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The original documents are located in Box 2, folder "Clemency Law Reporter (4)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 LAW REPORTER
PRESIDENTIAL CLEMENCY BOARD
SPECIAL
EDITION
THE WHITE HOUSE
VOL. 1 NO. 3 - - JUNE 17, 1975
WASHINGTON, D.C. 20500
FORD
The CLR is an unofficial document prepared for the exclusive use of the PCB staff.
FULL BOARD CLARIFIES AGGRAVATING FACTORS
LIBRARY
Today the Full Board clarified its policies regarding ten of the twelve aggravating factors.
Effective immediately, all Panel Counsels, Action Attorneys, and Quality Control Profes-
sionals should apply the aggravating factor descriptions set forth in the second edition
of the Clemency Law Reporter, as modified below:
AGG #1: A "felony conviction" means a con-
AGG #7: This factor applies to military as
viction for any crime for which the sentence
well as civilian cases. Also, it applies to
is or could have been imprisonment for one
any violation of probation or parole subse-
year or more. Some reference to state law
quent to a felony (or military court-martial)
may be necessary. The Board also reaffirmed
conviction, even if the conviction had been
that any such conviction, whether prior to
for a non-qualifying offense.
or subsequent to the qualifying offense, gives
rise to this factor.
AGG #8: Non-qualifying (i.e., pre-1964) and
unpunished AWOLs are to be counted in apply-
AGG #4: According to the Board, going AWOL
ing this factor.
directly from Vietnam brings rise to this
factor automatically. Going AWOL from R&R
AGG #9: If the last AWOL offense resulted
or home leave does not constitute this fac-
in an NJP or a court-martial conviction,
tor but does constitute aggravating fac-
only those AWOL offenses specified in the
tor #10.
NJP or court-martial charges are counted in
assessing the length of AWOL. If the last
AGG #5: The Board will first determine
AWOL offense did not result in an NJP or a
whether evidence of selfish and manipulative
court-martial conviction (even if it direct-
reasons is present (i.e., whether aggravating
ly led to an applicant's discharge), all
#5 has its regular application). If no such
unpunished AWOL offenses subsequent to the
evidence is found, a "weak" aggravating #5
last punished AWOL offense are to be in-
will be applied in circumstances where a
cluded in the assessment of the length of
reasonable inference may be drawn that the
AWOL.
offense had been committed for selfish and
manipulative reasons. Such an inference may
AGG #10: Alaska and Hawaii are not included
be drawn even if there are no apparent rea-
in this factor. In addition, this factor
sons in the record for the qualifying of-
applies in full force only to any failure to
fense. However, this "weak" application of
report to Vietnam or to any overseas staging
aggravating #5 will not arise if any of the
area for Vietnam (e.g., Okinawa) for all
mitigating factors #1, #2, #3, #8, #10, or
other overseas assignments (e.g., Germany or
#12 are present, except in unusual circum-
Korea), a "weak" aggravating #10 applies.
stances where these mitigating factors bear
no relationship to the qualifying offense.
AGG #11: This factor applies only to pun-
This "weak" aggravating #5 application is a
ished offenses in UD-Unfitness cases. Sum-
matter of Board discretion and should not be
mary court-martial convictions and NJPs for
marked by Action Attorneys.
non-qualifying offenses are included in its
scope. This factor does not apply to UD-
AGG #6: The religious exception to this fac-
Chapter 10, BCD, or DD cases.
tor applies only in circumstances where an
applicant had bona fide religious reasons for
AGG #12: Only the last qualifying offense
his offense.
counts, and some evidence of apprehension is
necessary. If the applicant did not will-
NEWS BULLETIN: The President has confirmed that
fuliy evade authorities (e.g., if he lived
the Board may recommend pardons for applicants
openly at home) prior to his apprehension,
with Undesirable Discharges.
a "weak" aggravating #12 is applied.
CLEMENCY
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
LAW REPORTER
VOL. 1 NUMBER
FOUR - July 2, 1975
HIGHLIGHTS
INTRODUCTION
The Clemency Law Reporter is an unofficial
document, the contents of which neither
THE CONSTITUTION
constitute nor imply the official position
and Presidential Pardon Authority
of the Board, but are intended as an in-
(Legal Notes)
formal guide for the exclusive use of the
PCB Staff.
SPEEDY TRIAL
M. Toberer suggests excessive pre-trial
The Clemency Law Reporter is prepared
confinement is a Mitigating Factor #8
by the PCB Planning, Management and
(Legal Notes)
Evaluation Staff. For information, please
contact Wil Ebel or Bob Terzian.
FEDERAL SENTENCING ALTERNATIVES
Room 901, Tel. 634-4823.
Considerations in imposing a sentence
Legal Notes)
PCB ADMINISTRATIVE PROCEDURES
as published in the Federal Register
(Legal Notes)
NEW DEFINITION OF VIET VET?
INDEX
Clemency applicants and Federal job
preference programs.
(Policy Notes)
Page
LEGAL NOTES
RESTORATION OF CITIZENSHIP
A legislative proposal
(Policy Notes)
POLICY NOTES
LETTER TO THE EDITOR
A proposal that a no clemency decision
LIBRARY NOTES
should be a full Board decision
(Policy Notes)
FORD
POLICY PRECEDENTS
CLEMENCY RELATED READING MATERIAL
(Library Notes)
GERALD.
UPDATE OF
(Policy Precedents)
LEGAL NOTES
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.
AWARDS AND DECORATIONS
Vietnam Cross of Gallantry w/Palm. A
personal decoration awarded by RVN.
RVN Gallantry Cross Unit Citation. A
unit citation awarded for valorous combat
achievement.
Kevin Greene
PRESIDENTIAL PARDONS
ARTICLE II, Section 2, Clause 1, Constitution of the United States of America:
The President shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several states, when called into the actual
Service of the United States; he may require the Opinion, in writing, of the
principal Officer in each of the executive Departments, upon any Subject
relating to the Duties of their respective Offices, and he shall have Power
to grant Reprieves and Pardons for Offences against the United States,
except in Cases of Impeachment.
The following is an excerpt from Constitution of the United States of America
Analysis and Interpretation which was prepared by the Legislative Reference
Service of the Library of Congress.
PARDONS AND REPRIEVES
The Legal Nature of a Pardon
In the first case to be decided concerning the pardoning power, Chief Justice
Marshall, speaking for the Court, said: "As this power had been exercised
from time immemorial by the executive of that nation whose language is our
language, and to whose judicial institutions ours bear a close resemblance;
we adopt their principles respecting the operation and effect of a pardon,
and look into their books for the rules prescribing the manner in which it is
to be used by the person who would avail himself of it. A pardon is an act of
grace, proceeding from the power entrusted with the execution of the laws,
which exempts the individual, on whom it is bestowed, from the punishment the
law inflicts for a crime he has committed. It is the private, though official
act of the executive magistrate, delivered to the individual for whose benefit
it is intended, and not communicated offically to the Court. *** A pardon is
a deed, to the validity of which delivery is essential, and delivery is not
complete without acceptance. It may then be rejected by the person to whom
it is tendered; and if it be rejected, we have discovered no power in a court
to force it on him. Marshall thereupon proceeded to lay down the doctrine,
that "a pardon is a deed to the validity of which delivery is essential, and
delivery is not complete without acceptance"; and that to be noticed judicially
this deed must be pleaded, like any private instrument. 2
In the case of Burdick V. United States, 3 decided in 1915, Marshall's doctrine
was put to a test that seems to have overtaxed it, perhaps fatally. Burdick,
having declined to testify before a federal grand jury on the ground that his
testimony would tend to incriminate him, was proffered by President Wilson
"a full and unconditional pardon for all offenses against the United States"
which he might have committed or participated in in connection with the matter
he had been questioned about. Burdick, nevertheless, refused to accept the
2
pardon and persisted in his contumacy with the unanimous support of the
Supreme Court. "The grace of a pardon, " remarked Justice McKenna sententiously,
"may be only a pretense * * involving consequences of even greater disgrace
than those from which it purports to relieve. Circumstances may be made to
bring innocence under the penalties of the law. If so brought, escape by
confession of guilt implied in the acceptance of a pardon may be rejected, * * *. "
4
Nor did the Court give any attention to the fact that the President had
accompanied his proffer to Burdick with a proclamation, although a similar
procedure had been held to bring President Johnson's amnesties to the Court's
notice. 5 In 1927, however, in sustaining the right of the President to
commute a sentence of death to one of life imprisonment, against the will of
the prisoner, the Court abandoned this view. "A pardon in our days, " it said,
"is not a private act of grace from an individual happening to possess power.
It is a part of the contitutional scheme. When granted it is the determination
of the ultimate authority that the public welfare will be better served by
inflicting less than what the judgment fixed. " 6 Whether these words sound
the death knell of the acceptance doctrine is perhaps doubtful. 7 They seem
clearly to indicate that by substantiating a commutation order for a deed of
pardon, a President can always have his way in such matters, provided the
substituted penalty is authorized 8 by law and does not in common understanding
exceed the original penalty.
Scope of the Power
The power embraces all "offences against the United States, " except cases of
impeachment, and includes the power to remit fines, penalties, and forfeitures,
except as to money covered into the Treasury or paid in informer; 9 also the
power to pardon absolutely or conditionally; and includes the power to commute
sentences, which, as seen above, is effective without the convict's consent. 10
It has been held, moreover, in face of earlier English practice, the indefinite
suspension of sentence by a court of the United States is an invasion of the
presidential prerogative, amounting as it does to a condonation of the offense. 11
It was early assumed that the power included the power to pardon specified classes
or communities wholesale, in short, the power to amnesty, which is usually
exercised by proclamation. General amnesties were issued by Washington in 1795,
by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867
and 1868, and by the first Roosevelt-to Aguinaldo's followers-in 1902. 12
Not, however, till after the Civil War was the point adjudicated, when it was
decided in favor of presidential prerogative. 13
Offenses against the United States; contempt of court. - In the first place, such
offenses are not offenses against the States. In the second place, they are
completed offenses; 14 the President cannot pardon by anticipation, otherwise
he would be invested with the power to dispense with the laws, 15 his claim to
which was the principal cause of James II's forced abdication. Lastly, the
term has been held to include criminal contempts of court. Such was the holding
Ex parte Grossman, 16 where Chief Justice Taft, speaking for the Court, resorted
once more to English conceptions as being authoritative in construing this clause
of the Constitution. Siad he: "The King of England before our Revolution, in
the exercise of his prerogative, had always exercised the power to pardon contempts
3
of court, just as he did ordinary crimes and misdemeanors and as he has
done to the present day. In the mind of a common law lawyer of the eighteenth
century the word pardon included within its scope the ending by the King's
grace of the punishment of such derelictions, whether it was imposed by the
court without a jury or upon indictment, for both forms of trial for contempts
were had. (Citing cases.) These cases also show that, long before our
Constitution, a distinction had been recognized at common law between the effect
of the King's pardon to wipe out the effect of a sentence for contempt in so
far as it had been imposed to punish the contemnor for violating the dignity of
the court and the King, in the public interest, and its inefficacy to halt or
interfere with the remedial part of the court's order necessary to secure the
rights of the injured suitor. Blackstone IV, 285,397,398; Hawkins Pleas of the
Crown, 6th Ed. (1787), Vol. 2,553. The same distinction, nowadays referred to
as the difference between Civil and criminal contempts, is still maintained in
English law. " 17 Nor was any new or special danger to be apprehended from this
view of the pardoning power. "If", says the Chief Justice, "we could conjure up
in our minds a President willing to paralyze courts by pardoning all criminal
contempts, why not a President ordering a general jail delivery?" Indeed, he
queries further, in view of the peculiarities of procedure in contempt cases,
"may it not be fairly said that in order to avoid possible mistake, undue prejudice
or needless severity, the chance of pardon should exist at least as much in favor
of a person convicted by a judge without a jury as in favor of one convicted
in a jury trial?" 18
Effects of a pardon: Ex parte Garland. - The great leading case is Ex parte
Garland, 19 which was decided shortly after the Civil War. By an act passed
in 1865 Congress had prescribed that before any person should be permitted to
practice in a federal court he must take oath asserting that he had never
voluntarily borne arms against the United States, had never given aid or comfort
to enemies of the United States, and so on, Garland, who had been a Confederate
sympathizer and so was unable to take the oath, had however received from
President Johnson the same year "a full pardon 'for all offences by him committed,
arising from participation, direct or implied, in the Rebellion, The
question before the Court was whether, armed with this pardon, Garland was
entitled to practice in the federal courts despite the act of Congress just
mentioned. Said Justice Field for a sharply divided Court: "The inquiry arises
as to the effect and operation of a pardon, and on this point all the authorities
concur. A pardon reaches both the punishment prescribed for the offence and the
guilt of the offender; and when the pardon is full, it releases the punishment
and blots out of existence the guilt, so that in the eye of the law the offender
is as innocent as if he had never committed the offence. If granted before
conviction, it prevents any of the penalties and disabilities consequent upon
conviction from attaching (thereto); if granted after conviction, it removes
the penalties and disabilities, and restores him to all his civil rights; it
makes him, as it were, a new man, and gives him a new credit and capacity. " 20
Justice Miller speaking for the minority protested that the act of Congress
involved was not penal in character, but merely laid down an appropriate test
of fitness to practice the law. "The man who, by counterfeiting, by theft, by
&
FORD
GERALD
4
by murder, or by treason, is rendered unfit to exercise the functions of an
attorney or counsellor at law, may be saved by the executive pardon from the
penitentiary or the gallows, but he is not thereby restored to the qualifications
which are essential to admission to the bar. "21 Justice Field's language
must today be regarded as much too sweeping in light of a decision rendered
in 1914 in the case of Carlesi V. New York. 22 Carlesi had some years before
been convicted of committing a federal offense. In the instant case the
prisoner was being tried for a subsequent offense committed in New York. He
was convicted as a second offender, although the President had pardoned him
for the earlier federal offense. In other words, the fact of prior conviction
by a federal court was considered in determining the punishment for a subsequent
State offense. This conviction and sentence were upheld by the Supreme Court.
While this case involved offenses against different sovereignties, the Court
declared by way of dictum that its decision "must not be understood as in the
slightest degree intimating that a pardon would operate to limit the power
of the United States in punishing crimes against its authority to provide
for taking into consideration past offenses committed by the accused as a
circumstance of aggravation even although for such past offenses there had
been a pardon granted. " 23
Limits to the efficacy of a pardon. -But Justice Field's latitudinarian view of
the effect of a pardon undoubtedly still applies ordinarily where the pardon
is issued before conviction. He is also correct in saying that a full pardon
restores a convict to his "civil rights, " and this is so even though simple
completion of the convict's sentence would not have had that effect. One such
right is the right to testify in court, and in Boyd V. United States the Court
held that the disability to testify being a consequence, according to principles
of the common law, of the judgment of conviction, the pardon obliterated
that effect. 24 But a pardon cannot "make amends for the past. It affords no
relief for what has been suffered by the offender in his person by imprisonment,
forced labor, or otherwise; it does not give compensation for what has been done
or suffered, nor does it impose upon the government any obligation to give it.
The offence being established by judicial proceedings, that which has been done
or suffered while they were in force is presumed to have been rightfully done
and justly suffered; and no satisfaction for it can be required. Neither does
the pardon affect any rights which have vested in others directly' by the execution
of the judgment for the offence, or which have been acquired by others whilst
that judgment was in force. If, for example, by the judgment a sale of the
offender' property has been had, the purchaser will hold the property notwithstanding
the subsequent pardon. And if the proceeds of the sale have been paid to a
party to whom the law has assigned them, they cannot be subsequently reached
and recovered by the offender. The rights of the parties have become vested,
and are as complete as if they were acquired in any other legal way. So, also,
if the proceeds have been paid into the treasury, the right to them has so far
become vested in the United States that they can only be secured to the former
owner of the property through an act of Congress. Moneys once in the treasury
can only be withdrawn by an appropriation by law. 11 25
5
Congress and Amnesty
Congress cannot limit the effects of a Presidential amnesty. Thus the act
of July 12, 1870, making proof of loyalty necessary to recover property
abandoned and sold by the Government during the Civil War, notwithstanding any
executive proclamation, pardon, amnesty, or other act of condonation or
oblivion, was pronounced void. Said Chief Justice Chase for the majority!
the legislature cannot change the effect of such a pardon any more than the
executive can change a law. Yet this is attempted by the provision under
consideration. The Court is required to receive special pardons as evidence
of guilt and to treat them as null and void. It is required to disregard
pardons granted by proclamation on condition, though the condition has been
fulfilled, and to deny them their legal effect. This certainly impairs the
executive authority and directs the Court to be instrumental to that end. " 26
On the other hand, Congress itself, under the necessary and proper clause,
may enact amnesty laws remitting penalties incurred under the national statutes. 27
Notes
1/See Corwin, The President: Office and Powers, 19,61,79-85,211,295-299,
312,320-323, 490-493 (1957). The only question of a constitutional nature
that has arisen concerning the Cabinet meeting is as to its right to meet, on
the call of the Secretary of State, in the President's absence. Corwin, The
President: Office and Powers, 402 (3d ed. 1948).
2/ United States V. Wilson, 7 Pet. 150,160-161 (1833).
3/ 236 U.S. 79,86 (1915).
4/ Ibid. 90-91
5/ Armstrong V. United States, 13 Wall. 154,156 (1872). In Brown V. Walker,
161 U.S. 591 (1896), the Court had said: "It is almost a necessary corollary
of the above propositions that, if the witness has already received a pardon, he
cannot longer set up his privilege, since he stands with respect to such offence
as if it had never been committed. Ibid. 599, citing British cases.
6/ Biddle V. Perovich, 247 U.S. 480, 486 (1927).
7/ Cf. Humbert, The Pardoning Power of the President, 73 (1941).
8/ Biddle V. Perovich, 274U.S. at 486.
9/ 23 Ops. Att'y Gen. 360,363 (1901); Illinois Central Railroad V. Bosworth,
133 U.S. 92 (1890).
10/ Ex parte William Wells, 18 How. 307 (1856). For the contrary view, see some
early opinions of the Attorney General, 1 Ops. Att'y Gen. 341 (1820); 2 Ops.
Att'y Gen. 275 (1829); 5 Ops. Att'y Gen. 687 (1795); cf. 4 Ops. Att'y Gen. 458
(1845); United States V. Wilson, 7 Pet. 150, 161 (1833).
5
Congress and Amnesty
Congress cannot limit the effects of a Presidential amnesty. Thus the act
of July 12, 1870, making proof of loyalty necessary to recover property
abandoned and sold by the Government during the Civil War, notwithstanding any
executive proclamation, pardon, amnesty, or other act of condonation or
oblivion, was pronounced void. Said Chief Justice Chase for the majority!"
*
the legislature cannot change the effect of such a pardon any more than the
executive can change a law. Yet this is attempted by the provision under
consideration. The Court is required to receive special pardons as evidence
of guilt and to treat them as null and void. It is required to disregard
pardons granted by proclamation on condition, though the condition has been
fulfilled, and to deny them their legal effect. This certainly impairs the
executive authority and directs the Court to be instrumental to that end. 11 26
On the other hand, Congress itself, under the necessary and proper clause,
may enact amnesty laws remitting penalties incurred under the national statutes. 27
Notes
1/See Corwin, The President: Office and Powers, 19,61,79-85,211,295-299,
312,320-323, 490-493 (1957). The only question of a constitutional nature
that has arisen concerning the Cabinet meeting is as to its right to meet, on
the call of the Secretary of State, in the President's absence. Corwin, The
President: Office and Powers, 402 (3d ed. 1948).
2/ United States V. Wilson, 7 Pet. 150,160-161 (1833).
3/ 236 U.S. 79,86 (1915).
4/ Ibid. 90-91
5/ Armstrong V. United States, 13 Wall. 154,156 (1872). In Brown V. Walker,
161 U.S. 591 (1896), the Court had said: "It is almost a necessary corollary
of the above propositions that, if the witness has already received a pardon, he
cannot longer set up his privilege, since he stands with respect to such offence
as if it had never been committed. Ibid. 599, citing British cases.
6/ Biddle V. Perovich, 247 U.S. 480, 486 (1927).
7/ Cf. Humbert, The Pardoning Power of the President, 73 (1941).
8/ Biddle V. Perovich, 274U.S. at 486.
9/ 23 Ops. Att'y Gen. 360,363 (1901); Illinois Central Railroad V. Bosworth,
133 U.S. 92 (1890).
10/ Ex parte William Wells, 18 How. 307 (1856). For the contrary view, see some
early opinions of the Attorney General, 1 Ops. Att'y Gen. 341 (1820); 2 Ops.
Att'y Gen. 275 (1829); 5 Ops. Att'y Gen. 687 (1795); cf. 4 Ops. Att'y Gen. 458
(1845); United States V. Wilson, 7 Pet. 150, 161 (1833).
6
11/ Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however,
(within the same term of court) by shortening the term of imprisonment, although
defendant had already been committed, is a judicial act and no infringement
of the pardoning power. United States V. Benz, 282 U.S. 304 (1931).
12/ See 1 Messages and Papers of the Presidents, 173,293; 2:543; 7:3414,3508;
8:3853; 14:6690.
13/ United States V. Klein, 13 Wall. 128, 147 (1872). See also United States V.
Padelford, 9 Wall. 531 (1870).
14/ Ex parte Garland, 4 Wall, 333,380 (1867).
15/ Maitland, Constitutional History of England, 302-306 (1920); 1 Ops. Att'y
Gen. 342 (1820).
16/ 267 U.S. 87 (1925).
17/ Ibid, 110-111.
18/ Ibid. 121,122.
19/ 4 Wall.333,381 (1867).
20/ Ibid. 380.
21/ Ibid. 396-397.
22/ 233 U.S. 51 (1914).
23/ Ibid. 59.
24/ 142 U.S. 450 (1892).
25/ Knote V. United States, 95 U.S. 149, 153-154(1877).
26/ United States V. Klein, 13 Wall, 128,143,148 (1872).
27/ The Laura, 114 U.S. 411 (1885).
FORD
GERALD
SPEEDY TRIAL
The Author proposes that Mitigating Factor No. 8 (Substantial Evidence
of Personal or Procedural Unfairness) should be applied in the case of
any PCB applicant held in pre-trial confinement by the military for a
period in excess of 90 days.
In U.S. V. Burton, 21 USCMA 112, 44 CMR 166 (1971), Chief Judge Darden,
writing the opinion of the court, addressed the speedy trial issue and
recognized that "in some situations the length and circumstances of
pretrial confinement can be prejudicial in themselves. U.S. V. Keaton,
18 USCMA 500, 40 CMR 212 (1969). In his two to one opinion, Judge Darden
establishes the following rule and gets away from the older reasonable-
time standard: "For offenses occurring after the date of this opinion
(17 Dec. 71) we adopt the suggestion of appellate defense counsel that in
the absence of defense requests for continuance, a presumption of an
Article 10 violation will exist when pretrial confinement exceeds three
months. In such cases, this presumption will place a heavy burden on
the Government to show diligence and in the absence of such a showing
the charges should be dismissed." U.S. V. Burton, 21 USCMA 112 at 118 (1971).
Judge Darden continued, "when the defense requests a speedy disposition of
the charges, the Government must respond to the request and either proceed
immediately or show adequate cause for any further delay. A failure to
respond to a request for a prompt trial or to order such a trial may
justify extraordinary relief. 21 USCMA 112 at 118.
In 1973, Chief Judge Darden had an opportunity to reconsider his opinion
in Burton. In U.S. V. Marshall 47 CMR 409 (1973) Judge Darden now writing
for a unanimous court, re-states the rule in Burton and says that "the
Government must demonstrate that really extraordinary circumstances beyond
such normal problems as mistakes in drafting, manpower shortages, illnesses,
and leave contributed to the delay. " U.S. V. Marshall, 47 CMR 409 at 413 (1973).
It is suggested by the writer that the scope of Mitigating Factor No. 8
should be said specifically to cover and include situations in which
excessive periods of pre-trial confinement are found. Perhaps a "weak 8"
should apply to situations which occurred prior to Burton (17 Dec. 71)
and a "strong 8" should be assigned to situations arising thereafter.
Meinert Toberer
FEDERAL SENTENCING ALTERNATIVES
"It is perhaps ironic that trends in modern corrections toward more humane
treatment and greater emphasis on rehabilitation and community supervision have
increasingly raised issues of fair process and the rights of offenders. At one
time an offender's correctional course was largely determined at trial. If he
was sentenced to prison, he went and served the term appointed for him by the
judge or statute, and by and large he was treated in prison just like everybody
else. But today correctional decisions are far more numerous and complex, and
many of them are made administratively by correctional staff rather than by a
judge or statute. "
The President's Commission on Law Enforcement
and Administration of Justice, Task Force
Report: Corrections 12 (1967)
The federal district court judge has a wide range of sentencing choices. The
action attorney should be aware of the different alternatives which a judge
considers in imposing a sentence.
A person convicted of an offense not punishable by death or life imprisonment
may be granted probation under such terms and conditions as the court deems
best, provided that the judge is satisfied that the ends of justice, the best
interest of the public, as well as that of the defendant, are met. The court
may order a split sentence where the offender will serve a term in prison not
to exceed six months and will then serve the remainder of the sentence on pro-
bation. As a procedural matter in these cases, the judge will impose a prison
sentence in excess of six months, then suspend execution of the sentence on the
condition that the offender serve the split sentence as described above.
Where an offense is punishable by a fine or imprisonment or both, probation may
be granted. Payment of the fine may be imposed as a condition of probation.
An offender may be placed on probation for as long as five years, although the
maximum sentence for the committed offense may be less than the period- of im-
posed probation. Courts may revoke or modify any condition of probation or
may change the period of probation in accord with principles governing proper
exercise of judicial discretion. Probation may be revoked when the offender
violates the conditions. Then the offender will be jailed for the balance of
the originally imposed sentence or any lesser sentence.
If the court, at time of sentencing, suspends imposition of the sentence and
subsequently imposes probation, then it, at the time of revocation, may impose
any sentence up to maximum allowed for the original offense.
A person may be arrested for violations of probation conditions at any time
within five years after the end of probation. If the probation violation is
proved, he will be required to serve the balance of his sentence.
The Attorney General may order that the offender serve his sentence in a non-
federal institution.
2
A prisoner whose record shows that he has observed the rules of the institution
in which he is confined is eligible for parole if he meets the following con-
ditions:
(a) He is serving a definite term longer than 180 days and
(b) he has served at least one-third of his sentence or
(c) if serving a sentence of life or excedding 45 years, that he has served
15 years.
The courts, in imposing any sentence greater than one year, may set eligibility
for consideration for parole at any term of less than one-third of the sentence.
The court may sentence the offender to a fixed term of imprisonment, then order
that the offender will be eligible for parole at any time which the Board of
Parole may determine.
An offender may be committed for a period of study and observation which is
deemed to be the maximum sentence. Upon completion of the study, the court
may affirms the maximum sentence, impose a lesser sentence or grant probation.
A person is eligible for the National Addicts Rehabilitation Act post-conviction
program if he is a drug addict likely to be rehabilitated and if he has not been
convicted of a crime of violence, drug trafficking or convicted of felonies on
two separate, prior occasions. Under the program, he shall serve the lesser of
the maximum sentence for the crime of which he is convicted or ten years.
Any individual under 22 years of age at the time of conviction who will derive
maximum from treatment by the Youth Correction Division of the Board of Parole
prior to the expiration of six years from the date of conviction may be sentenced
under the provisions of the Federal Youth Corrections Act.
Tom O'Hare
Mike Remington
25199
rules regulations
This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect most of which are
keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL
REGISTER issue of each month.
Title 2-Clemency
heard at any time after the summary
CHAPTER 1-PRESIDENTIAL CLEMENCY
is mailed to the applicant. However, the
BOARD
applicant may send any information
which contradicts, amends, or supple-
PART 101-ADMINISTRATIVE
ments the initial case summary within
PROCEDURES
thirty (30) days after the postmark date.
Administrative Procedures and Substantive
An applicant's request for an extension
Standards
of this time will be liberably construed
The Presidential Clemency Board pub-
provided the request is timely. If an
lished its administrative procedures and
applicant's case has been heard by the
substantive standards on March 21, 1975
Board prior to the receipt of a timely
(40 FR 12763). It is the intent of the
submission amending, contradicting, or
Board to provide notice to the public of
supplementing a case summary, the case
the standards it uses to make recom-
will be presented de novo to another
mendations to the President concerning
panel of the Board, other than that
individual applications for clemency. The
which heard the case originally if the
Board also wishes to ensure equity and
submission contains relevant informa-
consistency for applicants under the
tion which could have affected the dis-
President's clemency program
position of the case. See § 101.11 for rules
As previously indicated, the Board does
concerning reconsideration of cases.
not consider itself bound by the Admin-
istrative Procedures Act. However, in its
$ 101.9 Consideration before the Board.
attempt to adhere to principles of sub-
(a) At a regularly scheduled meeting
stantive and procedural due process, the
of the Board, an applicant's case is con-
Board has published its regulations and
sidered. The Board may decide, however,
will publish changes in those regulations
that cases will be considered by panels
as new circumstances are presented to it.
of not less than three Board members.
The following is an explanation of such
Any case may be brought before a me-
changes which seem to the Board to be
jority of the full Board for consideration
the most significant since the last time
at the request of any panel member.
its regulations were published. Therefore,
Panel recommendations will be consid-
§§ 101.2, 101.8(b), 101.8(d), and 101.9(a)
cred final decisions of the full Board
are amended to read as follows:
unless a case is scheduled to be reviewed
§ 101.2 General definitions.
by a majority of the full Board.
"Action attorney" means any individ-
ual on the staff of the Board who is as-
These amendments will become effec-
signed an applicant's case.
tive immediately.
Issued in Washington, D.C. on June 10,
$ 101.8 Initial case summary.
1975.
CHARLES E. GOODELL,
Chairman, Presidential Clemency
(b) The initial case summary is sent by
Board, The White House.
certified mail to the applicant or his ren-
resentative. The summary is accom-
[FR Doc. 75-15510 Filed 6-11-75;9:36 am]
panied by an instruction describing the
method by which the summary was pre-
pared, by a copy of the guidelines used by
the Board for the determination of cases
and by a copy of these regulations, as
amended. Applicants are encouraged to
review the initial case summary for ac-
curacy and completeness and are advised
of their right to submit additional sworn
and unsworn material. Additional mate-
rial may be submitted in any length.
Nothing over three (3) single-spaced,
typewritten letter-sized pages in length
is read verbatiin to the Board. When nec-
essary, therefore, an applicant should
sunimarize his additional material to
FORD
comply with this verbation presentation
requirement. If this is not done, the ac-
tion attorney does SO.
(d) An applicant's case is ready for
Board consideration upon preparation
of the Initial case summary, and may be
FEDERAL REGISTER, VOL. 10, NO. 115-THUDAY, JUNE 13, 1975
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.
The Comprehensive Employment and Training Act of 1973 (PL 93-203) provides
that special consideration shall be given to veterans in filling emergency
public service jobs. Former military personnel who are given undesirable
discharges under the clemency program are considered for CETA purposes
as veterans.
Recently introduced legislation would exclude from certain Federal job
preference programs, former military personnel participating in the
Presidential Clemency Program.
The proposed legislation would amend $2011 (2) of title 38, U.S.C. by adding
the following:
"The term 'veteran of the Vietnam era' does not include
any person who was discharged or released from active
duty with an other than dishonorable discharge obtained
pursuant to the operation of the clemency and reconciliation
program implemented pursuant to Executive Order 11804, dated
September 16, 1974. "
RESTORATION OF CITIZENSHIP
Legislation (H.R. 7893) has been introduced that would permit Americans who
renounced their citizenship during the time of the U.S. military involvement
in Vietnam to petition for restoration of U.S. citizenship.
The text of the bill follows:
A bill to restore citizenship to persons who renounced or otherwise lost American
nationality because of opposition to American military action in Indochina, and
for other purposes
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That (a) any person formerly a citizen of the
United States who lost his nationality through any action taken by such person
solely or partially because of disapproval of or opposition to the involvement
of the United States in military action in Indochina shall, upon petition to any
district court of the United States by such person or a legal representative, in
accordance with subsection (b), be fully and unconditionally restored to United
States citizenship.
(b) Any petition submitted pursuant to subsection (a) shall include a statement
sworn to or affirmed by the petitioner stating that the loss of nationality of
such petitioner resulted from action taken by such petitioner solely or partially
because of disapproval of or opposition to the involvement of the United States
in military action in Indochina. Such oath or affirmation shall be conclusive
evidence of such fact in case of any person who--
(1) is male and reached the age of eighteen years during the period beginning
May 13, 1961, and ending April 29, 1975, or
(2) took such action during such period.
Sec. 2. The Commissioner of Immigration and Naturalization shall, upon receipt
of a sworn written statement from any former citizen of the United States stating
that such person lost his nationality through action taken solely or partially
because of disapproval of or opposition to the involvement of the United States
in military action in Indochina, exempt such person from the provisions of
section 212 (a) (22) of the Immigration and Nationality Act.
&
FORD
GERALD
DRAFT CLASSIFICATIONS
1-A
Available for military duty not considered eligible for any lower class.
1-A-0
C.O. available for non-combatant duty only.
1-0
C.O. opposed to both combatant and non-combatant military duty and
available for assignment to civilian work.
I-S
High school student, 1-S(H), under 20 years of age or college student,
1-s(c), who has received an order to report for induction and is
deferred to complete his school year.
1-Y
Qualified for military or alternative service only in time of war or
national emergency.
11-A
Deferred for full-time junior college or approved apprenticeship
programs and for some essential civilian employment claimed before
April 23, 1970.
11-C
Deferred because of essential agricultural employment claimed
before April 23, 1970.
11-S
Deferred for full-time undergraduate study and for study in the health
sciences.
1-D
Member of reserve unit of the armed forces, or student taking
military training.
111-A
Deferred because induction would cause extreme hardship for dependents.
111-A mandatory if prior to April 23, 1970, registrant notified local
board of child (born or conceived), and bona fide family relationship
maintained.
1V-B
Officials deferred by law.
1V-C
Aliens who are not exempt from registration, including non-immigrants
resident for less than one year and those who waive citizenship rights,
and alien registrants while outside the U.S.
1V-D
Ministers and full time students preparing for the ministry under the
direction of a recognized church or religious organization.
lV-F
Not qualified for any service.
1V-A
Completed military duty; sole surviving son.
V-A
Over age: 26 years old for registrants not deferred on or after June 19,
1951; 35 years old for those with "extended liability".
1-W
C.O. 's in assigned civilian service. Upon satisfactory completion of
24 months of civilian service or upon earlier release, COs are
classified 1-W (Rel.) until past the age of liability for the draft
when they are reclassified V-A.
1-C
Member of the Armed Forces.
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.
A sampling of clemency-related. articles in the PCB Library
(Room 901) :
"A Youth's Reason for Spurning the Draft A Judge's Answer",
U.S. NEWS & WORLD REPORT, June 8, 1970
"A Proposal for General Amnesty", John C. Raines and Ronald H.
Stone, THE CHRISTIAN CENTURY, April 12, 1972
"Agony and Amnesty", Henlee Barnette, THE CHRISTIAN CENTURY,
Sept. 29, 1971
"All Those Draft Resisters Up There", Russel B. Nye, THE
PROGRESSIVE, May, 1972
"Amnesty: A Brief Historical Overview", John C. Etridge,
CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS,
Feb. 28, 1972
"Amnesty for the War Exile ", NEWSWEEK, Jan 17, 1972
"Amnesty for Whom, And How Much?", Louis Lusky, THE NATIONAL
OBSERVER, Mar 11, 1972
2
"Amnesty: The Record and the Need", John M. Swomley, Jr.,
undated pamphlet
"Amnesty question", Helen B. Shaffer, EDITORIAL RESEARCH
REPORTS, Aug 9, 1972
"An Exile in My Own Country...", Rich Gooding, LOOK, Feb 24, 1970
"An Historical Justification and Legal Basis for Amnesty
Today", Harrop A. Freeman, LAW AND THE SOCIAL ORDER, Arizona
State University, Fall 1971
"AWOL", Daniel Lang, THE NEW YORKER, Oct 21, 1972
"Draft Resisters in Exile : Prospects and Risks of Return",
COLUMBIA JOURNAL OF LAW & SOCIAL PROBLEMS, Winter, 1971
"Should There be Amnesty for the War Resister?", Julius
Duscha, THE NEW YORK TIMES MAGAZINE, Dec 24, 1972
"Swords Into Plowshares: Alternative Service Requirements
for Conscientious Objectors", John Knox Walkup, HARVARD
CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW, May 1971
"The Amnesty Issue", James Finn, COMMONWEAL, Nov 3, 1972
"The Case for Amnesty", Henry Steele Commager, THE NEW
YORK REVIEW OF BOOKS, Apr 6, 1972
"The Laws of Men and the Law of God", G. Wayne Glick, THE
CHRISTIAN CENTURY, Oct 20, 1971
"The New Exodus", Roger Williams, THE NEW REPUBLIC, May 16, 1970
"The War and the Draft: An Overview", Tom Cornell,
CHRISTIANITY & CRISIS, Dec 22, 1969
"Their Son, the Deserter", Philip A. McCombs, THE WASHINGTON
POST, Sep 10, 1972
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.
A sampling of clemency-related articles in the PCB Library
(Room 901) :
"A Youth's Reason for Spurning the Draft--A Judge's Answer",
U.S. NEWS & WORLD REPORT, June 8, 1970
"A Proposal for General Amnesty", John C. Raines and Ronald H.
Stone, THE CHRISTIAN CENTURY, April 12, 1972
"Agony and Amnesty", Henlee Barnette, THE CHRISTIAN CENTURY,
Sept. 29, 1971
"All Those Draft Resisters Up There", Russel B. Nye, THE
PROGRESSIVE, May, 1972
"Amnesty: A Brief Historical Overview", John C. Etridge,
CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS,
Feb. 28, 1972
"Amnesty for the War Exile ", NEWSWEEK, Jan 17, 1972
"Amnesty for Whom, And How Much?", Louis Lusky, THE NATIONAL
OBSERVER, Mar 11, 1972
LETTER TO THE CLEMENCY LAW REPORTER
A panel decision to recommend no clemency in a particular case is a grave dispo-
sition which clearly should be made only in instances where serious aggravating
factors are present. Given the gravity of such decisions, however, and the
intent of the PCB, it seems advisable that cases for which no clemency is rec-
ommended be referred to the full Board as a matter of course. This policy would
serve two functions: (1) provide review of the decisions arguably having the
most severe impact upon individual applicants and (2) assist the panels and full
Board in developing guidelines for cases for which no clemency seems warranted.
Panel recommendations for the restoration of benefits now must be considered by
the full Board, and it is illogical to deny an applicant any benefit of the
program without comparable careful scrutiny.
Ed Rundell
Hilbert Team
2
"Amnesty: The Record and the Need", John M. Swomley, Jr.,
undated pamphlet
"Amnesty question", Helen B. Shaffer, EDITORIAL RESEARCH
REPORTS, Aug 9, 1972
"An Exile in My Own Country. Rich Gooding, LOOK, Feb 24, 1970
"An Historical Justification and Legal Basis for Amnesty
Today", Harrop A. Freeman, LAW AND THE SOCIAL ORDER, Arizona
State University, Fall 1971
"AWOL", Daniel Lang, THE NEW YORKER, Oct 21, 1972
"Draft Resisters in Exile : Prospects and Risks of Return",
COLUMBIA JOURNAL OF LAW & SOCIAL PROBLEMS, Winter, 1971
"Should There be Amnesty for the War Resister?", Julius
Duscha, THE NEW YORK TIMES MAGAZINE, Dec 24, 1972
"Swords Into Plowshares: Alternative Service Requirements
for Conscientious Objectors", John Knox Walkup, HARVARD
CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW, May 1971
"The Amnesty Issue", James Finn, COMMONWEAL, Nov 3, 1972
"The Case for Amnesty", Henry Steele Commager, THE NEW
YORK REVIEW OF BOOKS, Apr 6, 1972
"The Laws of Men and the Law of God", G. Wayne Glick, THE
CHRISTIAN CENTURY, Oct 20, 1971
"The New Exodus", Roger Williams, THE NEW REPUBLIC, May 16, 1970
"The War and the Draft: An Overview", Tom Cornell,
CHRISTIANITY & CRISIS, Dec 22, 1969
"Their Son, the Deserter", Philip A. McCombs, THE WASHINGTON
POST, Sep 10, 1972
GERALD P.. FORD
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.
CORRECTION
CLR, Volume Two, Page 41
(Strauss Formula - Military Case)
Line 7 SHOULD READ
+2 for Mitigating #12,#13,#15,
or any combination
-37-
PRESIDENTIAL CLEMENCY BOARD
CLEMENCY
THE WHITE HOUSE
WASHINGTON, D.C. 20500
LAW REPORTER
VOL. 1 NUMBER FIVE
23JULY1975
This Edition of the Clemency Law Reporter con-
tains updated texts for the Aggravating and
Mitigating Factors. Major changes are the
clarification of Mitigating #8 and #9, the
inclusion of drugs under Mitigating #3, and
two changes in Mitigating #2. The attached
texts supersede those published in the Policy
Precedents Section of previous issues of the CLR.
Amendments to the Code of Federal Regulations,
Title 2, Chapter I, Part 102 reflecting the
GERALD 8. FORD
new Aggravating/Mitigating texts are repro-
duced for your information.
The Clemency Law Reporter is an unofficial
document, the contents of which neither
constitute nor imply the official position
of the Board, but are intended as an in-
formal guide for the exclusive use of the
PCB Staff.
The Clemency Law Reporter is prepared
by the PCB Planning, Management and
Evaluation Staff. For information, please
contact Wil Ebel or Bob Terzian.
Room 901, Tel. 634-4823.
AMENDMENT TO CODE OF FEDERAL REGULATIONS
Title 2 - CLEMENCY
Chapter I - Presidential Clemency Board
Part 102 - Substantive Standards
Administrative Procedures and Substantive Standards
The Presidential Clemency Board published its administrative
procedures and substantive standards on March 21, 1975 (40 FR 12763),
and amended Sections 101.2, 101.8(b), 101.8(d), and 101.9(a) on
June 13, 1975 (40 FR 25199). It is the intent of the Board to provide
notice to the public of the standards it uses to make recommendations
to the President concerning individual applications for clemency.
The Board also wishes to ensure equity and consistency for applicants
under the President's clemency program.
As previously indicated, the Board does not consider itself
bound by the Administrative Procedure Act. However, in its attempt
to adhere to principles of substantive and procedural due process,
the Board has published its regulations and will publish changes in
those regulations as new circumstances are presented to it. The
following is an explanation of such changes which seem to the Board
to be the most significant since the last time its regulations were
amended. Therefore, Sec. 102.3 (Aggravating circumstances) and
Sec. 102.4 (Mitigating circumstances) are amended to incorporate the
addition of three new Aggravating Factors (Secs. 102.3(b)(10), (11),
and (12)), and one new Mitigating Factor (Sec. 102.4(b) (16)); as well
as additions modifying two Mitigating Factors (Secs. 102.4(b)(5)
and (9)).
R. FORD
- 2 -
Section 102.3 Aggravating circumstances.
(a) Presence of any of the aggravating circumstances listed below
may either disqualify an individual for executive clemency or cause
the Board to recommend to the President a period of alternative service
exceeding the applicant's "baseline period of alternative service,"
as determined under Sec. 102.5.
(b) Aggravating circumstances of which the Board takes notice are:
(1) Other adult criminal convictions;
(2) False statement by applicant to the Presidential Clemency
Board;
(3) Use of force by applicant collaterally to AWOL, desertion,
or missing movement or civilian draft evasion offense;
(4) Desertion during combat;
(5) Evidence that applicant committed offense for obviously mani-
pulative and selfish reasons;
(6) Prior refusal to fulfill court ordered alternative service;
(7) Violation of probation or parole;
(8) Multiple AWOL/UA offenses;
(9) AWOL/UA of extended length;
(10) Failure to report for overseas assignment;
(11) Other offenses contributing to undesirable discharge (this
factor only applies to dischargee for unfitness); and
(12) Apprehension by authorities.
(c) Whenever an additional aggravating circumstance not listed
is considered by the Board in the discussion of a particular case,
- 3 -
and is material to the disposition of that case, the Board postpones
final decision of the case and immediately informs the applicant and
his representative of their opportunity to submit evidence material
to the additional circumstance.
Section 102.4 Mitigating circumstances.
(a) Presence of any of any of the mitigating circumstances
listed below or of any other appropriate mitigating circumstance is
considered as cause for recommending that the President grant exe-
cutive clemency to an applicant, and as cause for reducing the appli-
cant's alternative service below the baseline period, as determined
under Sec. 102.5.
(b) Mitigating circumstances of which the Board takes notice are:
(1) Lack of sufficient education or ability to understand obli-
gations or remedies available under the law;
(2) Personal and family problems either at the time of offense
or if applicant were to perform alternative service;
(3) Mental or physical condition;
(4) Employment and other activities of service to the public;
(5) Service-connected disability;
(6) Period of creditable military service;
(7) Tours of service in the war zone;
(8) Substantial evidence of personal or procedural unfairness;
(9) Denial of conscientious objector status on procedural,
technical, or improper grounds, or on grounds which have subsequently
GERALD
- 4 -
been held unlawful by the judiciary;
(10) Evidence that an applicant acted for conscientious, not
manipulative or selfish reasons;
(11) Voluntary submission to authorities by applicant;
(12) Behavior which reflects mental stress caused by combat;
(13) Volunteering for combat, or extension of service while in
combat;
(14) Above average military conduct and proficiency;
(15) Personal decorations for valor; and
(16) Wounds in combat.
(c) An applicant may bring to the Board's attention any other
factor which he believes should be considered.
These amendments will become effective immediately.
Issued in Washington, D.C. on July 23, 1975.
Charles E. Goodell,
Chairman, Presidential Clemency Board,
The White House.
Al.
Aggravating Factor: 1
Other Adult Convictions: This factor indicates any civilian felony
conviction or conviction by a Special or General Court-Martial of any
offense, either prior or subsequent to the qualifying offense. A felony
conviction is any civilian conviction for any offense for which the sentence
is or could have been imprisonment for one year or more. In determining
whether a civilian felony conviction has occurred, some reference to the
state law may be necessary. Non-judicial punishments, arrests, acquittals,
misdemeanors, youthful offender convictions resulting in set-asides,
juvenile convictions, or pre-trial confinements are not "felony convictions."
A juvenile conviction results when the defendant is 18 years or younger,
unless State law provides otherwise.
Ala
1.
Other Adult Convictions
(No. 1825) Applicant plead 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 ans subsequently 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 was discharged in lieu of court-martial. He is presently
incarcerated in a minimum security installation in Tennessee for
grand larcency.
(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.
A2.
Aggravating Factor:
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 application form,
letters, or other communications to the Board. A material
fact is one which could affect a Board determination of base-
line, aggravating factors, or mitigating factors. Mere con-
flicts are not cited unless there is evidence of an intent to
mislead.
False Statement by Applicant to PCB
A2a
(No. 388)
In his letter the applicant reports serving
in Vietnam and also reports that he was con-
fined one and a half years in the stockade with-
out trial. There is nothing in his military
file to reflect these facts except a DD 214
entry which was found to be erroneous.
(No. 368)
The applicant wrote the PCB and indicated that
he had a clean record with no prior courts-
martial; however, his military personnel file
indicates one prior court-martial and one
Article 15 for AWOL offenses.
(No. 3604)
Applicant listed as his name on the PCB appli-
cation the alias he used while in the military.
(The action attorney discovered the use of a
false name when he contacted ths State prison
where applicant is presently incarcerated.)
A3.
Aggravating Factor:
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.
FORD
GERALD
A3a
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.
(No. 3073)
On two occasions applicant escaped from con-
finement by attacking a guard with a razor
or knife.
(No. 3389)
Applicant effected his AWOL by breaking away
from an arresting officer.
A 4.
Aggravating Factor:
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. Going AWOL directly from Vietnam
gives automatic rise to this factor. However, departing AWOL from R&R
outside of Vietnam or home leave from Vietnam does not constitute this factor
though it does constitute aggravating factor #10. An applicant's reasons
for his qualifying offense do not affect the applicability of this factor.
A 4a
Desertion During Combat or Leaving Combat Zone:
4
(No. 8410)
Applicant was an infantryman in Vietnam when
he went AWOL. He was picked up in a rear
area by MP's and ordered back to the field
by two lieutenants. He refused to fly out
to join his company.
(No. 7163)
Applicant commenced the first of three AWOLs
while in Vietnam. He flew back to California
His subsequent AWOLs occurred after his appre-
hension in the U.S.
(No. 6307)
Applicant stated at his trial that he became
extremely frightened in combat. He went AWOL
after he was sent to a rear area for chills and
fever.
(No. 5554)
Applicant bought orders to return to the U.S.
from Vietnam.
(No. 2411)
Applicant received an undesirable discharge for
unfitness; two of four AWOL offenses occurred
while applicant was in Vietnam.
A5.
Aggravating Factor:
5
Evidence the Applicant Committed Offense for Obviously
Manipulative and Selfish Reasons- This factor applies in a
wide range of factual situations. It indicates that an
applicant committed his qualifying offense for reasons other
than conscientious opposition to the 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.
The Board will first determine whether evidence of selfish and
manipulative reasons is present (i.e., whether aggravating
#5 has its regular application). If no such evidence is
found, a "weak" aggravating #5 will be applied in circumstances
where a reasonable inference may be drawn that the offense
had been committed for selfish and manipulative reasons. Such
an inference may be drawn if there are no apparent reasons
in the record for the qualifying offense. However, this "weak"
application of aggravating #5 will not arise if any of the
mitigating factors #1, #2, #3, #8, #10, or #12 are present,
except in unusual circumstances where these mitigating factors
bear no relationship to the qualifying offense.
6/10/75
A 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 he 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
A 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. " 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.
(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
A5c
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-
A 6.
Aggravating Factor:
6
Prior Refusal to Fulfill Alternative Service: This factor
applies to applicants who failed to perform Draft-Board
ordered alternative service which was imposed after applicant
had been granted Conscientious Objector Status, or court-
ordered alternative service imposed as a condition of pro-
bation or parole. This factor applies automatically to members
of Jehovah's Wieness, Muslim, Quaker, or other religious sects
(who cannot abide by Selective Service orders to perform
alternative service) only when they refuse to complete al-
ternative service subsequent to a judicial order. Any member
of such a religious sect must have had a bona fide religious
reason for his offense. This factor does not apply in case
of any stated or implied unwillingness to perform alternative
service assigned by the Presidential Clemency Board.
A 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-0 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!s probation officer indicates that his performance
of alternative service was "rather poor".
-57-
A7.
Aggravating Factor:
7
Violation of Probation or Parole: If an applicant violated
the probation or parole to which he was sentenced by a
Civilian court, or failed to fulfill the conditions attached
to a suspended sentence of a military court-martial, this
factor may apply. The violation must have been serious enough
to have caused the revocation of that probation or parole,
or the vacation of the suspended court-martial sentence.
GERALD R. FORD
6/10/75
A 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 pled
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.
When applicant realized his sentence would return him to
action duty, he went AWOL again and the suspension was vacated.
-59-
A 8.
Aggravating Factor:
8
Multiple AWOL/UA Offenses: This factor indicates that an
applicant went AWOL more than once. Along with all punished
AWOL offenses, it also includes all AWOLs not resulting in
NJP or court-martial punishment occurring subsequent to the
date of the last AWOL which was punished by NJP or court-
martial. It does not include unpunished AWOL offenses
occurring prior to the last punished AWOL offense. If there
is a prior AWOL general or special court-martial conviction,
both #1 and #8 are to be marked in aggravation.
A 8a
Multiple AWOL/UA Offenses:
8
(No. 3444)
Applicant received a SCM for two periods of
AWOL (1 day each)and one charge of missing
movement. He then received a NJP for one AWOL
(1 day) another NJP for three AWOLs (1; 1; 10
days), and one NJP for two AWOLs (7; 1 days).
He then received a SPCM for two AWOLs (2 months
17 days; 3 months 19 days) Hę accepted an undesirable
discharge in lieu of court martial for one period
of desertion (2 yrs. 10 months 20 days), five periods
of qualifying AWOL (8 days; 3 months 28 days; 1 mo.
2 days; 2 months 13 days; 6 months 29 days) and one
period of non-qualifying AWOL (3 months 28 days).
This is a total of 1 period of desertion, 15
periods of qualifying AWOL and one non-qualifying
AWOL (total of 5 yrs.)
(No. 1022)
Applicant was charged with four periods of AWOL
for which he accepted a discharge in lieu of
court-martial.
(No. 8255)
Applicant was discharged for frequent involvement;
one AWOL of 19 days was punished by an SCM. The
only other AWOL of 22 days precipitated his dis-
charge.
(No. 6710)
This applicant was discharged in lieu of court-
martial. There are two qualifying AWOLs--one
of 1 month, 7 days, the other of 1 month, 18 days.
(No. 1664)
Applicant received an NJP for a 5 day AWOL. He
accepted a discharge in lieu of court-martial for
two AWOL's of one day, breaking restriction, and
disobedience.
(No. 3167)
Applicant accepted a discharge in lieu of court-
martial for one AWOL. However, he received an NJP,
and two SPCM's for previous AWOLs.
(No. 5558)
Applicant received a BCD for one 2 month AWOL.
He had one NJP for previous AWOL.
A9.
Aggravating Factor:
9
AWOL/UA of Extended Length: This factor indicates the com-
bined length of qualifying AWOL offenses. If the last AWOL
offense resulted in an NJP or a court-martial conviction,
only those AWOL offenses specified in the NJP or court-martial
charges are counted in assessing the length of AWOL. If the
last AWOL offense did not result in either an NJP or court-
martial conviction (even if it directly led to applicant's
discharge), then all unpunished AWOL offenses subsequent to
the last punished AWOL offense are to be included in the
assessment of the length of the AWOL. This factor does not
apply if the applicant had been AWOL for a total of two months
or less. It is "weak" if the AWOLs total two to six months,
and it applies in full force if the AWOLs total over six months.
A9a.
AWOL/UA of Extended Length:
9
(No. 5554)
Applicant had an AWOL of 4 years, 11 months,
and 9 days. He received a BCD.
(No. 1022)
Applicant had 4 AWOLs of 1 month 28 days; 17
days; 15 days, and 1 month, 18 days, respectively.
He took a U.D. in lieu of court martial. (weak)
(No. 4045)
Applicant was discharged for unfitness. He had
three AWOLs of a total of 5 months, 1 day. (weak)
(No. 8160)
Applicant received a UD in lieu of court-martial
for an AWOL of 1 year, 2 months, 11 days.
(No. 8167)
Applicant had an AWOL of 1 year, 3 months, 12
days for which he received a BCD.
A10.
Aggravating Factor:
10
Failure to Report for Overseas Assignment:
This factor
:
applies 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.
Alaska and Hawaii are not included in this factor. In addition,
this factor applies with full force only to a failure to
report to Vietnam or any overseas staging area for Vietnam
(e.g. Okinawa). For all other overseas assignments (e.g.
Germany or Korea), a "weak" aggravating 10 applies.
Failure to Report for Overseas Assignment
A 10a
(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, appli-
cant went AWOL.
(No. 507)
After entering the Army, applicant requested re-
moval from the Officer Candidate School list,
stating that he was opposed to killing and did
not believe in the Vietnam war. Shortly there-
after, he formally applied for a conscientious
objector separation from the service. He there-
after failed to report to a west coast personnel
center for movement to Vietnam.
(No. 8453)
Applicant went AWOL before he was scheduled to
report for assignment to Germany. (Weak)
(No. 7377)
Applicant was wounded in Vietnam and sent to a
hospital in Japan and then to a hospital in U.S.
There he learned about marital and financial
problems; he was also told that he would be sent
back to Vietnam after his release from the hospital.
He went AWOL from the hospital.
(No. 6665)
Applicant was stationed in Germany when he re-
ceived a Red Cross message about his grandfather.
Emergency leave was denied but regular leave was
approved. Applicant did not return from leave.
(weak)
Al0b
(No. 1364)
Applicant was stationed in Thailand when he went
home on emergency leave because of his father's
illness. After failing to obtain a hardship
discharge or a compassionate reassignment appli-
cant went AWOL rather than report back.
(No. 4366)
Applicant was assigned to Vietnam when he re-
turned to U.S. on emergency leave because of
his fathers impending death. After his father's
death he applied for hardship discharge; when it was
denied he went AWOL.
(No. 5600)
Applicant had just returned from Vietnam when he
received orders to report to Korea. He went
AWOL because his family could not accompany him.
(weak)
All.
Aggravating Factor:
11
Other Offenses Contributing to Discharge: This factor applies
only to punished offenses in UD-Unfitness cases. Summary
court-martial convictions and NJPs for non-qualifying offenses
are included in its scope. This factor does not apply in UD-
Chapter 10 (discharge in lieu of court-martial) or punitive
discharge cases (e.g. cases in which applicant was discharged
by reason of court martial conviction for the qualifying offense).
Alla.
Other Offense Contributing to Discharge:
11
(No. 8334)
Applicant received an undesirable discharge
for unfitness, with multiple reasons. In
addition to an NJP for leaving his duty post
and an SPCM for AWOL, he received an NJP for wrongful
possession of 4 liberty cards and an SPCM for false
claims against the government.
(No. 4995)
Applicant has an NJP for AWOL and two NJP's
for AWOL and failure to obey a lawful order. He
also received NJP's for disrespect and for assault.
He hadan SCM for larceny. He received an un-
desirable discharge for unfitness.
(No. 13926)
Applicant received an undesirable discharge for
unfitness. He had one NJP for AWOL, one SPCM
for 3 AWOLs, and one SCM for AWOL, and stealing.
He also had three NJP's for failure to obey an
order, one NJP for disrespect, one SCM for disrespect,
and an SPCM for disrespect and assault.
GERALD & FORD
A12.
Aggravating Factor:
12
Apprehension by Authorities: This factor applies whenever
the applicant is apprehended for the last of his qualifying
offenses. There must be some evidence of apprehension. If
the applicant did not willfully evade authorities prior to his
apprehension (e.g. if he lived openly in his home town under
his own name), a "weak" aggravating #12 applies. In the ab-
sence of sufficient information, neither aggravating #12 nor
mitigating #11 (surrender) applies.
A 12a
pprehension by Authorities
12
(No. 11067)
Applicant was arrested in Chicago for a
violation of the Federal Firearms Act while AWOL.
(No. 9434)
Applicant was arrested by civilian authorities while
he was visiting his parents to discuss his AWOL.
He said he was planning to turn himself in. (weak)
(No. 8334)
Applicant was apprehended in September 1964. He
stated he intended to voluntarily return to military
control in December 1964.
(No. 5027)
While AWOL applicant was injured in an automobile
accident. Civilian hospital authorities turned
him over to Navy hospital authorities.
(No. 7172)
Applicant's AWOL was terminated by apprehension by
the F.B.I.
(No. 3171)
Applicant had four AWOL's; for the first three, he
voluntarily surrendered; for the last, he was appre-
hended.
(No. 2891)
Applicant was arrested in June 1971 after a grand
jury had indicted him in February 1971 for failure
to report for his physical.
(No. 2848)
Applicant was arrested on June 19, 1968, and transported
to the induction center. He refused to be inducted
and left the center. He was rearrested December
21, 1968.
(No. 1542)
Applicant was aware that he was being sought by
authorities after his indictment in July 1973
but did not attempt to evade apprehension. He
was arrested in January 1974.
(No. 1039)
Applicant refused to report for induction. He was
located and arrested by F.B.I. agents.
M1.
Mitigating Factors: 1
Lack of Sufficient Education or Ability to Understand Obligations or Remedies
Available Under the Law. This factor arises from scores reported by IQ
tests and military tests that approximate IQ tests. As a general rule,
an IQ score of 80 or below is sufficient for this factor to apply. (Note:
the Navy GCT score is roughly half the equivalent IQ score. The Marine
Corps GCT and Army GT provide a rough IQ equivalent.) An AFQT score of
less than 30 (Categories IV and V) makes this factor apply unless other IQ
scores are in the average range or above. However, an AFQT in the 30's
(Category III), accompanied by a low GT or IQ score, also makes it apply.
This factor can apply even if there is a conflict between high and low scores.
Data other than test scores are sometimes used to establish this factor: for
example, a grade-school-level reading ability, or a psychiatrist's statement
that an applicant is retarded. The Board has also marked this factor despite
high educational achievement or satisfactory military proficiency scores,
where there is evidence of a deficiency in ability to understand his obligations.
This is particularly true where there appears to be language or cultural
difficulties in relating to other individuals.
Mla
Mitigating Factors
1. Lack of Sufficient Education or Ability to Understand Obligations or
Remedies Available Under the Law.
(No. 216)
(A strong No. 1) He completed the 10th grade and quit
school because he lost interest. His GT score measures
68 and his AFQT score is 12 (Category IV).
(No. 83)
(A strong No. 1) Applicant has a sixth grade education
and a Beta IQ of 49.
(No. 583)
The applicant completed the 10th grade in public school,
but at training school he was returned to the eight grade.
His IQ was tested on the Wechsler Intelligence Test for
Children at 62. During the present classification his Beta
IQ was reported at 84.
(No. 439)
This applicant is a high school graduate with three years
of college. His GT score is 95, however, his AFQT score is
7, Category V.
(No. 397)
He withdrew from school during the 11th grade. His AFQT
score is 18 (Category IV), considered low, and his GT score
is 93, considered average.
(No.
79)
Applicant dropped out of high school at either the ninth or
the eleventh grade (record unclear) to help mother with
finances. School record indicates recurrent history of class
failure and non-attendance. Revised Beta score was 76 and
GATB was not administered due to poor reading level. However,
it is noted that applicant has a tested "border-line intelligence."
M1b
(No. 70)
The applicant's mother is approximately 58 years old and
reportedly is somewhat primitive, illiterate and slightly
retarded. The applicant completed the third grade by 14
and had a Beta score of 69.
(No. 45)
The applicant lived in British Honduras until he immignated
to New York City with his mother in 1969. During the two
years following he worked in a dental laboratory training
program and attended a night high school. In 1970 the
applicant attended university on a New York City social
services grant. There is no information on academic
achievements or IQ tests.
(No. 2091)
Though the record is scant as to personal background on the
applicant, it is known that he completed 9 years of education
and spent 3 years in an institution as an emotionally disturbed
child. His GT is 108; his AFQT 78 (Group II).
(No. 1944)
Applicant quit school at age 16 after completing the eight
grade. Applicant's GT score is 85, and his AFQT score is 32
(Category III).
M 2.
Mitigating Factors : 2
Personal and Family Problems Either at the Time of Offense or if Applicant
Were to Perform Alternative Service. This factor reflects significant
emotional, psychological, financial, marital, or other personal difficulties
faced by the applicant or his immediate family prior to, at the time of,
or after his qualifying offense. His immediate family includes spouse ,
intended spouse (only if pregnant), children, parents, guardians, grand-
parents, and aunts and uncles. This factor applies only if these problems
contributed to the offense or its continuation, or if these problems would
substantially impair an applicant's ability to perform alternative service.
The Board will first determine whether evidence of personal and family
problems is present (i.e., whether Mitigating #2 has its regular application).
If no such evidence is found, a "weak" mitigating #2 will be applied in
circumstances where a reasonable inference may be drawn that the offense
had been committed for personal and family problems. Such an inference
may be drawn from general circumstances or statements even if there are no
specific reasons in the record for the qualifying offense.
M 2a
2. Personal and Immediate Family Problems Either at the Time of Offense
or if Applicant were to Perform Alternative Service.
(No. 710)
His father had a bad criminal record and was awaiting trial
for murder.
(No. 474)
Applicant states that while at his army base he received a
letter from his mother stating that his father's eyesight
was failing and the family was having financial problems
as a result of his father's inability to work. He applied
for a hardship discharge, but it was denied. He was transferred
back to his home base, where he learned by mail that his
father's eye condition had worsened. Subse (uently, he left
the military control and went home where he worked continuously
for a "construction company.
(No. 236)
(weak No. 2) His mother's health began to fail when the
applicant was 16 years of age, and consequently the family
was receiving welfare assistance. He reportedly went AWOL
in order to help his mother pay bills and to get off welfare.
(No. 506)
While he was waiting at an army base, his records were shipped
to Europe and he was not paid for 45 days. He reported his
family was having financial problems, and he requested Red
Cross help and emergency leave to deal with the difficulty.
His family was put out of its apartment, was forced to live
in its automobile, and had no food.
(No. 7856)
Applicant supported his mother, who lived alone. While he
was in the service, his wife deserted him, and he went AWOL
to find her. Later he found that she had become pregnant by
another man.
(No. 7611)
Applicant went AWOL for four short periods because his wife
was determined to be pregnant by civilian doctors and not
pregnant according to military authorities. It was finally
determined that she had large cysts on her ovaries.
(No. 2316)
Applicant's father died in 1962. Over the past years,
his mother's poor health impaired her ability to raise
her family and caused her to become an alcoholic.
M2b
(No. 3573)
Applicant and his siblings are the offspring of a broken
home. The parents went through considerable marital
difficulties prior to a divorce. Family history indicates
that the father committed himself to a psychiatric hospital
for 2 weeks and then continued to be an outpatient. The
parents were divorced in 1970 and in the same year the
mother remarried.
(No. 189)
This applicant, who is an American Indian, was raised by
his aunt and uncle in a small community in the South. During
his AWOL he worked for his tribe earning $2.00 an hour to
support his aunt and uncle, the latter being crippled.
(No. 385)
Applicant's natural parents died in an automobile accident and he
was adopted at the age of 5. His adoptive parents died when
the applicant was 14 years old. The applicant is unmarried
and has an older sister but he does not know where she lives.
He dropped out of school after completing the tenth grade
but was encouraged by his principal to join the Army.
Consequently, applicant enlisted at the age of 17.
(No. 121)
Applicant's first AWOL began because his father was seriously
ill and had his leg amputated. Applicant's brother was in
prison. Applicant felt he was needed at home. The most recent
AWOL was committed because applicant's father was critically
ill. Applicant's wife and family were having serious financial
and medical problems. His wife has suffered from a disease of
the blood cells, and according to applicant, "almost died two times. "
(No. 332)
Applicant was granted emergency leave in the ten months of
service in Vietnam upon verification by the Red Cross that his
mother had lapsed into psychiatric depression and had threatened
suicide. Her psychiatric crisis was precipitated by the physical
traumaand sequelae she sustained from an automobile accident
in May 1969. The accident left her with an abnormal thyroid
condition, causing enlargement of the gland and cardiac impairment
rendering her unable to work.
(No. 3538)
Applicant fathered a son born to a Vietnamese woman. He later
sought permission to marry her, which was denied. Two days
later he received orders to leave Vietnam when he thought he
had 4 months left on his tour. After returning to the U.S.,
he applied to return to Vietnam but was not sent there. He
attempted to have his Vietnamese girlfriend and his son brought
to the U.S., but was told this was impossible because he was
not married to the woman. He stated that he went AWOL in despair.
M3.
Mitigating Factor: 3.
Mental or Physical Condition. This factor reflects mental problems or
physical diseases and disabilities. The condition must be serious enough
to have caused some personal hardship or incapacity. Also, it must have
contributed to an applicant's offense or may affect his ability to perform
alternative service. Alcholism and drug addiction are covered by this factor.
The physical and mental problems may be related to the quality of medical
treatment received by the applicant during his military service, but that
relationship is not necessary to the finding of this factor. If the physical
condition existed before or at the time of enlistment or induction and
continued throughout the applicant's military career, both Mitigating Factors
#3 and #8 apply. Intelligence defects are not included in this factor.
M3a
Mental or Physical Condition
(No. 194)
While applicant had been on leave, he was hospitalized
for treatment of Infectious Hepatitis. Applicant states
that after the diagnosis of infectious hepatitis had
been made by a civilian doctor, the doctor had told him
that "his resistance was low and that he would live to be
30 years old. " Applicant's shock and fear at this statement,
coupled with the realization that, if true, he had only a
relatively short time to live, precipitated his absence.
Defense exhibits admitted at trial confirm applicant's
contraction of viral hepatitis and the fact that he was
treated at a veterans' hospital after his visit to the
civilian doctor.
(No. 309)
During boot camp applicant, a Mexican-American, had been
subjected to verbal and physical abuse and therefore absented
himself. Applicant wept hysterically at the trial when he
recalled his experience. Finding training intolerable,
applicant sought advice from his mother, who advised him to
absent himself. At his trial, applicant introduced an
affidavit by a Navy psychologist which states that the
applicant is passive, dependent, schizoid. A civilian
psychiatrist found the applicant to have "passive, dependent
personalities severe. " Applicant also introduced testimony
of three sucidal attempts.
(No. 510)
Applicant explains that he was sent to Korea shortly after
enlisting and while there he contracted pheumonia and had a
cold his entire duty. Applicant was medically evacuated
from Korea to the United States for lung surgery, when a
part of one of his lungs was removed.
(No. 342)
(weak No. 3) Evidence in the record of trial indicated the
applicant was upset and nervous and unhappy with his orders
to Vietnam. A letter from a psychiatrist was introduced on
behalf of the applicant, and it stated that he was suffering
from extreme anxiety brought on by his infantry training
and his orders to Vietnam. The letter explains that the
applicant had an extreme fear of physical mutilation brought
on by his having been in two car accidents and the fact that
some of his friends were killed in Vietnam.
FORD
M3b
(No. 446)
Applicant sustained a serious back injury in an auto
accident in the midwest. He was treated at both a civilian
and a VA hospital. He returned to his base where he attempted
to obtain further medical treatment for his back. Applicant
became frustrated at the lack of treatment for his injured
back and went AWOL. He received medical treatment at home.
(No. 184)
Applicant had a history of severe migraine headaches at times
of tension and stress. He requested medical evaluation for
his headaches during basic training and advanced infantry
training. He did not receive medical attention. He then
went AWOL.
(No. 208)
While AWOL, applicant was involved in an automobile accident,
severely injuring his arm. It was then discovered that he
was suffering from a thyroid condition which caused him to
lose 70 pounds. A psychiatrist concluded that he had the
typical thyroid symptoms of depression, irritability, im-
pulsivity, feelings of persecution and low tolerance for stress;
these problems were probably precipitated by his induction,
illness and confinements, marriage and accident; this was
most noticeably shown by his weight loss; and that, although
he could distinguish right from wrong, his illness seriously
impaired his ability to adhere to the right or to form a
specific intent.
(No. 227)
Applicant suffers from a physical disability, an apparent
birth defect, defined as pseudarthosis of the lumbar spine
with fusion at joints L5 S1. The defect causes applicant to
have severe lower back pains, preventing him from engaging
in any vigorous activity. Applicant mentioned his back problem
when he was being examined at the Induction Station. This
disclosure was ignored. Such a condition is normally an
acceptable basis for rejection at induction. However, applicant
was inducted into the Army.
(No. 121)
Applicant suffers from a kidney problem which causes blood to
be presented in his urine. He is deeply in debt because of
his family's medical problems.
(No. 7590)
After being discharged, the applicant worked several places,
the latest being for a large industrial company. He was
hospitalized for Nervous Disorder and remains under out-patient,
psychiatric care. His emotional difficulties caused him to
terminate the above described employment.
M3c
(No. 188)
During his combat tour in Vietnam, applicant's platoon
leader, with whom he shared a brotherly relationship,
was killed while the latter was awakening applicant to
start his guard duty. The platoon had set up an ambush
point because they had come upon an enemy complex and the
platoon leader was mistaken for a Viet Cong and shot by
one of his own men. This event was extremely traumatic
to applicant ,and he experienced nightmares. In an
attempt to cope with this experience, applicant turned
to the use of heroin to which he became addicted. During
his absence, he overcame his drug addiction only to become
an alcoholic. After obtaining help and curing his alcoholism,
he turned himself in.
(No. 74)
Applicant states that he started drinking when he was
eleven years old, feels that he has had a serious drinking
problem, has attempted to secure assistance, but was not
able to follow through. Most of his juvenile and adult
offenses appear to be related to excessive drinking.
(No. 3284)
Applicant stated, at the time of his discharge request,
that he had always had a problem with his heel which bothered
him so much during Basic Training that he knew he could not
make it. He stated in his medical records that it had been
operated on when he was 8 years old.
(No. 3478)
Applicant suffered brain damage as a result of a car accident
when he was 6 years old, and experiences severe pain in his
chest and back, occasionally loses consciousness, his sense
of balance, and sight in both eyes.
(No. 3473)
Prior to his enlistment, the applicant attempted suicide by
shooting himself in his left chest with a rifle. According
to Army medical reports, the applicant is emotionally unstable,
and one doctor stated that the applicant was not mentally
competent during his period of service. After his discharge,
the applicant went home to his father who was so concerned
about applicant's mental state that he had applicant committed
to a state mental institution.
M4
Mitigating Factors: 4.
Employment and Other Activities of Service to the Public. This factor
includes employment prior to, during, or subsequent to the qualifying
offense. The employment can be, but need not be, comparable to
alternative service under the clemency program; for example, it may
include hospital work, police work, assistance to the underprivileged,
or church missionary work. This factor also includes work performed
as a condition of probation. The period of service must be at least
several months, but a summer job would be enough to qualify. If wages
are paid for the service, this factor is less likely to apply in non-probation
cases. The period in which this work is performed under conscientious
objector or judicial order not only affects the calculation for baseline
alternative service, but also makes this factor apply.
M4a
Employment and Other Activities of Service to the Public
(No. 2304)
Applicant performed 6 months of alternative service at a
state hospital for the mentally retarded.
(No. 3258)
As a condition of probation applicant did volunteer work
for a local church under the supervision of the pastor.
He also volunteered his time to help impoverished potato
farmers harvest their crops.
(No. 3384)
As a condition of probation, applicant worked full-time for
Goodwill Industries, a non-profit organization which provides
jobs for disabled citizens. Applicant managed a store for
the organization and received only a token salary.
(No. 583)
Applicant has spent the bulk of his time, while in and since
leaving school, teaching handicapped and impoverished
children.
(No. 142)
As a civilian, applicant did a great deal of undercover work
for the local police and sheriff's department in his home
town.
(No. 171)
While applicant was AWOL, he worked as the music director
for a number of free concerts and shows which were designed
to attract underprivileged, inter-city youths and to serve
as a preventive measure against juvenile crime and drug
abuse. In addition, he contributed his talents to projects
of his home town's youth musicians Association.
M5.
Mitigating Factors: 5.
Service-Connected Disability. This factor indicates some long-term or
permanent physical or mental injury resulting from military duty. Combat
wounds are included only if they result in permanent disabilities (in
which case both this factor and Mitigating #16 apply). Also drug-related
problems arising during military service are not included in this factor
(but are included in Mitigating #3). It is not necessary that the
injury satisfy the disability requirements of the Veterans' Administration.
M5a
Service Connected Disability
(No. 5963)
Applicant suffered a serious back injury while in the
Army. After a back operation, he was returned to only
limited duty.
(No. 9402)
The applicant, while undergoing weapons training, was
injured while operating a 155 mm Howitzer during a fire
mission. He was admitted to an Army hospital for emergency
surgery which resulted in the partial amputation of his
right middle finger.
(No. 13418) During one of applicants combat missions, a hostile mine
explosion caused him to suffer leg and ear injuries. As
a result of his hearing loss he was restricted from
assignments involving loud noises.
(No. 4048)
Applicant was wounded in the leg and has a permanent
disability in that one leg is 3 inches shorter than
the other.
(No. 6869)
Applicant contracted meningitis during his basic training.
His legs, particularily his left 1eg, continued to give
him trouble thereafter as a result.
(No. 7094)
Applicant lost his index finger of his right hand while
changing a tire on the last day of leave before entering
aviation mechanic's school. He was not allowed to
attend the school.
(No. 11229) Applicant fell into a foxhole and injured his right knee.
Surgery was performed and a Medical Board gave him a
rating of a permanent minor impairment.
(No. 5233)
Applicant was medically evacuated from Vietnam because
of malaria and an acute drug induced brain syndrome.
Since his discharge, he has been either institutionalized
or under constant psychiatric supervision.
GERALD FORD
M6.
Mitigating Factor: 6.
Extended Period of Creditable Military Service. This factor reflects
the length of an applicant's military service, excluding time spent
AWOL or in military confinement. It bears no relationship to the
quality of an applicant's military service (See Mitigating Factor #14).
If the service period is less than 6 months, this factor does not
apply; if between 6 months and one year, it is "weak"; and if over
1 vear. it applies in full force.
M6a
Extended Period of Creditable Military Service
(No. 6035)
Applicant had 7 years, 11 months, and 12 days creditable
service.
(No. 13838)
Applicant had 2 years, 11 months, and 22 days creditable
service, including tours in Germany and Vietnam.
(No. 9954)
Applicant had 2 years, 11 months, 16 days creditable service
during which he had 3 NJPs, 1 Summary Court Martial, and
1 Special Court Martial.
(No. 7104)
Applicant had 1 year 10 days creditable service, although
he was only in the service for 6 months and 14 days before
beginning the first of 6 AWOLs for which he was court
martialed. The time between AWOLs counted as good time.
(No. 9356)
Applicant had 11 months and 10 days creditable service,
including 2 months between AWOLs. (weak)
(No. 7842)
Applicant had 7 months and 16 days creditable service,
5 months of which occured before the first AWOL. (Weak)
M7.
Mitigating Factors: 7.
Tours of Service in the War Zone - This factor is applicable in cases where
the applicant has served a minimum of three months in Vietnam or on a Navy
Ship that had a sea patrol off the coast of Vietnam. It can be applied
where the applicant had not completed a tour, but while on authorized
leave from Vietnam assumed an unauthorized absence status. Shorter periods
of Vietnam service are not covered, unless the applicant was injured in
Vietnam or transferred out of the war zone by the military service for
reasons other than serious military or non-military offenses (including AWOL
offenses).
M7a
Tours of Service in the War Zone
(No. 5144)
During his initial enlistment, applicant served as a military
policeman and spent 13 months in that capacity in Korea.
He then served two tours of duty in Vietnam, as an assistant
squad leader during the first tour and as a squad leader and
chief of an armored car section during the second.
(No. 4470)
Applicant served in Vietnam from 7 Oct. 67 to 11 Nov. 68.
(No. 6941)
Applicant served in Vietnam with the 101st airborne as a
light weapons infantryman . His tour lasted 4 months,
22 days. From 17 december 1967 until 8 May 1968, he
returned to the United States on emergency leave. Applicant
stated that he went AWOL because he could not face going
back to Vietnam, due to the incompetence of his officers and
the killing of civilians.
(No. 9491)
The applicant served in Vietnam three months, from 4 September
1967 through 4 December 1967, in a combat status. While in
Vietnam, he was given emergency leave back to the United States
because of the death of his mother. Applicant overstayed his
leave and became AWOL on 5 January 1968. He was apprehended
shortly thereafter.
(No. 1817)
Applicant saw service in Vietnam for a period of 2 months,
13 days. He served as a combat medic. While in Vietnam,
he broke his ankle. He was operated on and was evacuated
for rehabilitation.
(No. 9894)
Applicant served in Vietnam from 23 August 68 to 3 May 1969
as a mortar specialist and participated in two combat
campaigns. On 25 Mar 69 he received fragment wounds necessitating
evacuation to Japan and then the U.S.
(No. 8528)
Applicant was wounded after 3 months in Vietnam requiring two
operations and prolonged convalesence.
(No. 14514)
Applicant served aboard the USS Buchanan from Jan. 68 to July 68
off the coast of Vietnam.
M8.
Mitigating Factors: #8
Substantial Evidence of Personal or Procedural Unfairness. This factor does
not apply to any denial of conscientious objector status (which is covered
by Mitigating #9). It does apply to other examples of unfairness on the
part of either the Selective Service or the military. The factor includes,
but is not limited to, the following situations:
(a) Denial of a Selective Service deferment, exemption, (other than a
C.O. exemption), or postponement of induction, on grounds that are
technical, procedural, improper, or which have subsequently been held
unlawful by the judiciary.
(b) Irregularities resulting in the induction or enlistment of an
applicant who should never have been in the military in the first place.
(c) Attempt by the applicant to resort to legitimate remedies (such
as hardship and administrative discharges, compassionate reassignments,
and emergency and regular leave) to solve his difficulties, followed by
a denial of those remedies on technical, procedural, or improper grounds,
or grounds which have subsequently been held unlawful by the judiciary.
(d) Improper denial of pay or other benefits,
(e) Failure to receive proper leadership, advice, or assistance.
(f) Unfair military policies, procedures, or actions sufficient to produce
a reasonable loss of faith in or unwillingness to serve in the military.
(g) Racial discrimination.
(h) Instructions by a superior to go home and await orders which never
arrive.
(i) Inducing or misleading the applicant into requesting a discharge
in lieu of court martial, such as by promising him a general discharge.
In any of the above situations, if the legitimate demands of the military outweigh
an applicant's personal needs, this factor may not apply.
M8a
Substantial Evidence of Personal or Procedural Unfairness
(No. 9421)
Applicant was denied both C.O. status and a hardship deferment
solely on the grounds that he had applied after receiving
induction orders. Applicant had a sincere and deep-rooted
philosophy of non-violence which might have qualified him for
C.O. status, and his father had both brain damage and a drinking
problem which might have qualified him for a hardship discharge.
(Mitigating Factor #9 also applies)
(No. 2462)
Applicant was classified 1-Y and then reclassified 4-F. Applicant
states that he enlisted with the cooperation of his probation
officer and the Army recruiter.
(No. 222)
The applicant was inducted under Project 100,000. He had stated
that he had previously been rejected by the Marines and had
failed the Army's mental test, but claimed that his papers had
been changed so that he would qualify.
(No. 4498)
A chaplain trained in psychology indicated that applicant had
a severe character disorder or neurosis when he entered the service
Had it been detected, applicant would not have been allowed
to enter the service.
(No. 227)
Applicant suffers from a physical disability of the Lumbar spine, an appa-
rent birth defect. The defect causes the applicant to have severe
lower back pains, preventing him from engaging in any vigorous
activity. Applicant mentioned his back problem when he was
being examined at the induction station. Hie disclosure was
ignored, although such a condition is an accepted basis for
rejection for induction.
(No. 13967)
Applicant was rejected in 1967 because he could not pass the
mental test. At the time he enlisted he had a 3-A (hardship
deferment) and could not have been drafted.
(No. 191)
Applicant commenced his absence from a leave status because of
his father's failing health and his mother's poor economic
prospects. He had applied twice for hardship discharges prior
to his offense. While AWOL his father died of a stroke on
28 Aug. 1972, leaving his mother with a pension of $22 a month.
She was a polio victim and was unable to work.
(No. 165)
Applicant stated that he received a letter from his grandmother
in which she indicated her need for further financial support
and the fact that her home was in a state of disrepair,
bordering upon inhabitability. Since his take home pay was
insufficient to sustain both himself and his grandmother, he
went to his commanding officer for help. Applicant was told
that he had no problem and that all he wanted was to get
out of the service. As a result, applicant assumed a status
of unauthorized absence. During his absence he purchased
and fully paid for a home trailer for his grandmother.
M8b
(No. 454)
Applicant applied for a hardship discharge in January 1967 because
his wife was a deaf mute and had given birth to their second
child while he was in basic training. His application was
denied.
(No. 215)
Applicant relates that he went AWOL because he was having family
problems. His Army pay record was in disorder, which resulted
in his not being able to support his family. He testified that
he attempted to obtain an administrative discharge from the
Army before going AWOL, but his request was denied.
(No. 13653)
While in Vietnam applicant submitted a request for compassionate
reassignment to Puerto Rico which was denied because the
statement was not substantiated by medical evidence. When the
medical evidence was later submitted, the request was denied
because the problems were chronic in nature. However, a 30-day
leave was granted. When home on leave, applicant discovered that
his wife was mentally ill and unable to care for their child.
His parents were also having serious emotional problems. Applicant
tried again to arrange a transfer but was told he would have
to return to Vietnam and iron out the problem there. Applicant
remained in Puerto Rico in an AWOL status.
(No. 10316- )
Applicant's family was being evicted from their apartment for
failure to pay rent caused by the Army's failure to pay the
applicant. Applicant requested emergency leave but was denied
He then went AWOL. Applicants second AWOL also occured after
his request for leave to settle family problems was denied.
(No. 3168)
Applicant was advised to apply for a hardship discharge and
was provided assistance in filling out the necessary forms by
the Red Cross. When applicant attempted to file the hardship
discharge papers, the papers were thrown in the trash by the
First Sergeant, who also reprimanded the applicant for being
a coward. As a result of such treatment, applicant became
disillusioned with the Army and went AWOL.
(No. 10738)
Applicant received a summary court martial for refusing to take
part in a parachute jump. Although medical records show
applicant had a broken rib, his commanding officer would not
excuse him because his medical profile was not available at the
time. Applicant had planned to contest his discharge but
relented when his commander promised him a general discharge.
Applicant received an undesirable discharge.
(No. 172)
Applicant attributed his absence to financial and family problems.
He was told that he was not receiving any pay because he had been
overpaid by $1500 which was allegedly sent to his wife by allotment.
Applicant testified that neither he nor his wife received this
money and that one of his children was also in the hospital at
that time with bronchial asthma.
M8c
(No. 4188)
Applicant's immediate Commanding Officer recognized
applicants severe financial problems and recommended a general
discharge. Applicant received a UD.
(No. 4603)
A summary statement in applicant's file indicates he signed
a letter requesting discharge in lieu of court martial and was
advised of the implications. Applicant states he did no such
thing but that his commanding officer had told him to sign some
papers. His records contain no copy of either a letter
requesting discharge or statement acknowledging that he had
been advised of his rights and the implications of the discharge.
Applicant submits that he would have demanded a trial instead.
He appealed his discharge within two days of receiving it.
(No. 10887)
Applicant was punished for failing to obey a superior NCO.
Applicant states that this NCO had made derogatory remarks about
applicant's brother who had died in Vietnam. Applicant felt
his punishment was unfair, so he went AWOL.
(No. 397)
Upon entering the Army, applicant complained of stomach pains,
and it was subsequently discovered that he had a duodenal
ulcer Shortly thereafter, his condition worsened and he was
hospitalized for ten days. Applicant wanted to remain on the
same diet that he was on in the hospital but this was not
available at his post mess hall. He was advised by a doctor to
eat in the post cafeteria which he did not think was right.
Applicant then went AWOL. Applicant recently suffered another
bleeding ulcer attack, which required hospitalization.
(No. 305)
Applicant served as a rifleman in Vietnam, and he was in combat
for almost an entire year. He left Vietnam on his own a few
days before his tour of duty was up, because he was not taken
out of combat within the customary seven days prior to outprocessing.
He felt that his Company Commander was making an exception with him
and that it was not justified.
(N6. 4977)
Applicant reenlisted at the end of his Vietnam Tour for Japan.
He took a routine urinalysis test for narcotics which showed
positive; a subsequent hospital test was negative. Nonetheless,
applicant was sent to the United States and assigned to a supply
squadron there, despite outstanding orders for Japan. He subsequently
M8d
began an acrimonious relationship with his First Seargeant
who, among other things, refused to support applicant's
orders to subordinates, denied him leave to get married, and
refused to let him discuss his personal problems with authorities.
There was a racial overtone to the problem as applicant was
the only black NCO on the Post. Applicant was promised a
general discharge but received an undesirable discharge in
lieu of court martial.
(No. 229)
Applicant was enthusiastic about his induction into the Army,
believing that he would have financial security and would
receive a technical training. His lack of physical agility
and difficulties in reading and writing impeded his progress
in basic training Consequenily, he is recycled for his
failure to achieve passing training test scores. It took him
9 months to finish basic training (normally a six-week stint).
After basic, applicant was sent to another base for advanced
individual training as a tank driver. He continued to have
learning problems in advanced training. Applicant attributes
his absences to frustration and discouragement caused-by his
inability to learn and to earn the respect of his associates.
(No. 506)
Applicant was ordered to report to a new base for assignment
to Europe. While he was waiting at Ft. Dix his records were
shipped to Europe and he was not paid for 45 days. He reported
his family was having financial problems and he requested Red
Cross help and emergency leave to deal with the difficulty.
His family was put out of their apartment, was forced to live
ín their automobile, and had no food. He traveled to the
Pentagon and was reportedly told to go home to await the results
of a telegram to Europe regarding his pay records
He called back twice, but reportedly no one knew of his situation
nor had heard of him. He reported he was committed to his course
of action, so he continued to stay at home, which resulted in his
being AWOL. He found a job but was still forced to declare bank-
ruptcy.
(No. 433)
The applicant contracted a rash and fever. He went to Fort
MacArthur for medical treatment and was ordered to stay at home
until he had recovered. He was told to expect orders following
his recovery. No new orders were received, so he contacted his
Congressman to find out what had happened. He received a reply
that the Army had no information about his movement. He contacted
an Army Inspector General following that, but never heard about
his orders. There is some evidence he thought he would have been
eligible for a medical discharge related to curvature of the spine.
M9.
Mitigating Factor: #9
Denial of Conscientious Objector Status. This factor is applied when a draft
board or military review board denied a Conscientious Objector classification
on grounds that were technical, procedural, improper, or under circumstances
previously or subsequently held unlawful by the judiciary. The Board looks
for some evidence that the C.O. claim was sincere and not frivolous.
Several Selective Service situations are particularly important. First,
prior to June 1970 it was not a valid C.O. claim if the person alleged personal,
moral, or ethical values against war or killings not founded on religious tenets.
The Welsh case reversed this rule. Applicants denied C.O. status prior to
Welsh qualify for this factor, even if no procedural unfairness occurred , on
the grounds that the denial of the C.O. claim was "technical".
A "late-blooming" realization of C.O. will be presumed legitimate. As the
U.S. Supreme Court stated in Ehlert. "The very assertion of crystallization just
before induction might cast doubt upon the genuineness of some claims, but there
is no reason to support that such claims could not be every bit as bona fide
and substantial as the claims of those whose conscientious objection ripens
before notice or after induction." The Board looks closely at the evidence
whenever a C.O. claim is made, and if it finds sincerity, this factor applies.
If this factor is found in conjunction with Mitigating Factor #10, a strong
presumption exists that applicant will receive a pardon without any alternative
service.
M9a
Denial of Conscientious Objector Status
(No. 14)
Applicant applied for C.O. status after his student deferment
had expired. Applicant opposed the Vietnam War on an
ideological basis, and he sincerely believed he was a
conscientious objector. He did hospital work to support
his beliefs, but he failed to comply with time requirements
for status changes under the Selective Service Act. Applicant's
request for C.O. status was denied, consequently, he refused
induction.
(No. 53)
Prior to the expiration of his student classification, applicant
applied for conscientious objector status. The Board denied this
request as it did not feel his beliefs were deeply and sincerely
held. The Board also noted that he did not claim C.O. status
until he no longer qualified for any form of deferment. The
applicant appealed the decision of the local board and the
local board's decision was upheld. He was ordered to report
for induction, but he refused to submit.
(No. 4217)
Applicant was a Jehovah's Witness. Within one month of his
registration for the draft, he applied for C.O. status. This
petition was denied, presumably because applicant was too much
of a novice in Jehovah's Witnesses, not having been baptized nor
functioning as a minister of this religion.
(No. 1778)
Applicant refused classification as 2-S in view of his moral
convictions but had never filed a claim as a conscientious
objector until after his refusal of induction. Upon advice
of counsel, applicant then requested C.O. status. The Board
refused to reopen classification to consider the claim cn the
grounds that there was no indication of a change of
circumstances beyond the control of the registrant.
(No. 10402)
For a year and a half after he was drafted, the applicant tried
to obtain C.O. status, because he did not believe in killing
human beings. He talked to his Captain and the Red Cross. Neither
found his aversion to taking human lifeto be persuasive.
The
applicant is minimally articulate but states that even if someone
was trying to kill him, he could not kill in return. When
he had exhausted the applications for C.O. status and was
scheduled for Vietnam, he went AWOL.
(No. 7506)
Applicant was inducted in 1967. Applicant applied for C.O. status
in 1969 and was given orders for Vietnam before his application was
reviewed. He complained to his commanding officer who ordered
him to Vietnam nevertheless. Applicant then went AWOL to seek
outside help. He was advised by civilian counselors
that he remain AWOL for at least 30 days so that
he would be able to bring to the attention of a court martial
the illegality of ignoring the C.O. application. The court
martial refused to enter copies of the C.O. application on the
grounds that the applicant's copies could not be introduced
into evidence because they were not certified (Mitigating Factor
#8 also annlied)
M9b
(No. 8549)
After the applicant was inducted, he filed a request for
a 1-AO classification for non-combatant duty. He described
his belief in support of his C.O. claim by claiming "man
does not have the right to kill man," and that "under no
circumstances" did he believe in the use of force.
(No. 769)
Applicant felt he could not morally participate in war.
He did not apply for C.O. status before because he was told he
probably would not qualify. Three days after induction
he reenlisted for 3 years to go to Preventive Medical
Specialist School as an alternative to combatant duty
because he felt he owed an obligation to his country.
Applicant also had psychological and emotional problems, and
the conflict between his moral principles and duty intensified
them.
(No. 10402)
For a year and a half after he was drafted, applicant tried
to obtain C.O. status, because he did not believe in killing
human beings. Applicant states that even if someone was
trying to kill him, he could not kill in return. He went
AWOL when scheduled for Vietnam.
(No. 3158)
Applicant became a member of the Jehovah's Witnesses while
in the service. He applied for discharge as a conscientious
objector, but his request was denied.
(No. 3285)
Applicant decided he could not conscientiously remain in the
Army, and went to Canada where he worked in a civilian hospital.
According to a statement prior to his discharge, applicant
states "In being part of the Army I am filled with guilt. That
guilt comes from the death we bring. The tremendous ecological
damage we do, the destruction of nations, the uprooting of whole
families plus the millions of dollars wasted each year on
scrapped projects and abuse of supplies. I am as guilty as
the man who shoots the civilian in his village My being part
of the Army makes me just as guilty of war crimes as the offender. "
M10.
Mitigating Factors: 10.
Evidence that an Applicant Acted for Conscientious, Not Manipulative or
Selfish Reasons - This factor applies when it can be shown from the
statements and actions of the applicant that he did not report for induction
or alternate service, or that he went AWOL out of sincere, ethical
or religious belief. For example, beliefs of Jehovah's Witnesses or
Black Muslims which compel an individual not to perform military service,
qualify an applicant for this mitigating factor, as does any evidence of
deeply held opposition to the Vietnam War. An applicant need not have
formally requested conscientious objector status for this factor to apply.
M10a
Evidence that an Applicant Acted for Conscientious, Not Manipulative or
Selfish Reasons -
(No.
30)
Applicant grounded his resistance to induction on his
religious beliefs as a registered Muslim. He stated that
conscientious objector status was unacceptable to him
and that he would accept imprisonment. He did indicate a
willingness to perform alternative service of national
importance after conferring with his religious advisor.
(No. 72)
Applicant pled not guilty and made no conscientious
objection to service on original registration. He
initially had an II-S. He then requested C.O. status
which was denied. Defendant states that he is a
pacifist and objects to killing and to war.
(No. 9157)
Because of the applicant's belief that 'peace among human
beings is of the ultimate necessity,' he became involved
in anti-war demonstrations.
(No. 91)
As a Jehovah's Witness applicant applied for and received
C.O. status from his local draft board, which subsequently
ordered him to perform civilian alternative service. He
failed to report for such duty. Applicant contended that
he was a minister of the Jehovah's Witness faith, and
that to accept alternative service under orders from Selective
Service would be to compromise his religious belief.
(No. 2742)
While in college, applicant came under the influence of and
actually worked with a group of Quakers. It was then that
he developed conscientious objection to war.
(No. 11066)
Applicant has been described as a person who is both sincere
in his beliefs and of uncompromising moral principle;
he repeatedly stated his willingness to go to jail for
what he believed to be right. Applicant's wife reports that
he applied for C.O. status but was refused on grounds that
he applied after his induction date.
(No. 9838)
Applicant returned to the U.S. from Vietnam with orders to
report to Fort Knox to train armor crewmen going to Vietnam.
He did not want this assignment because he had "come not
to believe in what was going on over there. 11 He said, "I
was not exactly a conscientious objector because I had done
my part in the war, but I had decided that I could not train
others to go there to fight."
M11.
Mitigating Factors: 11.
Voluntary Submission to Authorities. This factor indicates that the
applicant voluntarily turned himself in, even if only by telephone,
when he returned from his last qualifying offense. Whether prior
qualifying offenses ended in surrender is irrelevant. For civilians,
the factor indicates that an applicant voluntarily surrendered to
authorities before his trial, even if he had been a fugitive before his
surrender. It applies even if he submits pursuant to a warrant or a
subpoena. In the absence of any evidence as to voluntary submission
or apprehension, neither aggravating factor #12 (Apprehension) or mitigating
factor #11 applies.
Mlla.
Voluntary Submission to Authorities
(No. 4378)
Applicant appeared in Court for appointment of Counsel.
(No. 4380)
Applicant voluntarily surrendered himself for trial in
response to letters from the court and from retained counsel.
(No. 4563)
Applicant failed to keep the Draft Board informed of his
address from 28 Oct. 1969 to 8 Mar. 1971. He informed the
draft Board of his address on 31 May 72 and was arrested
21 June 1972 without offering resistance.
(No. 1407)
Upon notification by his parents that a warrant for his
arrest was about to be issued, he submitted himself to the
U.S. marshal in the locale where he was employed.
(No. 1651)
While in New Zealand he decided to return to the U.S. to face
the charge of failure to report for induction.
(No. 14040)
When AWOL, applicant always went home to his parents who either
turned him in or sent him back.
(No. 9783)
Applicant was a French Canadian who was drafted. He went
to Canada twice. During his second AWOL he wrote to request
a discharge and was told he would have to return to the Army.
He did so, was charged, and requested a discharge in lieu of
court martial.
(No. 9507)
Applicant went AWOL seven times, at least one of which was
terminated by apprehension. The last AWOL, however, was
terminated by surrender.
(No. 11373)
Applicant went AWOL and was apprehended by civilian authorities.
At his court martial he pleaded guilty but went AWOL again
before sentence could be imposed. He surrendered after that
AWOL. At the second court martial he was given a BCD.
(No. 11095)
Applicant realized he should resolve his difficulties with
the military so he voluntarily turned himself in.
(No. 7621)
Applicant surrendered to the FBI.
(No. 3483)
The applicant telephoned the FBI and indicated that he was
then living in the Detroit area. He was then arrested.
M12.
Mitigating Factors: 12.
Behavior which Reflects Mental Stress Caused by Combat. This factor is
present when an applicant's offense resulted from any emotional or psychological
after-effects of being in Vietnam. Some evidence is necessary to document
this, such as a traumatic incident or a drastic change in a behavior
pattern after leaving the war zone. Combat-induced drug use would qualify
an applicant for this factor, if it led directly to his AWOL.
M12a
Behavior Which Reflects Mental Stress Caused by Combat
(No. 188)
During applicant's tour in Vietnam, his platoon leader,
with whom he had a brotherly relationship, was killed while
awakening the applicant to start guard duty. This event
was extremely traumatic, and applicant began to have
nightmares. In an attempt to cope with this experience,
applicant turned to the use ofheroin and became addicted.
Because he was afraid of detection, applicant went AWOL
after returning to the U.S.
(No. 5233)
Applicant participated in 17 combat operations in Vietnam.
He was medically evacuated from Vietnam because of malaria
and an "acute drug induced brain syndrome". That his
behavior reflects mental stress caused by combat can be
inferred from the fact that applicant commenced his AWOL
offenses shortly after being released from hospitalization
and the fact that subsequent to his discharge he has
either been institutionalized or under constant psychiatric
supervision.
(No. 4250)
When applicant arrived in Vietnam he was a young E-5, without
combat experience. He was made a reconnaissance platoon
leader, a job normally held by a commissioned officer.
Applicant started going out on operations immediately
to accomplish this mission he began to take methadrine to
stay awake. He noticed the methadrine making a marked change
in his personality; he began jumping on people, his nerves
were on edge. He started to take opium tinctura to counteract
this effect, "to mellow him out", and became addicted. After
Vietnam he was transferred to Germany where he kept his
addiction secret although the problem was beginning to grow
out of control. Applicant was sent back to the U.S. with a
45 day leave authorized. Applicant planned to enter a private
German drug abuse clinic within 3 to 4 weeks but the clinic
could not accept him immediately. He made the decision to
wait in an AWOL status rather than go back as an addict. He was
continuously put off until he was just drifting around and
finally apprehended by German police.
(No. 4364)
Applicant's basic training and AIT records reveal no
difficulties adjusting to Army life. Applicant's term
in Vietnam was also free of incident, but after returning
to the U.S. he was unable to adapt to spit and polish
regimentation. Applicant began to believe that his
service in Vietnam had been for naught.
M13.
Mitigating Factors: 13.
Volunteering for Combat or Extension of Service while in Combat. This factor
applies if an applicant either volunteers for a first or subsequent Vietnam
tour, volunteers for a combat assignment while in Vietnam, or volunteers
for re-enlistment for an extended Vietnam tour.
M13a.
Volunteering for Combat or Extension of Service While in Combat.
(No. 1626)
Applicant served two tours in Vietnam then requested
a third tour. At the end of his third tour he extended
for 6 months. He went AWOL after his request for a
second extension was denied.
(No. 5899)
Applicant received his second Honorable D ischarge and
immediately reenlisted for the specific purpose of being
transferred to Vietnam for 3 years.
(No. 12344)
While in Germany, applicant volunteered for field duty
in Vietnam.
(No. 9650)
Applicant worked in supply and transportation in Vietnam
for 32 months. He went to Vietnam in August 68. He
extended his tour until Jan 70 when he reenlisted for
Vietnam.
(No. 9235)
Applicant reenlisted for Vietnam. At the end of his normal
tour, he extended for six months.
(No. 8806)
While in Vietnam, applicants enlistment expired. He reenlisted
a
continuing to serve in Vietnam and finally extending for
another six months.
(No. 7666)
Applicant was extended past his normal date to return from
Vietnam.
(No. 6728)
Applicant went AWOL when his request to be transferred to Vietnam
was denied.
(No. 2819)
Applicant re-enlisted for Vietnam but never reported for
overseas assignment because of personal problems.
M14.
Mitigating Factors: 14
Above Average Military Conduct and Proficiency or Unit Citations - This
factor normally indicates the conduct and proficiency (efficiency)
ratings received before or after his qualifying offense by an applicant
except for those poor ratings which demonstrably resulted from an
applicant's AWOL offenses. In measuring this factor ratings are averaged
and compared with the standards shown below:
The Army reports conduct and efficiency ratings on a one word description
basis (excellent, good, unsatisfactory). Excellent ratings are required.
The Navy reports conduct and proficiency ratings on a scale of 0 to 4.0,
Average conduct scores above 3.0 and average proficiency scores above 2.7
are sufficient.
The Marine Corps reports conduct and proficiency on a scale of 0 to 5.0,
Average scores above 4.0 are sufficient.
The Air Force reports a series of ratings on a scale of 1.0 to 9.0. Average
scores above 7.0 are sufficient.
If the applicants creditable service is less than six months, this factor
does not apply. It applies in a "weak" form for service between six
months and one year. Over one year of creditable service takes the factor
apply in full force.
Even if the applicant does not have above average ratings the factor will
apply if the applicant earned a unit citation. In the absence of either
above average ratings or unit citations, the Board may choose to give
weight to letters of commendation, decorations other than for valor, and other
indications of applicant's performance.
M14a.
Above Average Military Conduct and Proficiency and Unit Citations
(No. 11095)
Every conduct and efficiency rating of the applicant
while he was in the Army was excellent until his first
AWOL.
(No. 14046)
While in the Army, applicant received three excellent conduct
and efficiency ratings.
(No. 7537)
While in the Army, applicant had all excellent ratings for
conduct and efficiency both in Germany and Vietnam. He
also earned the Vietnamese Presidential Unit Citation with
1
palm.
(No. 7298)
While in the Army, applicant received excellent conduct
efficiency ratings except when he was AWOL. He also received
numerous awards and decorations.
(No. 8388)
Applicant's average trait rating for performance, appearance,
conduct, adaptability, and leadership potential was 3.6 in
the Navy, which earned him a promotion to E-3.
(No. 11174)
While in the Navy, applicant received one rating of 3.6 in
conduct prior to his initial AWOL offense.
(No. 6683)
While in the Navy, applicant's enlisted evaluation ratings were
3.2 or higher until the last ones, which ranged from 2.8 to
3.6
(No. 3800)
While in the Marines, applicant had average conduct and
proficiency ratings of 4.6 before his offenses.
(No. 5384)
While in the Marines, applicant's average conduct and proficiency
ratings were 4.1 and 3.9 respectively.
(No. 4470)
Although applicant only received average conduct and proficiency
ratings of 3.8, while in the Marines he was awarded a Presidential
Unit Citation.
(No. 9406)
No conduct/efficiency ratings are reported, but applicant has one
letter of commendation in his file.
M15
Mitigating Factors: 15.
Personal Decorations for Valor - Some decorations (such as the Medal of
Honor, Distinguished Service Cross (Army), Navy Cross, Air Force Cross
and Silver Star) are awarded only for valor. Other decorations (such
as the Legion of Merit, Bronze Star, Air Medal, and Commendation medals)
may be considered as decorations for valor only if accompanied by a
"V" device, which is normally .ecorded immediately after the award in the
personnel files. Vietnamese awards for gallantry are included under this
factor if awarded to the applicant (normally indicated by a palm device).
Unit citations and awards without the valor citation fall under Mitigating
Factor #14. Purple Hearts qualify the applicant for Mitigating Factor #16.
The Awards memo (CLR Vol 1, #1) provides further clarification of this factor.
M15a
Personal Decorations for Valor
(No. 1751)
Applicant received the Silver Star.
(No. 10612)
Applicant received the Bronze Star with "V" device and Oak
leaf cluster and the Vietnamese Gallantry Cross with
Bronze Star.
(No. 14488)
Applicant received the Army Commendation Medal with "V"
1
device.
(No. 7621)
Applicant received the Naval Commendation Medal with
"V" device for combat.
(No. 14075)
Applicant received the Vietnam Gallantry Cross with Palm.
M16.
Mitigating Factors: 16.
Wounds in Combat - This factor indicates that an applicant suffered bodily
injury while in Vietnam. A Purple Heart is sufficient to bring about this
factor, but is not necessary if the wound is otherwise corroborated. Any
injury, however slight, suffices to bring about this factor. If the injury
resulted in a permanent disfigurement or disability, then Mitigating
Factor #5 also applies.
M16a.
Wounds in Combat
(No. 11013)
Applicant served in Vietnam from 26 March 1967 to
22 March 1968 as an infantryman and grenadier. On
12 May 1967, applicant was wounded when he found an
enemy booby-trapped grenade . He told the men in his
platoon to get down but the grenade exploded in his
hands as he attempted to destroy it. He was awarded
the purple heart.
(No. 8386)
Applicant states he received "light wounds to his left
leg due to an exploding shell. Hospital personnel
removed small fragments from the affected area and he
returned to duty immediately. He suffered very little
pain and no after effects or complications.
(No. 8739)
While in Vietnam, applicant was wounded by contusions to the
body when the Sheridan Tank he was driving on a combat
operation hit a hostile mine.
(No. 7863)
Applicant was wounded in action, but never received a purple
heart.
(No. 14046)
As a result of hostile action, applicant received a fragment
wound for which he received the purple heart.
(No. 13348)
During his first tour in Vietnam applicant was wounded in
the hand, necessitating his evacuation to the U.S.
(No. 9894)
Applicant received fragment wounds to his face, right forearm
and thumb from an exploding shell while in combat. He
was evacuated to Japan and then to the U.S. Upon his return
to the U.S., he was restricted in the type of assignments he
could perform: no handling of heavy equipment, no overhead
work, or no pushing or pulling. He continues to complain of
numbness and pain in his right forearm and thumb.