Cal)).
515 (1966).
15
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
In contrast, some courts have disagreed with the claims of
made from national directories. Various types of businesses,
severity concerning the general discharge, stating that it is not
large and small, were selected to ensure that a cross-section of
severe nor punitive in nature." These courts maintain there is no
typical employers were represented. Large businesses were sep-
connotation of dishonor in a general discharge, that it does not
arately defined as having annual income of over $1,000,000.
deprive service personnel of any of the inherent rights provided
Unions were selected so as to gain representation for blue collar
by honorable discharges, and that there certainly is a lesser stigma
trades. Medical and bar examiners were canvassed to cover pro-
attached to a general discharge.
fessional employment. Large (over 5,000 students) and small
colleges were selected to measure any educational difficulties that
IV. AN EMPIRICAL VIEW OF THE STIGMA
discharged servicemen encounter.
A. SURVEY OBJECTIVES
Each of these seven types of activities, representing a cross-
Much of the commentary regarding the effect of the adminis-
section of American employment, were canvassed in each of six
trative discharge is based on sheer speculation." To remedy this
regions. The two business categories were further broken down
defect, a survey was conducted of employers, educators and
into large (over 250,000 population) and small cities so the im-
professional licensing authorities to determine their understand-
pact of both business and city size could be measured. Thus, there
ing of and reaction to various forms of less than honorable dis-
were six possible combinations of each activity being evaluated
charge." The survey sought answers to the following questions:
except in the two business categories which had twelve. The
1) To what extent is there awareness of the distinctions be-
number of questionnaires sent to each activity was determined
tween the various types of discharges? 2) Is a man's discharge
by the probable impact that activity would exert upon the ex-
characterization considered in a hiring or acceptance decision?
serviceman. Thus, traditional businesses received 600 of the total
3) If so, what investigation of the discharge is made and to what
1,000 surveys. Large colleges, small colleges, and unions received
extent do the various types of less than honorable discharges
100 questionnaires each with the remainder going to the profes-
disqualify or retard the serviceman?
sional examiners. Of the 1,000 questionnaires sent, 547 were re-
turned in usable form and in time to be analyzed."
B. THE TECHNIQUE
North Carolina, Tennessee, Virginia, and West Virginia); (3) North Central
One thousand subjects were selected from each of six regions
(IHINOIS, Indiana, Iova, Michigan, Minnesota, Nebraska, North Dakota, Ohio,
within the United States." The actual selection of subjects was
South Dakota, and Wisconsin); (4) South Central (Arkansas, Colorado,
Kansas, Louisiana, Missouri, New Mexico, Oklahoma, and Texas); (5)
'McCurdy v. Zuckert, 359 F. 2d 491 (5th Cir. 1966) Ives V. Franke, 271
Northwest (Alaska, Idaho, Montana, Oregon, Washington, and Wyoming)
F. 2d 469 (D.C. Cir. 1959) Grant v. United States, 162 Ct. Cl. 600 (1963).
(0) Southwest (Arizona, California, Hawaii, Nevada, and Utah). The num-
One exception is a survey of the Amarillo, Texas, area completed by
ber of respondents per region was proportionately established by overall
Leonard J. Hippchen in 1962 which attempts to establish the impact that
population to equalize a nationwide representation of responses and to in-
other than honorable discharges have on nine business classifications of both
sure a more accurate depiction of the attitudes within a particular region.
large and medium size firms. Hippchen's efforts seem to be directed towards
There was a conscious effort made to select respondents such as the auto-
ascertaining which job types were most available to these individuals. He
mobile manufacturers in Detroit who had the greatest probability of being
used the term, dishonorable as synonymous with other than honorable since
an employment target of the discharged Individual and would thus exert a
it was his assumption that civilian employers would be unable to differentiate
more realistic influence on the survey.
and were only cognizant of dishonorable vis-a-vis honorable. Therefore, his
so The survey seemed valid based upon the 60% response and the appropri-
results are less than discriminating when it comes to analyzing the relative
ateness of answers. Nearly all questions were answered with logic and a
position of administrative discharges vis-a-vis punitive discharge. Hippchen,
degree of understanding. This could be judged since subsequent questions
Employer Attitudes Toward Hiring Dishonorably Discharged Servicemen,
were generally dependent upon the response to previous questions.
THE MILITARY PRISON, p. 170 (1970).
There were several survey limitations worth noting. First, it was impossible
A copy of the questionnaire appears as appendix A. The "Yes-No"
to tabulate each region by activity; that is, to Indicate what activity within
format was utilized to encourage case of answering for the respondents and
the region had the most impact on the overall regional percentage. Region-
case of compilation for the author. Respondents were promised anonymity in
by-activity samples would have been too small for meaningful survey pur-
their responses.
poses. Second, the data for the unions is probably of limited value due to
The regional divisions were (1) Northeast (Connecticut, Delaware,
the 25% response received, a figure far lower than any other return rate.
Maine, Massachusetts. New Hampshire, New Jersey, New York, Pennsyl-
Also, the cuestionnaire was sent to national or intermediate union head-
vania, Rhode Island, and Vermont): (2) Southcast (Alabama, District of
quarters who may have had little to do with union employment policies. A
Columbia, Florida, Georgia, Kentucky, Maryland, Mississippi, South Carolina,
valuable future study might contact local union hiring halls. Finally, the
17
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
To determine the significance of the variables of activity,
centage, ranging as high as one-third for dishonorable discharges,
region, and city size, the "chi square" method was used. In brief
automatically disqualified such applicânts. The majority of re-
summary, this statistical technique expresses the likelihood that a
spondents not automatically disqualifying an applicant did look
tested variable (here activity, region, or city size) rather than
behind the discharge and based their hiring or acteptance deci-
mere chance was responsible for differing results.*
sion on the particular facts of the case. Only about one respondent
A measured confidence level (C.L.) equal to or greater than
in ten indicated that a hired or accepted ex-serviceman would be
95% would indicate that the tested variable was significant in
placed on probation or given a lower level position because of
influencing the responses. A C.L. below 95% would tend to indi-
the character of his discharge.
cate no influence or a limited influence was exerted by the tested
Significant distinctions arise according to the type of discharge
variable. Although the C.L. is not an absolute indication that the
awarded. The respondents discriminated against the discharged
tested variable was the controlling factor which others were de-
serviceman according to the severity of the discharge. For ex-
pendent on, it does add credence to the suggestion that a tested
ample, while 77% were influenced by a dishonorable discharge
variable is the controlling factor in the responses.
and 75% by a BCD, only 69% were influenced by an undesirable
discharge and 51% by a general discharge. Similarly, 84%
C. RESULTS
automatically rejected the dishonorably discharged applicant;
Considered as a whole 82 the results showed considerable knowl-
27% the BCD recipient; 20% the undesirably discharged; and
edge of military discharge practices, significant use of the dis-
8% the generally discharged. The results rebut the contention
charge as an employment or admission qualification and a rather
that the civilian world does not distinguish between types of less
sophisticated distinction among the less than honorable dis-
than honorable discharges and the contrary pronduncement that
charges. Virtually all respondents (98%) indicated a familiarity
the judicial bad conduct discharge is less stigmatizing than the
with court-martial discharge powers. Eighty percent indicated a
administratively issued undesirable discharge. The results further
general awareness of the existence of other than dishonorable
Indicate that the general discharge under honorable conditions
and honorable discharges. Sixty percent specifically knew of the
cannot be cquated with the honorable discharge. While it is per se
existence of the administrative general or undesirable discharge.
disqualifying in eight per cent of the cases overall, that figure
Approximately two-thirds (65.6%) of all respondents did
rises to cut twe've percert when only the business categories
make inquiry as to an ex-serviceman's discharge. The majority of
are examined. Further, in half of all cases the general discharge
those inquiring (60.1%) simply accepted the man's word as to the
will "influence" employment or acceptance decisions. Even
character of discharge. One-third required a showing of the dis-
though the Government is willing to credit the generally dis-
charge certificate and only six percent made inquiry to the ap-
charged serviceman with the full benefits of "honorable" service,
propriate armed service.
a considerable part of the civilian world is not willing to accord
A less than honorable discharge obviously hampered an ex-
him such treatment.
serviceman's employment or acceptance prospects. The majority
Examination of the data according to type, region, and city'
of respondents admitted that their policies were "influenced"
size revealed several interesting patterns. The C.L. for activity
by any type of discharge other than honorable. A smaller per-
was significant for all critical questions (see appendix B) indicat-
ing that activity may be a controlling factor for any difficulties
survey did not adequately cover cities under 10,000 population nor one-man
stores in larger cities. Again, further study could provide additional valuable
the individual encounters. A number of factors stood out. College
data.
officials showed a greater awareness of the administrative dis-
The "Chi Square" computer program was selected from among several
charge system than did the businesses. Conversely, businesses were
choices since it performed the greatest number of operations desired at the
lowest cost, yet with great efficiency in producing usable, intelligent data.
more likely to inquire into the serviceman's discharge, more likely
The decision to run three chi square programs was based on the author's
to be influenced by it, and much more likely to automatically
pre-survey hypothesis that activity, region, and city size might all be
reject than the colleges. Within the two groups size worked in
critical variables in determining the reaction to less than honorable dis-
charges
different ""YE. Big businesses were more likely to inquire, be in-
The overall results may be obtained from the Total column of the
Activity Survey, appendix B.
A summary of these results appears in appendix C.
18
19
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
fluenced by, and disqualify than small businesses. Big colleges,
changing the statutory denials of benefits. Thus, military proce-
however, were less likely to inquire, be influenced by, and dis-
dures do not create the onerous overtones of administrative dis-
qualify than their smaller counterparts. Despite minor discrepan-
charges and should not be the subject of such criticism.
cies all types of respondents followed the general pattern of dis-
The attitudinal stigma, the subject of the empirical survey,
criminating with increasing severity from general to undesirable
is personal in nature and is a creation of our society. The survey
to bad conduct to dishonorable discharge.
establishes that some stigma does attach from receipt of an ad-
Not surprisingly the bar and medical examiners were markedly
ministrative discharge, but not to the extent of being tantamount
more interested in the character of an applicant's discharge.
to the consequences of punitive discharges as some Congressional
Nearly three-quarters made some inquiry and then either re-
leaders, judges, and literary critics seem to believe. In fact, the
quired a look at the discharge certificate or verification from the
civilian population understands and distinguishes between the
armed forces. Over seventy percent stated that even a general dis-
various discharges fairly well, contrary to Congressional presump-
charge "influenced" their licensure decision. The more severe dis-
tion. Thus, it seems that insufficient credit has been given the
charge classifications influenced decisions in between eighty and
civilian population in Congressional assessment of the severity
eighty-six percent of all cases. These figures were substantially
of administrative discharges. Certainly, general or undesirable
ahead of the other categories. However, it is noteworthy that
discharge is something with which to be reckoned by its recipient,
while the professional examiners were influenced by discharges
but is is not as severe as it is often presumed to be and does not
they nonetheless had the lowest automatic rejection average. Ap-
reach the stigma level of a punitive discharge.
parently, the examiners had the investigative resources and desire
This study does not answer the questions: 1) Should the mill-
to look behind discharge characterizations and avoid snap judg-
tary continue the practice of characterizing discharges? and 2)
ments. By contrast small businesses were least likely to look into
If so, are further procedural reforms needed to assure that such
the facts in the individual's case.
characterizations are factual and fair? Much additional legisla-
The C.L. for region was significant in only two of twenty-
tive and administrative study is needed to provide the answers to
three questions. Since these involved the little used probationary
these questions. If nothing else, however, this study of discharge
or lower starting level criteria it appears safe to conclude that a
consequences emphasizes the fact that many popular notions re-
surprising regional homogeneity exists. Based on these questions
garding the administrative discharge have no basis in fact. In
and these regional breakdowns, conclusions about regional pro
adopting new laws and regulations, it is hoped that hard facts
or anti military feeling are not justified.
and not fine rhetoric will serve as the guideposts.
Considered by city size the majority of responses (15 of 23)
showed a statistically significant confidence level. Generally, how-
ever, the variances were not large. Small city respondents were
more likely to automatically disqualify applicants or to employ a
probationary or lower level criterion than their larger counter-
parts. Large city respondents were slightly more likely to look
behind the discharge certificate prior to making an acceptability
decision,
V. CONCLUSIONS
When the stigma argument is dissected, it is seen to consist of
two elements, statutory and attitudinal stigma. The statutory
stigma is generally under the control of Congress and the Veter-
ans Administration. The amount of stigma is a function of the bars
these bodies place on veterans benefits and employment oppor-
tunity. Congress can alter the degree of actual harmfulness by
21
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
APPENDIX A
QUESTIONNAIRE ON THE PRACTICAL EFFECTS OF THE LESS
Type
Signifi-
cant
no
yes
no
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
THAN HONORABLE DISCHARGE
1. Prior to this inquiry, were you aware that there existed types of less than
honorable discharges other than the Dishonorable Discharge?
Chi
Sq
C.L.*
87
99.9
39
YES
NO
100
100
99.9
100
99.9
100
100
100
99.7
100
100
100
100
100
100
100
2. Were you aware that a soldier could receive a General or Undesirable
Discharge as the result of an administrative separation?
YES
NO
3. Were you sware that a soldier could receive a Bad Conduct or Dishonor-
Total
81.1
61.0
98.0
65.6
60.1
33.1
5.7
51.2
69.1
75.0
77.4
8.1
20.1
26.8
33.8
47.5
47.5
47.0
43.4
able Discharge as the result of a court-martial conviction?
YES
NO
4. Prior to accepting a former serviceman into your organization, do you
inquire into the type of discharge he received?
YES.
NO
Medical
Exam-
iners
75.8
69.7
97.0
72.7
30.3
57.6
18.2
72.7
81.8
81.8
84.8
3.0
12.1
15.2
15.2
72.7
69.7
66.7
69.7
In any inquiry you might make, do you:
5. Accept the man's word as to his discharge?
YES
NO
6. Require him to show his discharge certificate?
YES
NO
7. Make an inquiry to the armed service concerned?
YES
NO
FREQUENCY BY ACTIVITY SAMPLE (IN PERCENT)
Bar
Examiners
82.9
74.3
97.1
74.3
28.6
51.4
20
71.4
82.9
85.7
85.7
0
2.9
5.7
8.6
71.4
80.0
80.0
77.1
Are your personpel, admission, or licensing policies influenced by any of the
following less than honorable discharges:
a. General Discharge?
10. Bad Conduct Discharge?
YES
NO
YES
NO
9. Undesirable Discharge?
11. Dishonorable Discharge?
APPENDIX B
Union
95.8
62.5
100
50
54.2
37.5
0
50.0
50
66.7
66.7
8.3
8.3
20.8
25.0
45.8
45.8
37.5
37.5
YES
NO
YES
NO
Do you automatically reject the application of any person who has received
one of the following less than honorable discharges:
12. General Discharge?
14. Bad Conduct Discharge?
Small
Colleg's
73.5
61.8
98.5
61.8
55.9
44.1
5.9
54.4
72.1
77.9
79.4
29
8.8
10.3
8.8
52.9
63.2
69.1
69.1
YES
NO
YES
NO
13. Undesirable Discharge?
15. Dishonorable Discharge?
YES
NO
YES
NO
Do you look behind the discharge certificate to determine the grounds (e.g.,
homosexuality, alcoholism, misconduct, etc.) for the discharge and make
Big
Colleges
88.4
81.2
97.1
40.6
58.0
29.0
0
34.8
49.3
55.1
56.5
1.4
4.3
5.8
11.6
34.8
44.9
49.3
44.9
your decision as to the applicant's acceptability based upon those findings
when he has received any of the following discharges:
16. General Discharge?
18. Bad Conduct Discharge?
YES
NQ
YES
NO
Small
Business
78.9
51.4
96.5
62.0
70.4
24.6
2.8
17. Undesirable Discharge?
19. Dishonorable Discharge?
44.4
64.1
69.7
73.2
12.7
28.2
34.5
47.2
37.3
33.1
32.4
27.5
YES
NO
YES
NO
Do you place on probationary status or in a lower level position than he
level
otherwise would have been given an accepted applicant who received any
of the following discharges:
Big
Business
81.8
55.9
99.4
79.4
67.1
28.2
5.9
54.1
77.6
84.1
87.1
11.8
31.2
42.9
51.8
49.4
43.5
40.0
34.7
20. General Discharge?
22. Bad Conduct Discharge?
YES
NO
YES
NO
21. Undesirable Discharge?
23. Dishonorable Discharge?
YES
NO
YES
NO
No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
22
23
59 MILITARY LAW REVIEW
DISCHARGE CONSEQUENCES
Type
Signifi-
APPENDIX C
cant
yes
yes
yes
yes
COMPARISON OF DISCHARGE EFFECTS BY TYPES
OF DISCHARGE"
Chi
Sq
TO
100
100
100
100
A. Discharge Inquiries (questions 4-7) :
Inquire into
Look at
Write armed
Discharg"
Accept word
Discharge
forces
Total
11.8
11.3
10.9
9.1
65.6%
51.8%
46.8%
8.6%
B, Acceptance Policies (questions 8-23)
Policy
Reject
Influenced
Automati-
Look
Medical
Exam-
iners
18.2
18.2
15.2
15.2
by
cally
Behind
Probation
I.
General
51.2%
15.1%
77.1%
17.9%
Bar
Examiners
II.
Undesirable
8.6
8.6
8.6
5.7
69.1%
28.8%
66.7%
15.6%
III.
BCD
75.0%
35.4%
62.2%
14.4%
Union
4.2
4.2
12.5
12.5
IV.
Dishonorable
77.4%
43.3%
56.3%
11.6%
*Percentages on left of vertical line are total affirmative respanses of which those on the
right are a portien,
Small
Colleges
5.9
8.8
11.8
11.8
who
wl
10
Big
Colleges
8.7
15.9
14.5
11.6
Small
Business
13.4
10.6
10.6
8.5
Big
Business
14.7
11.2
8.8
6.5
-C.L-Confidence level
Ques.
No.
20
21
22
23
24
25
NOTE: Senator Goodell
On 1/14, Bill Strauss and I reviewed the
held cases. These we agree should be
reconsidered by the Board.
YMB
LMB
CC: Bob Horn
Gretchen
Ray Mitchell
CEG
Rick
Held Cases
Reconsider
127
Base 3, Result 6. A#5, but evidence contrary
161
Result 13. Maye wants reconsidered
174
Base 6, Result 12
178
Base 5, Result 8. Juvenile offenses
195
Base 4, Result 10. A#5 lacking
213
Base 7, Result 7. No aggravating, some mitigating. Should lower.
239
Base 7, Result 10.
243
No clemency, no aggravating, only long AWOL
244
Base 5, result 8. No aggravating
249
Base 4, no clemency
258
Base 6, result 6. Long service, only long AWOL. Lower?
260
Base 6, result 12. Only long AWOL
028
Base 6, result 12. No A or M factors
046
No clemency. One prior offense, low sentence. Some drug
involvements.
048
Commutation only.
Special to President
041
Pardon. Trepantation case.
More Reconsider
107 Base 12, result 12. No facts for A#5, evidence of VN
opposition. Chaney
108 Base 12, result 18. A#5, but family problems. Chaney
212 Base 4, result 7. Long AWOL, M1, 2, 14
237 Base 5, result 5. Long AWOL only. M1, 2, 14
245 Base 5, result 8. Long AWOL. M 2, 3
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
May 14, 1975
MEMORANDUM FOR:
CHARLES E. GOODELL
FROM:
LAWRENCE M. BASKIR mB
SUBJECT:
UNRESOLVED ISSUES TO TAKE UP WITH BUCHEN
I. Upgrade
The Board has recommended twenty-one (21) upgrade cases
to date, not counting four (4) panel recommendations which
were not acted upon by the full Board at the last meeting.
The tacit arrangement that now exists is that the Defense
Department wishes to wait a period of time to find out how
many cases overall we will have. Counting the panel re-
commendations of the last meeting, 6 percent of military
cases we have reviewed have resulted in an upgrade recommen-
dation.
II. Pardons for Undesirable Discharges
My memo to you, and the attachments and our discussions
should be enough for you in your meeting.
III. Effect of Clemency on Future Discharge Review
2.
We proposed that any individual going to a Discharge Review
Board or Board for the Correction of Military Records having
received a Pardon from the President would be treated as
follows:
(a) He would not have to make a separate, special
application to these boards. The application to the
Clemency Board would be considered the functional equivalent
of the application to the military; (b) Any review would be
taken without regard to the acts for which the President has
issued a Pardon.
FORD is LIBRARY
- 2 -
The tacit position of the Department appears to be that
they will provide forms for application to us to send to
the individual but will not accept an automatic application
approach. They have not truly responded to our argument on
the kind of review we are asking for clemency discharge.
IV. Nature of Clemency Discharge
3,
The Proclamation and the President's evident intent is that
the Clemency Discharge be a truly neutral discharge, neither
less-than-honorable nor "under honorable conditions". The
actual certificate used by Defense states that it is a
Clemency Discharge given "under clemency conditions" or some
similar phraseology. However, the Department has made it
quite clear that they consider the Clemency Discharge to be
a discharge under other than honorable conditions (the
functional equivalent of an Undesirable Discharge), not only
for the pruposes of continuing to preclude veterans benefits
(the President's desire), but also as a public connotation
and an official description within the government.
It is not easy to suggest a quick remedy for the Department's
actions since this is essentially an internal DOD characteri-
zation. I suggest that the remedy is a directive from the
President or Buchen reminding (instructing) the Department
to preserve the true neutrality of a Clemency Discharge in all
their administrative processing.
We have not raised with the President our desire that the
Clemency Discharge be characterized as a "General Discharge
under honorable conditions for the convenience of the
government" but without entitlement to veterans benefits.
This would be a step beyond the President's neutrality just as
the DOD's characterization is a step below.
There are two other issues which are still outstanding which you should
keep in mind:
(1) Justice, Defense Department, and the Board have not
resolved the formal language that the warrants in military
cases will take. I believe our form to be perfectly adequate
in law and in style and that they are only nitpicking, but we
have not yet joined the issue with them.
(2) Case #41 has not yet been decided.
May 16, 1975
MEMORANDUM
TO: CEG
FROM: Gretchen
As of 2 p.m. Friday, 600 case summaries have been distri-
buted as follows:
1) 200 cases (50 cases each) for panels W, X, Y,Z, were
mailed to Board members prior to the meeting on May 8 with Board
members on May 14, and each have received his or her cases.
2) 50 cases were mailed to panel D on May 15; and and
100
additional 50 were either hand carried or put on airplanes on May 16.
3) 50 cases were mailed to Panel E on May 13. An additional
25 cases were mailed on May 15. An additional 25 cases were hand
100
delivered or put on airplanes on May 16.
4) 50 cases were mailed to Panel E on May 13. An additional
3
50 were hand delivered or put on airplamson May 16.
5) 75 cases were mailed on May 15. An additional 25 cases
B
were hand delivered or put on airplanes on May 16.
An additional 25 cases each for Panels D, E, F & G will be
ready for mailing tonight. of Total 100) we will, however, check with
Board before sending thes
Another 25 cases will ready for mailing Sunday or Monday.
We will, however, check further with Board members before sending
these out. (Total 100)
Your 125 cases are on your desk at 2033 M Street.
CC: L. Baskir
FORD LIBRARY is GERALD
5/20
Senator Goodell - -
50 more case summaries have been sent or delivered to each
Board member as gollows:
7
Goodell, Walt, Craig, Lally, Puller, Maye and / erhard by hand.
Ford by special delivery. 1
Adams to airline checkin to be picked up before boarding plane
tomorrow. Same for Dougovito (though different airport).
be delivered to
Riggs and O'Connor delivered to/their Washington hotel
tomorrow (per their request) for reading Wed. evening.
Hesburgh, Vinson and Morrow all traveling and summaries
being held here for their arrival at various times on Thursday
(again per their request, we spoke with all but Joan.)
Finch and Jordan not attending.
Panel breakdown is as follows:
W,X, Y and z
50 summaries in Board members hand prior to 5/8.
D,E, F and G
100 summaries received by Board members on or prio to 5/19.
50 summaries delivered (though not necessarily received) 5/20.
Hope this is clearer than the last memo!
GMH
P.S. We presently have on hand an additional 50 summaries
for each of 4 panels which can be distributed to Board
members on Thurs. or Fri. in preparation for June meetings.
(and there may well be more spackets ready for distribution
before Board decamps this week). BUT, we need to know
which Board members are going to be assigned to which panels
before packets are distributed. Are you working on this?
Or is Larry? And will we know before you've queried the Board
on Thrusday as to their June availability?
will not know before 5/22/92
of
GERALD R. LIBRARY FORD