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The original documents are located in Box 2, folder "Clemency Law Reporter (2)" of the
Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 2 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
CLEMENCY
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
LAW REPORTER
VOL.1 NUMBER TWO - JUNE 11, 1975
FORD
GERALD
ALIBRARY
HIGHLIGHTS
INTRODUCTION
The Clemency Law Reporter is an unofficial
UNANSWERED LEGAL QUESTIONS
document, the contents of which neither
Procedures for resolving them.
constitute nor imply the official position
(Legal Notes)
of the Board, but are intended as an in-
formal guide for the exclusive use of the
JURISDICTIONAL QUESTIONS
PCB Staff.
Some definitive guidelines.
(Legal Notes)
The Clemency Law Reporter is prepared
by the PCB Planning, Management and
ANALYSIS OF SEC. 1182 (a) (22), 8 USC
Evaluation Staff. For information, please
Concerning applicants who left the U.S.
contact Wil Ebel or Bob Terzian.
By Charley Craig and Bob Standard.
Room 901, Tel., 634-4823.
NO-JURISDICTION LETTERS
How to trigger the dispatch of a
no-jurisdiction form letter.
(Legal Notes)
BCT-AIT
INDEX
Ken Allen Provides insight into an Army
recruit's first weeks of service.
(Policy Notes)
Page
ARMY ACRONYMS
LEGAL NOTES.
2
Frequently used abbreviations.
(Policy Notes)
POLICY NOTES
19
LETTER TO THE EDITOR
How serious is a summary court martial?
(Policy Notes)
LIBRARY NOTES.
35
:-
STAFF PRECEDENT DETERMINATIONS
(Policy Precedents)
POLICY PRECEDENTS.
37
UPDATE OF AGGRAVATING FACTORS
(Policy Precedents)
BOARD MEETING MINUTES
Excerpts from last week's meetings.
(Addendum)
LEGAL NOTES
FORD i QERALD LIBRARY
The Legal Notes Section will be devoted to information of
professional interest to the PCB attorney. It will include
such matters as new procedural developments of common con-
cern, and analysis of legal issues current to the PCB.
Contributions of ideas and work product from the staff are
especially critical to a full understanding of the law
applicable to the PCB.
'f
-2-
AMENDMENT TO CODE OF FEDERAL REGULATIONS
Title 2, Chapter I
To be published 6/13/75
Section 101.8(d), Rules and Regulations, commonly referred
to as the "30day regulation" has been redrafted as follows:
(d) An applicant's case is ready for Board consideration
upon preparation of the initial case summary, and may
be heard at any time after the summary is mailed to the
applicant. However, the applicant may send any infor-
mation which contradicts, amends, or supplements
the initial case summary within thirty (30) days after
the postmark date. An applicant's request for an ex-
tension of this time will be liberally construed pro-
vided the request is timely. If an applicant's case
has been heard by the Board prior to the receipt of
a timely submission amending, contradicting, or
supplementing a case summary, the case will be pre-
sented de novo to another panel of the Board, other
that that which heard the case originally if the sub-
mission contains relevant information which could
have affected the disposition of the case. See para.
101.11 for rules concerning reconsideration of cases.
Presentation de novo means that the case summary brought
't
up-to-date with the amending, contradicting, or supplementing
information is presented to a completely new Board panel by
the original action attorney. It cannot be over-emphasized
that the provisions of the section should be construéd and
applied liberally.
-3-
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
June 10, 1975
MEMORANDUM FOR:
PCB LEGAL STAFF
FROM:
LAWRENCE M. BASKIR
SUBJECT:
JURISDICTIONAL QUESTIONS
A great many jurisdictional questions have not been answered yet.
The intent of this memo is to outline the obvious non-jurisdictional
cases and to answer the difficult jurisdictional questions.
I. OBVIOUS NON-JURISDICTIONAL CASES
The list of such cases includes:
1. All those where an applicant received an Honorable or
General Discharge;
2. All those where the applicant's last discharge was
executed before August 4, 1964;
3. All those where, within the qualifying period a military
applicant never committed an offense that was closely re-
lated to an AWOL offense; and
4. All those where, within the qualifying period a civilian
applicant never committed an offense that was closely re-
lated to a draft evasion offense.
When you have cases where the Board clearly does not have jurisdiction,
fill out the Rober Gerst, no jurisdcition, information form (a copy of
this form is included as an addendum to this memo). Once your Deputy
'f
Assistant General Counsel has reviewed the information form, send it to
Janel Hartle in Room 501. This way the standard, no jurisdictión, form
letter can be typed by the Xerox, ETS typewriter, and the letters can
go out quickly.
Where there is a possible jurisdictional question, please write up a
brief description of the factual circumstances of the case, a brief ex-
planation of the jurisdictional question, and your recommendation concerning
jurisdiction. Your Deputy Assistant General Counsel should review this
memo, and then it should be forwarded to Charlie Craig or Bob Standard in
Room 903. Hopefully, these procedures will eliminate the jurisdiction backlog.
-4-
- 2 -
II. DIFFICULT JURISDICTIONAL QUESTIONS AND THEIR ANSWERS
The list that follows is meant to be an inclusive list of the areas
in which difficult jurisdictional questions have arisen. If you
know of other areas, please contact Charlie Craig or Bob Standard at
634-4823.
A. Draft Offenses Straddling the August 4, 1964 March 28, 1973
Qualifying Period Questions:
Example 1 -- Does the Board have jurisdiction over the applicant
who failed to submit for induction on July 1, 1964, but who was
not indicted until August 30, 1964?
Example 2 -- An applicant received two notices to report for in-
duction, the first to report on a date within the qualifying
period and the second to report on a data after the qualifying
period. He was indicted only for his second failure to report.
Does the Board have jurisdiction?
Legal Analysis: According to Executive Order 11803: "The Board
will only consider the cases of Military Selective Service Act
violators who were convicted of unlawfully failing (i) to register
or register on time, (ii) to keep the local board informed of
their current address, (iii) to report for or submit to preinduction
or induction examination, (iv) to report for'or submit to induction
itself, or (v) to report for or submit to, or complete service under
Section 6(j) of such Act." It is clear that for the Board to have
jurisdiction over an applicant, his offense must have been "committed
between August 4, 1964 and March 28, 1973, inclusive."
According to the Department of Justice, an applicant who commits any
of the acts specifically cited in the Executive Order has a continuing
obligation to perform such an act or acts on a daily basis. This
continuing obligation exists until the time that the individual's
conviction is final. Secondly, although, as a general rule, when an
individual fails on two or more occasions to report, he is indicted
only for his last failure, the individual has technically committed
a criminal act with each failure.
Conclusions: Because the offense in the first example is a continuing
offense, the Board has jurisdiction over the applicant's case. This
means that for all draft evasion offenses listed in the Executive
Order, the Board has jurisdiction if either the offense commenced or
a conviction was rendered within the qualifying period. The Board
also has jurisdiction with respect to the second example. Therefore,
whenever an applicant violated one of the acts specified in the
Executive Order and he was prosecuted subsequently for the same of-
fense, the Board has jurisdiction.
-5-
- 3 -
B. The Sufficient/Necessary Rules For Mixed Discharges
Questions: Example 1 -- If an applicant has a series of AWOL's,
some of which occurred within the qualifying period and some
outside, is he eligible? What if the duration of the AWOL's
that occurred within the qualifying period was in itself insuffi-
cient to warrant a DD or BCD (one AWOL-not more than 30 days in
duration; two or more AWOL' s-not TWO N more than three days in duration) ?
Legal Analysis: Executive Order 11803 states: "The Board
shall
consider the cases of persons who (ii) have received punitive or
undesirable discharges as a consequence of violations of Article
85, 86, or 87 that occurred between August 4, 1964, and March 28,
1973, inclusive It is, however, not always possible to ascertain
the exact offenses for which an applicant was discharged. In an at-
tempt to formulate simple rules to determine when the Board has
jurisdiction, I consulted the Manual for Court-Martial, 1969, Table
of Maximum Punishments. According to this table, an individual may
receive a BCD or DD for a single AWOL offense, only if the AWOL is
over 30 days in duration. If an individual has a series of AWOL's,
at least two of the AWOL's have to be over three days in duration
in order to receive a punitive discharge.
Conclusions: Where an applicant received a BCD, DD, or an undesirable
discharge in lieu of court-martial, and it is possible that he was
discharged for an AWOL, apply these sufficient/necessary guidelines:
1. The Board has jurisdiction if the AWOL offenses that commenced
within the qualifying period were sufficient to support the dis-
charge that the applicant received.
2. The Board has jurisdiction if the AWOL's that commenced within
the qualifying period and each of his other offenses--considered
independently--were insufficient for the discharge that the applicant
received.
3. The Board does not have jurisdiction only if the AWOL's that
commenced within the qualifying period were insufficient and any of
his other offenses--considered independently--was sufficient for
the discharge that the applicant received.
's
Caveat: If, under the sufficient/necessary guidelines, the Board does
not have jurisdiction but the last offense before the discharge was an
AWOL within the qualifying period, please forward the case to Charlie
Craig or Bob Standard in Room 903. It is still undecided as to whether
the Board might still take jurisdiction in the situation like number 3
where the last offense was an AWOL and the discharge was a consequence
of both the AWOL and the previous offense.
-6-
- 4 -
C. Unfitness Discharges (e.g., for Shirking or Frequent Incidents)
Question: Does the Board have jurisdiction over the applicant who
has an AWOL within the qualifying period, but who was discharged
for unfitness?
Conclusion: Unfitness is an inclusive term employed when all the
offenses in an applicant's record combine to cause his discharge.
Therefore, whenever there is an AWOL that commenced within the
qualifying period--even if it was for only one hour in duration--
the Board has jurisdiction. The table of maximum punishments does
not apply for unfitness cases and, therefore, the sufficient/necessary
rules are inapplicable. If it appears that an AWOL offense was one
of the listed offenses which resulted in the UD, it can be argued
that the applicant received his discharge as a consequence of an AWOL
offense.
D. Discharges under Article 90, 91, or 92 that could have been Discharges
under Article 85, 86, or 87
Question: An applicant disobeyed an order to report to the Army
overseas Replacement Center. He was discharged for a violation of.
Article 92 (i.e., disobedience of a lawful order of a superior,
commissioned officer), but he could have been discharged for a
violation of Article 86, section (1) (i.e., fails to go to his
appointed place of duty at the time prescribed). Does the Board
have jurisdiction?
Conclusion: The Executive Order declares: "The Board shall con-
sider the cases of persons who (ii) have received punitive or
undesirable discharges as a consequence of violations of Article
85, 86, or 87 Therefore, my tentative conclusion is that the
Board does not have jurisdiction over applicants who were discharged
for violations of Article 90, 91, or 92. However, please forward all
Article 90, 91, or 92 cases to Charlie Craig or Bob Standard in Room
903. If you have any arguments or recommendations, I would like to
receive them.
E. Discharges for Civilian Convictions
Question: An applicant went AWOL, robbed a bank, and received an
undesirable discharge for his civilian conviction. Does the Board
have jurisdiction?
Conclusion: If the discharge was solely for the civilian conviction,
the Board does not have jurisdiction, since the Board only has juris-
diction over applicants who were discharged as a consequence of
violations of Article 85, 86, or 87 of the UCMJ.
-7-
- 5 -
F. Draft Evasion Offenses Not Specifically Listed in Executive
Order 11803
Questions: Does the Board have jurisdiction over an applicant who
has been convicted of a Section 12 or 6(j) offense which is not one
of those specifically listed in the Executive Order? For example,
is an applicant convicted of draft card mutilation or aiding or
abetting draft evasion--Section 12 offenses--eligiblë for the pro-
gram?
Legal Analysis: Executive Order 11803 declares: "The Board
shall examine the cases of persons who (i) have been convicted
of violating Section 12 or 6(j) of the Military Selective Service
Act (50 App. USC $462), or of any rule or regulation promulgated
pursuant to that section " However, the Executive Order states
also: "The Board will only consider the cases of Military Selective
Service Act violators who were convicted of unlawfully failing (i)
to register or register on time, (ii) to keep the local board in-
formed of their current address, (iii) to report for or submit to
preinduction or indiction examination, (iv) to report for or submit
to induction itself, or (v) to report for or submit to, or complete
service under Section 6(j) of such Act." A rule of construction is
that where numerous items are listed specifically, those items not
included in that list are excluded.
Conclusion: Reinforcing the rule of construction cited above is the
phrase "the Board will only consider" (emphasis added), making it
clear that the intent was to make the list of offenses in the Executive
Order an inclusive--not an illustrative--list. Therefore, FOR the Board
to have jurisdiction, the draft evader must have been convicted of
one or the offenses listed specifically in the Executive Order.
G. Suspended Discharges
Question: Does the PCB have jurisdiction over an applicant who went
AWOL, was court-martialed, received a reduction and partial forfeiture,
and instead of being discharged was restored to active duty with a
probation period?
Legal Analysis: Section 2 of the Executive Order limits jurisdiction
to military absentees who "have received punitive or undesirable dis-
charges as a consequence of violations of Articles 85, 86, or 87 of
the Uniform Code of Military Justice (10 U.S.C. 885, 886, 887), that
occurred between August 4, 1964 and March 28, 1973, inclusive, or are
serving sentences of confinement for such violations." Consequently,
in order to be eligible for the PCB's program, an applicant must have
received a UD or a punitive discharge, or be serving a sentence of
confinement for the violations listed above.
-8-
- 6 -
Conclusion: The PCB does not have jurisdiction over an applicant
who has not received a punitive or undesirable discharge as a con-
sequence of violations of Article 85, 86, or 87 of the UCMJ. How-
ever, the PCB does have jurisdiction if the applicant will receive
a punitive or undesirable discharge after sentence of such offenses
is completed.
H. Aliens and Americans who Left the United States
Question: Should the PCB process applications from individuals who
will be ineligible for our program if they are precluded from re-
entering the United States under 8 U.S.C. 1182 (a) (22) or other law?
Answer: From a policy standpoint it has been decided that the PCB
will process applications from applicants who will be ineligible
for our Program if they are precluded from re-entering the United
States under 8 U.S.C. 1182 (a) (22) or other law. Case summaries
should be prepared and presented to the Board. However, the action
attorney should attach a note to the case summary indicating that
the applicant is possibly ineligible for our program because of
8 U.S.C. 1182 (a) (22) or other law. After the Board hears the
applicant's case, it will send its recommendation to the President
with a memorandum about the possibility of excludability under 8 U.S.C.
(a) (22).
For a thorough analysis of excludability under 8 U.S.C. 1182 (a) (22),
see the Article in this issue of the Clemency Law Reporter. The
following conclusions appear in that analysis.
1. Applicants who have never held American citizenship
(a) Non-immigrant status aliens: PCB has jurisdiction.
(b) Immigrant status aliens: If the government fails to
prove that they left the United States to avoid or
evade military service, PCB has jurisdiction,
2. Present and former American citizens who remained outside of
the United States to evade military service
(a) If they did not renounce voluntarily American citizenship
or become voluntarily naturalized citizens of another
country, PCB has jurisdiction.
(b) Even if expatriated, if the United States government fails
to prove that the applicant remained outside of the States
to avoid or evade military service, PCB has jurisdiction.
(c) If expatriated and if the government proves that the
applicant remained outside of the United States to evade
or avoid military service, PCB does not have jurisdiction.
-9-
- 7 -
I have adopted this approach because excludability is a judicial
or administrative determination, based on facts, law, and intent,
which the PCB should not presume to decide.
I. "Two Bites of the Apple"
Question: Example 1 -- Will the Board consider the case of the
military absentee who was AWOL when the Presidential Clemency
Program was announced, turned himself into DOD, received an
undesirable discharge, and, then, to take advantage of the Board's
three month baseline for those with undesirable discharges, applied
to the Board before the application deadline?
Example 2 - Will the Board consider the case of the draft evader
who declined to participate in DOJ's segment of the clemency program,
stood trial for his draft evasion offense, was convicted, and then
applied to the Board before the application deadline?
Conclusions: The Board will consider the applications that are
within example 2 but not those that are within example 1.
Concerning example 1, the clear intent of the President when he
established the Program was for three, non-overlapping areas of
responsibility. Therefore, once an individual has received clemency
from one of the other two segments of the Presidential Clemency Pro-
gram, the Board will not consider his case.
Concerning example 2, the Board will accept the applications, be-
cause, prior to applying to the Board, these applicants had not
received clemency. Like all individuals, these applicants have a
right to their day in court. Having lost in court, these applicants
still have a right to receive clemency. There were no instances of
persons returning to the DOD program who refused clemency and demanded
trial by court-martial. However, had anyone done this and been con-
victed, his case also would have been considered by the Board.
J. DOD and DOJ Eligibles Who Mistakenly Applied to the Board
Factual Situation: Approximately thirty individuals mistakenly
applied to the Board who are eligible either for the DOD or DOJ
't
segment of the program. Because these individuals applied to the
Board prior to the application deadline, our practice has been to
inform the appropriate agency of the time the application reached
us, and ask that they process it. If you run across such a case,
please contact Charlie Craig.
10 June 1975
-10-
PROCEDURE FOR RESOLVING UNANSWERED LEGAL QUESTIONS
All unanswered legal questions, particularly jurisdictional
questions (e.g., the eligibility of applicants who have
become citizens of another country, immigrants who fled
the United States when faced with induction, applicants
with a series of AWOL's some of which commenced outside
of the qualifying period) should be forwarded to the
Legal Analysis Staff. These questions should be forwarded
in writing, noting the case number, to either Charlie
Craig or Bob Standard, Room 903.
These two persons will work with Larry Baskir, General
Counsel, to resolve the questions and disseminate the
answers to all members of the staff. This process will
avoid the need of action attorneys to contact Larry Baskir
directly, and will result in a more efficient system to
keep everyone informed.
-11-
NO JURISDICTION FORM LETTER REQUEST
(See instructions below)
1. CASE NUMBER
2. APPLICANT'S NAME: Mr.
Mrs.
Ms.
3. APPLICANT's ADDRESS:
Street
Apt. # (if any)
City, State, zip
4. FILES REVIEWED BY ACTION ATTORNEY:
Military Record
Presentence Report
Selective Service File
5. A review of your (Military Record/Presentence Report/Selective Service
File) indicates that
6. ACTION ATTORNEY
TEAM LEADER
ATTORNEY PHONE
DATE
HOW TO USE THIS FORM
-Become familiar with the guidelines for handling jurisdictional questions.
(See Vol. 2, Clemency Law Reporter).
-Completion of this form causes a no-jurisdiction letter to be dispatched.
(A sample no-jurisdiction letter is attached).
-TO SEND A NO-JURISDICTION LETTER, fill in each item on the face of this
Request in accordance with the following instructions. The numbers of the
items correspond to the numbers of the instructions.
1. Enter the Case Number.
2. Enter the applicant's name.
3. Enter the applicant's mailing address.
4. Enter a check mark indicating the files used in processing the*case.
5. (Optional). You may enter here a brief statement addressing the basis
for the no-jurisdiction determination.
6. Enter name of attorney handling the case, team leader, action attorney
phone number, and date of request.
-ACTION ATTORNEY WILL FORWARD THIS REQUEST TO TEAM LEADER WITH CASE FILE
-12-
2
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
In Reply
2
June 9, 1975
Refer to:
84736-MJU-M
3
John Doe
1
13754 North Easy Street
New York, New York 17465
Dear Mr. Doe:
Your application to the Presidential Clemency Board has been reviewed by
an attorney on our staff, and pursuant to our regulations, we have con-
cluded that the Board does not have jurisdiction over your case.
The Presidential Clemency Board was created for the purpose of examining
the cases of certain civilians convicted of violations of the Selective
Service Act, and military personnel who received Dishonorable, Bad Con-
duct or Undesirable Discharges as a result of violations of sections of
the Uniform Code of Military Justice pertaining to desertions, absence
without leave, and missing a troop movement. The Clemency Program covers
individuals charged with offenses that occurred between August 4, 1964
and March 28, 1973.
4
A review of your Selective Service File indicates that your case is not
within the jurisdiction of the Presidential Clemency Board. : Destruction
of Selective Service Records is not a qualifying offense.
5
In the event you have additional information that you believe would
establish your eligibility for consideration by the Presidential Clemency
Board, you should immediately write to the Presidential Clemency Board,
Attn: General Counsel, The White House, Washington, D.C. 20500.
Your letter should clearly state your reasons for believing the Board
does have jurisdiction over your case. Please refer to your case number,
cited above, when writing the Board. If we do not hear from you within
30 days of the date of this letter, no further action will be taken on
your behalf by the Board.
I regret that the Presidential Clemency Board could not be of further
assistance to you.
Sincerely,
Charles E. Goodell
Chairman
Enclosures
-13-
3
NOTICE TO APPLICANTS DETERMINED INELIGIBLE FOR CONSIDERATION BY
PRESIDENTIAL CLEMENCY BOARD
Although you apparently do not qualify for consideration by the Presidential
Clemency Board, there are other remedies that may be available to you.
If you have a civilian conviction, you may wish to contact:
The Pardon Attorney
or
The Attorney General
U.S. Department of Justice
of the State in which you
Washington, D.C. 20530
were convicted.
If you wish to request a review of your discharge or separation from the
Armed Forces of the United States, you may contact:
ARMY
CO
USARCPAC
9700 Page Blvd
St. Louis, Mo. 63132
NAVY AND
Navy Discharge Review Board
MARINE CORPS
Navy Department, Arlington Annex
Room G711
Washington, D.C. 20370
COAST GUARD
Commandant (CBD)
U.S. Coast Guard Headquarters
Washington, D.C. 20591
AIR FORCE
National Personnel Records Center, GSA
(Military Personnel Records)
9700 Page Blvd
St Louis, Mo. 63132
If discharged by reason of sentence of General Court Martial, use DD Form
149; otherwise make application on DD Form 293.
You may also wish to apply to the U.S. Department of Labor, Manpower Admin-
istration to obtain an Exemplary Rehabilitation Certificate:
U.S. Department of Labor
Manpower Administration
U.S. Employment Service (METR)
Washington, D.C. 20210
-14-
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
June 10, 1975
AN ANALYSIS OF JURISDICTIONAL QUESTIONS CONCERNING ALIENS AND
AMERICANS WHO LEFT AND REMAINED OUTSIDE THE UNITED STATES TO EVADE
MILITARY SERVICE
To simplify the jurisdictional questions concerning applicants who
left the United States to evade military service, it is necessary to
categorize these applicants. The first distinction must be made
between (1) applicants who have never held American citizenship and
(2) present and former American citizens who left the United States
and remained outside the country to evade military service.
I. Applicants who have never held American citizenship
Executive Order 11803 states: " the Board will not consider the
cases of individuals who are precluded from re-entering the United
States under 8 U.S.C. $1182 (a) (22) or other law. " Section 1182 (a)
(22) of title 8 U.S.C. provides that the following will be excluded
from admission into the United States: "Aliens who are ineligible
to citizenship, except aliens seeking to enter as nonimmigrants; or
persons who have departed from or who have remained, outside the United
States to avoid or evade training or service in the Armed Forces in
time or war or a period declared by the President to be a national
emergency, except aliens who were at the time of such departure
non-immigrant aliens and who seek to reenter the United States as
nonimmigrants.'
The group of applicants who have never held American citizenship is
divided, therefore, into two sub-categories: (1) immigrant aliens and
(2) nonimmigrant aliens. Nonimmigrant aliens (i.e., those who were
admitted on visitors' or other temporary visas) are not prohibited
from reentry and, therefore, the Board has jurisdiction over these
cases.
To reenter the United States, such a person simply has to comply with
all the formalities (e.g., obtaining a visa from the State Department)
On the other hand, immigrant aliens (i.e., those who were admitted for
permanent residency) are often in a worse position. If the government
can prove that they left the United States to avoid or evade military
service, they cannot be readmitted and, therefore, the Board does not
have jurisdiction. It may not even matter that the individual was
ineligible for the draft at the time he left the United States (Matter of
U.D. 2 IN 417 (A.G. 1946).
-15-
2
II. Present and Former American Citizens who left the United States
to evade Military Service
In the past decade, the trend by the courts has been to minimize the
reasons for which American citizenship is lost. For example, the court
in Afroyim V. Rusk, 387 US 253 (1967) rejected the idea that "Congress
has any general power, express or implied, to take away an American
citizen's citizenship without his assent, " except through procedures
complying with the Fourteenth Amendment.
It appears now that to lose citizenship, an individual must voluntarily
relinquish or renounce his American citizenship or obtain voluntarily
naturalization in a foreign country. Examples of actions sufficient for
loss of American citizenship are: (1) executing an Oath of Renunciation
of American citizenship, (2) executing an affidavit of expatriation
before a United States vice consul abroad (King V. Rogers, 463 F2d 1188
(CA 9, 1972), or (3) becoming voluntarily a Canadian citizen by naturali-
zation (INS letter of February 1, 1975). Some of the actions that are
insufficient for loss of American citizenship are: (1) voting in a
foreign election (Afroyim V. Rusk, supra), (2) desertion from the
military service in time of war or national emergency (Trop V. Dulles,
356 US 86 (1958)), (3) conscription of a dual national into the military
service of a country with which the United States is at war (Nishikawa
v. Dulles, 356 US 129 (1958)), or (4) obtaining landed immigrant status
in Canada (INS letter of February 1, 1975).
When dealing with cases of present or former American citizens who
left the United States and remained outside of the country to evade
military service, differentiate between: (1) those who did not lose
American citizenship and (2) those who did. For the American who did not
lose his citizenship, (i.e., did not voluntarily renounce his American
citizenship nor voluntarily obtain naturalization in a foreign country)
the jurisdictional question is an easy one. Even if he left and remained
outside of the country with the express purpose of evading military service,
he can reenter the United States, and, therefore, the Board has jurisdiction
over his case. It is when loss of American citizenship is in question,
that controversy arises.
To resolve the controversy, the first questionsthat must be answered are:
Was the renunciation of American citizenship voluntary, " and "Was
naturalization in the foreign country voluntary?" If the answers to both
of these questions are no, the applicant is not precluded from reentry
under 8 U.S.C. 8 1182 (a)(22), and because he has not effectively renounced
his United States citizenship, the Board has jurisdiction.
-16-
3
If the answer to at least one of these questions is yes, the applicant
is an alien. Then a second question must be answered: "After he became
an alien did the applicant remain outside the United States to evade
military service?" If the answer to this question is in the negative, the
applicant is not barred from reentry, nor the Board from jurisdiction.
The applicant should be told that he has to obtain a visa from the
State Department before he may reenter. If the answer to the question
is in the affirmative, the applicant is precluded from reentry into the
United States, and the Board does not have jurisdiction. With respect
to evidentiary problems, it is necessary to evaluate the particular
individual's own assertions as well as other facts. It has been held
that an alien's own testimony as to his motivation for remaining outside
of the United States is not conclusive when there is other conduct or
evidence to refute his testimony (Holy V. Del Guecio, 259 F2d 84 (9th
IN Cir. 1958) ).
When the answer to any of the three questions listed above is in doubt,
the burden of proof probably rests with the United States government.
Certainly with the questions of voluntary renunciation and the intent
of the individual who remained outside of the country, the burden rests
on the government (Nishikawa V. Dulles, supra and Holz V. Del Guecio,
259 Fi2d 84 (9th In Cir. 1959), respectively). With the question of
voluntary naturalization, the burden once rested with the individual,
but this is no longer certain (because the constitutionality of most
of 8 U.S.C. S 1481 is in question).
Therefore:
I. Applicants who have never held American citizenship
A. Nonimmigrant aliens: PCB has jurisdiction
B. Immigrant aliens: If the government fails to prove that
they left the United States to avoid or evade military
service, PCB has jurisdiction.
II. Present and former American citizens who left the United States and
remained outside this country to evade military service
A. If they did not voluntarily renounce American citizenship or
voluntarily become a naturalized citizen of another country,
PCB has jurisdiction.
B. Even if expatriated, if the United States government fails to
prove that the applicant remained outside of the States to avoid'
or evade military service, PCB has jurisdiction.
C. If expatriated and if the government proves that the applicant
remained outside of the United States to evade or avoid military
service, PCB does not have jurisdiction.
=17-
4
Board Policy: Where, except for the reentry question, it is certain
that the Board has jurisdiction, the Board will consider the case. With
an explanation of the reentry question attached, the recommendation
of the Board will be sent to the President. Then, if the President
wishes, he may ask the Immigration and Naturalization Service to conduct
a full hearing.
It would be improper if, simply because of the reentry question, the
Board did not consider an applicant's case. The deciding of this
question requires a fair hearing with the full panoply of due process
rights. This burden is not to be considered lightly, and the Board
should not and cannot relieve the Immigration and Naturalization Service
of this responsibility.
Charles S. Craig & Robert Standard
-18-
POLICY NOTES
The Clemency Law Reporter will include a Policy Notes Section
that will highlight items of current interest. You can help
us by calling our attention to articles dealing with clemency
that appear in newspapers and periodicals and that you find
relevant to the PCB Staff effort.
We would be pleased to consider any staff-submitted manuscript
(not over 1,000 words, please) for possible publication in the
Clemency Law Reporter. Send to Wil Ebel or Bob Terzian.
Room 901, Tel, 634-4823.
'f
:
-19-
BASIC COMBAT TRAINING AND ADVANCED INDIVIDUAL TRAINING FOR ARMY RECRUITS
A substantial number of soldiers establish a pattern of AWOL while in Basic
Combat Training (BCT). Several, in fact, are discharged shortly after
their entrance on active duty because of AWOL committed during the first
few months of military service. For this reason, it is helpful to have
a clear, chronological picture of this initial period of training during
the Vietnam era.
Upon enlistment or induction--before a person ever goes to an Army post--
he becomes a member of a component of the Army. The Active Army consisted
of two components. The Army of the United States (AUS) is that component
made up of draftees. The Regular Army (RA) is that component comprised of
enlistees. Soldiers of all components, including Reserve and National Guard,
were trained together in Basic and Advanced training. The terminology
"enlisted for the draft" is applied to 2-year RAs and, for all practical
purposes, an RA soldier who enlisted for 2 years is the same as an AUS.
An RA soldier who enlisted for 3 or 4 years had the option of enlisting
for a specific training. Such soldiers were guaranteed, before enlistment,
that they would be given particular Military Occupational Specialty (MOS)
training. AUS and 2-year RA soldiers could not choose specific training.
The soldier begins his military service at a place called the Reception
Station (USARECSTA). While there, for 5-7 days, the/soldier is fitted for
uniforms, receives his identification card and tags, fills out numerous
forms, takes more medical and mental tests, and is interviewed. This
interview is crucial for AUS and 2-year RA soldiers because a recommendation
will be made as to what AIT training they should receive. These
recommendations are based on the needs of the Army, the individual's
background, his aptitude scores and his GT and AFQT scores. The GT and
AFQT tests, like many tests, allow certain sociological factors to effect
the results.
Upon completion of processing at the Reception Station, the soldier is
transferred to a BCT company. Basic Training is eight weeks long. During
this period the recruit must make the adjustment from citizen to soldier.
There are many adjustments the recruit has to make in his new environment.
Individuals with little or no sense of self-discipline and respect for 'f
authority could easily find themselves at odds with their superiors during
Basic Training. The Military system demands certain changes of the
individual. For instance, a soldier who goes to see his commanding officer
about a personal problem, without first seeing his drill sergeant, will
receive a lecture on the chain of command. For his entire time in Basic,
the soldier is under the constant and immediate supervision of his drill
sergeant.
-20-
2
Drill sergeants are, in a word, professionals; most of them are
combat experienced. A soldier requesting to go on sick call might
find his drill sergeant less than sympathetic. But the drill sergeant
has his own way of looking out for a trainee who might very well be
Vietnam-bound. The drill sergeant remembers that soldiers in Vietnam
suffering from malaria sometimes were in combat for days before they
could be hospitalized and treated for malaria.
During the third week of Basic, the recruit begins weapons training.
This may be the soldiers first realization that the Army's job is
basically to destroy the enemy. A few cases of genuine pacifism will
invariably emerge at this stage. During the last two weeks of Basic,
AUS and 2-year RA soldiers will find out what AIT training they will
receive. For some, the news that they will be trained as infantrymen,
obviously increasing their chances for combat, is enough to encourage AWOL.
There are two instances' which may prolong a soldier's Basic. First,
if a soldier misses a portion of his training (sickness, emergency leave,
etc.), upon his return to duty he will be assigned to another training
company. This is called a "re-cycle," and places the individual at the
approximate stage of training as his original unit was when he left.
The other instance is the case of a soldier who fails his final tests.
If a soldier fails his Physical Combat Proficiency Test (PCPT) or his
military skill proficiency test, he is sent to a Special Training Company
(STC). Physical training in STC is very intense and soldiers are kept
there until they pass the test. The AWOL rate is slightly higher in
STC than in the normal BCT company.
At the end of BCT, the soldiers go to AIT. AIT is several weeks long,
depending on the MOS. AIT is often conducted at a post other than the
BCT post. There is usually no leave authorized between BCT and AIT.
During the late 60s, married soldiers were permitted to live off post
with their families while in AIT. The atmosphere of AIT is much more
relaxed compared to BCT, and AIT companies enjoy very low AWOL rates.
At the end of AIT, soldiers receive word on their first assignment.
Almost all of them will be allowed to take leave before reporting for
this duty. Those going overseas will be given at least 30 days' leave
if they so desire. It was not uncommon to have soldiers go home on
leave after AIT and fail to report for their next assignment, especially
if they were ordered to report to the Overseas Replacement Station
(USAOSPREPLSTA) in Oakland, for shipment to Vietnam.
K. Allen
5 June 1975
-21-
ARMY ABBREVIATIONS
ABN -
Air Borne. (Paratroopers) To become airborne, a soldier
must volunteer for training; very tough physically. A
paratrooper badge is normally awarded.
ACS -
Army Community Services. An agency of the Army specializing
in social work services for members of the military and their
families.
ADC -
Active Duty Commitment. Used in orders, usually the length
of the soldiers enlistment.
Adjutant -
The personnel officer of a unit: does not have to be an
AGC officer.
AER -
Army Emerging Relief. An agency of the Army' that gives
financial assistance to members of the military and their
families.
AGC -
Adjutant General Corps. The personnel management bunch of
the Army, not to be confused with JAGC, the legal branch.
Often called "AG".
AGTP -
Adjutant General Transfer Point. Often called "transfer
point, it is the office responsible for processing soldiers
off active duty.
AIT -
Advanced Individual Training. Specialized military skill
training which occurs after Basic Training.
ALOC -
Allocation; used in travel orders.
APO -
Army Post Office - Mailing Address for Overseas Commands
GER'ALD FORD
AR -
Army Regulation. Regulations are numbered.
ASAP -
As Soon As Possible. Used in Army correspondence.
ATP -
Advanced Training Program. MOS Training at a higher level
within your present MOS.
AUS -
Army of the United States. That component of the Army
consisting of draftees.
'f
BASD -
Basic Active Service Date. This figure is adjusted to
reflect AWOL and bad time, and should never be used to
establish the actual date of entry into the service. That
information should come from DD 214 item 10c for draftees
and 17c for enlistees.
-22-
2
BDE -
Brigade.
BN -
Battalion.
BCT -
Basic Combat Training, or "basic training". The first
8 weeks of initial. military training.
BPED -
Basic Pay Entry Date. Used to compute longevity pay. Should
never be used to ascertain date of entry into service.
CASUAL -
(used in Item 38, DA Form 20) a status during which the
soldier performs no regular duty but is usually changing
from one duty or location to another. "Casual" also refers
to the travel and leave time normally incident to a change
of duty stations.
CBR -
Chemical, Biological, Radiological. Refers to a training
course in chemical biological and radiological warefare.
CBT EN -
Combat Engineer
CDY -
Used in item 38, DA 20. Change of Duty. Any time a person
changes duty, even if he does not change his unit, conduct
and efficiency ratings should be given.'
CHD -
Correctional Holding Detachment-Confinement. If a soldier
receives a sentence of confinement over 60 days, he is
transferred from his old company to the CHD.
CO -
Company or Commander, or Commanding Officer.
CONUS -
Continental United States. The mainland; does not include
Hawaii or Alaska.
CR -
Used in Item 36, DA 20. Change of Rating. Anytime a person's
supervisor (who rates the soldier) leaves, he should render
a conduct and efficiency rating.
CTF -
Correctional Training Facility. (Located at F. Riley, Kansas)
Confinement. Soldiers who have received sentences but are
though amendable to rehabilitation for further military service
after confinement are sent to CTF. CTF recently redesignated.
Retraining Brigade (RTB).
DBT -
Days Bad Time. Bad time includes time spent AWOL and in
confinement. When counting AWOL time in days, include the
date soldier left but omit the day of return. Count every-
day in computing confinement.
-23-
3
DDALV -
Days Delay Leave Enroute. Shows how many days leave a
soldier may take while enroute between duty stations.
He must however, report on his "reporting date"; used
in travel orders.
DEROS -
Date of Entry, Return from Overseas Service.
DFR -
Dropped from the Rolls. A status which is given to a soldier
after he has been AWOL for a period of time designated by
regulation, not to exceed 30 days.
DOD NACC -
Department of Defense National Agency Check.
DOR -
Date of Rank. Date on which you received your current rank.
Excess Leave -A leave status during which the soldier is not paid and
does not accure pay or leave. Often given to people who are
pending discharge, to let them go home while their discharge
is being processed.
EDCSA -
Enter Date Change Strength Accountability. Used in orders, a
personnel accounting item.
ENTNAC -
Entrance National Agency Check. A security check made on
everyone entering active duty.
ETS -
Expected Termination of Service. The date on which enlistment
is normally completed. Bad time" (such as confinement)
causes this date to be pushed back and is often called
an "adjusted ETS. "
GCM -
General Court-Martial
Extra Duty
A form of Punishment. Soldier performs additional duties
after normal working hours, often given along with a
restriction.
FA -
Field Artillery.
First Sergent - Senior NCO in a company, Chief Administrator.
GED -
General Equivalency Diploma. A certification of a functional
high school education.
HOR -
Home of Record. Official designation of soldiers civilian
address at time of entry into service.
IAW -
In Accordance With - Used in Army Correspondence.
-24-
4
IMF -
Information.
LOD Investigation - Line of Duty Investigation. Conducted to determine
if injury to person or property resulted from authorized
duty activity. If so, certain medical benefits, or disability,
may be authorized.
LV -
Leave.
MOS -
Military Occupational Speciality. Every soldier has one,
called his Primary MOS, or PMOS. SMOS-Secondary MOS,
AMOS-Additional MOS.
MO OS -
Months of Overseas Service on Current Tour.
Used in travel orders.
Morning Report - A daily report showing changes in a unit's strength or
change in status of each of the unit's members, e.g.,
change from "present" status to "AWOL" status, or "rtn
(return from) AWOL". It is not unusual to see a man
entered as AWOL on a morning report dated much later than
the time he went AWOL. This is because his commander
wants to be sure he is AWOL before putting it on the "MR".
In such instances, the effective date of AWOL is always listed
as the day absence began, not the date they put it on the
morning report. Morning reports, or "extracts" of morning
reports, are used as evidence at Court-Martials.
MPRJ -
Military Personnel Records Jacket, or "201" File". This
is the document we use in military cases.
NLT -
No Later Than. Used in Army Correspondence.
O/A -
On or About. Used in AWOL charges.
PCF -
Personnel Control Facility, also USAPCF. A place where soldiers
are maintained after their return from AWOL pending judicial
or administrative action. PCF' S often allow soldiers to go
home on weekends, depending on how well-behaved they are.
PCF is not confinement.
FORD
PCS -
Permanent Change of Station. A transfer from one post
BEHALD
another.
Pioneer -
A beginner combat engineer.
PLT -
Platoon.
-25-
5
RA -
Regular Army. That component of the Army consisting of
people who enlisted. Initial enlistments, during the
period we are concerned with, were for 2,3, or 4 years.
If a soldier enlisted for 2 years he normally could not
select the type of MOS training he would receive in AIT.
He was taking his chances, he would usually be trained as
a clerk or an infantryman. Such soldiers are often
referred to as "RA, unasigned". A 3 or 4 year enlistment
entitled the soldier to select his MOS training. Check
item 13 on DA Form 20 to see if a 3 or 4 year RA enlisted
for a particular MOS training school, called "school option".
Red Cross -
American Red Cross. During the Vietnam era, the Red Cross
served as the agency that verified emergency situations at
home so that soldiers could be authorized leave, called
"emergency leave".
Reenlistment or RE-UP Reenlistment. The soldier is given an 'Honorable
Discharge" for the sole purpose of reenlisting within
24 hours. Upon reenlistment, soldiers of the Vietnam era
could have a guaranteed duty assignment for not less than
one year, MOS schooling, or a cash bonus, called VRB,
Variable Reenlistment Bonus.
Restriction - A form of punishment. Soldier not allowed to leave certain
designated area. A soldier on restriction will be permitted
to go to his place of duty, but when he is not on duty he
must return to the area of restriction. Restriction may be
to the limits of the post, camp or station, or to a smaller
area such as the company or batallion area, or to the barracks.
It may be accompanied by a requirement the soldier sign in
every hour he is not on duty until night bed check.
RFAD -
Release from Active Duty. At the end of enlistment a soldier
is normally RFAD and not discharged. He is then put in a
Reserve status. The soldiers we deal with are all discharged
signaling a complete end to military service.
RTB --
Retraining Brigade (Ft. Riley, Kansas) see CTF.
'
SE and E -
Training course in survial and escape.
SMO -
"So Much As" Used in orders.
so -
Special Orders - Used for normal personnel transactions.
SPCO -
Special Court-Martial Orders.
-26-
6
SPD -
Special Processing Detachment. Old Terminology for a
Personnel Control Facility (CPF)
SPH -
Statement of Personal History (DA 348). SPH compl 28 June
66: SPH completed 28 June 66.
SQD -
Squad.
UPO -
Unit Personnel Officer.
USAOSREPLSTA - United States Army Overseas Replacement Station. The
station in Oakland California processes people for points
in the Far East and the station at Ft. Dix processes people
for assignment to Europe. If you fail to report to these
centers you may be charged with "missing movement."
USARECSTA -
United States Army Reception Station where soldiers are
"inprocessed" to the Army and assigned to basic training units.
USAREUR -
United States Army Europe.
USARPAC -
United States Army Pacific (Vietnam)
XO -
Executive Officer. Assistant to the CO.
COMMON MOS NUMBERS
11B20-Infantry rifleman
11C20-Infantry Mortarman
11E20-Tanker
12A10-Pioneer (an apprentice combat engineer)
12B20-Combat engineer
13A10-Artilleryman
71B10-Clerk
71A10-Clerk
57A10-Duty soldier- This MOS is used to describe people
without special skills.
Ken Allen
5 June 1975
-27-
LETTER TO CLEMENCY LAW REPORTER
June 6, 1975
It has come to the attention of several staff attorneys that the treatment
of a summary court-martial as an "Other Adult Conviction" (aggravating
factor #1) may be unjust in view of the fact that non-judicial punishments
(NJP) and civilian misdemeanors are not considered as "Other Adult Con-
victions". It is suggested that a summary court-martial conviction is
much more similar to an NJP or a civilian misdemeanor than it is to a
civilian felony or general court-martial for the following reasons:
The Uniform Code of Military Justice (UCMJ) defines the function of a
summary court-martial as being to exercise justice promptly for relatively
minor offenses under a simple form of procedure. (Manual for Courts-Martial
(MCM), para. 79.)
The maximum punishment that may be meted out by a summary court martial
is relatively minor: " A summary court martial may not djudge as punish-
ment a punitive discharge, confinement for more than one (1) month, hard
labor without confinement for more than 45 days, restriction for more than
two (2) months, or forfeitures in excess of two thirds of one month's pay.
(MCM para. 16b)
In special and general courts-martial an impartial trier-of-fact and
sentencer is required whereas in an NJP the commanding officer may impose
disciplinary punishments for minor offenses upon personnel in his command.
In a summary court martial, if the convening authority or the summary
court officer is the accuser in a case it will not invalidate the trial.
(MCM para. 5c)
In special and general courts-martial the accused has a constitutional
right to counsel, whereas in an NJP and in a summary court martial in which
no confinement is awarded, there is no constitutional right to counsel.
Special and general courts-martial may grant confinement to hard labor
to military personnel of any grade or rank, whereas summary courts-martial
may not grant confinement to hard labor to personnel of grade E-4 and
above. Similarly, confinement to hard labor may not be granted as a non-
judicial punishment.
Therefore, the treatment of a summary court-martial as an "Other Adult
If
Conviction" in aggravating factor #1 permits the Board to increase the
baseline for a conviction which is equivalent to a misdemeanor conyiction.
Gary F. Grafel
Don W. Moore-
(Hickman Team)
AT A FULL BOARD MEETING JUNE 7, 1975, THE PCB
DETERMINED THAT NEITHER A SUMMARY COURT MARTIAL
NOR A CIVILIAN MISDEMEANOR WILL BE CONSIDERED
AS AGGRAVATING FACTOR #1.
-28-
AMERICAN AMNESTIES
AMNESTY UNDER WASHINGTON AND ADAMS
The first Presidential pardon in American history covered individuals in
western Pennsylvania who were at odds with the Federal government over pay-
ment of taxes. President Washington viewed the Whiskey Rebellion as a
"contest whether a small portion of the United States shall dictate the
whole Union. " By a proclamation published 25 September 1794, Washington
promised to treat "with the most liberal good faith" those offenders who
would henceforth obey the law. His follow-up proclamation of 10 July 1795
extended pardon to those insurrectionists who had followed the terms of his
earlier proclamation.
In 1799 Pennsylvania was again the scene of insurrection. The laws per-
taining to the valuation of houses. and land precipitated the insurrection
which became serious enought to require troop intervention. President
Adams, by his Proclamation of 21 May 1800, pardoned all insurrectionists
except those then under indictment or standing convicted. Adams stated
that future prosecutions were unnecessary since "peace, order, and sub-
mission to the laws of the United States were restored,
the ignorant,
misguided and misinformed counties (having) returned to a proper sense of
their duty. " 2,
THOMAS JEFFERSON
Although Washington pardoned participants in the Whiskey Rebellion and
Adams issued pardons to certain Pennsylvania insurrectionists, Thomas
Jefferson was the first US President to grant a pardon to military desert-
ers. On 15 October 1807 Jefferson offered deserters full pardon in ex-
change for their surrender to the military and return to duty. Twelve
days after signing the proclamation, in the Seventh Annual Message of the
President to the Senate and the House of Representatives, Jefferson cited
circumstances which "seriously threatened the peace of our country. "3/
Thus, it may be conjectured that Jefferson offered the pardons as a means
of building up the size of the Army in a time of national peril.
MADISON AMNESTIES DESERTERS AND PIRATES
During his tenure as President, Madison issued amnesty proclamations on
four occasions: 7 February 1812, 8 October 1812, 17 June 1814, and 6
February 1815. The first three were granted with the understanding that
the deserters had "become sensible of their offense and desirous of
returning to duty. To receive pardon, deserters were required to
'f
surrender at a military post. These three pardons may have been intended
to return deserters to duty so that they could participate in the.war
with Great Britain.
-29-
2
Madison's 1815 Proclamation is unique with respect to the class of
offenders pardoned -- it is specifically addressed to Jean Lafitte's
pirates:
"
provided, that every person claiming full
benefit of this pardon in order to entitle him-
self thereto shall produce a certificate in
writing from the governor of the State of
Louisiana stating that such person has aided
in the defense of New Orleans and the adjacent
country during the invasion thereof as aforesaid.
While most amnesties have dealt with war dissenters, Madison amnestied
pirates who came to the aid of their country. Lafitte's men had spurned
a cash offer by the British, choosing instead to join with General
Jackson at the Battle of New Orleans.
AMNESTY UNDER JACKSON
Probably the most liberal amnesty granted to military deserters in
American history was the amnesty extended by President Andrew Jackson in
1830. Jackson, acting through Secretary of War Eaton, declared the
amnesty after Congress had repealed the law imposing the death penalty
for peacetime desertion. War Department General Order Number 29, issued
12 June 1830, provided that deserters under sentence of death and all
deserters remaining unapprehended were to be discharged from the service
and barred from future enlistment. Personnel W.O were under arrest for
desertion were to be returned to duty. An excerpt from the General Order
suggests that forgiveness, compassion, and generosity were not the most
compelling motives underlying the grant of amnesty to deserters not then
under military control:
"It is desirable and highly important that the ranks
of the Army should be composed of respectable, not
degraded, materials. Those who can be so lost to the
obligations of a soldier as to abandon a country which
morally they are bound to defend, and which solemnly
they have sworn to serve, are unworthy, and should be
confided in no more. "6/
President Jackson's attitude toward the unapprehended deserters does
not appear to meet the generally accepted definition of amnesty- that is,
forgetfulness of the offense.
CIVIL WAR AMNESTIES
While there were several amnesties issued during and after the Civil
War, they were restrictive in nature. Confederate leaders remained un-
amnestied until 1898, having been barred by the Fourteenth Amendment
from holding military or civil office. Although never brought to trial,
-30-
3
Jefferson Davis was imprisoned at Fortress Monroe from 10 May 1865 to 13
May 1876. He was still barred from holding office at the time of his
death in 1889. 7
During the confusion prevailing during the early stages of the war,
a great many persons were detained as political prisoners by the Union.
President Lincoln, acting through Secretary of War Stanton, issued the
first Civil War amnesty on 14 February 1862, releasing these individuals
provided that they agreed to take an oath of allegiance. 8/
The Confiscation Act of 17 July 1862 contained a section authorizing -
the President to amnesty persons "who may have participated in the exist-
ing rebellion. "9/ Such authority, of course, was superfluous inasmuch as
Lincoln already possessed such powers by Constitutional fiat. By
Presidential Proclamation of 10 March 1863, Lincoln allowed deserters to
return to their military units without punishment save forfeiture of pay
and allowances for the period of their absence. 10 /
In December 1863 Lincoln offered pardon to certain individuals who
had participated in the Rebellion. Such individuals could be pardoned
only by subscribing to the following oath of allegiance:
"I, do solemnly swear, in the presence of Almighty
God, that I will henceforth faithfully support,
protect, and defend the Constitution of the United
States and Union of the States thereunder
"ll
This Proclamation was clarified on 26 March 1864 W ith the announcement
that certain persons (mainly prisoners of war) were not eligible for
amnesty.
A War Department General Order issued in February 1864 established
conditions under which Confederate deserters could be amnestied. An
oath of allegiance was again made a prerequisite to the grant of amnesty.
General Grant permitted deserters to proceed to their homes and remain
exempt from military service if they took the required oath and if their
homes were within Federal lines. 12
Lincoln acted again by Presidential Proclamation on 11 March 1865,
offering pardon to all Union deserters who returned to military duty
within 60 days and who served a period of time equal to their enlistment.
This pardon may not have been the result of Presidential initiative; more
likely it was a response to a law passed by the Congress taking citizen-
ship away from deserters and requiring that the President issue a-
proclamation offering pardon subject to terms similar to those contained
in the 1865 Presidential Proclamation.
FORD
GERALD
-31-
4
On 29 May 1865, shortly after his elevation to the Presidency, Johnson
published the first of his series of ammesties. It applied to persons who
had participated in the Rebellion, and an oath of allegiance was required.
Of the 14 classes of persons declared ineligible for amnesty, one is of
special interest:
"
all persons who have been or are absentees from
the United States for the purpose of aiding the
Rebellion. "13/
A promise of conditional amnesty was extended by the War Department on
3 July 1866 to Union Army deserters, provided they surrendered before 15
August 1866. 14
Although the Civil War ended in the spring of 1866, it was 7 September
1867 before Johnson announced a further amnesty. Once again, an oath of
allegiance was a precondition. While Johnson's first amnesty excepted 14
classes of persons from eligibility, few were excluded under the 1867
Proclamation. Principal exclusions were high officials of the Confederacy,
persons in confinement or on bail, and individuals involved in the
assassination of President Lincoln. 15
Shortly after the conclusion of his impeachment trial, Johnson discussed
a further amnesty with his Cabinet. The idea of a universal amnesty for
all rebels was seriously considered but finally rejected. Jefferson Davis
and others indicted for treason or felony were excluded from the amnesty
announced 4 July 1868. A political motive can be perceived in this
amnesty, since it was issued on the opening day of the Democratic National
Convention 16
On Christmas Day 1868, Johnson extended
"
to all and to every person who, directly or
indirectly, participated in the late insurrection
or rebellion a full pardon and amnesty for the
offense of treason against the United States or
of adhering to their enemies during the late civil
war
"17
With respect to draft dodgers, no action was taken granting them amnesty.
'f
By legislation in 1896, Congress enabled former Confederate military
officers to seek commissions in the US Armed Forces. In June 1898
President McKinleysigned the final amnesty bill for Confederates." This
bill, no doubt prompted by the war with Spain, repealed the bar imposed
by Section 3 of the Fourteenth Amendment.
-32-
5
TWENTIETH-CENTURY AMNESTIES
The first US amnesty of the twentieth century was President Theodore
Roosevelt's amnesty of the Philippine Insurrectionists. At an Independence
Day gathering in Pennsylvania in 1902, Roosevelt announced that he had on
that day issued a "proclamation of peace and amnesty. "18,
No general amnesty followed World War I, World War II, or the Korean
War. On 15 December 1923, President Coolidge commuted the sentences of
all prisoners who had been convicted for opposing the government and the
Selective Service during World War I. The pardons were rooted in a
recommendation submitted to the President by a committee appointed by
President Harding before his death in August 1923.
A few months later, on 5 March 1924, President Coolidge, acting upon
the advice of his service secretaries, restored citizenship rights to
approximately 100 military deserters. However, this action did not cover
military personnel who deserted prior to the World War I Armistice, nor
did it remit or commute court-martial sentences. Only those who deserted
after 11 November 1918 and before 17 November 1921 benefited by the
Proclamation 19
In a 23 December 1933 proclamation affecting only those who had served
prison terms for violating the Draft and Espionage Acts, President
Franklin D. Roosevelt restored civil rights to about 1,500 war resisters.
There was no réduction of prison terms since all those affected by
Roosevelt's "Christmas Amnesty Proclamation" had already completed their
sentences. Those who had fled the United States to avoid the draft
remained outside the pale of amnesty since persons who had evaded in-
dictments or sentences were not within the purview of the Proclamation 20
Several thousand former convicts were the beneficiaries of a Christmas
Eve Proclamation issued by President Truman in 1945. The President
restored citizenship rights to ex-convicts who had served at least one
year in the military after 28 July 1941 and were subsequently awarded
honorable discharges. Included in this amnesty were over 2,000 Federal
prisoners who had been paroled for induction into the Army during World
War II. 21
Although President Truman established an Amnesty Board in 1946, the
Board confined itself to recommending individuals by name for pardon.
The Board, headed by former Justice Owen J. Roberts, reviewed the cases
'
of 15,805 individuals who had been convicted of violation of the Selective
Service Act. The Board recommended pardon for less than 10 percent of
that number.
"Most of those who benefited by the proclamation
were religious conscientious objectors. Others
were Japanese Nisei, draft evaders who subsequently
served honorably in the armed forces, and others
who proved that their evasion was due to ignorance.
/
-33-
6
A partial remission of prison sentences was involved in only three cases;
the remaining 1520 pardoned had already completed their terms 23
America's next amnesty came in the midst of the Korean War. On 24
December 1952 as he began to prepare to vacate the White House, President
Truman restored civil rights to all persons convicted of having deserted
between 15 August 1945 and 25 June 1950. No pardon, remission, or
mitigation of sentence was involved; the sole effect of Truman's action
was to restore citizenship. An estimated 8,904 deserters were covered
by the amnesty. In his Christmas Message the next day, Truman also
announced the restoration of civil rights to Korean War veterans who
had been convicted by civilian courts prior to their military service.
The McCarran Immigration Act also became effective on that date and
Truman's motive for restoring citizenship to this group of offenders
may well have been to preclude deportation of veterans who had been
naturalized citizens prior to their convictions 24
The Clemency Program initiated by President Ford's issuance of
Proclamation 4313 and Executive Orders 11803-4 is the first Presidential
or Congressional action in this field since the 1952 Christmas announcements.
-- Wil Ebel
3 June 1975
NOTES
1. James D. Richardson, ed., Compilation of the Messages and Papers of
the Presidents, 1789-1897 (Washington: GPO, 1907), I, 161-62, 181.
2. Ibid., pp. 289-92, 303, 304.
3. Ibid., p. 425.
4. Ibid., pp. 512, 514, 543.
5. Ibid., p. 559.
6. War Department General Order No. 29, 12 June 1830.
7. Jonathan T. Dorris, Pardon and Amnesty under Lincoln and Johnson (Chapel
Hill: Univ. of N. C. Press, 1953), p. 387.
8. Ibid., pp. 9-11.
9. Ibid., pp. 6-7.
10. Richardson, VI, 163.
11. Dorris, p. 34.
12. Ibid., p. 63.
13. Ibid., pp. 111-12, 117.
14. John C. Etridge, Amnesty: A Brief Historical Overview, Congressional
Reference Service (Washington: GPO, 1972), p. 13.
15. Richardson, VI, 547-49.
16. Dorris, pp. 352-55.
17. Richardson, VI, 708.
18. US, President, A Compilation of the Messages and Speeches of Theodore
Roosevelt, 1901-1905, ed. Alfred H. Lewis (Washington: Bureau of
National Literature and Art, 1906), Supplemental Volume, 45-51.
19. "Grants Amnesty to 100 Deserters," New York Times, 6 March 1924, p. 3.
20. "Roosevelt Proclamation Restores to Citizenship 1,500 Wartime Violators,"
New York Times, 25 December 1933, p. 1.
21. "Truman Pardons Ex-convicts Who Served with Merit in War,", New York
Times, 25 December 1945, p. 1.
22. Anthony Leviero, "President Grants Pardons to 1,523 Who Escape Draft,"
New York Times, 24 December 1947, p. 1.
23. Ibid.
24. "Truman Yule Plea, If New York Times, 25 December 1952, p. 1.
-34-
LIBRARY NOTES
The Planning, Management and Evaluation Staff is building a
PCB Library. The library will be housed in Room 901 (turn
left as you leave the elevators). The PCB Library will serve
three purposes:
-Reference library for the Professional Staff
-Research material for PCB's final report to the President
-Historical data to be archived.
All staff is invited to read these materials, but we do ask
that you not remove or borrow any items from the library.
-35-
RECENT ACQUISITIONS OF THE PCB LIBRARY
Center for Study of Responsive Law. Troubled Peace--
an Epiloque to Vietnam by Paul Starr with Jim Henry and
Ray Bonner. (Of special interest in this Nader Report
is Chapter 6: "Bad Discharges: The Wrong Way Out ).
Jones, Bradley K., Maj. "The Gravity of Administrative
Discharges: A Legal and Empirical Evaluation", Military
Law Review, Vol. 59, (Winter 1973).
United States Code Annotated.
U. S. Congress. Senate. Committee on the Judiciary.
Selective Service System Procedures and Administrative
Possibilities for Amnesty. Hearings before a Subcommittee
on Administrative Practice and Procedure. 92d Congress,
2d sess. (A comprehensive study. Hundreds of pages of
testimony and appendices representing a cross section of
pro-and anti-amnesty opinion and bias.)
U.S. Congress. House of Representatives. Committee on the
Judiciary. Amnesty. 93d Congress, 2d sess. (Articles,
testimony, statements, much material submitted for the
record).
Walt, Lewis W., General, USMC, "Strange War, Strange Strategy".
New York: Funk & Wagnalls, 1970
-36-
POLICY PRECEDENTS
The Policy Precedents Section of the Clemency Law
Reporter will include periodic updates of the Kodak-Lohff
analysis of the Board's application of aggravating and
mitigating factors. You should keep these materials in a
loose-leaf binder to permit insertion of new or revised
textual analysis.
No attempt is made to identify which were the controlling
facts directly affecting any particular case disposition;
nor is it noted whether the Board marked any factor as
"weak" or "strong." Facts which led to findings of other
aggravating or mitigating factors (and which may have had
the greatest effect upon the Board's ultimate disposition)
have not been included in the summary extracts. Therefore,
it is not possible to use the extracts to account for any
particular case disposition by the Board.
-37-
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
June 9, 1975
Memorandum to: All Professional Staff
From: Larry Baskir, General Counsel
Subject: Staff Precedent Determinations
Thus far, the Board has not requested that the staff
identify Board precedents applicable to cases before it
for decision. In the future, it may make such a request.
Before it makes any such request, however, we must be
confident that our analysis of case precedent is
professional enough to be a useful, impartial guide
for them in their decision-making process.
Precedent analysis has its objective and subjective
elements. Of course, it must begin with a thorough
understanding of the policy precedent discussion (the
"Kodak-Lohff" paper) in the first issue of the Clemency
Law Reporter, as amended in subsequent issues. The
next and even more difficult subjective' stage is to
identify how a case is similar to (or different from)
cases already decided which received, say, a pardon --
or six months alternative service.
An entirely subjective approach, whereby the Action
Attorney says "the Board has decided similar cases
thus-and-so, and I think it will decide this case the
same way," will probably prove inadequate for several
reasons. First, few Action Attorneys have much knowledge
of prior Board decisions. Second, the decision as to what
case is similar to which other cases is not a simple one.
Third, the temptation will always be great to ask the
question "if I were a Board panel member, how would I
vote on this case?" (This temptation must be resisted,
for sure.)
For these reasons, it is useful to apply an objective
standard as a rule-of-thumb in identifying how the Board
translates aggravating or mitigating factors into case
dispositions. One rule-of-thumb formula which Bill Strauss
developed last fall has proven remarkably consistent with
Board dispositions to date. His formula comes close
-38-
-- 2 --
(within 3 months of alternative service) to actual Board
dispositions in an overwhelming majority of cases. It
does have important limitations: It does not use all
aggravating and mitigating factors, and it considers
only to a limited extent whether the Board finds any
particular factor to be weak or strong.
With your own experience and judgment as a guide, I suggest
that you apply the Strauss formula to your cases. Use it
only as a starting point, though; if factors are unusually
strong or weak (or if unmeasured factors appear significant),
make whatever "bottom line" adjustment you consider necessary.
Specifically, I would like Action Attorneys and Panel
Counsels to do the following:
(1) Action Attorneys should continue filling out
their factor worksheets on the basis of Board precedent
(using the Kodak-Lohff paper, as amended, as a clear guide).
(2) Action Attorneys should identify the case
disposition precedent, using the Strauss formula as a
starting-point -- and using their own judgment to modify
the result, where necessary.
(3) Panel Counsels should be alerted as to the
"bottom line" case precedent (e.g., pardon, 3 months
alternative service) for every case on their dockets.
While sitting as panel counsels, they should be assertive
in making sure that the Board follows its own rules and
does not deviate significantly from prior practices.
While it is acceptable (and encouraged) practice to note
to the Board members when a case disposition differs
markedly with previously-decided cases, it is not
appropriate either to make specific recommendations to
the Board (about what a correct disposition would be)
or to suggest that the Board itself apply a purely
objective formula in reaching its decisions.
(4) Panel Counsels and Action Attorneys should
keep some sort of scorecard of how well their case
precedents are working as predictions of actual dispo-
sitions. Certainly, if the Board asks us to formalize
this process, we shall have to modify the Strauss formula
(if necessary) and develop guidelines for subjective
departures from that formula. Your help would be needed.
-39
-- 3 --
(5) Our legal analysis staff will be holding
weekly meetings with Panel Counsels to identify new
developments (or case illustrations) of Board precedents.
The active involvement of Panel Counsels -- and their
Action Attorney staffs -- is necessary to keep all of
us aware of refinements in Board policy.
(6) If attorneys and Panel Counsels are not doing
so already, they should begin to flag dispositions which
trouble them to Charlie Graham of our administrative staff.
He will assure that the disposition is not sent to the
President, pending review by our legal staff and myself.
(You should complete the appropriate form and attach a
copy of the summary when flagging a case to Charlie.)
*
*
*
The Strauss formula:
CIVILIAN CASES
After you have filled out your factor worksheet, calculate
a score on the basis of the following factors:
-1 for aggravating #1
-1 for aggravating #5
+2 for mitigating #2
+2 for mitigating #4
+2 for mitigating #8, #9, #10, or any combination
of these factors (i.e., only +2 even if all three
are marked)
If any mitigating factor is questionable or weak, mark
+1 instead of +2. Ignore all questionable or weak aggra-
vating factors. You could then use the scores as a rule-
of-thumb for your "bottom line" precedent, as shown below:
+3 to +6 -- pardon, no alternative service (AS)
0 to +2 -- baseline period of AS (usually 3 months)
-1
-- increase baseline AS period by 3 months
-2
-- increase baseline AS period by 6 months,
or no clemency
MILITARY CASES
After you have filled out your factor worksheet, calculate
a score on the basis of the following factors:
=40-
-- 4 --
-1 for aggravating #1
-1 for aggravating #5
-1 for aggravating #8
+2 for mitigating #2
+2 for mitigating #14
+2 for mitigating #5, #16, or both #5 and #16
+2 for mitigating #12, #13, #14, or any combination
of these factors (i.e., only +2 even if all three
are marked)
If any mitigating factor is questionable or weak, mark +1
instead of +2. Ignore all questionable r:weak aggravating
factors. You could then use the scores as a rule-of-thumb
for your bottom line precedent, as shown below:
+5 to +8 -- pardon, no alternative service, with
a recommendation for an upgraded discharge
and veterans benefits
+2 to +4 -- pardon, no alternative service (AS)
0 to +1 -- baseline period of AS (usually 3 months)
-1
-- increase baseline AS period by 3 months
--2
-- increase baseline AS period by 6 months
-3
-- increase baseline AS period by 9 months,
or no clemency
*
*
*
Remember that it is declared Board policy in civilian
and military cases to:
(1) Grant immediate pardons to those with religion-
based opposition to war (e.g., Jehovah's Witnesses,
Quakers, or Muslims), in the absence of compelling
aggravating factors,
(2) Grant immediate pardons to conscientious objectors
(i.e., those with mitigating #10), in the absence
of any aggravating factors, and
(3) Deny clemency to those with serious civilian
'f
felony convictions (i.e., those with a strong
aggravating #1), at the Board's discretion.
41-
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
June 10, 1975
Memorandum to: All Professional Staff
From: Lawrence M. Baskir,
Subject: Updated Policy Precedent Analysis
In the pages that follow, the Board's revised list of aggra-
vating factors is presented. All policy changes made by the
Board through its Saturday, June 7, meeting are included.
In addition, the case "squibs" have been updated to reflect
as accurately as possible the Board's policy to date.
I suggest that you replace the aggravating factor pages in
your earlier policy precedent materials (in the first issue
of the Reporter) with these pages. Other additions are likely
to be made in the future, as the Board further develops or
refines its policies -- so you may receive other loose-leaf
additions in upcoming issues of the Reporter.
Our legal analysis staff is now focusing on the Board's
mitigating factors, and an updated analysis is planned for
the next issue.
-42-
1.
6/10/75
Aggravating Factors: 1.
Other Adult Convictions - This factor indicates any felony
conviction, Special or General court-Martial conviction
for any offense, either prior to or subsequent to the qualifying
offense. Non-judicial punishments, arrests, acquittals,
misdemeanors, youthful offender convictions, set-asides, juvenile
convictions, or pre-trial confinements, are not applicable. A
juvenile is aged 18 years or younger, unless State law provides
otherwise. Use a one year sentence as a measure of a felony
conviction for civilian, but not military offenses.
'f
-43-
la
6/10/75
1.
Other Adult Convictions
(No. 1825)
Applicant pleaded guilty to a Federal Charge that he
violated the Dyer Act, in that he transported a stolen
motor vehicle across a state line.
(No. 1286)
The applicant was arrested for possession of barbiturates,
after which he jumped bond and assumed his wife's maiden name.
He was extradited and. subsequently was convicted for failure
to keep his local board notified of his current address, and
was placed on 2 years probation. He was also convicted of
the old state charge and served a 6 month sentence.
(No. 1371)
Applicant was tried by Special Court-Martial. Following this
he escaped but voluntarily returned. His current sentence
was meted out at the subsequent Special Court-Martial trial.
(No. 2722)
Applicant (after discharge in lieu of court-martial) is
presently incarcerated in a minimum security installation
in Tennessee for grant larceny.
(No. 2368)
After receiving his U.D. applicant was ,convicted by civilian
authorities of Arson in the first Degree and was sentenced
to six months to three years in the State Penitentiary.
FORD
GERALD
-44-
2
6/ 10/75
Aggravating Factors: 2
False Statement by Applicant to the Presidential Clemency Board -
This factor indicates any willful misrepresentation of a material
fact by an applicant in his applicant form, letters, or other
communications to the Board. A material fact is one which could
affect a Board determination of baseline, aggravating factors,
or mitigating factors. Mere conflicts are not cited unless there is
evidence of an intent to mislead.
'f
-45-
6/10/75
2a
(No. 388)
In his letter the applicant reports serving in Vietnam
and also reports thzt he was confined one and half years
in the stockade without trial . There is nothing in his
military file to reflect these facts except an apparently
erroneous DD 214 entry.
(No. 368)
The applicant wrote the PCB and indicated that he had a
clean record with no prior court martials; however, his
military personnel file indicates one prior court martial
and one Article 15 for AWOL offenses.
'f
-47-
3
6/ 10/75
Aggravating Factors: 3.
Use of Force by Applicant Collaterally to AWOL, Desertion, on Missing
Movement or Civilian Draft Evasion Offense - This factor indicates the
use of physical force by an applicant to aid in the commencement or
continuation of his offense. The use of force not directly related
to a qualifying AWOL or draft offense is not relevant.
-48-
3a
6/10/75
Use of Force by Applicant Collaterally to AWOL, Desertion, on Missing
Movement or Civilian Draft Evasion Offense
(No. 3752)
Applicant escaped from confinement, damaging military
property in the process. He was apprehended shortly
thereafter.
-49-
4.
6/ 10/75
Aggravating Factors: 4
Desertion During Combat or Leaving Combat Zone - This factor
indicates that an applicant went AWOL from his unit either during
actual enemy attack or before any reasonably anticipated enemy
attack. An applicant's reasons for his qualifying offense do not
affect the applicability of this factor.
'f
-50-
6/10/75
4a
Desertion During Combat or Leaving Combat Zone
(No. 7163)
On 21 January 1971 the applicant commenced the first of three
instant episodes of AWOL while still in Vietnam. This
absence was terminated by his surrender to military authorities
in California on 6 March 1971.
(No. 5554)
Applicant was reported AWOL from his unit in Vietnam on
19 August 1968. Given as reasons for his offense was his
father's pending stomach operation.
(No. 2378)
Applicant related that after spending a month on a fire
support base, his unit was hit by friendly artillery;
that his best friend had been killed by friendly fire
and that several others were injured. It is at this point
that his AWOL problems began.
-51-
5.
6/ 10/75
Aggravating Factors: 5.
Evidence that Applicant Committed Offense for Obviously Manipulative
and Selfish Reasons - This factor has been applied in a wide range
of factual situations. Along with Mitigating #10, it is the most
difficult factor to assess and apply. This factor indicates that an
applicant committed his qualifying offense for reasons other than
conscientious opposition to war, family hardship, or some other
reasonable justification. Typically, an applicant to whom this factor
applies committed his offense because of personal convenience or
whim. This factor can also be present if an applicant goes AWOL
to solve a family problem, then fails to return for an unreasonable
period of time after the problem is solved. For the factor to
apply in full force, there must be reliable evidence demonstrating selfish
purposes for the offense.
However, a weak factor #5 may be applied in the absence of any evidence
as to the reason for a qualifying offense, in circumstances where a
reasonable inference may be drawn that the offense had been committed
for selfish and manipulative reasons. This weak #5 is entirely a matter
of Board discretion (and should not be marked by the staff).
GERALD FORD
-52-
6/10/75
5a
5.
Evidence that Applicant Committed Offense for Obviously
Manipulative Selfish Reasons.
(No. 29.) Applicant's parents reared their children in the Moorish
faith. The Muslim faith was the basis of the applicant's
refusal to be inducted. Following high school, applicant
became associated with a group of other Muslims, who because
of their delinquent ways, were known as Outlaw Muslims.
While a part of this group, he participated in a bank
robbery.
(No. 1200) Upon return from overseas, applicant requested leave
to marry his girlfriend, who was pregnant. Since leave
was refused, he felt his only recourse was to leave
without permission.
(No. 241) A few days before applicant was due to report to an Army
Overseas Replacement Station, his wife threatened to commit
suicide unless he promised not to report, as she was positive
he was going to Vietnam and would be killed. Applicant
subsequently divorced his first wife but did not then return
to military control because he had debts he wanted to pay
before returning.
(No. 612) Applicant stated that he went AWOL for approximately three
months knowing that after that period of time he could come
back and request a discharge.
(No. 417) Applicant testified at his court-martial that, before being
inducted, he had requested a delay due to his mother's
poor mental health and financial condition. He was subsequently
inducted. While in basic training applicant applied for a
hardship discharge; however, it was turned down because of
insufficient documentation. Shortly thereafter, applicant's
mother was hospitalized because of a car accident, and he
went home on emergency leave. At the end of his leave, applicant
did not return to his base because his mother was bedridden ?
and there was no one to take care of her and provide for his
younger brothers and sisters. He remained at home for a year
and a half and worked under an alias. He stated that he held
his obligation to his family higher than his obligation to
his country. Applicant has numerous AWOLs in his record.
-53-
6/10/75
5b
After returning from his AWOL, he was ordered to another
base to complete his disrupted military training. He went
AWOL again, never appearing at his new station.
(No. 344) Applicant went UA the first time "just for something to
do" he left the second time because he "got involved with
a woman. If The third and fourth times he went UA were
to go home and support his family as he was in a no-pay
status with the Marine Corps.
(No. 206) Circumstances of offense. According to testimony the
applicant met his wife, a Danish citizen, shortly after
arriving in Germany. She became pregnant and he attempted to
obtain permission to marry her. When he was unsuccessful he
went AWOL on 14 Oct 66. After turning himself in, he was
returned to Germany and placed in pretrial confinement.
Shortly thereafter, he escaped and went to Sweden, where
he applied for asylum. While in Sweden, he had numerous
arrests on thefts and narcotic charges, received a sentence
of 10 months imprisonment, and was deported back to the U.S.
(No. 243) Applicant began his first AWOL shortly after his being
drafted. He had a history of repeated AWOLs. There is little
to explain the repeated AWOLs but that he did not want to
be in the Army.
(No. 122) On or about 16 Nov 70 he went UA and did not return to
Marine Corps control until 29 Nov 73, when he was apprehended
by the FBI. He asserted at the trial that he orginally went
UA because a man from a rental car agency with whom he had
dealt told him to pay the money he owned or he (the rental
agent) would "make sure I go to the brig." He used an alias
in all activities.
(No. 161) On 18 Sept 69 he went AWOL for over four and one-half years.
He stated that he did not have any concrete reason for
going AWOL.
(No. 173) Applicant escaped from the stockade by fleeing a police detail.
At the time of his escape he was serving a sentence adjudged
by a special court for previous AWOL.
'f
(No. 98) On 13 Jan 71, applicant was ordered to report for military
induction. On 26 May 71 he requested postponement claiming
hardship dependency. After several requests for postponement
having been denied, applicant filed to complete processing
for induction. He surrendered to the FBI on 29 Jan 73. He
insisted throughout his trial that he did not wilfully evade
-54-
6/10/75
5c
induction, that he simply failed to conform with Selective
Service procedures. He cited numerous family problems as
distractions: his father's illness, his mother's
unemployment, his sister's drug addiction, and the fact
that his immediate family is economically deprived.
(No. 1036)
Applicant admits that he never gave much thought to his
feelings about war until he received his induction notice.
He was given the opportunity to serve as a non-combatant,
but admits that he procrastinated until he was no longer
eligible.
(No. 1285)
In response to Selective Service inquiries, the applicant's
parents notified the Board that their son was in Canada
and they did not know where. From about July 1969 until
May 1973 the applicant apparently lived and worked in Canada.
(No. 1560)
Applicant's explanation for AWOL is that he thought he was
being unjustly selected for an overseas assignment. The
file does not contain information either supporting or
denying this feeling.
(No. 1902)
Applicant stated that he went AWOL because he does not
like the Army.
-55-
6.
6/10/75
Aggravating Factors: 6.
Prior Refusal to Fulfill Alternative Service - This factor indicates
that an applicant has been granted Conscientious Objector status or,
in the case of non-conscientious objector, has been ordered by a
court to perform alternative service as a condition of probation,
and therafter failed to satisfy the requirements of his assigned
alternative service. This factor applies to members of Jehovah's
Witness, Muslim, Quaker, or other religious sects (who cannot abide
by Selective Service orders to perform alternative service) only
when they refuse to complete alternative service subsequent to a
judicial order.
't
-56-
6a
6/10/75
(No. 92) Applicant received 2 years probation for a Selective
Service violation with the condition that he work 4 hours
per week at Public Works. He failed to comply.
(No. 55) Applicant was classified 1-0 in 1966 and was ordered to
report to his local board for instructions on how to
proceed to an alternative service job. He failed to
appear at the local board and was convicted in 1973 on a guilty
plea to failure to report for alternative service.
(No. 779 )Applicant was classified I-O because of his religious beliefs
as a Jehovah's Witness. When offered alternative civil
employment, he engaged in dilatory tactics and made token
appearances on the job.
(No. 560) Applicant was classified 1-A and ordered to report for
induction. He reported but failed to submit and was sentenced
to 3 years in the custody of the Attorney General, execution
suspended, with 5 years probation, 2 years of which were to
be in work of national importance. After working for one
year at a Pennsylvania hospital, the applicant resigned his
job and notified the sentencing judge that he, in good conscience,
could no longer cooperate and requested revocation of his
probation. The judge, therefore, revoked probation and gave
the applicant a one year jail sentence. He was released after
serving 10 months in prison.
(No. 1027 The applicant! probation officer indicates that his performance
of alternative service was "rather poor".
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7.
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Aggravating Factors: 7.
Violation of Probation or Parole - If an applicant violated the
probation or parole to which he was sentenced for his qualifying
offense, this factor applies. The violation should be serious
enough to have caused the revocation of that probation or parole.
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7a
7.
Violation of Probation or Parole
(No. 10)
Applicant pled guilty to a Selective Service violation,
and was placed on three years probation on 30 December 1970.
This probation was subsequently revoked for among other
items, failure to comply with the specific terms of his
probation "to make a bonda fide effort to enlist, and if
that failed, to perform alternate service under supervision
for three years. "
(No. 1600) Shortly after being placed on probation, applicant was
returned to Court due to his failure to perform the ordered
work. Probation was reinstated and extended three years
from that date. Applicant has complied with the conditions
of probation. He was discharged from probation prior to
the expiration of the maximum period and his conviction was
set aside pursuant to the Youth Correction Act.
(No. 1023) Applicant was convicted of failure to report for induction
and sentenced to 5 years probation. Following conviction
and while on probation, applicant was arrested and pleaded
guilty to state felony charges. Applicant's federal
probation was revoked following his state conviction.
(No. 1671) In early 1974 applicant moved to Arizona without the knowledge
of the Michigan probation authorities.
(No. 139)
Applicant received a BCD and 6 months confinement for an
AWOL offense but the sentence was suspended for 6 months,
after which time unless soon vacated it was to be remitted.
When applicant realized his sentence would return him to
active duty, he went AWOL again and the suspension was
vacated.
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8.
6/10/75
Aggravating Factors: 8.
Multiple AWOL/UA Offenses - This factor indicates that an applicant
went AWOL more than once. Mere allegations are not sufficient.
There must have been an Article 15 or court-martial determination.
If there is a prior AWOL Summary or Spec. Court Martial conviction,
both #8 and #1 are marked in aggravation.
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9.
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Aggravating Factors: 9
AWOL/UA of Extended Length - This factor indicates the combined length
of qualifying AWOL offenses. It does not apply if an applicant had
been AWOL for a total of 2 months or less. It is "weak" if the AWOLs
total 2-6 months, and applies in full force if the AWOL is over 6 months.
Action Attorneys should not attempt to assess whether it is a "weak"
or"strong" 9, but should simply indicate the length of the AWOL(s).
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10.
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Aggravating Factors:
10.
Failure to Report for Overseas Assignment - This factor is applied
where the applicant has been ordered to report for military duty
outside the United States (Vietnam or elsewhere) and goes AWOL
before reporting to the Overseas assignment.
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10a
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(No. 1807) One day before applicant was scheduled to be sent overseas,
his destination not being clear on the record, he went AWOL.
(NO. 3328) Applicant went AWOL. when he failed to report to Overseas
Replacement Station for assignment to Vietnam.
(No. 3584) During advanced training, applicant decided that he did not
want to kill anyone, and he applied for a C.O. status which
was refused. Later, orders came to report to Vietnam. While
on leave, before this assignment was to begin, the applicant
requested help from his Congressman so that he would not be
sent overseas. He also applied for an extension of his
departure date on the grounds that his wife was 8 months
pregnant and that he was an alien. His request was denied
and, consequently, applicant went AWOL.
(NO. 507) After entering the Army, applicant requested removal from
the Officer Candidate School list, stating that he was
opposed to killing and did not believe in the Vietnam war.
Shortly thereafter, he formally applied for a conscientious
objector separation from the service. He failed to report
to a, west coast personnel center for movement to Vietnam.
'f
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11
6/10/75
Aggravating Factor:
11
Other Offenses Contributing to Discharge - This factor applies when
an applicant has special or general court martial convictions which
contributed (along with his qualifying offense) to his discharge.
Non-judicial punishments and summary court martial convictions are not
applicable. Aggravating factor #11 never applies unless aggravating
factor #1 (other adult convictions) also applies.
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12
6/10/75
Aggravating Factor: 12
Apprehension by Authorities (Tentative) - This factor applies if an
applicant evades authorities throughout the duration of.his offense,
with his arrest coming against his will. The simple fact of arrest
(rather than surrender) is not alone sufficient to bring about this
factor; some additional evidence of intent to evade authorities is
necessary. For example, the factor does not apply in the case of any
applicant who lived openly in his home community under his own name,
because of the lack of any intent to evade authorities. In the absence
of sufficient information, neither Aggravating 13 nor Mitigating #11
(surrender) applies.
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EXCERPTS FROM MINUTES OF LAST WEEK'S BOARD MEETINGS
5 June 1975
Justice Department The Justice Department has raised
again the question of whether a person with an Undesirable
Discharge is eligible for a pardon; in September, 1974,
the Presidential Clemency Board recommended, and the President
concurred that such a Pardon is possible: The matter will
go again to the President for final decision.
Drug Addiction Senator Goodell stated that drug
addiction will be considered neither aggravating nor a
mitigating factor. However, psychological and physcial
problems that have developed as a result of drug addiction
acquired during military service will be considered
mitigating.
Court Ordered Alternative Service Panel members are
to ignore court-ordered alternative service when deciding
on the length of alternative service an applicant should
do, a panel has recommended completion of court-ordered
alternative service, a specific termination date should be
provided.
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2
6 June 1975
Attorney Role General Walt raised the question of
attorneys acting as advocates for the applicants. He stated
that attorneys have said they were instructed to present the
applicant in the best possible light. It was agreed that
attorneys should be as objective as possible and not advocates
but, as professionals, they would attempt to provide the
Board with as much information as possible.
Case Review Procedure In order to speed the handling
of cases, the panels should review the aggravating and
mitigating factors before coming to a decision, unless the
decision is clearly a pardon. In this way, the focus is
on the factors and not on bargaining over the decision.
There should be consideration of whether the factor is strong
or weak, because it can make a difference. The agravating
and mitigating factors are qualitative things and the
nature of the situation is important. Decisions on how
much alternative service will be required should not rest
solely on a comparison of the number of aggravating factors
on one side and the number of mitigating on the other.
The weight placed on each of the factors is critical.
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3
7 June 1975
The ensuing points were raised during discussion of the
various cases on the Docket. The reading of cases began
after the Chairman complimented the Panel/Board members on
the expeditious handling of cases this week.
Discussion of Aggravating #1, "Other criminal Convictions".
A decision was made by the Board to drop Summary Court
Martial as an Aggravating factor #1. Summary Court
Martials for AWOLs shall be marked only under Aggravating #8
because a summary court is not considered serious by the
military. Additionally, misdemeanors by civilians are
not to be marked as Aggravating #1.
Extended AWOLs: Continued Discussion from previous
Full Board meeting.
a. Factor #9 will remain, but times revised to be
i) do not mark less than 2 months aggravating,
ii) always mark the length of the AWOL,
iii) 2-6 months, of AWOL, mark weak,
iv) over six months mark without qualification.
Apprehension: This was suggested as a new aggravating
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factor #12 to indicate that person had not voluntarily
submitted himself. Board agreed and used this factor in
afternoon sessions of the same date. However, account
should be taken of whether the person made attempts to
contact authorities, whether he went home and did not change
his name, etc. A demonstrable effort to submit should be
considered mitigating, under mitigating factor #11.
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4
Jurisdiction: Mr. Baskir presented discussion concerning
PCB jurisdiction in cases where more than AWOL was involved.
It was decided:
a. If the applicant could have been discharged for AWOL
alone, the PCB does have jurisdiction
b. If the applicant could not have been discharged
for AWOL alone, nor for the other offense; but he was discharged,
the PCB does have jurisdiction.
c. If he could not have been discharged for the AWOL,
but could have been discharged for the other offense alone,
the PCB does not have jurisdiction.
The PCB General Counsel together with the Chairman
will make recommendations to the Board concerning whether
particular cases are within the Board's jurisdiction.
The recommendations will be based on information gleaned
from the militarys' list of maximum punishments.
Guidelines re Other Serious Criminal Convictions:
Mr. Baskir presented the discussion regarding the language
on the seriousness of convictions describing several
categories of felonies. Because of language of the Law and
variations in definition by State, Federal and Local
authorities, and because of differing interpretations by
Judges and dispostions by Juries, Mr. Baskir was unable
to offer clear guidelines to the PCB concerning which felonies
should be considered serious enough to disqualify
a person for clemency.
a. Mr. Everhard suggested case by case disposition.
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5
b. Mr. Riggs reminded the PCB of their mutual concern
about embarrassing the President by offering clemency to
applicants who have committed heinous crimes.
C. Generally it was that those who committed a heinous
and repugnant crimes will not receive clemency.
d. Mr. Baskir will instruct attorneys to get as much
information as possible concerning the offenses an applicant
committed prior to presentation to Panels and the Board.
Contacting Incarcerated applicants: The problem of
getting direct contact with incarcerated persons was raised
and the point made that talking to the applicant was crucial.
Attorneys were instructed to use White House authority when
needed to deal with prison authorities in order to obtain
information from or about incarcerated applicants.
Aggravating #5, Manipulative and Selfish Reasons: A
lengthly debate followed from the Chairman's suggestion that
no expression from the applicant regarding his reasons
for AWOL should be marked a weak aggravating factor # 5.
Mr. Goodell conceded that it was a debatable point even if
the applicant was given an opportunity to speak and did not. 'f
a. Mr. Baskir raised the question of violation of-
individual rights because a person is not required to testify
againist himself and has a right to silence under the 5th
Amendment of the Constitution.
b. Mr. Kauffmann supported Mr. Goodell stating that the
PCB is not dealing with justice but with clemency.
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6
C. Mr. Maye also concurred with Mr. Goodell since the
cases before the PCB have been declared guilty already and are
not presumptive guilt.
The PCB is offering clemency after conviction and is not a
trial. Mr. Baskir suggested that the wording of Aggravating #5
be altered to clarify "evidence" and "obvious".
Board voted not to alter wording but to accept Mr. Goodell's
original proposal that a weak Aggravating # 5 be marked if
no reason for the AWOL is offered by applicant and it is
not in the record. The Board voted 5 to 5 with respect
to the proposal and left the decision to the Chairman
who decided in favor of the proposal.
AWOL Markings:
Unpunished AWOL offenses should be marked as, aggravating and
should be computed as part of the total AWOL time counted.
DD 214:
Because the DD 214 is often unclear, attorneys are instructed
to look beyond the document in the files to determine the
accurate period of creditable service.
Possible contradiction in Aggravating #s 1 and 11:
The question of mixed discharge for unfitness including AWOL
was raised. Chairman decided that #11 Aggravating will be
marked for non-related factors included in an Undesirable
Discharge.
7 June 1975
Mitigating Factor # 10, Acted for Conscientious Reasons:
The Chariman noted that, through the end of May in 170 cases where
no aggravating were marked and #10 mitigating was marked,
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7
all but 5 applicants received Pardons. He urged the members
to be consistent in this matter. However, when aggravating
factors are marked along with #10 mitigating, the decision
is certainly expected to vary. The usual outcome where no
aggravating appear and #s 4,10,11 are marked mitigating,
a Pardon ensues.
V.A. Benefit Cases: The Chairman said that 58 cases
of upgrades were scheduled for the Full Board before this
weeks meetings and that when such cases are sent to the
Full Board, the Panel recommendation should be unanimous.
Because of the time involved in discussing these cases
before the Full Board, it was suggested that a special Panel
might be convened to resolve these issues. The Board
FORD
concurred in that procedure if it becomes necessary.
The entire matter of V.A. benefits has not yet been resolved
by the President and discussions with the Defense Department
are inconclusive. Ceneral Walt wants "clean and strong" cases
only to be presented so that they will not be jeopardized by
weaker ones. Messrs Maye, Puller, Craig, Riggs and Walt will
try to develop a "persuasive approach" to their colleagues
in various service organizations. Mr. Goodell urged that the
'f
word be spread that such upgrades will be limited and fair,
not at all wholesale.
Cases Involving Officers: Mrs. Ford raised the question
of how officer cases are being treated. The members agreed
that they will be handled in the same way as enlisted personnel
with no special preferences given. The same applies to
Staff Sergeants and other senior NCOs.
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